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THE FEDERAL CONSPIRACY-TO-DEAL-IN-FIREARMS STATUTE HAS DIFFERENT ELEMENTS THAN ITS NEW YORK EQUIVALENT AND THEREFORE CAN NOT BE THE BASIS OF A SECOND FELONY OFFENDER ADJUDICATION (SECOND DEPT).

The Second Department vacated defendant’s second felony offender adjudication because the predicate federal felony did not have the same elements as the New York equivalent:

… [T]he defendant’s federal conviction of conspiracy to deal in firearms under section 371 of title 18 of the United States Code is not a “predicate felony conviction” .. , because the federal conspiracy statute contains different elements than its equivalent in New York such that it is possible to violate the federal statute without engaging in conduct that is a felony in New York … . People v Mohabir, 2021 NY Slip Op 01789, Second Dept 3-24-21

 

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THE PEOPLE USED DEFENDANT’S PRETRIAL SILENCE AGAINST HIM IN THEIR DIRECT CASE; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department reversed defendant’s conviction and ordered a new trial because the People “improperly used [defendant’s] pretrial silence against him in their direct case.” The decision does not explain the facts. Although the error was not preserved, the appeal was considered in the interest of justice:

“[I]t is a well-established principle of state evidentiary law that evidence of a defendant’s pretrial silence is generally inadmissible” … . Here, as the defendant correctly contends, the People improperly used his pretrial silence against him on their direct case … . Since this evidence was used by the People on their direct case, their reliance upon cases in which “conspicuous omissions from the defendants’ statements to police” had properly been used during cross-examination of the defendants to impeach the credibility of their exculpatory trial testimony is misplaced … . Contrary to the People’s contention, the error in admitting evidence of the defendant’s pretrial silence during their direct case was not harmless … . Although this issue is unpreserved for appellate review … , we reach it in the exercise of our interest of justice jurisdiction, and on that basis, reverse the judgment and remit the matter … for a new trial. People v DeLaCruz, 2021 NY Slip Op 01785, Second Dept 3-24-21

 

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BECAUSE PETITIONER-WIFE DID NOT COMPLY WITH THE RELEVANT PROVISIONS OF THE EPTL, SHE WAS NOT ENTITLED TO HER ELECTIVE SHARE OF HER DECEASED HUSBAND’S DEATH BENEFIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner-wife was not entitled to her elective share of her deceased husband’s death benefit from the New York City Employees’ Retirement System (NYCERS). Her husband’s father was the named beneficiary. Because petitioner did not comply with the relevant provisions of the Estate, Powers and Trusts Law (EPTL), NYCERS was justified in distributing the funds to her husband’s father:

A surviving spouse’s election to take a share of the decedent’s estate “must be made within six months from the date of issuance of letters testamentary or of administration, as the case may be, but in no event later than two years after the date of decedent’s death” (EPTL 5-1.1-A[d][1]). A surviving spouse must file written notice of such election in the Surrogate’s Court that issued the letters testamentary or of administration (see EPTL 5-1.1-A[d][1]).

The provisions of EPTL 5-1.1-A(b) “shall not prevent a corporation or other person from paying or transferring any funds or property to a person otherwise entitled thereto, unless there has been served personally upon such corporation or other person a certified copy of an order enjoining such payment or transfer made by the surrogate’s court having jurisdiction of the decedent’s estate or by another court of competent jurisdiction” (EPTL 5-1.1-A[b][4] …]). EPTL 5-1.1-A(b)(4) further provides that a “corporation or other person paying or transferring any funds or property described in clause (G) of subparagraph one of this paragraph,” which includes death benefits, “to a person otherwise entitled thereto, shall be held harmless and free from any liability for making such payment or transfer, in any action or proceeding which involves such funds or property.”

Here, it is undisputed that the petitioner did not serve NYCERS with an order enjoining it from paying the entirety of the decedent’s death benefit to the named beneficiary, Ghulam. Accordingly, pursuant to EPTL 5-1.1-A(b)(4), NYCERS “shall be held harmless and free from any liability for making such payment” in the instant proceeding. Matter of Baig, 2021 NY Slip Op 01763, Second Dept 3-24-21

 

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THE FAILURE TO ALLEGE SPECIAL DAMAGES WITH PARTICULARITY REQUIRED THE DISMISSAL OF THE PRIMA FACIE TORT AND DEFAMATION CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s motion to dismiss the prima facie tort and slander causes of action should have been dismissed because the allegations of special damages were not stated with particularity:

… [I]n a cause of action to recover damages for slander, where the defamation alleged does not fall into one of the per se categories, a plaintiff suing in slander must plead special damages … . Similarly, a plaintiff seeking to recover damages for prima facie tort must allege special damages … . Here, as to both causes of action, the plaintiff’s nonspecific conclusory allegations failed to allege special damages with specific particularity … . Mable Assets, LLC v Rachmanov, 2021 NY Slip Op 01759, Second Dept 3-24-21

 

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PLAINTIFF, AN HVAC WORKER, LEANED ON A PIPE RAILING AS HE WAITED FOR AN ELEVATOR TO TAKE HIM TO THE FLOOR WHERE HIS WORK SITE WAS; THE PIPE RAILING GAVE WAY AND PLAINTFF FELL FOUR OR FIVE FEET TO A CONCRETE SLAB; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was at the construction site waiting for an elevator to take him to the floor where he was working (HVAC work) when he leaned back on a pipe railing which gave way and he fell four or five feet to a concrete slab:

… [T]he safety devices prescribed by Labor Law § 240(1) “are for the use or protection of persons in gaining access to or working at sites where elevation poses a risk” … .

… [T]he plaintiff established that he needed to use the elevator, one of two at opposite ends of the construction site, to gain access to the various floors where he would be working throughout the day. Thus, accessing and waiting at the loading dock for the elevator, even before working hours began, was necessary to the plaintiff’s work. We therefore conclude that the loading dock from which the plaintiff fell is included under “those parts, which must be accessed by a worker to do his or her job” … . Under the circumstances of this case, the fact that the plaintiff was not engaged in HVAC work at the moment of his accident does not preclude the application of Labor Law § 240(1). Crutch v 421 Kent Dev., LLC, 2021 NY Slip Op 01751, Second Dept 3-24-21

 

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EVEN THOUGH PLAINTIFF MAY HAVE ACCEPTED DEFECTIVE GOODS WITHIN THE MEANING OF THE UCC, THE UCC PROVIDES REMEDIES, INCLUDING THE RIGHT TO BE MADE WHOLE AND THE RIGHT TO REVOKE THE ACCEPTANCE; PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Christopher, reversing Supreme Court, determined the verdict should not have been set aside in this consumer law case. Plaintiff ordered kitchen cabinets. When they arrived one box was opened by defendant-seller’s representative to confirm the color. Plaintiff then signed a “Completion Certificate” which indicated the cabinets had been found satisfactory. In fact the cabinets were not satisfactory as revealed when they were installed. The Second Department noted that, although under the UCC plaintiff, based on the “Completion Certificate,” could not reject the goods, the UCC provides that she could be made whole, and, in fact, could revoke her acceptance, in addition to other available remedies. Therefore plaintiff’s verdict awarding $30,000 should not have been set aside:

“Acceptance of goods by the buyer precludes rejection of the goods accepted” (UCC 2-607[2]; see Comment 2). However, “acceptance does not of itself impair any other remedy provided by [article 2 of the UCC] for non-conformity” (UCC 2-607[2] …). “Thus, ‘acceptance leaves unimpaired the buyer’s right to be made whole, and that right can be exercised by the buyer not only by way of cross-claim for damages, but also by way of recoupment in diminution or extinction of the [purchase] price'” … . …

Moreover, after the buyer has accepted allegedly non-conforming goods, the buyer may revoke acceptance of the goods under certain limited circumstances and “obtain the same remedies as are available upon rejection” … . …

… [E]ven if the jury found that the plaintiff did not properly revoke her acceptance of the cabinets, the jury could have found that the plaintiff was entitled to other remedies pursuant to UCC 2-607 … .

… [T]he jury’s verdict that … the defendant breached their contract with the plaintiff, breached the implied warranty of fitness, and that the plaintiff was entitled to damages in the amount of $30,000 was supported by a valid line of reasoning and permissible inferences from the evidence at trial … . Campbell v Bradco Supply Co., 2021 NY Slip Op 01745, Second Dept 3-24-21

 

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THE NYPD IS A DEPARTMENT OF THE CITY AND CANNOT BE SEPARATELY SUED; THE 42 USC 1983 CIVIL RIGHTS VIOLATION CAUSE OF ACTION WAS NOT SUPPORTED BY SUFFICIENT ALLEGATIONS OF AN UNCONSTITUTIONAL CITY CUSTOM OR POLICY; THE OTHER CAUSES OF ACTION AGAINST THE CITY FALL BECAUSE THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST AND THE FORCE USED BY THE POLICE WAS NOT EXCESSIVE UNDER THE CIRCUMSTANCES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the 42 USC 1983 violation-of-civil rights, negligence, assault and battery, excessive force, false arrest and false imprisonment causes of action against the New York Police Department (NYPD) and New York City (City) should have been dismissed. Plaintiff was shot when, in the midst of a psychotic episode, she approached the police with a knife. She was indicted, tried and found not responsible by reason of mental disease or defect. The court noted that the NYPD is a department of the City and cannot be sued separately. The court also noted the 1983 action against the City failed to state a cause action because no city policy or custom was identified as violating plaintiff’s constitutional rights:

To hold a municipality liable under 42 USC § 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy … . Here, “[a]lthough the complaint alleged as a legal conclusion that the defendants engaged in conduct pursuant to a policy or custom which deprived the plaintiff of certain constitutional rights, it was wholly unsupported by any allegations of fact identifying the nature of that conduct or the policy or custom which the conduct purportedly advanced” … . * * *

The Supreme Court also should have granted that branch of the defendants’ motion which was for summary judgment dismissing the false arrest and false imprisonment causes of action insofar as asserted against the City. The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest and false imprisonment … , including causes of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law … . Brown v City of New York, 2021 NY Slip Op 01743, Second Dept 3-24-21

 

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THE COMPLAINT STATED A CAUSE OF ACTION AGAINST PORT AUTHORITY FOR FAILING TO INSTALL FENCING TO PREVENT PLAINTIFFS’ DECEDENTS FROM COMMITTING SUICIDE BY JUMPING FROM THE GEORGE WASHINGTON BRIDGE (FIRST DEPT). ​

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Webber, determined the complaint alleging defendant Port Authority was negligent in failing to install fencing to prevent plaintiffs’ decedents from jumping from the George Washington Bridge (GWB) to commit suicide should not have been dismissed:

… [P]laintiffs allege that the GWB was unreasonably dangerous because the low four-foot railing on the south walkway facilitated suicides and that the Port Authority had long been aware that the bridge had become a “suicide magnet” based upon hundreds of deaths that had occurred at the bridge over the decades preceding these cases. The complaints allege that suicide attempts at the GWB have occurred at the rate of approximately 1 every 3 1/2 days, and that about 93 deaths occurred from 2009 up to 2016. The complaints assert that the Port Authority, as the owner of the GWB, “owed a duty to the public,” including to “protect the public from foreseeable harm,” “take reasonable steps to protect public safety,” “take reasonable steps to prevent suicide,” “not increase the risk of suicide by inaction,” and “protect human life.” Additionally, plaintiffs allege that the Port Authority “failed to exercise reasonable care in constructing, operating, and maintaining the [GWB]” and were negligent “in falling to provide for the safety and protection for vulnerable or impulsive individuals.” …

Viewing the allegations of the complaint in the light most favorable to plaintiff, we find that plaintiffs have set forth sufficient facts which, if true, show that the Port Authority, as owner of the GWB, was acting in a proprietary capacity in the design and maintenance of the bridge, and, therefore was subject to suit under the ordinary rules of negligence applicable to nongovernmental parties. …

We find that the complaints sufficiently allege that the low railing of the bridge, and Port Authority’s awareness of the frequent suicide attempts on the bridge over previous decades, give rise to a duty to install fencing to protect against foreseeable harm to withstand a motion to dismiss … . Feldman v Port Auth. of N.Y. & N.J., 2021 NY Slip Op 01719, First Dept 3-23-21

 

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PLAINTIFF ALLEGED HE STUMBLED WHEN HIS FOOT HIT ROLLED UP CARPETS AND THEN HE TRIPPED ON A RAISED SIDEWALK FLAG IN THIS SLIP AND FALL CASE; DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CARPETS, BUT THERE WERE QUESTIONS OF FACT ABOUT DEFENDANT’S NOTICE OF THE RAISED FLAG AND WHETHER THE FLAG WAS TRIVIAL; THE COURT NOTED THERE CAN BE MORE THAN ONE PROXIMATE CAUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant in this slip and fall case did not eliminate issues of fact re: notice and nature of the raised sidewalk flag. There were rolled up carpets on the sidewalk, of which defendant had no notice. Plaintiff alleged he stumbled when his foot hit the carpet and then he tripped on the raised flag. The court noted there can be more than one proximate cause of an accident:

… [T]here are issues of fact as to whether defendant had constructive notice of the sidewalk defect, whether the defect was trivial, and whether it proximately caused plaintiff’s fall. Defendant failed to offer specific evidence as to when the sidewalk was last inspected, relying only on vague testimony concerning the manager’s occasional visits to the shopping center … . Plaintiff’s submission of photographs depicting the height differential in the raised sidewalk flag to be about one inch also raised an issue of fact as to whether the defect was nontrivial … . While plaintiff testified that he first tripped on the rolled-up carpets before coming into contact with the sidewalk defect, “there can be more than one proximate cause of an accident” … . Abraham v Dutch Broadway Assoc. L.L.C., 2021 NY Slip Op 01711, First Dept 3-23-21

 

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SENTENCE DEEMED UNDULY HARSH (FOURTH DEPT).

The Fourth Department determined defendant’s sentence was unduly harsh and directed that all but one of the sentences run concurrently:

For the kidnapping and murder counts, defendant was sentenced to concurrent terms of incarceration of 25 years to life. For the burglary and robbery counts, related to the crimes committed at the victim’s residence, defendant received determinate terms of incarceration of 15 years. Although those sentences run concurrently with each other, they were directed to run consecutively to the kidnapping and murder sentences. In addition, defendant received an indeterminate term of incarceration of 1⅓ to 4 years for the count of tampering with physical evidence, which was to run consecutively to all other counts.

It is well settled that this Court’s “sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court” … and that “we may ‘substitute our own discretion for that of a trial court which has not abused its discretion in the imposition of a sentence’ ” … . Here, the record establishes that defendant, who was 22 years old and gainfully employed at the time of the crimes, had no prior criminal history. In addition, although she was an accessory to the crimes committed at the victim’s residence, the evidence establishes that she was one block away during that incident and did not physically participate in those crimes. There is also evidence suggesting that defendant was the victim of repeated acts of domestic abuse perpetrated by one of the codefendants.

Under the circumstances, we conclude that the sentence imposed is unduly harsh and severe. We therefore modify the judgment as a matter of discretion in the interest of justice by directing that all sentences except the sentence imposed on the count of tampering with physical evidence run concurrently with each other … . People v Colon, 2021 NY Slip Op 01652, Fourth Dept 3-18-21

 

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