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BEST EVIDENCE RULE APPLIES TO VIDEO EVIDENCE AS WELL AS WRITINGS; ERROR IN FAILING TO EXCLUDE THE VIDEO EVIDENCE WAS HARMLESS HOWEVER (THIRD DEPT).

The Third Department, disagreeing with County Court, determined the best evidence rule applies to video evidence. The error was deemed harmless however:

Defendant asserts that, under the best evidence rule, the cell phone video recording of surveillance video that depicted the exterior of the bar … , as well as the observations of the detective who viewed and recorded this cell phone video, should have been precluded. Defendant further asserts that the detective should not have been allowed to testify about what he saw on a surveillance video showing the inside of the bar. In overruling defendant’s objection, County Court noted that the best evidence rule applied only to writings. Contrary to the court’s reasoning, however, the best evidence rule can apply to videos (see e.g. People v Cyrus, 48 AD3d 150, 159 [2007] …). Furthermore, the People did not call the bar manager or a person who installed the video equipment to authenticate the surveillance video … . Accordingly, the court erred in overruling defendant’s objection to this evidence. People v Watson, 2020 NY Slip Op 03050, Third Dept 5-28-20

 

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MOTIONS IN LIMINE WHICH AFFECT THE SCOPE OF THE TRIAL ARE APPEALABLE; TWO-YEAR WRONGFUL DEATH STATUTE OF LIMITATIONS APPLIED TO THE MUNICIPALITIES; PRECLUDING EXPERT TESTIMONY BASED UPON DISCLOSURE DEFICIENCIES WAS AN ABUSE OF DISCRETION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined: (1) plaintiff did not allege separate claims for personal injury and wrongful death, therefore the two-year wrongful-death statute of limitations in EPTL 5-4.1, not the one-year-ninety-days statute of limitations for negligence, applied to the actions against the municipalities; (2) motions in limine which limit the scope of the trial are appealable; and (3) preclusion of plaintiff’s expert’s testimony, based upon deficient disclosure pursuant to CPLR 3101 (d)(1), was an abuse of discretion. The action arose from a gas explosion at the great grandfather’s house which killed plaintiff’s 15-month-old son. Plaintiff sued the village, the town, the county and the New York State Electric & Gss Corporation (NYSEG). With regard to the motions in limine, the Third Department wrote:

“An order ruling on a motion in limine is generally not appealable as of right or by permission since an order made in advance of trial which merely determined the admissibility of evidence is an unappealable advisory ruling. However, an order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable” … . As to plaintiff’s objection to that part of the order as allowed evidence of the great grandfather’s negligence as a defense to the claim of res ipsa loquiter does not limit the scope of issues or impact a substantial right, such issue is not appealable … . Plaintiff also contends that Supreme Court erred in partially granting NYSEG’s motion to preclude the testimony of Reiber, plaintiff’s economist. Finding that the expert disclosure lacked reasonable detail as to how the value that Reiber assigned to plaintiff’s lost services and support would be calculated, Supreme Court precluded his testimony with regard to said damages. … However, because this ruling restricted plaintiff’s ability to prove and recover damages, this issue is appealable … . Reed v New York State Elec. & Gas Corp., 2020 NY Slip Op 03054, 5-28-20

 

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LEASE WAS AMBIGUOUS ABOUT TENANT’S RESPONSIBILITY FOR INSTALLATION OF A STORMWATER DETENTION SYSTEM AND THE LANDLORD’S EXTRINSIC EVIDENCE DID NOT ELIMINATE QUESTIONS OF FACT; SUPREME COURT SHOULD NOT HAVE GRANTED THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the terms of the lease were ambiguous and the extrinsic evidence submitted by the plaintiff landlord did not entitle the landlord to summary judgment. The landlord argued the defendant tenant was responsible under the lease for the installation of a stormwater detention system:

… [W]e cannot agree with Supreme Court’s conclusion that the lease unambiguously imposed a contractual responsibility on defendant, as tenant, to contract and pay for a new stormwater detention system, or that defendant was in default of the lease for failing to submit plans to that end … .

Given the ambiguity in the lease, resort to parol or extrinsic evidence is proper to discern the parties’ intent … . …

… [P]laintiff’s extrinsic evidence failed to resolve the lease ambiguity regarding responsibility for the new underground stormwater detention system, and did not “demonstrate the absence of any material issues of fact” in that regard … . Greene v Fast Eats Clifton Park, LLC, 2020 NY Slip Op 03055, Third Dept 5-27-20

 

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POSSESSION OF SYNTHETIC CANNABINOIDS IS PUNISHABLE BY A FINE AND JAIL TIME UNDER THE SANITARY CODE; THEREFORE A SEARCH WARRANT AUTHORIZING A SEARCH FOR SYNTHETIC CANNABINOIDS IS VALID; THE WAIVER OF APPEAL HERE WAS INVALID (THIRD DEPT).

The Third Department determined defendant’s waiver of appeal was invalid, but went on to find that the search warrant and search were valid and proper. The defendant argued that the search for synthetic cannabinoids not authorized because that substance is not encompassed by the Penal Law. However, the Sanitary Code makes possession of the substance a violation which can result in a fine and a jail sentence:

… [T]he appeal waiver was invalid because County Court failed to advise defendant that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty … , and also because the court increased the sentence, but failed to inquire into whether defendant wished to withdraw his consent to the appeal waiver … . …

A search warrant application must include “[a] statement that there is reasonable cause to believe that property of a kind or character described in [CPL] 690.10 may be found in or upon a designated or described place” (CPL 690.35 [3] [b]). Personal property that “[c]onstitutes evidence or tends to demonstrate that an offense was committed in this state” is subject to seizure (CPL 690.10 [4]). “Offense” is defined as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state” (Penal Law § 10.00 [1]). Further, a “[v]iolation” is defined as “an offense . . . for which a sentence to a term of imprisonment in excess of [15] days cannot be imposed” (Penal Law § 10.00 [3]).

Defendant is correct in asserting that the Penal Law prohibitions against the possession of controlled substances and marihuana do not specifically include synthetic cannabinoid. However, the Sanitary Code makes it “unlawful for any individual . . . to possess, manufacture, distribute, sell or offer to sell any synthetic phenethylamine or synthetic cannabinoid,” with exceptions not applicable here (10 NYCRR 9-1.2). Significantly, “[t]he provisions of the [S]anitary [C]ode shall have the force and effect of law and the non-compliance or non-conformance with any provision thereof shall constitute a violation punishable on conviction for a first offense by a fine not exceeding [$250] or by imprisonment . . . not exceeding [15] days, or both” (Public Health Law § 229 …). It follows that, by definition, a search warrant may be issued for the alleged possession of synthetic cannabinoids … . People v Morehouse, 2020 NY Slip Op 03048, Thrid Dept 5-28-20

 

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PLAINTIFF BANK NEVER REVOKED THE ACCELERATION OF THE MORTGAGE DEBT; FIFTH FORECLOSURE ACTION TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was no evidence plaintiff bank revoked the acceleration of the mortgage debt and the foreclosure action was therefore time-barred:

Plaintiff Wells Fargo Bank failed to affirmatively revoke the acceleration of defendant’s mortgage debt, as mere voluntary discontinuance of a foreclosure action is insufficient, in itself, to constitute an affirmative act of revocation … . Wells Fargo admitted that its primary reason for revoking acceleration of the mortgage debt was to avoid the statute of limitations bar, and it proceeded to collect on the accelerated loan amount in a fifth foreclosure action filed shortly after it made its motion to revoke acceleration … .

Moreover, Wells Fargo’s fifth foreclosure action, commenced on or around December 11, 2017, is time-barred, as Wells Fargo had accelerated the mortgage debt when it commenced its second foreclosure action on September 16, 2009 (CPLR 213[4] …). The fact that the prior foreclosure actions were dismissed does not undo Wells Fargo’s act of accelerating the mortgage debt. Wells Fargo Bank, N.A. v Ferrato, 2020 NY Slip Op 03067, First Dept 5-28-20

 

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THERE WAS A QUESTION OF FACT WHETHER WATER ON THE FLOOR RESULTED FROM A RECURRING LEAK WHICH SHOULD HAVE BEEN NOTICED BY THE NYC HOUSING AUTHORITY; THERE WAS NO EVIDENCE THE ROOF-REPAIR CONTRACTORS HIRED BY THE HOUSING AUTHORITY LAUNCHED AN INSTRUMENT OF HARM; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE HOUSING AUTHORITY IN THIS SLIP AND FALL CASE BUT WAS PROPERLY AWARDED TO THE CONTRACTORS (FIRST DEPT).

The First Department, reversing Supreme Court, determined summary judgment should not have been granted to defendant NYC Housing Authority (NYCHA) in this slip and fall case. However, summary judgment was properly granted to the roof-repair contractors hired by the NYCHA to ensure the roof was watertight. There was no evidence the contractors launched an instrument of harm causing the accumulation of water on the floor which allegedly caused plaintiff’s fall. But there was evidence the water on the floor was caused by a recurring leak which should have been noticed by the NYCHA:

… [T]he Ruiz [eyewitness] affidavit established that leaks had existed in the ceiling for a long period of time before the accident, and that water from the ceiling had caused the accident. The photographs of the ceiling show discoloration and peeling paint that could be suggestive of a longstanding, “visible and apparent” condition — dripping water – that NYCHA’s practices and procedures unreasonably failed to observe … . May’s testimony that had he seen a leak he would have placed a bucket underneath it and notified his supervisor fails to account for why he or anybody at NYCHA did not notice the obvious condition of the ceiling, nor does the evidence that there were no complaints regarding leaks on the 20th floor explain why NYCHA’s maintenance staff did not notice it.

… [T]he fact that NYCHA completed the roof replacement before the accident does not absolve it of liability as a landowner. NYCHA failed to establish, through an expert affidavit or otherwise, that any condition that may have caused the leaks discussed in the Ruiz affidavit was actually addressed by the project. However, because [defendants] Liro and Corbex are not landowners but rather mere contractors hired by NYCHA to replace the roofs, they owed no direct duty to plaintiff, but could only be liable to the extent that they launched an instrument of harm, that plaintiff detrimentally relied on their performance of their respective contracts with NYCHA, or that they entirely replaced NYCHA’s obligation to maintain the premises in a safe condition (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). There is no evidence to suggest that either of those three conditions existed here. Williams v New York City Hous. Auth., 2020 NY Slip Op 03063, First Dept 5-28-20

 

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NEW RULE ALLOWING THE NYC CIVILIAN COMPLAINT REVIEW BOARD TO INVESTIGATE SEXUAL MISCONDUCT ALLEGATIONS AGAINST POLICE OFFICERS IS INVALID; PUBLIC VETTING PROCESS WAS NOT FOLLOWED (FIRST DEPT).

The First Department, over a dissent, in a comprehensive decision too detailed to fairly summarize, reversing (modifying) Supreme Court, determined certain Rules of City of New York Civilian Complaint Review Board adopted in 2018 were valid, but the 2018 resolution to begin investigating sexual misconduct allegations against police officers was invalid:

Defendant-respondent The New York City Civilian Complaint Review Board (the CCRB) investigates allegations of police misconduct toward members of the public (NY City Charter § 440[a]). It is empowered to receive, investigate, hear, make findings, and recommend action upon complaints that allege misconduct involving excessive use of force, abuse of authority, discourtesy or use of offensive language … . At issue in this appeal are certain amended rules adopted by the CCRB in 2018 … and a resolution, also adopted in 2018, to begin investigating sexual misconduct, which previously had been referred to the New York City Police Department (NYPD) Internal Affairs Bureau (IAB). * * *

By declaring that the CCRB would assert jurisdiction over an entire category of misconduct that it had historically referred as a matter of policy, the resolution announced a sweeping policy change that materially affected the rights of all alleged victims of sexual misconduct and allegedly offending police officers “equally and without exception,” and thus amounted to the adoption of a new “rule” … . However, because the CCRB undisputedly did not follow the public vetting process required … for adopting a new rule, the sexual misconduct resolution is a nullity … . Matter of Lynch v New York City Civilian Complaint Review Bd., 2020 NY Slip Op 03062, First Dept 5-28-20

 

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AN ACTION FOR A DECLARATORY JUDGMENT SHOULD NOT BE DISMISSED AT THE PRE-ANSWER STAGE BASED UPON A FINDING THE PLAINTIFF MAY NOT BE ENTITLED TO THE DECLARATORY RELIEF (SECOND DEPT).

The Second Department, reversing Supreme Court, explained that an action for a declaratory judgment should not be dismissed at the pre-answer stage when the pleading standards are met:

… [T]he plaintiffs alleged that certain provisions of Nassau County Administrative Code, chapter XXI, title D-21-Drycleaners and Laundromats were unconstitutional, unconstitutionally vague, served no legitimate purpose, and lacked any substantial relationship to the legislative intent … . …

” A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable disposition'” … . “[W]here a cause of action is sufficient to invoke the court’s power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy’ (CPLR 3001; see CPLR 3017[b]), a motion to dismiss that cause of action should be denied” … .

Here, the complaint was sufficient to invoke the court’s power to render a declaratory judgment as to the rights and other legal relations of the parties to a justiciable controversy (see CPLR 3001 …). A complaint will not be dismissed pursuant to CPLR 3211(a)(7) merely because the plaintiffs may not be entitled to a declaration in their favor … . Laundry Palace U, Inc. v Nassau County, 2020 NY Slip Op 03005, Second Dept 5-27-20

 

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PLAINTIFF RAISED QUESTIONS OF FACT WHETHER THE POLICE HAD PROBABLE CAUSE TO ARREST HIM AND WHETHER THE POLICE GAVE FALSE EVIDENCE TO THE GRAND JURY; THE MALICIOUS PROSECUTION, FALSE ARREST, FALSE IMPRISONMENT AND VIOLATION OF CIVIL RIGHTS CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the malicious prosecution, false arrest, false imprisonment and 42 USC 1983 civil rights causes of action should not have been dismissed. Plaintiff had been arrested and indicted in a shooting based upon information from Pierre-Riviera, who allegedly claimed plaintiff was the shooter. The charges against plaintiff were dismissed by the District Attorney. Plaintiff alleged the information provided by Pierre-Riviera was the product of coercion by the police, and the police witnesses provided false evidence to the grand jury:

… [T]he defendants failed to eliminate triable issues of fact as to whether the police had probable cause to arrest the plaintiff … . Pierre-Riviera’s deposition testimony, submitted by the defendants on their motion, raised triable issues of fact as to whether his identification of the plaintiff as the shooter was coerced, and therefore, whether the police had probable cause to arrest the plaintiff … . …

Regarding malicious prosecution, once a suspect has been indicted, the grand jury action creates a presumption of probable cause … . A plaintiff can overcome the presumption of probable cause “by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith” … . Elie v City of New York, 2020 NY Slip Op 03001, Second Dept 5-27-20

 

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DEFENDANT SNOW-REMOVAL CONTRACTOR DID NOT NEED TO DEMONSTRATE THE ESPINAL EXCEPTIONS DID NOT APPLY IN THIS SLIP AND FALL CASE BECAUSE PLAINTIFF DID NOT ALLEGE ANY OF THE EXCEPTIONS APPLIED; THEREFORE DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT ON THE GROUND PLAINTIFF WAS NOT A PARTY TO THE CONTRACT (SECOND DEPT).

The Second Department, in this slip and fall case, determined defendant snow-removal contractor, Con-Kel, did not need to demonstrate the inapplicability of any Espinal exceptions in its motion for summary judgment because plaintiff did not allege any of the exceptions applied:

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal v Melville Snow Contrs., 98 NY2d 136, 138). However, there are “three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … .

Where the pleadings do not allege facts which would establish the applicability of any of the Espinal exceptions, a defendant is not required to affirmatively demonstrate that the exceptions do not apply in order to establish its prima facie entitlement to judgment as a matter of law … .

Here, Con-Kel demonstrated its prima facie entitlement to judgment as a matter of law by coming forward with evidence that the plaintiff was not a party to its snow removal contract … . Arnone v Morton’s of Chicago/Great Neck, LLC, 2020 NY Slip Op 02997, Second Dept 5-27-20

 

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