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THE EXISTENCE OF A HANDRAIL ON THE LEFT OF THE STAIRS DID NOT WARRANT GRANTING SUMMARY JUDGMENT TO DEFENDANTS IN THIS SLIP AND FALL CASE WHERE THERE WAS NO HANDRAIL ON THE RIGHT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this stairway slip and fall case should not have been granted. The fact that there was a handrail on the left did not warrant summary judgment because there was no handrail on the right:

Plaintiff … was injured when, while descending the right side of the exterior staircase of the subject premises, she slipped and when she tried to grab onto a handrail, there was no right-sided handrail. A triable issue of fact thus exists as to whether the absence of a required handrail on that side of the staircase was a proximate cause of the accident … . Defendants’ argument that the missing handrail on the right side of the staircase did not proximately cause plaintiff’s fall since she chose not to use the available left-side handrail, is directed to the issue of comparative negligence … . Gil v Margis Realty LLC, 2020 NY Slip Op 03089, First Dept 5-28-20

 

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MISNOMER DID NOT PREJUDICE THE CITY; CITY’S MOTION TO DISMISS SHOULD HAVE BEEN DENIED AND PLAINTIFF’S CROSS MOTION TO AMEND THE SUMMONS AND COMPLAINT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the mis-description of the defendant in the summons and complaint did not prejudice the city, which was notice of the plaintiff’s suit:

The summons and complaint were served on Corporation Counsel for the City of New York, which answered on behalf of the City of New York. Defendant’s motion to dismiss the complaint should have been denied and plaintiff’s cross motion to amend the summons and complaint to correct the misnomer granted. The City was not prejudiced by the mis-description and was on notice that plaintiff intended to seek a judgment against it (see CPLR 305[c] … ). Rivera v New York City Dept. of Sanitation, 2020 NY Slip Op 03085, First Dept 5-28-20

 

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OUT OF POSSESSION LANDLORD MAY BE LIABLE IN THIS SIDEWALK SLIP AND FALL CASE PURSUANT TO A 2019 COURT OF APPEALS DECISION; VIOLATION OF NYC ADMINISTRATIVE CODE CAN BE RAISED FOR THE FIRST TIME IN OPPOSITION TO SUMMARY JUDGMENT MOTION; QUESTION OF FACT ABOUT THE APPLICABILITY OF THE STORM IN PROGRESS DOCTRINE (FIRST DEPT). ​

The First Department, reversing Supreme Court in this sidewalk slip and fall case, determined: (1) a 2019 Court of Appeals decision clarified the defendant out-of-possession landlord’s duty to keep sidewalks safe, notwithstanding any maintenance arrangement with a tenant; (2) although the plaintiff was required to allege the defendant violated the NYC Administrative Code and failed to do so, plaintiff could rely on the Code provision in opposition to defendant’s summary judgment motion; and (3) plaintiff raised a question of fact whether the ice condition existed before the alleged storm in progress at or near the time of the fall:

… [T]he court’s determination that defendant was entitled to summary judgment dismissing the complaint on the ground that he is an out-of-possession landlord is no longer sound in light of the Court of Appeals’s decision in Xiang Fu He v Troon Mgt., Inc. (34 NY3d 167 [2019]). …[E]ven if … plaintiff was required to plead defendant’s violation of Administrative Code of City of New York § 7-210 – which he undisputedly failed to do – plaintiff’s reliance thereon for the first time in opposition to defendant’s motion for summary judgment was permissible, given that doing so did not raise any new theory of liability or prejudice … . Herrera v Vargas, 2020 NY Slip Op 03082, First Dept 5-28-20

 

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ALTHOUGH THE INDICTMENT CHARGED THE DEFENDANT WITH THE INTENTIONAL KILLING OF SCOTT WRIGHT, THE JURY WAS TOLD IN ANSWER TO ITS QUESTION THAT IT COULD CONVICT THE DEFENDANT IF THEY FOUND DEFENDANT INTENDED TO KILL THE NEXT PERSON WHO CAME THROUGH THE DOOR, IRRESPECTIVE OF THE IDENTITY OF THAT PERSON; THE JURY INSTRUCTION WAS DEEMED PROPER (THIRD DEPT).

The Third Department, affirming defendant’s murder conviction, determined the People were not required to prove defendant intended to kill the victim named in the indictment (Wright ). Although the indictment charged defendant with the intentional murder of Wright, the jury wanted to know if they could convict if they concluded defendant simply intended to kill the next person who came through the door (who happened to be Wright). The judge answered the jury’s question in the affirmative and the Third Department held the jury was properly instructed:

As defendant argues, “a jury charge may not constructively amend an indictment by varying the theory of the prosecution” … . “However, not every fact mentioned in an indictment is essential to establish the defendant’s guilt of the crime charged, and thus it is not necessary in every case that the People prove all acts alleged in the indictment when the remaining acts alleged are sufficient to sustain a conviction” … . Significantly, the identity of the victim is not one of the elements of the crime of murder in the second degree … . Here, the People chose to go beyond the elements that they were required to prove to obtain a conviction both by asserting in the indictment that defendant specifically intended to shoot Wright and by making that argument at trial. Nonetheless, the jury was not required to accept this part of the People’s theory to convict defendant of murder in the second degree, so long as it found that the People had proven the elements of that crime beyond a reasonable doubt. Accordingly, we find that the instruction did not alter the prosecution’s theory … . …

… [W]e reject defendant’s contention that County Court’s supplemental instruction prejudiced defendant by introducing the new legal principle of mistake of fact. As defendant argues, the People made no arguments based on that principle during the trial. However, defendant’s theory of defense throughout the trial was that the gun went off accidentally and that defendant did not intend to shoot Wright or anyone else. This defense of accident would not have been altered or affected if the question whether defendant mistook Wright for someone else had been raised earlier; as previously noted, the identity of the victim is not an element of the crime of murder in the second degree. People v Lee, 2020 NY Slip Op 03049, Third Dept 5-28-20

 

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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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