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SUPREME COURT SHOULD HAVE ACCEPTED PLAINTIFF’S LAW-OFFICE-FAILURE EXCUSE FOR LATE SUBMISSION OF PAPERS OPPOSING DFENDANT’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate a default judgment, based upon law office failure, should have been granted:

… [T]he defendant moved for summary judgment dismissing the complaint. That motion was initially returnable on October 20, 2016, but the return date was adjourned to December 8, 2016, with opposition papers to be served by November 21, 2016. The plaintiff served opposition to the motion on or about November 28, 2016 … . In an order entered February 2, 2017, the Supreme Court granted the defendant’s motion for summary judgment. …

… [G]iven the totality of all relevant factors, including the delay of only approximately seven days from the due date for opposition papers to the time the plaintiff served opposition papers, the lack of any evidence of willfulness by the plaintiff, or prejudice to the defendant from the delay, and the strong public policy in favor of resolving cases on the merits, the Supreme Court improvidently exercised its discretion in not accepting the plaintiff’s excuse of law office failure … . … [T]he plaintiff demonstrated that he had a potentially meritorious opposition to the defendant’s motion for summary judgment. Stango v Byrnes, 2021 NY Slip Op 06877, Second Dept 12-8-21

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT SPECIFICALLY ADDRESS DEFENDANT’S EXPERT’S OPINIONS, THEREBY WARRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (FIRST DEPT).

The Frist Department determined plaintiff’s expert’s affidavit in this medical malpractice action was conclusory and did not address defendants’ expert’s opinions specifically. Therefore defendant’s motion for summary judgment was properly granted:

… [P]laintiff failed to raise an issue of fact. His expert, who is board certified in surgery and thoracic surgery, was qualified to render an opinion … . However, the opinion is conclusory and speculative and fails to address defendant’s expert’s opinions specifically … . In addition, in forming his opinion, plaintiff’s expert disregarded facts and medical evidence in the record, including a post-operative pathology report that indicated that plaintiff had a connective tissue disorder that put him at greater risk for developing serious complications if his aortic aneurysm were left untreated … . Akel v Gerardi, 2021 NY Slip Op 06792, First Dept 12-7-21​

 

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THE RESPONDENT IN THIS JUVENILE DELINQUENCY PROCEEDING WAS ENTITLED TO IMPEACHMENT EVIDENCE CONCERNING THE ARRESTING OFFICERS TO THE EXTENT ALLOWED UNDER CRIMINAL PROCEDURE LAW (CPL) 245.20 (FIRST DEPT).

The First Department, reversing Family Court, determined the respondent-appellant in this juvenile delinquency proceeding was entitled to impeachment evidence concerning the arresting officers to the extent authorized by Criminal Procedure Law (CPL) 245.20:

While not all provisions of the Criminal Procedure Law are applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]) under the circumstances presented here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws (US Const, 14th Amend; NY Const, art I, § 11 …).

A respondent in a juvenile delinquency proceeding has the same right to cross-examine witnesses as a criminal defendant … , and there is no reason to allow more limited access to impeachment materials in a juvenile suppression or fact-finding hearing than in a criminal suppression hearing or trial. The need for impeachment evidence is equally crucial in both delinquency and criminal proceedings. A similarly situated defendant in a criminal proceeding would be entitled to access to the impeachment materials requested by appellant. Matter of Jayson C., 2021 NY Slip Op 06794, First Dept 12-7-21

 

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PURSUANT TO THE DOCTRINE OF TAX ESTOPPEL, TAX FORMS SIGNED BY DECEDENT INDICATING PROPERTY WAS TRANSFERRED WITHOUT CONSIDERATION PRECLUDED THE CONSTRUCTIVE TRUST CAUSE OF ACTION BASED UPON AN ALLEGED PROMISE TO PAY PETITIONERS PROCEEDS FROM THE SALE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the constructive trust cause of action should have been dismissed under the doctrine of tax estoppel. The claim that decedent, Joseph Scott, Jr. promised to pay petitioners the proceeds from the sale of property was belied by the tax forms signed by Scott which indicated the property was transferred without consideration:

The tax forms utterly refute petitioners’ factual allegations that, in consideration for his interest in the Amagansett property, Joseph Scott, Jr. paid respondents more than $410,000 in his lifetime as an advance on the sale of his Woodbine property … . Since petitioners are precluded from arguing that there was an oral agreement that Joseph Scott, Jr. would pay respondents’ decedents consideration for the Amagansett property, they cannot allege that a constructive trust should be imposed on the property … . The application of the tax estoppel doctrine prevents, as a matter of law, petitioners from establishing an essential element of a claim for a constructive trust: a promise by respondents’ decedents to Joseph Scott, Jr. regarding the Amagansett property. Matter of Chimsanthia, 2021 NY Slip Op 06796, First Dept 12-7-21

 

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PLAINTIFF ALLEGED THE COLLAPSE OF A CEILING CAUSED A BULGING DISC IN HER SPINE; SUPREME COURT HELD THE SURGERY TO REPAIR THE DISC CONSTITUTED SPOLIATION OF EVIDENCE AND PROHIBITED PLAINTIFF FROM INTRODUCING ANY EVIDENCE OF THE SPINE INJURY; THE 1ST DEPARTMENT REVERSED HOLDING THAT A SPOLIATION ANALYSIS CANNOT BE APPLIED TO MEDICAL TREATMENT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Scarpulla, determined plaintiff’s surgery to repair a bulging disc in her spine should not have been deemed spoliation of evidence. Plaintiff alleged the bulging disc was caused by the collapse of the ceiling in her apartment. Supreme Court prohibited plaintiff from introducing any evidence of the disc injury:

Spoliation analysis has long been applied to a party’s destruction of inanimate evidence … .

The state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an “obligation,” to preserve his or her body in an injured state so that a defendant may conduct an ME, is antithetical to our belief in personal liberty and control over our own bodies. Gilliam v Uni holdings, 2021 NY Slip Op 06798, First Dept 12-7-21

 

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THE TRIAL COURT PROPERLY ALLOWED EXPERT TESTIMONY ABOUT “COMMUNITY GUNS,” A CONCEPT USED BY GANGS TO MAKE GUNS AVAILABLE WHILE AVOIDING BEING CAUGHT POSSESSING THE GUNS (FIRST DEPT).

The First Department noted that the trial court properly allowed expert testimony about “community guns,” a concept used by gangs to make guns available while avoiding being caught possessing the guns:

The court providently exercised its discretion in allowing expert testimony on what the expert described as “community guns.” This concept involved the methods used by gangs to have their shared firearms ready to use while avoiding being caught in possession of these weapons, including by means of keeping firearms outdoors in closed containers under their constant observation but not on anyone’s person. This testimony was necessary to explain the unusual behavior of defendant and persons who could be inferred to be his fellow gang members regarding their handling of the backpack containing the pistol, including evidence that defendant left the backpack unattended in the gang-controlled courtyard for two hours. These matters went beyond the general legal concept of constructive possession, they were not within the jurors’ ordinary knowledge, and they tended to prove defendant’s knowing and voluntary possession of the pistol … . People v Manley, 2021 NY Slip Op 06814, First Dept 12-7-21

 

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THE PERSISTENT ABUSE STATUTE ENCOMPASSES THREE DISTINCT TYPES OF SEXUAL CONTACT; THE INDICTMENT DID NOT IDENTIFY THE SPECIFIC GENRE OF SEXUAL CONTACT WITH WHICH DEFENDANT WAS CHARGED; THE INDICTMENT THEREFORE DID NOT PROVIDE FAIR NOTICE OF THE ACCUSATIONS (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined the indictment failed to charge a particular crime:

The indictment was jurisdictionally defective because it “d[id] not effectively charge the defendant with the commission of a particular crime” … . A person is guilty of persistent sexual abuse … when the person commits any of three separately codified offenses — forcible touching … , second-degree sexual abuse … , or third-degree sexual abuse … — and the remaining requirements of § 130.53, which are not at issue in this case, are met. The indictment in this case charged defendant with “PERSISTENT SEXUAL ABUSE, in violation of Penal Law § 130.53.” In its sole factual allegation, it alleged that, in New York County on November 17, 2017, defendant “subjected an individual known to the Grand Jury to sexual contact.”

This abbreviated count failed to specify which of the three discrete qualifying offenses defendant was alleged to have committed. The bare allegation of “sexual contact” did not fulfill this function because sexual contact is an element of all three qualifying offenses. In failing to identify the qualifying offense, this count failed to satisfy the fundamental purposes of an indictment. It did not “provide[] the defendant with fair notice of the accusations made against him so that he [would] be able to prepare a defense” and it did not “provide[] some means of ensuring that the crime for which the defendant [was] brought to trial [was] in fact one for which he was indicted by the Grand Jury” … . People v Hardware, 2021 NY Slip Op 06772, First Dept 12-2-21

 

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POLICE OFFICERS PROPERLY ALLOWED TO IDENTIFY THE PERSON IN A SURVEILLANCE VIDEO AS THE DEFENDANT (FIRST DEPT).

The First Department noted that police officers were properly allowed to identify the person in a videotape as the defendant:

The court providently exercised its discretion in permitting two officers to give lay opinion testimony that defendant was the man depicted in a surveillance videotape of the crime. This testimony “served to aid the jury in making an independent assessment regarding whether the man in the was indeed the defendant” … . The quality of the videotape was poor, defendant’s appearance had changed, and the officers had spent sufficient time with defendant to be in a better position than the jurors to identify him on the video … . Any potential prejudice was minimized by the court’s limiting instructions that the officers’ testimony was merely to aid the jury in its independent assessment of whether the man in the video was defendant … . People v Lee, 2021 NY Slip Op 06774, First Dept 12-2-21

 

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THE WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION WERE JURISDICTIONALLY DEFECTIVE (FIRST DEPT).

The First Department, reversing defendant’s conviction by guilty plea and dismissing the superior court information (SCI), determined the waiver of indictment and SCI were jurisdictionally defective:

… [D]efendant’s waiver of indictment and subsequent SCI were jurisdictionally defective, because the charged crime of attempted robbery in the third degree in the SCI was not named in the misdemeanor complaint and was a greater offense than those charged therein (see CPL 195.20 …). The waiver of indictment was also jurisdictionally infirm because defendant, who was arraigned on a misdemeanor complaint, was not held for grand jury action (see CPL 195.10[1]…). People v Maglione, 2021 NY Slip Op 06775, First Dept 12-2-21

 

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PETITIONER, A PROBATIONARY EMPLOYEE AND THE ONLY FEMALE MANUAL-LABOR EMPLOYEE OF THE DEPARTMENT OF PUBLIC WORKS, DEMONSTRATED SHE WAS TERMINATED SOLELY BECAUSE OF HER GENDER; SUPREME COURT PROPERLY REINSTATED HER WITH BACK PAY (THIRD DEPT).

The Third Department determined petitioner, a probationary employee of the Department of Public Works (DPW), was terminated based solely upon her gender and was properly reinstated with back pay:

Despite receiving two interim probationary reports that indicated her performance was satisfactory during the course of her employment, on April 3, 2018, petitioner was called to a meeting with respondent Daniel Crandell, DPW’s Commissioner, at which she was terminated after being told that she was “just not a good fit.” Although petitioner received a written termination letter at the close of that meeting, petitioner received no prior warning or notice of any problematic conduct. Notably, petitioner was the only female employee of DPW that was in a position of manual labor at the time of her termination. * * *

“Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason” … . * * *

Supreme Court found that, “[i]n the absence of any credible evidence that her work performance provided a basis for her termination, [it was] compelled to find that the only reason she was terminated was because of her gender.” Significantly, the court found respondents’ assertions regarding “[p]etitioner’s alleged argumentative attitude” to “reflect more of a post-termination justification for her dismissal than a valid or proper basis for the termination of her employment.” … [R]espondents failed to meet their burden of establishing a legitimate, nondiscriminatory purpose for petitioner’s termination … . Matter of Triumpho v County of Schoharie, 2021 NY Slip Op 06727, Third Dept 12-2-21

 

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