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ALTHOUGH THE INCONSISTENT VERDICT ARGUMENT WAS NOT PRESERVED, THE FAILURE TO AWARD DAMAGES FOR FUTURE PAIN AND SUFFERING, IN THE FACE OF AWARDING DAMAGES FOR PAST PAIN AND SUFFERING AND FUTURE MEDICAL EXPENSES, REQUIRED A NEW TRIAL ON THAT ISSUE (FIRST DEPT).

The First Department, setting aside the verdict for future damages and ordering a new trial on that issue, determined the awards for past pain and suffering and future medical expenses rendered the failure to award damages for future pain and suffering a material deviation from reasonable compensation:

Plaintiff failed to preserve for appellate review his claim that the verdict was inconsistent because the claim was raised after the jury had been discharged. However, where the jury verdict awards plaintiff damages for past pain and suffering and future medical expenses, but declines to award damages for future pain and suffering, the verdict on future pain and suffering is contrary to a fair interpretation of the evidence and constitutes a material deviation from what would be reasonable compensation … . Paucay v D.P. Group Gen. Contrs./Devs., Inc., 2020 NY Slip Op 05611, First Dept 10-8-20

 

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SUPREME COURT SHOULD HAVE RESTRICTED THE RELEASE OF THE NAMES OF COMPLAINANTS AND COMPLAINANTS’ PARENTS FOR THEIR PROTECTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined Supreme Court should have restricted the release of the names of complainants and their parents for their protection:

… [T]he application by the People pursuant to CPL 245.70(6) is granted to the extent that the order … is modified by directing that the disclosure of the names of complainants 1, 2, and 3 shall be delayed until the commencement of the trial and shall be provided to defense counsel only, and that the disclosure of the names of the parents of complainants 1, 2, and 3 shall be delayed until 15 days prior to the commencement of the trial and shall be provided to defense counsel only … . People v Harrigan, 2020 NY Slip Op 05612, Second Dept 10-8-20

 

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DEFENDANT INSURER’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE “BAD FAITH” COMPLAINT–ALLEGING A BAD FAITH FAILURE TO SETTLE PLAINTIFF’S PERSONAL INJURY ACTION STEMMING FROM A TRAFFIC ACCIDENT–SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurer demonstrated it did not act in bad faith when it refused to settle a personal injury action. Plaintiff VanNostrand sued Froelich in an action stemming from a traffic accident and recovered a $300,000 verdict. Froelich’s insurer, defendant New York Central Mutual Fire Insurance Company, had refused to settle. Froelich assigned his rights in the policy to VanNostrand and they sued the insurer alleging a bad faith failure to settle. The Second Department held the insurer’s motion for summary judgment should have been granted:

” … [A] bad-faith plaintiff must establish that the defendant insurer engaged in a pattern of behavior evincing a conscious or knowing indifference to the probability that an insured would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted” … . …

… [T]he evidence submitted by the defendant in support of its motion for summary judgment established … the defendant had a rational basis for concluding that a jury in the underlying action could find that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, which would preclude her from recovery in the underlying action (see Insurance Law § 5104[a]). Specifically, the defendant monitored the plaintiff’s claim in the underlying action and, among other things, retained expert physicians to examine the plaintiff and review the MRI films of her spine. One of the defendant’s experts concluded, inter alia, that the alleged disc herniation at L5-S1 did not involve any root impingement. As far as the alleged disc herniation at C3-C4 was concerned, the defendant’s expert found no herniation and, at most, a bulge. Moreover, it was undisputed that the plaintiff returned to work within one month of the accident and did not seek recovery for lost wages. It was further undisputed that as of November 2001, two years after the accident, and at the time of trial in April 2013, the plaintiff was not taking any medication or undergoing any further treatment. In opposition, the plaintiff failed to raise a triable issue of fact. VanNostrand v New York Cent. Mut. Fire Ins. Co., 2020 NY Slip Op 05550, Second Dept 10-7-20

 

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CRITERIA FOR AN EXTENSION OF TIME TO SERVE A SUMMONS AND COMPLAINT PURSUANT TO CPLR 306-b EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion pursuant to CPLR 306-b to extend the time to serve the defendant should have been granted and explained the criteria:

CPLR 306-b provides, in pertinent part, that “[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action. . . . If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.”

“The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant”… . CPLR 306-b “empowers a court faced with the dismissal of a viable claim to consider any factor relevant to the exercise of its discretion. No one factor is determinative—the calculus of the court’s decision is dependent on the competing interests of the litigants and a clearly expressed desire by the Legislature that the interests of justice be served” … .

Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion pursuant to CPLR 306-b for an extension of time to serve the defendant with the summons and complaint in the interest of justice, considering, inter alia, the expiration of the statute of limitations, the meritorious nature of the plaintiff’s cause of action, the plaintiff’s prompt request for the extension, and the lack of demonstrable prejudice to the defendant … . U.S. Bank N.A. v Viera, 2020 NY Slip Op 05549, Second Dept 10-7-2

 

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A SINGLE PROMOTING PRISON CONTRABAND CONVICTION FOUR YEARS BEFORE DID NOT SUPPORT A TEN POINT ASSESSMENT FOR UNSATISFACTORY CONDUCT; RISK LEVEL REDUCED FROM TWO TO ONE (SECOND DEPT).

The Second Department determined the 10 point assessment for unsatisfactory conduct was not supported and reduced defendant’s risk level from two to one:

… [T]he record does not contain clear and convincing evidence to support the assessment of 10 points under risk factor 13, for “unsatisfactory” conduct while confined, based upon his conviction of the class A misdemeanor of promoting prison contraband in the second degree (Penal Law § 205.20). This conviction constituted the sole act of misconduct while confined cited by the People, and it occurred approximately four years before the SORA hearing, prior to the defendant’s transfer to State prison. Since the defendant’s misconduct was neither recent nor repeated, the assessment of points for that misdemeanor was not supported by the record … . People v Hernandez, 2020 NY Slip Op 05540, Second Dept 10-7-20

 

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ROBBERY AND ASSAULT SECOND CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OF THE EVIDENCE OF PHYSICAL INJURY (SECOND DEPT).

The Second Department, reducing defendant’s convictions, determined the robbery and assault second degree convictions were against the weight of the evidence because of the weakness of the evidence of physical injury. The convictions were reduced to robbery and assault third degree:

“Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). …

Here, the victim gave testimony about an incident in which the defendant attacked her and forcibly stole property from her. During the incident, the defendant pushed the victim down onto a bed, bound her wrists with a coaxial cable, placed the cable around her neck, and placed her in a choke hold with his arm across her throat. After the incident, the victim had an indentation on her wrist where the cord had been tied, her wrist was sore and had redness, and she had a red mark on her neck. She was “pretty numb” at the time and was not experiencing pain. She declined to go to the hospital. A few days later, she had difficulty swallowing and her throat was “kind of sore” for “[j]ust a couple of days.” When she testified before the grand jury, approximately one week after the incident, she was asked if she had any pain or discomfort, and she answered, “just the muscle in my arm.” Under these particular facts, the weight of the evidence does not support a finding that the victim suffered impairment of physical condition or substantial pain. Accordingly, we reduce the conviction of robbery in the second degree to robbery in the third degree … . People v Tactikos, 2020 NY Slip Op 05535, Second Dept 10-7-20

 

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ALTHOUGH THE EVIDENCE WAS DEEMED LEGALLY SUFFICIENT TO SUPPORT THE CONVICTIONS STEMMING FROM AN ATTACK ON THE COMPLAINANT, THOSE CONVICTIONS WERE DEEMED AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OR ABSENCE OF IDENTIFICATION EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined: (1) the evidence of a sexual touching of complainant by defendant captured on video in the laundromat was legally insufficient; (2) the evidence that defendant attacked the complainant after she left the laundromat was legally sufficient; (3) but the convictions stemming from the attack on the complainant after she left the laundromat were against the weight of the evidence because of the weakness or absence of identification evidence. So this is a rare decision where the evidence was explicitly found legally sufficient but the related convictions were found to be against the weight of the evidence:

Viewing the evidence in the light most favorable to the prosecution, here, there was legally sufficient evidence to support the defendant’s convictions of sexual abuse in the first degree and criminal obstruction of breathing or blood circulation. The surveillance video footage showed the defendant leaving the laundromat just after the complainant had left. Both the complainant and the defendant were shown walking down Woodhaven Boulevard, and the defendant’s clothing matched the complainant’s description of the clothes worn by her assailant. Therefore, a rational juror could have concluded that the defendant was the perpetrator of the assault on the complainant that occurred near her home.

However, the evidence was not legally sufficient to support the defendant’s conviction of sexual abuse in the third degree. …

… [O]ur viewing of the video recording taken inside the laundromat did not establish that the contact between the defendant and the complainant as he was exiting the laundromat was of a sexual nature. At best, the video was ambiguous as to the nature of the touching depicted. * * *

In the face of the markedly disparate descriptions offered by the detectives and the complainant, and in the absence of an in-court identification, the verdict of the jury finding the defendant guilty of sexual abuse in the first degree and criminal obstruction of breathing or blood circulation was against the weight of the evidence … . People v Kassebaum, 2020 NY Slip Op 05529, Second Dept 10-7-20

 

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CO-DEFENDANT’S REDACTED STATEMENT SHOULD NOT HAVE BEEN ALLOWED IN EVIDENCE, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the co-defendant’s redacted admission should not have been admitted in evidence:

… [W]e agree with the defendant that, under the instant circumstances, the Supreme Court’s admission of codefendant Jason Villanueva’s redacted statement to the police violated the rule articulated in Bruton v United States (391 US 123), because the subject redaction would have caused the jurors to “realize that the confession refers specifically to the defendant” or to one of the other nonconfessing codefendants … . In addition, the error was not harmless. “[I]t cannot be said that ‘there is no reasonable possibility that the erroneously admitted [statement] contributed to the conviction'” … , given that the statement was inconsistent with the defendant’s justification defense, and the court failed to give the jurors a proper limiting instruction to only consider the statement against Villanueva. People v Casares, 2020 NY Slip Op 05520, Second Dept 10-7-20

 

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NATURE OF AN INGRESS AND EGRESS EASEMENT EXPLAINED (SECOND DEPT).

The Second Department discussed the elements of an easement for ingress and egress only:

“Express easements are governed by the intent of the parties” … . “As a [result], where the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder” … . “Indeed, an owner of land that is burdened by an express easement for ingress and egress ‘may narrow it, cover it over, gate it or fence it off, [as] long as the easement holder’s right of passage is not impaired'” … . Panday v Allen, 2020 NY Slip Op 05519, Second Dept 10-7-20

 

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THE CIVIL SERVICE LAW, NOT THE COLLECTIVE BARGAINING AGREEMENT, CONTROLS THE TERMINATION OF AN INJURED FIREFIGHTER ABSENT FOR MORE THAN A YEAR DUE TO THE INJURY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the Civil Service Law, not the collective bargaining agreement, controlled the termination of an injured firefighter who had been absent for more than a year due to the injury:

Civil Service Law § 71 provides that where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the worker’s compensation law, “he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.” The legislature provided that the state civil service commission shall “prescribe and amend suitable rules and regulations for carrying into effect the provisions of this chapter,” including “rules for . . . leaves of absence” (Civil Service Law § 6[1]). The Department of Civil Service has promulgated implementing regulations for Civil Service Law § 71, including detailed procedures for notifying an employee of the right to a one-year leave of absence during continued disability, and notifying an employee of an impending termination following the expiration of that one-year period and the right to a hearing and to apply for a return to duty (see 4 NYCRR 5.9). Here, the specific directives of Civil Service Law § 71 and 4 NYCRR 5.9 leave no room for negotiation of the procedures to be followed prior to the termination of an employee’s employment upon the exhaustion of the one-year period of leave. Therefore the presumption in favor of collective bargaining is overcome … . Matter of City of Long Beach v New York State Pub. Empl. Relations Bd., 2020 NY Slip Op 05504, Second Dept 10-7-20

 

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