You are here: / THE STATE BREACHED ITS DUTY TO PROTECT AN INMATE FROM AN ATTACK BY OTHER...

Search Results

/ ,

THE STATE BREACHED ITS DUTY TO PROTECT AN INMATE FROM AN ATTACK BY OTHER INMATES; COURT OF CLAIMS REVERSED OVER A TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims and granting judgment in favor of the claimant, over a two-justice dissent, determined claimant, an inmate, demonstrated the state was negligent in failing to protect him from an attack by other inmates:

… [C]laimant—who had an unblemished disciplinary record—cooperated with an investigation by the Department of Corrections and Community Supervision (DOCCS) into an illegal sexual relationship between a female correction officer (Parkinson) and several male inmates. Among the inmates involved in the illegal relationship was a gang leader inside the prison. During the course of the investigation, a state official left documents evidencing claimant’s cooperation where an inmate porter could see them, and the porter shared that information with other inmates, including the gang leader implicated in the investigation. The gang leader then collaborated with other inmates to instigate a brutal assault on claimant. Prior to the attack, one of the inmates informed Parkinson of the plan. * * *

… [T]he trial evidence proves decisively that defendant either knew or should have known that claimant was at serious risk of being attacked as a result of his cooperation. Specifically, defendant knew that claimant had just reported an illegal sexual relationship between Parkinson and an inmate gang leader, and defendant’s failure to safeguard the investigatory file allowed that fact to spread through the inmate population. As defendant’s own witnesses testified at trial, the risk to an inmate in claimant’s position under these circumstances would have been obvious and well-known. Notwithstanding the reasonably foreseeable risk to claimant, defendant failed to take any steps to protect him. In short, given Parkinson’s prior retaliation, the gang leader’s influence, motive, and ability to instigate an attack, and defendant’s failure to safeguard the facility’s investigatory file, we conclude that defendant’s decision to simply leave claimant in his dormitory, surrounded by associates of the gang leader and guarded only by Parkinson, constituted a grave breach of its duty to use “reasonable care under the circumstances” to protect an inmate in its custody … . McDevitt v State of New York, 2021 NY Slip Op 04795, Fourth Dept 8-26-21

 

/

DEFENDANT’S FOR CAUSE JUROR CHALLENGE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant’s for cause challenge to a juror should have been granted:

… [T]he prospective juror in question himself expressed “doubt [as to his] own ability to be impartial in the case at hand” … when he stated during voir dire that he was “not sure” whether he could be fair and impartial due to his family members’ experience with domestic violence … . The court erred when it did not obtain thereafter any “unequivocal assurance” from the prospective juror that he could render an impartial verdict … . People v Tillmon, 2021 NY Slip Op 04848, Fourth Dept 8-26-21

 

/ , , , ,

NO NOTICE OF CLAIM WAS REQUIRED IN THIS NUISANCE, TRESPASS AND INVERSE TAKING ACTION AGAINST A VILLAGE BECAUSE MONEY DAMAGES WERE INCIDENTAL TO THE DEMAND FOR INJUNCTIVE RELIEF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a General Municipal Law notice of claim was not required in this action for nuisance, trespass, inverse taking and injunctive relief against a village. The village had installed drainage pipes in the roadway near plaintiff’s property and then repaved the road. Plaintiff alleged water runoff from the roadway flooded his property caused the foundation to collapse. Because the action was essentially for money. No notice of claim was necessary because the money damages were deemed incidental to the demand for injunctive relief. The court noted that a trespass and a taking may be pled in the alternative:

“[I]t is well settled that a notice of claim is not required for an action brought in equity against a municipality where the demand for money damages is incidental and subordinate to the requested injunctive relief” … . Viewing the amended complaint in the light most favorable to plaintiff … , we conclude that the four remaining causes of action alleged continuing harm and primarily sought equitable relief … .

… “[T]he coincidental character of the money damages sought is ‘truly ancillary to an injunction suit, i.e., there is a continuing wrong presenting a genuine case for the exercise of the equitable powers of the court’ ” … . …

Although “[a]n entry cannot be both a trespass and a taking” … , the issue here is the sufficiency of the pleading, and plaintiff sufficiently pleaded both causes of action, albeit in the alternative. Friscia v Village of Geneseo, 2021 NY Slip Op 04793, Fourth Dept 8-26-21

 

/ , , ,

PLAINTIFFS RAISED A QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE RENDERED THE LEGAL MALPRACTICE ACTION TIMELY; REFERENCE TO THE “ENFORCEMENT” OF THE LOAN DOCUMENTS INDICATED THE POSSIBILITY OF REPRESENTATION AFTER THE DATE OF THE LOAN TRANSACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs raised a question of fact whether the continuous representation doctrine rendered the legal malpractice action timely:

The continuous representation doctrine tolls the limitations period “where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” … , and ” ‘where the continuing representation pertains specifically to [that] matter’ ” … . Here, plaintiffs submitted communication between the Florida attorney and defendants in which the Florida attorney indicated that defendants’ role as New York counsel included “enforcement” of the 2014 loan transaction documents. … [W]e conclude that questions of fact exist regarding the extent of defendants’ representation of plaintiffs and, more specifically, whether “enforcement” of the loan documents contemplated a continued representation until the loan was paid in full and the transaction completed. Ray-Roseman v Lippes Mathias Wexler Friedman, LLP, 2021 NY Slip Op 04841,, Fourth Dept 8-26-21

 

/ ,

THE SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO DIRECT THAT THE SENTENCE RUN CONSECUTIVELY WITH A SENTENCE WHICH HAD NOT YET BEEN IMPOSED BY A DIFFERENT COURT; THE APPROPRIATE APPELLATE REMEDY IS TO STRIKE THE DIRECTIVE (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, In a full-fledged opinion by Justice NeMoyer, determined the sentencing court did not have the authority to order the sentence to run consecutively with a sentence that had not yet been imposed by a different court. The appropriate appellate remedy is to strike the directive, rather than send the matter back for resentencing:

A sentencing court has no power to dictate whether its sentence will run concurrently or consecutively to another sentence that has not yet been imposed. When a sentencing court violates that rule and purports to direct the relationship between its present sentence and an anticipated forthcoming sentence, the proper remedy is usually to strike the improper directive, not to remit for a new sentencing proceeding at which the court could exercise the very power it lacked originally. * * *

Rather than remitting for resentencing, the proper remedy under these circumstances is to simply vacate County Court’s improper directive with respect to consecutive sentencing. That remedy will put defendant in the same position as if County Court had not issued that illegal directive in the first place. Such a remedy will also adequately “protect” the People’s interests, since it will place them in the exact position they would have occupied had County Court not issued its illegal directive. Indeed, because the People had no legitimate right or interest in County Court’s original illegal sentence, the People have no right or interest that could be “protected” with a remittal order calculated only to achieve the very outcome — consecutive sentencing — that they had no right to obtain in the first place. People v Barthel, 2021 NY Slip Op 04834, Fourth Dept 8-26-21

 

/ ,

THE MAYOR’S STATEMENTS WERE TRUE AND DID NOT EVINCE MALICE; PLAINTIFF’S TORTIOUS INTERFERENCE WITH CONTRACT ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s tortious interference with contract cause of action should have been dismissed. Plaintiff, was the head of a charter school, The mayor of Rochester (Warren) criticized the school for refusing to allow the school’s first African American valedictorian to give a speech at graduation:

To establish a tortious interference cause of action, a plaintiff must establish “(1) that [the plaintiff] had a business relationship with a third party; (2) that the defendant knew of that relationship and intentionally interfered with it; (3) that the defendant acted solely out of malice or used improper or illegal means that amounted to a crime or independent tort; and (4) that the defendant’s interference caused injury to the [plaintiff’s] relationship with the third party” … . …

Plaintiff testified that he did not allow the student to speak at the graduation ceremony, and the record establishes that Warren’s statements, i.e., that “[the student’s] school did not allow him to give his valedictorian speech. For some reason, his school, in a country where freedom of speech is a constitutional right, in the city of Frederick Douglass[,] turned his moment of triumph into a time of sorrow, and pain,” that the student would “never get that moment back,” and that “[t]his is not a time to punish a child because you may not like what they say,” were substantially true … . Moreover, in her statements, Warren did not mention plaintiff by name and referred only to the conduct of the “school,” and the statements were made during Warren’s introduction of the student in the context of providing him with an opportunity to present publicly the valedictory speech that the student was not permitted to give at his graduation ceremony. On that evidence, it cannot be said that defendants “acted solely out of malice” toward plaintiff … . Munno v City of Rochester, 2021 NY Slip Op 04830, Fourth Dept 8-26-21

 

/

THERE WAS A QUESTION OF FACT WHETHER A DEFENDANT WHICH DID NOT OWN THE AREA WHERE PLANTIFF SLIPPED AND FELL COULD BE LIABLE UNDER THE SPECIAL USE DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there was question of fact whether defendant Ayer made a “special use” of the area of the pavement defect where plaintiff fell:

Although the Ayer defendants met their initial burden on their motion by establishing that the defect in the pavement was located on a portion of the alley owned by the Benderson defendants, the Benderson defendants raised an issue of fact in opposition with respect to whether Ayer could nevertheless be found responsible for plaintiff’s injury under application of the special use doctrine … . Specifically, the Benderson defendants’ submissions established that the defect in the pavement was located close to the property line, that an entrance to Ayer’s apartments was near the defect, and that fixtures attached to the building on Ayer’s property encroached over the property line near the defect. Therefore, the Benderson defendants raised an issue of fact as to whether Ayer had the requisite “access to, and control of,” the alley where plaintiff fell to give rise to a duty of care … . Jargiello v Ayer Dev., LLC, 2021 NY Slip Op 04828, Fourth Dept 8-26-21

 

/ ,

SOMEONE WAS TRYING TO OPEN THE DOOR TO DEFENDANT’S HOME AND SHE SHOT THROUGH THE DOOR, KILLING HER BOYFRIEND; DEFENDANT’S REQUEST FOR A “LAWFUL TEMPORARY POSSESSION OF A WEAPON” JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; STRONG DISSENT (FOURTH DEPT).

The Fourth Department, ordering a new trial on the possession of a weapon charge, over a strong dissent, ,determined defendant was entitled to a “lawful temporary possession of a weapon” jury instruction. Someone was trying to open the door to defendant’s home and she shot through the door, killing her boyfriend. She was acquitted of homicide:

Defendant testified that she had inadvertently discovered the firearm while attempting to protect herself in the face of an imminent threat, i.e., a person forcibly trying to enter her home. Specifically, she thought that her estranged husband, who had previously attacked her in her home, was the person attempting to forcibly enter the home. She discovered the firearm while trying to find in her kitchen an object to defend herself, and she did not know beforehand that the firearm was there. When the person at the door continued trying to enter the home, defendant shot through the door to scare him away. Thereafter, defendant saw that she had shot the victim—her boyfriend. She then dropped the firearm, and started to provide first aid. The firearm was not recovered after the shooting, and defendant did not know what happened to it. …

… [W]e conclude that there is a reasonable view of the evidence … that she came into possession of the firearm in a legally excusable manner that was not ” ‘utterly at odds with [any] claim of innocent possession’ ” … . …

We also conclude … there is a reasonable view thereof that defendant’s use of the firearm did not require a finding that she had used it in a dangerous manner … . People v Ruiz, 2021 NY Slip Op 04827, Fourth Dept 8-26-21

 

/ , ,

THE NONDOMICILIARY DID NOT HAVE MINIMUM CONTACTS WITH NEW YORK; NEW YORK DID NOT HAVE PERSONAL JURISDICTION OVER THIS TRUST LITIGATION (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined New York did not have jurisdiction over this trust litigation:

In the petition, the settlor and beneficiary of the trust (decedent) sought an accounting and removal of respondent, a Virginia resident, as trustee. The trust was created in 1996 in New Jersey. At the time the trust was created, decedent was a resident of Illinois and respondent was a resident of Georgia. Respondent administered the trust from Georgia until he relocated to Virginia, and he administered the trust from Virginia thereafter. Decedent relocated to New York in 2016. Solely as a consequence of decedent’s choice of residence, respondent sent to New York occasional trust-related correspondence, including “five or six” checks disbursing trust assets.

… “Due process requires that a nondomiciliary have ‘certain minimum contacts’ with the forum and ‘that the maintenance of the suit does not offend traditional notions of fair play and substantial justice’ ” … A nondomiciliary has minimum contacts with New York if he or she “purposefully avails” himself or herself of “the privilege of conducting activities within” New York … . thereby ” ‘invoking the benefits and protections’ ” of New York’s laws … . Our focus is on ” ‘the relationship among the [respondent], the forum, and the litigation’ “… . We conclude that respondent lacks the requisite minimum contacts with the New York forum. He does not live, own property, or conduct business in New York. The first and only relationship that New York had to the subject trust was 20 years after its creation, when decedent became domiciled in New York and respondent disbursed trust assets to her in New York … . Matter of Murad Irrevocable Trust, 2021 NY Slip Op 04823, Fourth Dept 8-26-21

 

/ , ,

DEFENDANT WAS ENTITLED TO A HEARING ON THE MOTION TO VACATE THE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS DESPITE THE ABSENCE OF AN AFFIDAVIT FROM TRIAL COUNSEL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant was entitled to a hearing on the motion to vacate the conviction on ineffective assistance grounds, despite the absence of an affidavit from trial counsel:

[Defendant’s] claim of ineffective assistance of counsel was properly raised on his CPL 440.10 motion inasmuch as it is based on matters outside the trial record … . Here, defendant’s submissions on the motion raise factual issues requiring a hearing concerning trial counsel’s failure to interview and call the two exculpatory witnesses … , even in the absence of an affidavit from trial counsel … . We thus conclude that defendant is entitled to a hearing on his entire claim of ineffective assistance of counsel inasmuch as ” ‘such a claim constitutes a single, unified claim that must be assessed in totality’ ” … . People v Ross, 2021 NY Slip Op 04820, Fourth Dept 8-26-21

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy