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TRIAL COURT’S DECLARING A MISTRIAL VIOLATED THE PARTIES’ STIPULATION PURSUANT TO THE SUMMARY JURY TRIAL RULES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the trial should not have, sua sponte, declared a mistrial in this summary jury trial (SJT) in an attempt to correct an evidentiary error. The mistrial violated the parties’ STJ stipulation which constitutes a binding contract:

The SJT rules to which the parties stipulated provide, among other things, that “[p]arties agree to waive any motions for directed verdicts as well as any motions to set aside the verdict or any judgment rendered by said jury” and that the “Court shall not set side any verdict or any judgment entered thereon, nor shall it direct that judgment be entered in favor [of] a party entitled to judgment as a matter of law, nor shall it order a new trial as to any issues where the verdict is alleged to be contrary to the weight of the evidence” … .

The court erred in sua sponte declaring a mistrial and setting aside the verdict. While this was an attempt to correct an admittedly erroneous evidentiary ruling, the parties’ stipulation to a summary jury trial, subject to the applicable rules and procedures for Bronx County, was a legally binding contract … . Since the summary jury trial rules for Bronx County do not provide for any means to correct errors of law committed during trial, the court exceeded the boundaries of the parties’ agreement by setting aside the verdict, regardless of whether it in fact did so on its own initiative in the interest of justice … .

… [T]his holding does not proscribe post-trial motions of any kind in connection with summary jury trials; rather, it abides by the parties’ own proscriptions made at the time that they stipulated to proceed with a summary jury trial. There was nothing barring the parties from stipulating to reserve their right to appeal or move to set aside the verdict on the ground of an error of law. Vargas v LaMacchia, 2020 NY Slip Op 00556, First Dept 1-28-2o

 

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QUESTIONS OF FACT WHETHER THE ASSAILANT WAS AN INTRUDER AND WHETHER THE LANDLORD HAD NOTICE OF THE DEFECTIVE DOOR LOCK IN THIS THIRD-PARTY ASSAULT CASE; LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant NYC Housing Authority’s (NYCHA’s) motion for summary judgment in this third-party assault case should not have been granted. Plaintiff raised questions of fact whether the assailant was an intruder and whether the NYCHA had notice of the defective entrance door to the apartment building:

NYCHA failed to eliminate an issue of fact as to whether it was ” more likely or more reasonable than not'” that the man who shot plaintiff in the leg in front of his apartment door was an intruder ” who gained access to the premises through a negligently maintained entrance'” … . Plaintiff testified that a man spoke to him on the sidewalk just outside the building, asking where he could find drugs, and that, after plaintiff entered through the unlocked front entrance and walked up the stairs to his floor and along the hall 10 feet to his apartment, he saw the man again when he heard the door to the stairwell open, and the man held him up at gunpoint.

From plaintiff’s familiarity with building residents, the history of ongoing criminal activity, and the assailant’s failure to conceal his or her identity a jury could reasonably infer “that the assailant was more likely than not an intruder” … . Plaintiff informed the police that he could identify the assailant if shown a photograph … . NYCHA’s evidence also showed that there was a robbery inside the building about 18 months before plaintiff’s incident, requiring repairs to the front door lock, and various shootings on the grounds … .

Contrary to NYCHA’s contention, there is enough evidence as to how the assailant gained entry to the building to require consideration of whether NYCHA had actual or constructive notice of the nonfunctioning door lock … . A jury could infer from plaintiff’s testimony that the assailant entered the building himself and did not need to wait for anyone in the lobby to open the door for him.

Nor does its evidence demonstrate that NYCHA did not have constructive notice of the nonfunctioning door lock, since plaintiff testified that the lock was not functioning the day before and the day of the incident, but the last daily maintenance checklist produced by NYCHA, which included the front door lock, was dated two days before the incident … . Clotter v New York City Hous. Auth., 2020 NY Slip Op 00554, First Dept 1-28-20

 

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BUILDING OWNER NOT LIABLE FOR ALLEGED FAILURE TO ENSURE A SMOKE DETECTOR WAS FUNCTIONAL, DESPITE THE ALLEGATION THE OWNER REGULARLY INSPECTED THE SMOKE DETECTORS (FIRST DEPT).

The First Department determined the defendant landlord could not be held liable for the failure to ensure a smoke detector was functional:

In this action where plaintiff alleges that he was injured as a result of a fire in his apartment due to defendant building owner’s negligent failure to provide an operable smoke detector, defendant demonstrated prima facie that he satisfied his statutory duty to provide a functional smoke detector in the apartment, and accordingly, the obligation to maintain the smoke detector was assumed by plaintiff (see Administrative Code of City of NY § 27-2045[a][1], [b][1], [2]).

Plaintiff’s argument that defendant voluntarily assumed a duty to ensure his smoke detector was in good working condition by regularly inspecting tenants’ smoke detectors, is unavailing. “Liability under this theory may be imposed only if defendant’s conduct placed plaintiff in a more vulnerable position than he would have been in had defendant done nothing” … . Here, however, plaintiff provided no evidence that he relied on defendant’s inspection of his smoke detector to ensure its functionality, and instead testified that he never saw the building superintendent inspect his smoke detector. Figueroa v Parkash, 2020 NY Slip Op 00525, First Dept 1-28-20

 

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TRIAL JUDGE SHOULD NOT HAVE, SUA SPONTE, DECLARED A MISTRIAL TO ACCOMMODATE A JUROR’S WEEKEND PLANS; WRIT OF PROHIBITION GRANTED; RETRIAL BARRED; INDICTMENT DISMISSED (FIRST DEPT).

The First Department, granting petitioner’s application for a writ of prohibition and dismissing the indictment, determined the trial court should not have, sua sponte, declared a mistrial to accommodate a juror’s weekend travel plans. Retrial was barred:

The trial court was not compelled by manifest necessity to declare a mistrial and terminate the proceedings …, and accordingly, retrial is barred under the Double Jeopardy Clauses of the Federal and New York State Constitutions … . It was an abuse of discretion to declare a mistrial in order to accommodate a juror’s weekend travel plans, including a Friday, which she belatedly informed the court about during deliberations, where the court, as requested by defendant, reasonably could have directed the juror to report for deliberations the following day, and the court also failed to confirm that the jury was hopelessly deadlocked at the time … . Matter of Bannister v Wiley, 2020 NY Slip Op 00522, First Dept 1-28-20

 

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THE INTERIM DECISION ISSUED BY SUPREME COURT WAS NOT THE EQUIVALENT OF AN ORDER; THE FIRST DEPARTMENT, THEREFORE, DISMISSED THE APPEAL FOR LACK OF JURISDICTION (FIRST DEPT).

The First Department, dismissing the appeal in this Freedom of Information Law (FOIL) case, determined the “interim decision” was not an appealable paper, depriving the First Department of jurisdiction:

This proceeding stems from Spectrum News NY1’s (Spectrum) attempts to gain access to video files from the voluntary body camera experiment. Specifically, Spectrum filed a FOIL request for unredacted videos from the NYPD’s voluntary body camera program begun in 2014. NYPD denied the request, claiming that unredacted files were exempt from disclosure under FOIL. Spectrum then commenced this article 78 proceeding seeking a judgment compelling respondent NYPD to comply with its request. …

… [T]he parties stipulated that out of a disputed 328 videos, only 30 would be the subject of the hearing. Supreme Court then issued “an interim decision,” which was not the product of a motion for relief. Instead, the “interim decision,” among other things, permitted respondents to redact the faces of persons other than officers from any video footage recorded by the body cameras and to redact certain communications between officers … . …Supreme Court granted petitioner leave to appeal from the “interim decision.”

This appeal is thus taken from an “interim decision,” which is not an appealable paper. The lack of an appealable paper here deprives the Court of jurisdiction and requires dismissal of Spectrum’s appeal, albeit without prejudice. Where, as here, a party brings an appeal from a nonappealable paper, this Court regularly dismisses the appeal for lack of jurisdiction … . While there are instances where this Court has deemed a paper denominated as a “decision” to nonetheless be appealable because it contained all the hallmarks of an order … , that is not the situation here. Matter of Spectrum News NY1 v New York City Police Dept., 2020 NY Slip Op 00521, First Dept 1-28-20

 

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PROTECTIVE ORDER VACATED UPON EXPEDITED REVIEW (SECOND DEPT).

The Second Department, vacating the protective order issued by Supreme Court, determined defense counsel should have been heard in opposition to the application for the protective order:

… [T]he matter is remitted to the Supreme Court, Nassau County, to afford the defendant an opportunity to make arguments to that court with respect to the People’s application for a protective order.

Under the circumstances of this case, the Supreme Court should have granted defense counsel’s request for an opportunity to be heard with respect to the People’s application for a protective order pursuant to CPL 245.70 … . … [T]he People advised this Court that they no longer oppose the application. People v Belfon, 2020 NY Slip Op 00519, Second Dept 1-27-20

 

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SUPREME COURT DID NOT ABUSE ITS DISCRETION IN GRANTING A PROTECTIVE ORDER ALLOWING THE PEOPLE TO DELAY DISCLOSURE OF EVIDENCE IN THIS MURDER CASE UNTIL ONE WEEK BEFORE TRIAL; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, in an expedited review of Supreme Court’s granting a protective order in a murder case, determined Supreme Court did not abuse its discretion, in part because defense counsel was notified of the ex parte proceeding:

On January 15, 2020, the Supreme Court convened in an open session in the presence of the prosecutor, defense counsel, and the defendant. After ascertaining that defense counsel would not waive a hearing on the protective order, the court ordered the courtroom sealed. The defendant was removed from the courtroom, and defense counsel stepped out of the courtroom. Defense counsel did not voice an objection to the court’s conduct of an ex parte proceeding. Nor did defense counsel seek to offer any arguments concerning any of the factors relevant to the determination as to whether, and to what extent, a protective order should be issued. The court then proceeded to conduct an ex parte proceeding regarding the People’s application. Thereafter, the court resumed with a continued open session attended by both defense counsel and the defendant. After the court informed defense counsel that it had granted the People’s application, the parties and the court proceeded to discuss other matters related to the case. During these proceedings, defense counsel inquired as to whether there was description of the shooting by a witness. The court responded by stating that defense counsel had been provided with a videotape that “pretty much shows you how the shooting occurred.” … The defendant now seeks expedited review of the court’s ruling pursuant to CPL 245.70(6).

… [T]he record reflects that the court considered the possibility of allowing defense counsel access to the information on the condition that it not be shared with the defendant personally; the court raised this possibility sua sponte.

It would have been better in my view to allow defense counsel to see the portions of the People’s written application that contained legal argument or other matter that would not reveal the information sought to be covered by the protective order, pending the court’s determination as to whether the sensitive portions of the People’s application should be sealed. Further, it would have been better in my view, even assuming that portions of the People’s written and oral presentations should be sealed, to permit defense counsel to participate in portions of the protective order proceeding where the substance of the sealed information is not discussed. In my view, defense counsel should be excluded from participation in the protective order review process only to the extent necessary to preserve the confidentiality of sensitive information pending the court’s determination as to the issuance, and scope, of the protective order. People v Nash, 2020 NY Slip Op 00520, First Dept 1-27-20

 

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PROTECTIVE ORDER ALLOWING THE PEOPLE TO HOLD BACK INFORMATION (OTHERWISE SUBJECT TO AUTOMATIC DISCLOSURE) UNTIL AFTER JURY SELECTION VACATED; MATTER REMITTED TO ALLOW THE DEFENSE TO OPPOSE THE REQUEST FOR THE ORDER; THE PROCEDURAL REQUIREMENTS OF THE NEW DISCOVERY PROVISIONS ADDRESSED IN SOME DETAIL (SECOND DEPT).

The Second Department, in an expedited appellate review of the issuance of a protective order by Supreme Court, vacated the protective order and sent the matter back to allow the defense to make an argument in opposition. The defendant is accused of stabbing his wife multiple times. The People, pursuant to CPL 245.70, ex parte, applied for and were granted an order delaying, until after jury selection, the turning over of information otherwise subject to automatic disclosure under CPL 245.70. The decision makes an effort to explain how these new disclosure provisions should be handled by the trial courts:

Unlike the prior discovery statute, which allowed the People to wait until the time of trial to turn over witness statements (see CPL former 240.45), the new statutory scheme provides that disclosure is to be made within days after arraignment (see CPL 245.10[1][a]). The new statute provides that there shall be a “presumption in favor of disclosure” when interpreting certain listed provisions of CPL article 245 (CPL 245.20[7]), although the provision relating to protective orders (CPL 245.70) is not among those that are listed (see CPL 245.20[7]).

CPL 245.70 provides that upon a showing of good cause by either party, the court may at any time order that discovery be denied, restricted, conditioned, or deferred, or make such other order as is appropriate (see CPL 245.70[1]). It further provides that the court “may permit a party seeking or opposing a protective order under this section, or another affected person, to submit papers or testify on the record ex parte or in camera,” and that any such papers and a transcript of any such testimony may be sealed and constitute a part of the record on appeal (CPL 245.70[1]). …

The statute cannot be reasonably construed to permit a protective order to be sought entirely ex parte in every case. Since entirely ex parte proceedings should be allowed only in some cases, it necessarily follows that proceedings on applications for a protective order should be entirely ex parte only where the applicant has demonstrated the clear necessity for the entirety of the application, and the submissions in support of it, to be shielded from the opposing party. …

The necessity for appellate intervention would have been reduced had the Supreme Court, either before or after granting the subject protective order, afforded defense counsel the opportunity to be heard and thereafter determined whether to grant, adhere to, modify, or rescind the protective order. People v Bonifacio, 2020 NY Slip Op 00517, Second Dept 1-23-20

Similar issues and result in People v Reyes-Fuentes, 2020 NY Slip Op 00518, Second Dept 1-23-20

 

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THE COURT OF CLAIMS IN THIS MEDICAL MALPRACTICE ACTION CREDITED BOTH EXPERTS, ONE OF WHOM OPINED DEFENDANT WAS AT RISK FOR FUTURE HEART PROBLEMS; THEREFORE THE AWARD OF ZERO DAMAGES FOR FUTURE PAIN AND SUFFERING WAS ERROR; AWARD INCREASED BY $10,000 (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined the conflicting expert evidence credited by the Court of Claims forced the conclusion claimant suffered some permanent damage to his heart. Therefore awarding nothing for future pain and suffering was error. The Third Department awarded an additional $10,000:

… [T]he court accepted aspects of both experts’ opinions, crediting both the opinion of defendant’s expert cardiologist that claimant had suffered no significant permanent damage and simultaneously crediting the opinion of claimant’s expert cardiologist that claimant could develop a future arrhythmia because of his injury. As claimant argues, and based upon our review of the record, we find these opinions to be inconsistent with one another. Claimant’s cardiologist based his opinion that claimant was at risk of developing a future arrhythmia upon his opinion that claimant had suffered permanent damage to his heart muscle, consisting of weakness that would not resolve with time and that required the rest of his heart to work harder to maintain normal function. As the court noted, claimant’s cardiologist did not quantify the degree of potential risk to which he believed claimant was exposed. Nevertheless, in order to accept the opinion that claimant’s risk of suffering a future arrhythmia was increased, the court must necessarily also have credited the cardiologist’s opinion that claimant had suffered some, albeit limited, degree of permanent injury.

We thus find that the award of no damages for future pain and suffering deviates from reasonable compensation. Serrano v State of New York, 2020 NY Slip Op 00458, Third Dept 1-23-20

 

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FATHER’S NONVOLUNTARY UNION DUES SHOULD HAVE BEEN DEDUCTED FROM HIS INCOME FOR CALCULATION OF CHILD SUPPORT (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined father’s nonvoluntary union dues should have been deducted from his income for the calculation of child support:

Although no deduction from income for union dues is specifically mandated by the Family Court Act, there is an allowable deduction for “unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures” (Family Ct Act § 413[1][b][5][vii][A]). Nonvoluntary union dues may be deducted under this category … . “However, such expenses are properly deducted from parental income in calculating child support obligations only when proven, usually by tax returns accompanied by records and receipts” … .

At the hearing, counsel for the mother consented to the deduction of the father’s nonvoluntary union dues from the father’s income for the purposes of calculating his child support and related financial obligations. Thus, the Family Court should have granted the father’s objection to so much of the Support Magistrate’s order as failed to deduct the father’s nonvoluntary union dues from his income in calculating his child support and related financial obligations. Matter of Julien v Ware, 2020 NY Slip Op 00414, Second Dept 1-22-20

 

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