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ALTHOUGH IT WAS ERROR TO ALLOW THE PROSECUTION TO CROSS-EXAMINE A DEFENSE WITNESS ABOUT PRIOR UNCHARGED OFFENSES ALLEGEDLY INVOLVING THE DEFENDANT, THE ERROR WAS HARMLESS; THE DISSENTERS ARGUED THE ERROR WAS REVERSIBLE (FIRST DEPT).

The First Department, over a two-justice dissent, determined, although the trial court erred in allowing cross-examination of a defense witness (and co-defendant), Calderon, about prior uncharged offenses allegedly involving defendant, the error was harmless. The dissenters argued the error was reversible:

We agree with the dissent that the prosecutor improperly cross-examined Calderon concerning three other crimes in which he had left the scene in a dark SUV. Some of the questions included a partial or complete recitation of the license plate number of the SUV used in the instant crime. This was a clear attempt to associate defendant with uncharged crimes, and the court should have sustained defense counsel’s objections to this line of questioning. Similarly, the prosecutor should not have made two references in her summation to the use of this “getaway vehicle” in other crimes when discussing Calderon’s testimony. * * *

The evidence at trial demonstrates that there is no “significant probability, rather than only a rational possibility,” that the jury would have acquitted defendant had it not been for the references to the SUV’s connection with Calderon’s other crimes … . People v Vasquez, 2020 NY Slip Op 02237, First Dept 4-9-20

 

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NOTWITHSTANDING THE TENANT’S LEASE-OBLIGATION TO KEEP THE SIDEWALK FREE OF ICE AND SNOW, THE LANDLORD HAD THE NONDELEGABLE DUTY TO KEEP A RAMP LEADING TO THE SIDEWALK IN A SAFE CONDITION IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant owner of the property leased by a restaurant had a nondelegable duty to keep a metal ramp leading from the restaurant to the sidewalk (a special use of the sidewalk) in a safe condition, notwithstanding the restaurant’s lease-obligation to remove ice and snow from the sidewalk. Plaintiff, a restaurant employee, slipped and fell on snow and ice on the ramp:

Plaintiff, an employee of the restaurant owned by third-party defendant, slipped and fell on snow and ice on a metal ramp leading from the side door of the restaurant to the sidewalk. Third-party defendant leases the ground floor and basement space from defendant landowner. The evidence shows that the ramp was erected over the public sidewalk alongside defendant’s building, and is not included in the diagram of the leased space. Further, the director of leasing for defendant’s property manager testified that the ramp was built for use by people with disabilities.

Notwithstanding any lease provisions obligating the restaurant to remove snow and ice from the sidewalk, defendant, as owner of the property abutting the sidewalk, had a nondelegable duty to keep the sidewalk, and any special uses made of the sidewalk, in a safe condition, including the removal of snow and ice … . Dembele v 373-381 Pas Assoc., LLC, 2020 NY Slip Op 02256, First Dept 4-9-20

 

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THE ISSUES ADDRESSED IN THIS COMPREHENSIVE ASBESTOS-MESOTHELIOMA OPINION INCLUDE: GENERAL CAUSATION; SPECIFIC CAUSATION; WHETHER THE CLOSING PREJUDICED THE JURY; AND THE APPORTIONMENT OF DAMAGES (FIRST DEPT).

The First Department, in a comprehensive opinion by Justice Gische, over a dissent, determined there was sufficient evidence of causation to raise a jury question in this asbestos-mesothelioma action. The issues addressed included: (1) general causation; (2) specific causation; (3) whether plaintiff’s counsel’s closing required a new trial; and (4) the apportionment of damages. The opinion is far too detailed and comprehensive to fairly summarize here:

The Court of Appeals recognized that precise information and exact details are not always available in toxic tort cases and they may not be necessary so long as there is “evidence from which a reasonable person could conclude” that the defendant’s offending substance “has probably caused” the kind of harm of which the plaintiff complains … . * * *

After each sides’ attorney highlighted the weaknesses in the other sides’ expert’s scientific evidence and authorities, it then became the province of the jury to weigh the evidence and decide which opinion was more credible … . There is no legal basis to disturb the jury’s findings and verdict in favor of plaintiff … . * * *

There is no basis, in this record, for a finding that the weight of the evidence presented at trial preponderated in favor of finding no specific causation. * * *

Plaintiff’s counsel’s summation comments were isolated remarks during a very lengthy summation. They were not pervasive, egregious or an obdurate pattern of remarks that inflamed the jury into believing that the focus of plaintiff’s exposure to asbestos contaminated talc was other than airborne particulants that she had breathed in for many years … . * * *

Issues raised by plaintiff on its cross appeal regarding the court’s calculation of offsets for payments made by the settling defendants … do have merit. General Obligations Law § 15-108 requires that a judgment be adjusted by subtracting the greater of other tortfeasors’ equitable share of the damages or the amount actually paid by them. Nemeth v Brenntag N. Am., 2020 NY Slip Op 02261, First Dept 4-9-20

 

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OUT-OF-POSSESSION LANDLORD MAY BE LIABLE FOR PLAINTIFF’S SLIP AND FALL ON ICE WHICH FORMED ON THE STEP LEADING TO HER APARTMENT, DESPITE IT BEING PLAINTIFF’S RESPONSIBILITY TO REMOVE ICE AND SNOW FROM THE AREA (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there was a question of fact whether defendant out-of-possession landlord is liable for plaintiff’s slip and fall on ice on a step leading to her apartment, despite it being plaintiff’s responsibility to remove ice and snow from the area. Plaintiff alleged the ice formed because of a leak in the porch roof:

… [P]laintiff contends that the condition that led to the formation of the ice patch was present and ascertainable for at least several days. …

… “[A] landlord has a duty to use ordinary care to keep those areas which are reserved and intended for the common use of the tenants and owner of the building and subject to the landlord’s control, i.e., the common areas, in a reasonably safe and suitable condition” … .

The roof here was not accessible or available for use by the tenants … , but the record indicates that the exterior of the building may have been within defendants’ control. Since purchasing the building in 1994, defendants had replaced the roof, replaced the gutter system along at least one side of the building and recoated part of the roof with tar. Defendant Timothy J. Charest, who was responsible for managing the property, testified that the gutter system was on the building when defendants purchased the property, but also testified that “if there were problems with a gutter” on the side of the building containing the apartment entrances, “there were repairs made,” though he could not remember when any such repairs had been made. Charest testified that he inspected the property approximately weekly, as well as after every storm. He did not keep records of his inspections but would do them on a weekday; plaintiff’s accident occurred on a Friday evening. Neither defendant could specifically identify when he had last inspected the property. Harkins v Tuma, 2020 NY Slip Op 02145, Third Dept 4-2-20

 

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CORNELL DID NOT HAVE TO FOLLOW THE PROCEDURES IN ITS STUDENT CODE TO REFUSE ADMISSION TO PETITIONER WHO OMITTED FROM HIS APPLICATION THE FACT HE HAD BEEN EXPELLED FROM ANOTHER COLLEGE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined respondent Cornell did not act arbitrarily or capriciously when it refused to enroll petitioner because petitioner did not reveal he had been expelled from Kansas State for violations of its code of conduct. Petitioner argued Cornell did not follow the provisions in its Code when it refused to enroll petitioner. But the Third Department held the Code applied only to “students” and not to those who were filling out an application for admission:

In reviewing a determination rendered by a private educational institution where no hearing is required, a court will not disturb it “unless a school acts arbitrarily and not in the exercise of its honest discretion, it fails to abide by its own rules or imposes a penalty so excessive that it shocks one’s sense of fairness” … . Petitioner argues that respondent was obliged to follow the provisions of the Code, which establishes standards of conduct for, as is relevant here, its students. A student is defined under the Code as a person “currently registered” with respondent in one of its divisions or as a special student, “currently enrolled in or taking classes” with respondent, “currently using” respondent’s facilities or property for academic purposes or “currently on leave of absence or under suspension from being a student.” Inasmuch as petitioner was none of those things when he misrepresented his academic background on an application for admission to respondent, neither the Code nor the procedures created by it were applicable to his misconduct, and Supreme Court erred in concluding that they were … . Matter of Kamila v Cornell Univ., 2020 NY Slip Op 02150, Third Dept 4-2-20

 

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GENERAL BUSINESS LAW 349 DECEPTIVE BUSINESS PRACTICES CAUSE OF ACTION IN THE CONTEXT OF A RENT STABILIZATION LAW (RSL) RENT-OVERCHARGE SUIT WAS PROPERLY DISMISSED (CT APP).

The Court of Appeals, over a partial dissent, determined the General Business Law 349 cause of action alleging deceptive business practices in the context of the Rent Stabilization Law (RSL) rent-overcharge suit was properly dismissed:

… General Business Law … , section 349 prohibits “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” … . We have held that this statute “cannot fairly be understood to mean that everyone who acts unlawfully, and does not admit the transgression, is being deceptive'” within the meaning of section 349 … . For purposes of this appeal, we assume without deciding that a claim may lie under General Business Law § 349 based upon a landlord’s alleged misrepresentation to the public that an apartment was exempt from rent regulation following deregulation in violation of the Rent Stabilization Law. Here, however, plaintiffs alleged only that defendants failed to admit that they violated the Rent Stabilization Law in deregulating plaintiffs’ apartments—three of which were, in fact, never deregulated—rather than any affirmative conduct that would tend to deceive consumers. Inasmuch as plaintiffs failed to allege more than “bare legal conclusions” … regarding the existence of consumer-oriented, deceptive acts … , their General Business Law claim was properly dismissed. Collazo v Netherland Prop. Assets LLC, 2020 NY Slip Op 02128, CtApp 4-2-20

 

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ATTORNEY FOR THE CHILD PROPERLY ALLOWED TO ADOPT THE NEGLECT PETITION AFTER THE PETITIONER REQUESTED THE WITHDRAWAL OF THE PETITION (THIRD DEPT).

The Third Department, reversing Family Court, determined the attorney for the child (AFC) was properly allowed to proceed with the neglect petition after the petitioner requested to withdraw the petition. However the evidence of educational and medical neglect was insufficient:

… [W]e perceive no error or abuse of discretion in Family Court declining to dismiss the petitions and allowing the attorney for the children to adopt the petitions and proceed on them (see Family Ct Act § 1032 [b] …). Turning to the merits, as relevant here, a party seeking to establish neglect must prove, by a preponderance of the evidence, that a child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in supplying [him or her] with adequate . . . education in accordance with the provisions of part one of article [65] of the [E]ducation [L]aw, or medical . . . care, though financially able to do so or offered financial or other reasonable means to do so” … . Matter of Abel XX. (Jennifer XX.), 2020 NY Slip Op 02129, Third Dept 4-2-20

 

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THE PEOPLE DID NOT DEMONSTRATE THE IMPOUNDMENT OF DEFENDANT’S CAR AND THE INVENTORY SEARCH WERE LAWFUL; SEIZED EVIDENCE SUPPRESSED AND INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and dismissing the indictment, determined the People did not demonstrate the impoundment of defendant’s car and the inventory search which turned up a weapon and a marijuana cigarette were lawful. Therefore the seized items should have been suppressed. The defendant parked in a visitor’s space and went into the police station to pick up a friend’s property. After presenting his ID, the police discovered a bench warrant, arrested him, impounded his car and conducted an inventory search:

The People failed to establish the lawfulness of the impoundment of the defendant’s car and subsequent inventory search … . The arresting officer testified that the defendant’s vehicle was legally parked in a visitor’s parking space, and the officer was unaware of posted time limits pertaining to the visitor parking spaces. Although the officer testified that he impounded the defendant’s vehicle to safeguard the defendant’s property against a potential burglary, the People presented no evidence demonstrating any history of burglary or vandalism in the area where the defendant had parked his vehicle. Thus, the People failed to establish that the impoundment of the defendant’s vehicle was in the interests of public safety or part of the police’s community caretaking function … . Moreover, the People failed to present any evidence as to whether the New York City Police Department had a policy regarding impoundment of vehicles, what that policy required, or whether the arresting officer complied with that policy when he impounded the defendant’s vehicle … . People v Weeks, 2020 NY Slip Op 02198, Second Dept 4-2-20

 

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THE HOUSING STABILITY AND TENANT PROTECTION ACT OF 2019 (HSTPA) DOES NOT APPLY RETROACTIVELY TO RENT OVERCHARGE ACTIONS UNDER THE RENT STABILIZATION LAW (RSL) COMMENCED BEFORE THE COURT OF APPEALS RULING IN ROBERTS (CT APP).

The Court of Appeals, in a per curiam opinion, over a three-judge dissent, determined the Housing Stability and Tenant Protection Act of 2019 (HSTPA) did not apply retroactively to extend the look back period for rent overcharge actions from four to six years, and did not alter the overcharge calculation methodology for pre-Roberts actions. The opinion and the dissent are too comprehensive and detailed to fairly summarize here:

… [T]hese four appeals … present a common issue under the Rent Stabilization Law (RSL): what is the proper method for calculating the recoverable rent overcharge for New York City apartments that were improperly removed from rent stabilization during receipt of J-51 benefits prior to our 2009 decision in Roberts v Tishman Speyer Props., L.P. (13 NY3d 270 [2009]). …

… [T]he HSTPA includes amendments that, among other things, extend the statute of limitations [and] alter the method for determining legal regulated rent for overcharge purposes and substantially expand the nature and scope of owner liability in rent overcharge cases … . The tenants in these cases urge us to apply the new overcharge calculation provisions to these appeals that were pending at the time of the HSTPA’s enactment, some of which seek recovery of overcharges incurred more than a decade before the new legislation. * * *

We … decline to create a new exception to the lookback rule and instead clarify that, under pre-HSTPA law, the four-year lookback rule and standard method of calculating legal regulated rent govern in Roberts overcharge cases, absent fraud. * * *

We conclude that the overcharge calculation amendments [enacted by the HSTPA] cannot be applied retroactively to overcharges that occurred prior to their enactment. Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 2020 NY Slip Op 02127, CtApp 4-2-20

 

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DENYING VISITATION TO MOTHER WHO HAD NOT SEEN THE CHILD IN NINE YEARS BUT HAD GAINED EMPLOYMENT AND STOPPED ABUSING DRUGS WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE; FAMILY COURT GAVE UNDUE WEIGHT TO THE FORENSIC EVALUATOR’S FINDINGS AND TO MOTHER’S EMOTIONAL OUTBURSTS AT THE HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined the denial of visitation to mother in this modification-of-visitation proceeding was not supported by the evidence. Mother had not seen the child in nine years but demonstrated she was employed and had stopped abusing drugs. Family Court gave undue weight to the findings of a forensic evaluator and to mother’s emotional state during the hearing:

In our view, the forensic evaluator essentially acquiesced to the father’s preferences that the child have no contact with the mother and, in effect, gave them a higher priority over any court directive. Any unwillingness by the father to facilitate visitation does not demonstrate that the child’s welfare would be placed in harm if visitation between the mother and the child occurred and in no way rebuts the presumption that visitation with the mother is in the best interests of the child. In view of the flaws in the forensic evaluator’s report, it should have been given minimal consideration.In our view, the forensic evaluator essentially acquiesced to the father’s preferences that the child have no contact with the mother and, in effect, gave them a higher priority over any court directive. Any unwillingness by the father to facilitate visitation does not demonstrate that the child’s welfare would be placed in harm if visitation between the mother and the child occurred and in no way rebuts the presumption that visitation with the mother is in the best interests of the child. In view of the flaws in the forensic evaluator’s report, it should have been given minimal consideration.

Family Court also found that the mother could not control her emotions during the trial. Although we do not discount a parent’s emotional stability as one factor in the best interests analysis, there was little evidence, if any, indicating that the mother displayed the same emotional outbursts either with the children that she had just regained custody of or outside the courtroom setting. Accordingly, under the circumstances of this case, any inability of the mother to control her emotions at the hearing has little relevance … . Matter of Jessica D. v Michael E., 2020 NY Slip Op 02133, Third Dept 4-2-20

 

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