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THE EX PARTE ORDER ALLOWING THE PROSECUTOR TO SEIZE AND READ DEFENDANT’S NON-LEGAL MAIL DID NOT REQUIRE DISQUALIFICATION OF THE PROSECUTOR OR A MISTRIAL; THE PROSECUTOR’S DEMONSTRATION OF THE OPERATION OF THE MURDER WEAPON (A KNIFE) DID NOT WARRANT A MISTRIAL; AND THE FAILURE TO NOTIFY THE COURT AND THE ATTORNEYS OF THE JURY NOTE REQUESTING THE EXAMINATION OF THE KNIFE WAS NOT AN O’RAMA VIOLATION AND DID NOT WARRANT A MISTRIAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, affirmed defendant’s murder conviction after addressing several unusual issues in depth: (1) The prosecutor obtained a ex parte order allowing the opening and reading of defendant’s non-legal mail to determine whether defendant was threatening an eyewitness. After reading two batches of mail, the prosecutor determined no threats were being made, informed defense counsel of the order and turned the mail over to defense counsel. The First Department determined there were no related grounds for disqualifying the prosecutor or for granting a mistrial. (2) When the defendant was on the stand he denied knowing the knife (murder weapon) could be flipped open with one hand. During her questioning the prosecutor demonstrated that the knife could be flipped open. The Second Department determined the “prosecutor-as-an-unsworn witness” argument did not warrant a mistrial, in part because of the curative instructions to the jury. (3) The knife was brought into the jury room after a request from the jury about which the court and the attorneys were not made aware. The judge and the attorneys had agreed that the jury’s examination of the knife would be allowed and the examination was done according to the agreed procedure. This was not an O’Rama violation because it involved only the examination of a physical object, not an instruction or the substance of any trial evidence. Therefore a mistrial on this ground was not warranted. People v Jenkins, 2020 NY Slip Op 04014, First Dept 7-16-20

 

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AN ARTICLE 78 REVIEW OF THE RESPONSE TO A FOIL REQUEST MAY ONLY CONSIDER THE GROUND FOR THE INITIAL AGENCY DECISION; THE GROUNDS FOR A SUBSEQUENT DECISION ISSUED AFTER THE ARTICLE 78 PROCEEDING WAS COMMENCED SHOULD NOT HAVE BEEN CONSIDERED; PETITIONER’S REQUEST FOR THE METADATA OF THE DISCLOSED DOCUMENTS MUST BE DENIED BECAUSE METADATA WAS NOT ‘REASONABLY DESCRIBED’ IN THE FOIL REQUEST (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Article 78 review must be confined to the ground asserted in the agency’s initial FOIL decision and could not consider the grounds asserted in the agency’s subsequent decision issued after petitioner brought the Article 78 proceeding. The ground for the initial decision had been abandoned in the second decision. The court noted that the petitioner’s demand for the metadata of the disclosed documents must be denied because metadata was not “reasonably described” in the FOIL request:

This proceeding is not in the nature of mandamus to compel. Instead, the standard of review is whether the denial of the FOIL request was “affected by an error of law” (CPLR 7803[3] … ), for which judicial review is “limited to the grounds invoked by the agency” in its determination … . Since respondents abandoned the exemption raised in their initial decision, they cannot meet their burden to “establish[] that the . . . documents qualif[y] for the exemption” … . Further, as respondents “did not make any contemporaneous claim that the requested materials” fit the newly raised exemptions, “to allow [them] to do so now would be contrary to [Court of Appeals] precedent, as well as to the spirit and purpose of FOIL” … . …

An agency is only required to produce “a record reasonably described” (Public Officers Law § 89[3][a]). Contrary to petitioner’s contention, the FOIL request for “complete copies” of communications and documents cannot fairly be read to have implicitly requested metadata associated with those copies. Matter of Barry v O’Neill, 2020 NY Slip Op 04007, First Dept 7-16-20

 

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DEFENDANT’S SENTENCE REDUCED TO TIME-SERVED BASED UPON HIS HEALTH (FIRST DEPT).

The First Department reduced defendant’s sentence for assault second, aggravated harassment and criminal possession of a weapon based upon defendant’s health:

The trial evidence established that the defendant engaged in a 10-month campaign of harassment, wherein he terrorized the attorneys and two female staff at the law firm representing his wife in divorce proceedings. The defendant called the firm more than 1,500 times during that period, and engaged in vile communication which became progressively more sexual, racist and threatening in nature. The evidence likewise supports the conclusion that defendant caused physical injury to his wife’s matrimonial lawyer when defendant hit the victim in the shin with his four-pronged cane during a court proceeding. * * *

While we otherwise find no basis to disturb defendant’s sentence and do not consider him deserving of this court’s leniency, we exercise our interest of justice jurisdiction. In so doing, we extend to him the compassion and consideration he neglected to show the four women simply doing their jobs, and reduce his sentence to time served because of defendant’s age and chronic health conditions (including coronary artery disease, hypertension and diabetes), and the fact that he has only a few months to serve before his release date. People v Spinac, 2020 NY Slip Op 04002, First Dept 7-16-20

 

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DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION AND DID NOT DEMONSTRATE IT DID NOT HAVE KNOWLEDGE OF THE CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s (Stop 1’s) motion for summary judgment in this slip and fall case should not have been granted. The decision does not describe the facts but apparently rainfall had something to do with the fall:

Defendant (Stop 1) did not meet its initial burden of demonstrating “that it neither created a hazardous condition, nor had actual or constructive notice of its existence” … , as it made no specific, affirmative showing that it did not have actual or constructive notice of the hazardous condition. Defendants failed to establish their prima facie entitlement to summary judgment as they “failed to offer specific evidence as to their activities on the day of the accident, including evidence indicating the last time [the area in question] was inspected, cleaned, or maintained before [the] fall” … . Witness Nashwen Nagi testified that he was not in the bodega at the time of plaintiff’s accident because he was on vacation, and did not have any knowledge of the accident until Stop 1 received a letter from plaintiff’s lawyer. According to Nagi, Stop 1 did not maintain employment or repair records for the bodega.

The record in any event raises triable issues of fact sufficient for trial, as the affidavit from a nonparty witness presents an issue as to how long before the accident the rain had started. Ruiz v Stop 1 Gourmet Deli, 2020 NY Slip Op 04000, First Dept 7-16-20

 

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WHETHER THE TRAFFIC ACCIDENT INVOLVING A SALT-SPREADING TRUCK OCCURRED ON A PUBLIC OR PRIVATE PARKING LOT AFFECTED THE APPROPRIATE STANDARD OF CARE UNDER THE VEHICLE AND TRAFFIC LAW, PROOF ON THAT ISSUE SHOULD HAVE BEEN ALLOWED; DEFENDANTS’ ACCIDENT RECONSTRUCTIONIST SHOULD HAVE BEEN ALLOWED TO TESTIFY; THE $12 MILLION VERDICT WAS PROPERLY SET ASIDE AS EXCESSIVE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined a new trial was necessary on both liability and damages in this traffic accident case. Supreme Court had found the $12,000,000 verdict excessive and had ordered a new damages trial. The accident occurred in a parking lot at LaGuardia Airport during a snowfall and involved a salt-spreading truck. Proof whether the parking was public or private should have been allowed because the reckless disregard standard (Vehicle and Traffic Law) would apply if the parking lot was public. The First Department further found that the defendants’ accident reconstructionist should have been allowed to testify:

Plaintiff, an employee at a Dunkin Donuts franchise in LaGuardia Airport, was involved in an accident with a salt spreading truck operating in parking lot 10 of the airport during a snowfall. The trial court erred in truncating proof on the issue of whether lot 10 was public or private. This error then directly impacted whether the jury should have been charged with the recklessness standard as set forth in Vehicle and Traffic Law § 1103, or Vehicle and Traffic Law § 1163 … . The error in the charge warrants a new trial … .

The court also erred in precluding defendants’ accident reconstructionist from testifying … . The court’s in limine inquiry of the expert concerning scientific studies was not relevant, as the subject of the testimony, accident reconstruction and perception reaction time are not novel scientific theories, such as to require a Frye hearing … . The proposed expert testimony was based on evidence in the record concerning the accident, and was not entirely speculative … . Similarly, defendants’ notice of expert exchange was not insufficient such as to warrant his in toto preclusion. The remedy for any alleged failures in specificity could have been handled by limiting his testimony to the subject matters listed in the exchange (CPLR 3101[d]). Cabrera v Port Auth. of N.Y. & N.J., 2020 NY Slip Op 03993, First Dept 7-16-20

 

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PLAINTIFF COULD NOT MOVE TO DISQUALIFY LAW FIRMS WHICH NEVER REPRESENTED PLAINTIFF (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff did not have standing to move to disqualify two law firms (SZA and ABZ), one of which represented defendant, on conflict of interest grounds in this foreclosure/property-ownership dispute because neither law firm ever represented plaintiff. Apparently there was some overlap of personnel in the two law firms:

The basis for a disqualification motion is the alleged breach of the fiduciary duty owed by an attorney to a current or former client … . When the law firm targeted by the disqualification motion has never represented the moving party, that firm owes no duty to that party. “[I]t follows that if there is no duty owed there can be no duty breached” … . Since plaintiff never had an attorney-client relationship with either SZA or ABZ, plaintiff had no standing to bring a motion to disqualify … .

To be sure, a court has the authority to act sua sponte to disqualify counsel if it finds a conflict of interest warranting disqualification … . However, the record before us does not support disqualification. The two defendants present a united front to plaintiff at this juncture. Their answers raise virtually the same affirmative defenses and counterclaims to the complaint, and the defenses and counterclaims of one defendant do not undermine the position of the other … . If defendants’ interests do come to diverge in this litigation then counsel of course has a duty to ensure compliance with rule 1.7 of the New York Rules of Professional Conduct (22 NYCRR 1200.0). HSBC Bank USA, N.A. v Santos, 2020 NY Slip Op 03976, First Dept 7-16-20

 

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THE CASINO WHERE PLAINTIFF WAS DRINKING WITH THE MAN WHO ASSAULTED HER AFTER SHE LEFT THE CASINO DID NOT OWE A DUTY TO PLAINTIFF AFTER SHE LEFT THE PREMISES (SECOND DEPT).

The Second Department determined the defendant casino’s motion for summary judgment in this third-party assault case was properly granted. Plaintiff alleged she was drinking in defendant casino and left with the man who had brought her drinks. The man sexually assaulted the plaintiff in a car:

A cause of action alleging negligence “must be founded upon a breach by a defendant of a legal duty owed to a plaintiff” … . “Landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property” … . “In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control” … . However, a landowner’s duty is “limited to conduct on its premises, which it had the opportunity to control, and of which it was reasonably aware” … .

Here, the defendant demonstrated, prima facie, that it did not owe a legal duty to the plaintiff with respect to her subsequent, off-premises sexual assault perpetrated by a man she met at a casino bar earlier in the evening … . Stenson v Genting N.Y., LLC, 2020 NY Slip Op 03939, Second Dept 7-15-20

 

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THE DEMONSTRATION THAT THE APPELLANTS’ VEHICLE WAS STOPPED WHEN IT WAS STRUCK FROM BEHIND WAS SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN APPELLANTS’ FAVOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined appellants’ motion for summary judgment in this rear-end collision case should have been granted. Appellants demonstrated their vehicle was stopped when it was struck from behind by a vehicle driven by Bruce. Bruce’s assertion that appellant’s vehicle made a sudden stop was not sufficient to raise a question of fact:

The appellants established their prima facie entitlement to judgment as a matter of law dismissing the second amended complaint and all cross claims insofar as asserted against them by demonstrating that their vehicle was stopped when it was struck in the rear by the vehicle operated by Bruce … . … Bruce’s bare assertion that the appellants’ vehicle made a sudden stop, without more, was insufficient to raise a triable issue of fact as to whether … the operator of the appellants’ vehicle, was partly at fault, so as to defeat summary judgment … . Ross v JFC Intl., Inc., 2020 NY Slip Op 03935, Second Dept 7-15-20

 

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SUSPENDED ATTORNEY ENTITLED TO QUANTUM MERUIT COMPENSATION FOR WORK DONE PRIOR TO THE SUSPENSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a suspended attorney was entitled to quantum meruit compensation for work done prior to the suspension. The matter was remitted for a hearing to determine the appropriate amount of compensation:

The nonparty-appellant, a suspended attorney, contends that he is entitled to legal fees in quantum meruit for work performed on behalf of the plaintiff in this personal injury action prior to his suspension from the practice of law; the suspension was unrelated to his representation of the plaintiff in this action. The Supreme Court should have granted the appellant’s motion for that relief.

22 NYCRR 1240.15(g) of the rules for attorney disciplinary matters provides as follows: “Compensation. A respondent who has been disbarred or suspended from the practice of law may not share in any fee for legal services rendered by another attorney during the period of disbarment or suspension but may be compensated on a quantum meruit basis for services rendered prior to the effective date of the disbarment or suspension. On motion of the respondent, with notice to the respondent’s client, the amount and manner of compensation shall be determined by the court or agency where the action is pending or, if an action has not been commenced, at a special term of the Supreme Court in the county where the respondent maintained an office. The total amount of the legal fee shall not exceed the amount that the client would have owed if no substitution of counsel had been required” … . Ragland v Molloy, 2020 NY Slip Op 03933, Second Dept 7-15-20

 

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CAUSE OF ACTION AGAINST THE LANDOWNER FOR A SLIP AND FALL IN THE LESSEE’S SHOPPING CENTER PARKING LOT SHOULD NOT HAVE BEEN DISMISSED BECAUSE THE LANDOWNER HAD SOME REPAIR RESPONSIBILITIES UNDER THE LEASE; ALTHOUGH THE ORIGINAL SUMMONS AND COMPLAINT DESCRIBED THE WRONG PROPERTY ADDRESS, THE AMENDED COMPLAINT, SERVED AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS, WAS TIMELY UNDER THE RELATION-BACK DOCTRINE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint against the landowner in this slip and fall case should not have been dismissed. Plaintiff allegedly slipped and fell in the parking lot of a shopping center. Plaintiff sued the landowner three days before the statute of limitations expired. The property address of the shopping center was wrong on the original summons and complaint. A couple of months later plaintiff served a supplemental summons and amended complaint which corrected the address and added defendants. The cause of action against the landowner should not have been dismissed because the lease gave the property owner some authority over keeping the premises safe and because the relation-back theory rendered the amended complaint timely. The causes of action against the added defendants were deemed time-barred because the relation-back doctrine did not apply to them:

A motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s allegations, thereby conclusively establishing a defense as a matter of law … . Here, the defendants’ own affidavits do not constitute documentary evidence within the meaning of CPLR 3211(a)(1) … , and the ground lease between them and Stavan, Inc., failed to utterly refute the plaintiff’s factual allegations. “Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition” … . Although “a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … , and, here, the lease required the lessee to “keep [the subject property] in good repair” and “make or cause to be made any and all repairs both inside and outside,” the lease also gave the defendants the right to reenter the subject property and “perform and do such acts and things, and make such payments and incur such expenses as may be reasonably necessary to make . . . repairs to comply with the requirements” under the lease. Thus, the lease failed to conclusively establish a defense as a matter of law … . …

“The linchpin’ of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period” … . Here, the plaintiff failed to demonstrate that the relation-back doctrine applied inasmuch as she did not establish that the additional defendants had knowledge of the claim or occurrence within the applicable limitations period, and that her failure to name them as defendants in the original complaint was due to a mistake on her part … . Pirozzi v Garvin, 2020 NY Slip Op 03932, Second Dept 7-15-20

 

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