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SUPREME COURT SHOULD NOT HAVE REQUIRED DEFENSE COUNSEL TO SEEK COURT APPROVAL BEFORE ALLOWING INVESTIGATORS OR OTHER EMPLOYEES ACCESS TO RECORDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have required that defense counsel seek court approval before allowing investigators or other employees access to recordings:

Pursuant to CPL 245.70(6), a party who has unsuccessfully sought, or opposed the granting of, a protective order relating to the name, address, contact information, or statements of a person may obtain expedited review by an individual justice of the intermediate appellate court to which an appeal from a judgment of conviction would be taken. Where, as here, “the issue involves balancing the defendant’s interest in obtaining information for defense purposes against concerns for witness safety and protection, the question is appropriately framed as whether the determination made by the trial court was a provident exercise of discretion” … .

Applying the factors set forth in CPL 245.70(4), including concerns for witness safety and protection, I conclude that the Supreme Court improvidently exercised its discretion in requiring defense counsel to seek approval of the court before exhibiting the subject recordings to investigators or others employed by counsel. Under the particular circumstances of this case, the court should have permitted defense counsel to disclose the recordings to those employed by counsel or appointed to assist in the defense, without prior approval from the Supreme Court … . People v Clarke, 2020 NY Slip Op 05221, Second Dept 9-30-20

 

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INSUFFICIENT EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED WEAPONS FOUND IN A LOCKED ROOM BELONGING TO DEFENDANT’S DECEASED BROTHER; WEAPONS POSSESSION CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing the possession-of-a-weapon convictions, determined the evidence of constructive possession was insufficient and the convictions were therefore against the weight of the evidence:

The evidence demonstrated that the defendant resided in the third bedroom of the searched premises, and that the defendant’s brother had resided in the first bedroom up until his death in 2014 or 2015. There was also testimony that, after the defendant’s brother passed away, the door to the first bedroom was locked and remained locked. There was no evidence that the defendant frequented the first bedroom, had a key to that room or kept his belongings in that room. Although the police witnesses testified that they could not recall any damage to the door to the first bedroom, the defense introduced a photograph depicting damage to the door and frame after the search.

Moreover, although the police officers recovered a magazine containing seven 9 millimeter cartridges from the defendant’s bedroom, the evidence demonstrated that it was not the correct magazine for the pistol recovered from the first bedroom; it had to be manipulated in order to function properly with the pistol. Apart from the magazine, there was no other evidence connecting the defendant to the first bedroom or the weapons found therein. People v Branch, 2020 NY Slip Op 05220,  Second Dept 9-30-20

 

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PLAINTIFF WAS INJURED BY A HAZARD INHERENT IN THE JOB HE WAS HIRED TO DO; HIS LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor Law 200 cause of action should have been granted because plaintiff was injured in the normal course of the tasks he was hired to do. Plaintiff was removing debris when his shovel struck a subway track:

The plaintiff’s specific task was to shovel concrete debris, which had been chipped from the subway tunnel’s walls, into bags for removal. During the project, eight-by-four foot pieces of plywood had been placed atop the subway tracks covering its rails and the trough between the rails, onto which the debris would fall making it easier to shovel. The plaintiff allegedly was injured when his shovel struck a rail of a track that was not covered by plywood. …

… The duty to provide workers with a safe place to work does not extend to hazards that are part of, or inherent in, the very work the worker is performing or defects the worker is hired to repair … .

Here, the defendants established, prima facie, that the plaintiff’s job responsibilities required him to remove the debris from the subway tracks, and that his alleged injuries were caused in the normal course of his removal of the debris in that area  … . In support of their motion, the defendants submitted, among other things, the transcripts of the deposition testimony … demonstrated that[defendant] decided to and actually placed the plywood over the tracks for the purpose of making it easier to remove the debris rather than for a safety purpose. Pacheco v Judlau Contr., Inc., 2020 NY Slip Op 05216, Second Dept 9-30-20

 

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PLAINTIFF ALLEGEDLY FELL SIX FEET FROM A SCAFFOLD WITHOUT GUARD RAILS; PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED; DEFENDANT’S SUMMARY JUDGMENT MOTION ON PLAINTIFF’S LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN GRANTED; AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 241 (6) CAUSE OF ACTION WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s summary judgment motion on his Labor Law 240 (1) cause of action should not have been granted, defendant’s (Henry Street’s) motion for summary judgment on plaintiff’s Labor Law 200 cause of action should have been granted, and defendant’s motion for summary judgment on plaintiff’s Labor Law 241 (6) cause of action was properly denied. Plaintiff fell approximate six feet for a scaffold which did not have guard rails:

The plaintiff failed to eliminate triable issues of fact as to whether the scaffolding at issue provided proper protection under Labor Law § 240(1) … . …

Here, the plaintiff’s accident did not involve any dangerous or defective condition on Henry Street’s premises. Rather, the accident involved the manner in which the plaintiff performed his work … . Henry Street established, prima facie, that it did not have the authority to exercise supervision and control over the subject work … . In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of Henry Street’s cross motion which was for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against it. …

… [W]we agree with the Supreme Court’s determination to deny that branch of Henry Street’s cross motion which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon an alleged violation of Industrial Code provision 12 NYCRR 23-5.1(b) insofar as asserted against it. That section provides that “[t]he footing or anchorage for every scaffold erected on or supported by the ground, grade or equivalent surface shall be sound, rigid, capable of supporting the maximum load intended to be imposed thereon without settling or deformation and shall be secure against movement in any direction.” Henry Street failed to sustain its prima facie burden of demonstrating that Industrial Code provision 12 NYCRR 23-5.1(b) was either factually inapplicable to this case or was satisfied … . Medina-Arana v Henry St. Prop. Holdings, LLC, 2020 NY Slip Op 05199, Second Dept 9-30-20

 

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THE CHILD SUPPORT PROVISIONS OF THE STIPULATION OF SETTLEMENT IN THE DIVORCE ACTION VIOLATED THE CHILD SUPPORT STANDARDS ACT AND MUST BE VACATED; THE VACATUR SHOULD HAVE EXTENDED BACK TO THE DATE OF THE STIPULATION, NOT MERELY TO THE DATE OF THE RELATED MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this action on the child support provisions of a stipulation of settlement in a divorce action, determined the child support provisions violated the Child Support Standards Act and the required vacatur should extend back to the date of the stipulation:

The Child Support Standards Act (Domestic Relations Law § 240[1-b][h]; hereinafter CSSA) mandates vacatur of original child support stipulations when they fail to comply with CSSA guidelines. Here … the Supreme Court found that the parties’ failure to strictly comply with the CSSA with regard to the deviation from the statutory support obligations vitiated the child support provision of the stipulation of settlement with regard to apportionment of unreimbursed medical costs. … [T]he court improperly determined that the reimbursement of the medical costs and child care expenses was retroactive only to the filing date of the motion, relying on Luisi v Luisi (6 AD3d 398). However, in Luisi, this Court held that it was improper to award child support arrears retroactive to the date of a stipulation of settlement because the party seeking such recalculation only did so by motion in the matrimonial action rather than by plenary action … . Here, the defendant did properly commence a plenary action to vacate those provisions of the stipulation of settlement which pertained to the calculation of the medical costs and child care expenses and, upon vacatur, to recalculate the amounts owed. … Thus, the court should have granted those branches of the defendant’s motion which sought a recalculation of the arrears owed retroactive to the date of the stipulation of settlement … . Martelloni v Martelloni, 2020 NY Slip Op 05197, Second Dept 9-30-20

 

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SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED THE PROVISION OF AN “AGREEMENT OF PURCHASE AND SALE OF STOCK” WHICH CALLED FOR RECOVERY OF DOUBLE ATTORNEYS FEES BY THE PREVAILING PARTY IN LITIGATION WAS AN UNENFORCEABLE PENALTY (SECOND DEPT).

The Second Department determined Supreme Court should not have, sua sponte, held that the provision of the “Agreement of Purchase and Sale of Stock” (PSA) which awarded double attorney’s fees if litigation resulted from a breach was an unenforceable penalty. The decision, which includes legal analysis well worth reading, is a complex discussion of the covenant not to compete and the nonsolicitation agreement which is too detailed and fact-specific to summarize here. There is an extensive dissent. With respect to the “double attorney’s fees” provision, the court wrote:

We disagree with the Supreme Court’s sua sponte determination that the provision of the PSA, which, in the event of litigation, allows for a recovery of double the amount of attorneys’ fees expended by the substantially prevailing party, is an unenforceable penalty. When parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms … . Paragraph 10.11 of the PSA clearly sets forth the intent of the parties, two sophisticated businesspeople with the benefit of counsel, that, should litigation arise out of the PSA, the “substantially prevailing party” is entitled to two times reasonable attorneys’ fees. Where, as here, “there is no deception or overreaching” in the making of such agreement, the agreement should be enforced as written … . Moreover, while each party asserted in the Supreme Court, and asserts on appeal, that he should prevail and be treated as the prevailing party for the purpose of paragraph 10.11, neither party contended in the Supreme Court that the double attorneys’ fees provision of paragraph 10.11 should not be enforced. Loughlin v Meghji, 2020 NY Slip Op 05196, Second Dept 9-30-20

 

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NASSAU COUNTY SUPREME COURT CANNOT VACATE A DEFAULT ORDER ISSUED BY NEW YORK COUNTY SUPREME COURT, DESPITE THE CHANGE OF VENUE FROM NEW YORK COUNTY TO NASSAU COUNTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Nassau County Supreme Court could not vacate the default order issued by New York County Supreme Court, even though New York County Supreme Court had granted a change of venue to Nassau County:

The Supreme Court, Nassau County, had no authority to vacate the order of the Supreme Court, New York County … . A motion to vacate an order must be addressed to the court that made the order (see CPLR 5015[a]), and no court other than the one that rendered the order may entertain a motion to vacate it … . In any event, contrary to the defendants’ contention, the Supreme Court, New York County, did not lack subject matter jurisdiction to issue the New York County default order one day after its order granting a change of venue to Nassau County, since the “Supreme Court is a court possessing State-wide jurisdiction and is competent to entertain a motion no matter where the underlying action is pending” … . London v 107 (160) Realty, LLC, 2020 NY Slip Op 05195, Second Dept 9-30-20

 

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LOST NOTE AFFIDAVIT INSUFFICIENT TO ESTABLISH STANDING; PROOF OF COMPLIANCE WITH RPAPL 1304 INSUFFICIENT; OUT OF STATE AFFIDAVIT LACKED A CERTIFICATE OF CONFORMITY; NEITHER PLAINTIFF NOR DEFENDANT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-bank’s motion for summary judgment in this foreclosure action should not have been granted. The lost note affidavit was insufficient to establish standing the proof of compliance with the notice requirements of RPAPL 1304 was insufficient and the out of state affidavit lacked a certificate of conformity. Defendants’ cross-motion for summary judgment, however, was properly denied:

… [T]he plaintiff failed to proffer evidence establishing that the note was assigned to it, and the affidavit of lost note submitted in support of its motion failed to establish the facts that prevented the plaintiff from producing the original note (see UCC 3-804 …). We also note that the out-of-state affidavit from the vice president of loan documentation for Wells Fargo lacked a certificate of conformity as required by CPLR 2309(c), although such defect by itself would not be fatal to the plaintiff’s motion ,,, ,

… [A]lthough the plaintiff submitted a copy of the 90-day notice purportedly sent to the defendants, it failed to submit an affidavit of service or other proof of mailing establishing that it properly served them by registered or certified mail and first-class mail in accordance with RPAPL 1304 … . …

The defendants’ bare denial of receipt of the RPAPL 1304 notice, without more, was insufficient to establish their prima facie entitlement to judgment as a matter of law … . Trust v Moneta, 2020 NY Slip Op 05181, Second Dept 9-30-20

 

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THE COMPLAINT STATED CAUSES OF ACTION FOR ASSAULT, BATTERY AND VIOLATION OF 42 USC 1983 AGAINST POLICE OFFICERS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated causes of action against police officers for assault, battery and violation of 42 USC 1983:

The allegations in the complaint, as amplified by the notice of claim, which must be liberally construed when determining a CPLR 3211(a)(7) motion … sufficiently set forth a claim for assault and battery. Plaintiff alleged that he was assaulted and battered by police during his arrest and suffered injuries that required hospital treatment. Plaintiff specified the location of the assault and stated that defendants committed the assault and battery knowingly, that the arrest was without probable cause and that he was not ultimately charged with a crime. Moreover, in the notice of claim, plaintiff alleged that he was “grabbed, had his arms twisted and forcefully handcuffed,” that he was physically abused and that he did not resist arrest.

“To plead a cause of action to recover damages for assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent apprehension of harmful contact” … . “A valid claim for battery exists where a person intentionally touches another without that person’s consent” … .

… [A] party may allege assault and battery as the basis for a suit under 42 USC § 1983 … . Corcoran v City of New York, 2020 NY Slip Op 05133, First Dept 9-29-20

 

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DEFENDANT LANDLORD NOT LIABLE FOR PLAINTIFF’S FALL OUT OF A WINDOW; NO ALLEGATION OF THE VIOLATION OF ANY RULE, REGULATION, CODE OR STANDARD (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant property owner was not liable for plaintiff’s fall out of a window to the sidewalk below:

The record demonstrates that defendants may not be held liable for the injuries sustained by plaintiff when, upon tripping over speaker wires, he fell out of his bedroom window and onto the sidewalk below. Defendants met their burden for summary judgment by submitting evidence that the window, neither by its configuration or condition, presented a hazard in and of itself, and that defendants had no statutory or common-law duty to install window guards or stops for the benefit of adult plaintiff …

Plaintiff’s expert’s affidavit was insufficient to defeat the motion for summary judgment as it was not based on any rules, regulations, codes, standards or on the factual record … . Fraser v Reclaim Hous. Dev. Fund Corp., 2020 NY Slip Op 05135, First Dept 9-29-20

 

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