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DNA FOUND ON THE MURDER VICTIM’S BODY WAS LINKED TO THE DEFENDANT WHO WAS ARRESTED TWO YEARS AFTER THE MURDER; THERE WAS NO OTHER EVIDENCE CONNECTING DEFENDANT TO THE VICTIM OR TO THE AREA WHERE THE VICTIM WAS FOUND; THE SECOND DEPARTMENT, OVER AN EXTENSIVE DISSENT, FOUND THE EVIDENCE LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, over an extensive dissent, determined the evidence was legally insufficient. Defendant was arrested two years after the victim’s death based upon DNA found on the victim. No evidence placing defendant near the scene of the crime was presented:

On the morning of October 3, 2013, the 23-year-old victim, who had a history of drug use, was found dead in a wooded area known as Froehlich Farms, in Suffolk County. The victim’s injuries, as well as the condition in which her body was found, indicated that she had been sexually assaulted and killed by strangulation within 12 hours to a day before her body was found. More than two years after her death, the defendant was charged with murder in the second degree after his DNA profile was matched to a single source partial profile generated from various swab samples taken as part of a sexual assault kit performed on the victim.

At the trial, the People presented no evidence placing the defendant at or near the scene of the crime, or linking him in any way to the victim, during the critical time frame in which the murder was believed to have occurred. Nor did the People offer any evidence showing that the sexual contact between the defendant and the victim occurred at or near the time of the murder. At most, the DNA evidence established, beyond a reasonable doubt, that the defendant had sexual contact with the victim at some unspecified time and place. People v Romualdo, 2020 NY Slip Op 06559, Second Dept 11-12-20

 

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INCLUSORY CONCURRENT COUNTS DISMISSED; POSSESSION OF A WEAPON SENTENCE SHOULD BE CONCURRENT WITH THE ATTEMPTED MURDER AND ASSAULT SENTENCES (SECOND DEPT).

The Second Department determined three inclusory concurrent counts must be dismissed and the possession of a weapon sentence should run concurrently with the attempted murder and assault sentences:

… [T]he defendant’s convictions of assault in the second degree under Penal Law § 120.05(1) and (2) must be dismissed as lesser included concurrent counts of assault in the first degree under Penal Law § 120.10(1) (see CPL 300.40[3][b] …). Additionally, the conviction of burglary in the second degree under Penal Law § 140.25(2) must be dismissed as a lesser included concurrent count of burglary in the first degree under Penal Law § 140.30(4) … , and the conviction of criminal possession of a firearm under Penal Law § 265.01-b(1) must be dismissed as a lesser included concurrent count of criminal possession of a weapon in the second degree under Penal Law § 265.03(1)(b) … .

We agree with the defendant that the resentence imposed on the conviction of criminal possession of a weapon in the second degree under count 8 of the indictment must run concurrently with the resentences imposed on the convictions of attempted murder in the second degree and assault in the first degree, which related to the same complainant … . The People’s theory under count 8 of the indictment pertained specifically to that complainant, and the jury was charged accordingly … . People v Mahon, 2020 NY Slip Op 06550, Second Dept 11-12-20

 

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THE COURT WAS NOT AUTHORIZED TO SENTENCE DEFENDANT AS A SECOND VIOLENT FELONY OFFENDER BECAUSE DEFENDANT WAS CONVICTED OF AN A FELONY; THE LENGTH OF DEFENDANT’S SENTENCE, HOWEVER, IS NOT AFFECTED (SECOND DEPT).

The Second Department noted the court was not authorized to sentence defendant as a second violent felony offender because he was convicted of an A felony:

… [T]he Supreme Court was not authorized to adjudicate the defendant a second violent felony offender, as the instant conviction was for a class A felony rather than a class B, C, D, or E felony (see Penal Law §§ 70.02[1]; 70.04[1][a]). Therefore, we vacate the defendant’s adjudication as a second violent felony offender. “However, since the statutory sentencing parameters for a second violent felony offender do not include any specifications as to proper sentences for a class A felony because that crime is more serious than the crimes specified in those parameters, the error could not have affected the sentence imposed to the defendant’s detriment” … . Furthermore, contrary to the defendant’s contention, the sentencing limitations provided in Penal Law § 70.30(1)(e) do not apply where the two or more crimes include, as here, a class A felony (see Penal Law § 70.30[1][e][i] …). People v Bell, 2020 NY Slip Op 06540, Second Dept 11-12-20

 

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CYNTHIA G SHOULD NOT HAVE BEEN INVOLUNTARILY CONFINED BASED UPON A FINDING SHE WAS MENTALLY ILL IN THE ABSENCE OF A HEARING; THE FINDING WAS MADE BASED SOLELY UPON CYNTHIA G’S BEHAVIOR IN THE COURTROOM; ALTHOUGH CYNTHIA G HAS BEEN RELEASED THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have ruled Cynthia G was mentally ill based solely on her behavior in the courtroom without holding a hearing. Although Cynthia G has been released from the involuntary confinement ordered by Supreme Court, the appeal was heard as an exception to the mootness doctrine because situation is likely to reoccur:

On June 20, 2019, Cynthia G. was involuntarily confined to the Hospital pursuant to Mental Hygiene Law § 9.27. On June 27, 2019, Cynthia G. made an application pursuant to Mental Hygiene Law § 9.31 for a hearing on the question of need for involuntary care and treatment. While the parties appeared in court for the hearing, the Supreme Court did not hold the hearing. Rather, Cynthia G. was escorted out of the courtroom based on her behavior, which included “yelling and screaming,” acting “verbally aggressive,” and making “threatening movements.” Over the objection of Cynthia G.’s counsel, the court determined that it could not proceeded with a hearing due to Cynthia G.’s behavior. The court indicated that it would deny Cynthia G.’s application for release, finding that her courtroom behavior in and of itself constituted clear and convincing evidence that she suffered from a mental illness which was likely to result in serious harm to herself or others.

By order dated July 2, 2019, the Supreme Court denied Cynthia G.’s application pursuant to Mental Hygiene Law § 9.31 to compel the Hospital to release her from involuntary confinement. …

… [T]he Supreme Court erred in failing to hold a hearing pursuant to Mental Hygiene Law § 9.31(c), and in determining, in effect, that Cynthia G. was mentally ill, in need of further care or treatment, and posed a substantial threat of physical harm to herself or others, without taking any testimony or evidence by either Cynthia G. or the Hospital … . Matter of G., 2020 NY Slip Op 06525, Second Dept 11-12-20

 

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FEDERAL TAX RETURNS AND EMAILS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211 (A)(1); THE MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss based upon documentary evidence pursuant to CPLR 3211 (a)(1) should not have been granted. Defendants submitted federal income tax returns to demonstrate the amount owed under the contract at issue:

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), “the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Further, where a court considers evidentiary material in the context of a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint may only be dismissed when “it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said to that no significant dispute exists regarding it” … .

… {The business’s] federal income tax return, submitted by the defendants in support of their motion to dismiss, was insufficient to utterly refute [the] allegation that [the business’s] 2016 profits exceeded the sum reported therein as “ordinary business income,” and to prove that this allegation was “not a fact at all.” Among other things, … the accuracy of the tax return [was disputed] … . While the defendants additionally submitted certain email correspondence … , these emails were not “documentary evidence” within the intendment of CPLR 3211(a)(1) … . Lessin v Piliaskas, 2020 NY Slip Op 06515, Second Dept 11-12-20

 

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DEFENDANT GROCERY STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; DEFENDANT POINTED TO GAPS IN PLAINTIFF’S PROOF INSTEAD OF AFFIRMATIVELY SHOWING IT DID NOT CREATE THE CONDITION (WATER ON THE FLOOR IN FRONT OF A VEGETABLE DISPLAY WITH MELTING ICE) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant grocery store’s motion for summary judgment in this slip and fall case should not have been granted. Defendant did not affirmatively demonstrate the water on the floor did not come from melted ice in adjacent vegetable display. A defendant can not win summary judgment by pointing to gaps in the plaintiff’s proof in opposition which will not even be considered until the moving party makes out a prima facie case:

A defendant moving for summary judgment in a slip-and-fall case has the initial burden of establishing that it neither created the hazardous condition that allegedly caused the fall, nor had actual or constructive notice of that condition for a sufficient length of time to discover and remedy it … . A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff’s case … .

Here, the defendants failed to establish, prima facie, that they did not create the allegedly dangerous condition that caused the plaintiff’s accident … . The defendants’ submissions in support of their motion failed to affirmatively demonstrate that the wet condition on the floor was not created by water and melted ice leaking from an asparagus display, which was adjacent to the location of the plaintiff’s fall. Lauzon v Stop & Shop Supermarket, 2020 NY Slip Op 06513, Second Dept 11-12-20

 

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THE SATISFACTION OF MORTGAGE ON RECORD WHEN DEFENDANT BANK ISSUED A LOAN SECURED BY THE PROPERTY WAS FORGED AND THEREFORE VOID; DEFENDANT BANK, THEREFORE, WAS NOT PROTECTED AS A BONA FIDE ENCUMBRANCER FOR VALUE PURSUANT TO REAL PROPERTY LAW 266 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined Flagstar Bank was not protected as a bona fide encumbrancer for value under Real Property Law 266. The satisfaction of mortgage that was on record when Flagstar issue a loan secured by the property was forged and therefore void, not voidable:

We disagree with the Supreme Court’s determination that Flagstar’s interest in the subject property was protected by its status as a bona fide encumbrancer for value under Real Property Law § 266, since the satisfaction of mortgage executed and recorded before Flagstar’s issuance of a loan with respect to the subject property was determined to have been forged and was void, not merely voidable. A discharge or satisfaction of a mortgage is void at its inception when it is executed and recorded by one who has no interest in the mortgage … . Accordingly, the forged satisfaction of mortgage in this case was not entitled to any legal effect, and Flagstar’s encumbrance based on it is not protected … . JPMorgan Chase Bank, N.A. v Aspilaire, 2020 NY Slip Op 06510, Second Dept 11-12-20

 

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THE MAJORITY FOUND PLAINTIFF’S EXPERT’S AFFIDAVIT, ALLEGING PLAINTIFF’S DECEDENT WAS GIVEN TOO MUCH MORPHINE, WAS SPECULATIVE AND CONCLUSORY; TWO DISSENTERS DISAGREED; THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, affirming Supreme Court, over a two-justice partial dissent, determined the defendants’ motion for summary judgment in this medical malpractice action was properly granted. The dissenters argued there was a question of fact about whether plaintiff’s decedent was given too much morphine, but the majority found plaintiff’s expert’s affidavit speculative and conclusory on that issue:

… [T]he plaintiff relied upon the opinion of her expert that the decedent was negligently administered an overdose of morphine that caused or contributed to his death. The Supreme Court properly concluded that the expert’s unsupported and speculative opinion that an overdose caused or contributed to the decedent’s death was insufficient to raise a triable issue of fact, and we respectfully disagree with our dissenting colleagues’ contrary conclusion.

More specifically, neither the medical records nor the autopsy report indicated that the decedent suffered a morphine overdose. Further, neither the autopsy report nor the death certificate listed morphine as a cause of or contributing factor in the decedent’s death. It is unclear that the plaintiff’s expert even reviewed the death certificate and autopsy report, but, in any event, he did not address them or their conclusions that the decedent’s death was caused by septic shock brought about by other conditions. The plaintiff’s expert also failed to address the conclusion of the hospital’s expert that the decedent’s drop in blood pressure was related to his intra-abdominal process rather than the administration of medication. Indeed, although the plaintiff’s expert noted that morphine “can decease blood pressure and cause difficulty breathing,” he did not affirmatively state that the morphine actually caused these effects in the decedent, who was on a ventilator. Given the decedent’s multiple infirmities and severely compromised condition upon his admission to the hospital, and the failure of the plaintiff’s expert to address the conclusions reached in the death certificate, autopsy report, and affirmations of the defendants’ experts, the opinion of the plaintiff’s expert that a morphine overdose caused or contributed to the decedent’s death was speculative and conclusory … . Jacob v Franklin Hosp. Med. Ctr., 2020 NY Slip Op 06506, Second Dept 11-12-20

 

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STATEMENTS THAT PLAINTIFF’S DECEDENT SIGNED AN “AGAINST MEDICAL ADVICE” FORM BEFORE REFUSING TREATMENT WHICH WERE INCLUDED IN MEDICAL RECORDS AND IN THE DEPOSITIONS OF THE DOCTORS IN THIS MEDICAL MALPRACTICE ACTION WERE NOT ADMISSIBLE AS BUSINESS RECORDS, AS ADMISSIONS, AS DECLARATIONS AGAINST INTEREST, OR PURSUANT TO THE DEAD MAN’S STATUTE; DEFENSE VERDICT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defendants’ verdict and ordering a new trial in this medical malpractice case, determined the statements in the medical records and in depositions that plaintiff’s decedent signed an “against medical advice” (AMA) form and refused admission to the hospital constituted inadmissible hearsay and were not admissible pursuant to the Dead Man’s Statute (CPLR 4519):

The defendants argue that the entries in the … Hospital records were admissible under the business records exception to the hearsay rule. Generally, “[a] hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule if the entry is germane to the diagnosis or treatment of the patient” (… see CPLR 4518[a]). However, “where the source of the information on the hospital or doctor’s record is unknown, the record is inadmissible” … . This is because “‘each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception'” … . Here, although the entries were germane to the decedent’s diagnosis and treatment, because the record does not reflect that the source of the information in the entries was known, it cannot be established whether the source had a duty to make the statement or whether some other hearsay exception applied … . …

… [W]e disagree with the Supreme Court’s determination that the deposition testimony of {the doctors] was admissible. Pursuant to CPLR 4519, otherwise known as the Dead Man’s Statute, “[u]pon the trial of an action . . . a party or a person interested in the event . . . shall not be examined as a witness in his [or her] own behalf or interest . . . against the executor, administrator or survivor of a deceased person or the committee of a mentally ill person . . . concerning a personal transaction or communication between the witness and the deceased person or mentally ill person, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his [or her] own behalf, of the testimony of the mentally ill person or deceased person is given in evidence, concerning the same transaction or communication.” Here, both [doctors] were defendants at the time they gave deposition testimony, making them interested parties under the statute …. Moreover, they both testified to transactions or communications with the decedent and sought to offer that testimony against the decedent’s estate. Grechko v Maimonides Med. Ctr., 2020 NY Slip Op 06504, Second Dept 11-12-20

 

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PLAINTIFF FAILED TO DEMONSTRATE THE SEPARATION AGREEMENT WAS UNCONSCIONABLE AS A MATTER OF LAW; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff failed to demonstrate the separation agreement was unconscionable as a matter of law and plaintiff’s motion for summary judgment, therefore, should not have been granted. The court outlined the analytical criteria for unconscionability in this context:

“A separation agreement or stipulation of settlement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or … . However, because of the fiduciary relationship existing between spouses, a marital agreement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud or where it is shown to be manifestly unjust because of the other spouse’s overreaching … . “In general, an unconscionable contract has been defined as one which is so grossly unreasonable as to be unenforc[ea]ble because of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party” … . “This definition reveals two major elements which have been labeled by commentators, procedural and substantive unconscionability. The procedural element of unconscionability concerns the contract formation process and the alleged lack of meaningful choice; the substantive element looks to the content of the contract, per se” … . A reviewing court examining a challenge to a separation agreement “will view the agreement in its entirety and under the totality of the circumstances” … . Eichholz v Panzer-Eichholz, 2020 NY Slip Op 06500, Second Dept 11-12-20

 

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