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DEFENDANT DEMONSTRATED THE NEED TO TESTIFY ABOUT ONE OF THE ROBBERIES AND THE NEED TO REFRAIN FROM TESTIFYING ABOUT THE OTHER ROBBERY; THE MOTION FOR SEVERANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the conviction and ordering a new trial, determined defendant’s motion the sever the trials of two distinct robberies should have been granted. Defendant demonstrated the need to testify about his defense of duress re: one of the robberies, and his need to refrain from testifying re: the other robbery due to  the Sandoval ruling:

The affirmative defense of duress requires the defendant to establish coercion by the use or threatened imminent use of unlawful physical force (Penal Law § 40.00[1]). Since the defendant’s written statement did not explain why the defendant did not abandon the Lopez robbery once he was given a gun, the written statement was insufficient to establish that there was a threat of imminent use of physical force … . Indeed, the People argued to the jury that the defendant’s duress defense should be rejected since, once the defendant was given the gun, he could have left the scene without committing the robbery. Thus, the record convincingly established that the defendant had important testimony to give about his duress defense in order to, inter alia, rebut the People’s argument that the defendant was not under duress … . …

… [T]he defendant convincingly showed that he had a genuine need to refrain from testifying in regards to the Pratt robbery. In the event that the defendant testified, the Supreme Court’s Sandoval ruling permitted the People to introduce evidence of the underlying facts of two prior youthful offender adjudications involving robberies that were similar to the Pratt robbery … . Thus, if the defendant elected to testify, he would expose himself to the “risk of serious impeachment” with the underlying facts of two robberies bearing similarities to the Pratt robbery … . However, if he refrained from testifying, he was prejudiced in his ability to present his duress defense to the Lopez robbery counts. People v Moore, 2020 NY Slip Op 01645, Second Dept 3-11-20

 

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A REVOLVER WHICH COULD NOT BE CONNECTED TO THE SHOOTING SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ERROR HARMLESS HOWEVER (THIRD DEPT).

The Third Department determined the admission into evidence of a revolver which could not be connected to the shooting at issue was (harmless) error:

Defendant next argues that County Court erred in admitting into evidence an operable .38-caliber revolver, containing five spent rounds, that was recovered from a nearby rooftop a few days after the shooting. Testing could not conclusively show that the revolver was used in the shooting or that it had been handled by defendant, but it remained relevant given the circumstances of its recovery and the fact that it could not be ruled out as the one used by the shooter … . The revolver was accordingly admissible unless its probative value was “substantially outweighed by the danger that it [would] unfairly prejudice the other side or mislead the jury,” and County Court attempted to reduce that danger by telling the jury why the revolver was being admitted into evidence and urging it to give the revolver whatever weight it deemed appropriate … . County Court’s ameliorative efforts arguably fell short but, in our view, any resulting error was harmless “in light of the overwhelming testimony identifying defendant as [the] assailant” … . People v Banks, 2020 NY Slip Op 01525, Third Dept 3-5-20

 

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THE USE OF THE TERM “VICTIM” TO REFER TO THE COMPLAINING WITNESS AT TRIAL WHERE THE WITNESS’S CREDIBILITY IS IN ISSUE SHOULD BE AVOIDED (THIRD DEPT).

The Third Department noted that referring to the complaining witness using the term “victim” should be avoided at trial where the witness’s credibility is in issue, but found no error in the way the trial judge handled the matter in this sexual-offense case:

In [a] motion in limine, defense counsel sought to preclude references to the “victim,” arguing that they would dilute the presumption of innocence and deprive defendant of a fair trial. Several New York courts have examined this issue in the specific context of jury instructions and have held that it is improper for a trial court to refer to a complainant as the “victim” in a jury charge, but that reversal is not required unless, taken as a whole, the charge does not otherwise convey the proper standards to the jury … . It does not appear that any New York court has analyzed the issue outside the context of jury instructions, but several courts in other jurisdictions have held that the use of the term “victim” by the prosecution or its witnesses should be avoided where, as here, the credibility of the complaining witness is in issue, and that facts such as the context and frequency of the references and the strength of other evidence should be taken into account in determining whether use of the term is reversible error … . Here, although Supreme Court denied defendant’s application, it also agreed that his concern was “well-grounded” and warned counsel to use caution, stating that “[i]t might call the attorneys over” if a witness repeatedly used terms like “victim” or “assailant,” and that police witnesses should not use such terms in such a way as to have an emotional impact on the jury. While we agree with defendant that references to the complaining witness as the “victim” at trial should be avoided when his or her credibility is in issue, we find no error in the court’s treatment of the issue under the circumstances presented here. People v Horton, 2020 NY Slip Op 01530, Third Dept 3-5-20

 

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EMPLOYER’S ANSWER TO A QUESTION ON ITS APPLICATION FOR A BOARD REVIEW OF A WORKERS’ COMPENSATION LAW JUDGE’S AWARD OF BENEFITS WAS ADEQUATE AND SHOULD NOT HAVE BEEN THE BASIS OF THE BOARD’S DENIAL OF THE APPLICATION; THE QUESTION CONCERNED WHEN THE EMPLOYER’S OBJECTION TO THE RULING WAS MADE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the employer’s answer to a question in its application for Board review of the Workers’ Compensation Law Judge’s award of benefits was adequate and did not warrant denial of the application. The question concerned when the objection to the ruling was made:

When the employer filed its application for Board review on March 2, 2018, question number 15 on that form, as well as the accompanying instructions in effect at that time, requested that it “[s]pecify the objection or exception interposed to the ruling and when the objection or exception was interposed as required by 12 NYCRR 300.13 (b) (2) (ii)” … . In response to question number 15, the employer stated, “Upon information and belief an exception/objection was noted prior to the conclusion of the hearing.” The Board found that the employer’s response was incomplete because the employer “failed to identify the date it interposed an objection on the record in response to [question number] 15” … . Although the Board has consistently found that listing the hearing date at which the objection or exception was made constitutes a complete response to question number 15, the regulation only requires the applicant to state when the objection or exception occurred … . Here, the employer’s response to question number 15 stated when the objection was made, that is, at “the conclusion of the hearing,” at which time the employer stated, “A protective exception, please, your Honor.” In our view, the employer’s response stated when the objection occurred, … and, therefore, the response was complete and complied with the Board’s regulatory formatting requirements … . …

We recognize that, in Subject No. 046-1119, the Board announced that “the [hearing] date when the objection or exception was interposed must be listed” in response to question number 15 on the RB-89 form … . However, Subject No. 046-1119 — as well as the Board’s other November 2018 documents providing clarification of its formatting requirements … postdate the instant March 2018 application for Board review and are, therefore, of no import here … . Matter of Granica v Town of Hamburg, 2020 NY Slip Op 01542, Third Dept 3-5-20

 

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PLAINTIFF’S EXPERT DID NOT PRESENT ANY EVIDENCE DEMONSTRATING THE REMOTELY OPERATED CRANE COULD FEASIBLY BE MADE SAFER; THEREFORE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS PRODUCTS LIABILITY CASE WAS PROPERLY GRANTED (THIRD DEPT).

The Third Department determined plaintiff’s expert did not raise a question of fact in this products liability case. Plaintiff’s decedent was killed by a crane operated remotely by plaintiff’s decedent. Defendants’ experts attributed the accident to plaintiff’s decedent’s acts of leaning into the path of the crane and bending over with the remote attached to his hip, causing the crane to be activated inadvertently. Both leaning into the path of the crane and bending over with the remote attached were known to be dangerous and plaintiff’s decedent had trained others accordingly. Although plaintiff’s expert averred that a dead man’s switch would have prevented the accident, he did not present any supporting evidence:

“An expert’s [Darby’s] affidavit — offered as the only evidence to defeat summary judgment — must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation, and would, if offered alone at trial, support a verdict in the proponent’s favor” … . Initially, although Derby alleged that he inspected the remote, his affidavit was not supported by facts of his own independent testing of the device; rather, he relied on deposition testimony of other witnesses to explain the functions of the remote … . Furthermore, although Derby averred that the remote could be made safer by adding a dead man’s switch or by implementing joysticks, he offered no proposed designs that could feasibly be installed … , and, moreover, he pointed to no industry standards or data to support his conclusion that the absence of a dead man’s switch rendered the remote unsafe … . After all, “[a] factual issue regarding design defect is not established merely by pointing to efforts within the industry to make a safer product, without providing some detail as to how the current product is not reasonably safe and how a feasible alternative would be safer” … . Given Derby’s failure to elaborate, and mindful of the testimony of multiple witnesses for defendants who averred that they were not aware of any remote controls in the industry that use a dead man’s switch for crane operations, plaintiff’s proof was insufficient to raise a triable issue regarding design defect … . Darrow v Hetronic Deutschland GMBH, 2020 NY Slip Op 01543, Third Dept 3-5-20

 

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BENEFICIARY OF DECEASED CLAIMANT IS ENTITLED TO THE REMAINING WEEKS OF CLAIMANT’S NONSCHEDULE PERMANENT DISABILITY AWARD WHERE CLAIMANT’S DEATH WAS NOT RELATED TO THE COMPENSATED INJURY (THIRD DEPT).

The First Department, in a full-fledged opinion by Justice Colangelo, reversing the Workers’ Compensation Board, in a matter of first impression, determined that claimant’s surviving child was entitled to the weeks of the nonschedule permanent disability award which remained upon claimant’s death, where claimant’s death was not related to the compensated injury:

“With respect to schedule injuries, SLU [schedule loss of use] awards are made to compensate for the loss of earning power or capacity that is presumed to result, as a matter of law, from permanent impairments to statutorily-enumerated body members” … . “By contrast, compensation for a permanent partial disability that arises from a nonschedule injury, i.e., an injury to a body member not specifically enumerated in subsections (a)-(u) [of Workers’ Compensation Law § 15 (3)], is based on a factual determination of the effect that the disability has on the [worker’s] future wage-earning capacity” … . In that regard, whereas an SLU award “is not allocable to any particular period of disability and is independent of any time that the [worker] might lose from work” … , a nonschedule permanent partial disability award under Workers’ Compensation Law § 15 (3) (w) requires a calculation of a worker’s weekly rate of compensation using the worker’s average weekly wages and wage-earning capacity and “specifies the [duration or maximum] number of weeks the worker will receive that weekly sum[] based upon the [worker’s] percentage of lost wage-earning capacity” … . * * *

Until now, we have not had the occasion to address whether any remaining portion or weeks of a nonschedule permanent partial disability award is payable to the beneficiaries identified in Workers’ Compensation Law § 15 (4) upon a claimant’s death “arising from causes other than the [established] injury”… . Subdivision (3) includes both SLU [schedule loss of use] and nonschedule permanent partial disability awards … , and the unqualified language of subdivision (4) — which pertains to “[a]n award made to a claimant under subdivision three” … — neither distinguishes SLU awards from nonschedule permanent partial disability awards, nor contains any limiting language excepting nonschedule permanent partial disability awards from its scope. Given the unambiguous and unqualified language of subdivision (4) … , we see no basis to distinguish SLU and nonschedule awards where the plain language of subdivision (4) applies to any and all awards made under Workers’ Compensation Law § 15 (3). Accordingly, the language employed in Workers’ Compensation Law § 15 (4) reflects that the Legislature intended this subdivision to apply to all permanent partial disability awards made pursuant to subdivision (3) — that is, both SLU and nonschedule permanent partial disability awards … . Matter of Green v Dutchess County BOCES, 2020 NY Slip Op 01546, Third Dept 3-5-20

 

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ICE ON SIDEWALK MAY HAVE PRE-EXISTED RECENT SNOW; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the ice on which plaintiff slipped and fell pre-existed the recent snow fall. Plaintiff slipped and fell at around 7:30 am and, pursuant to the New York City Administrative Code, defendant had until 11 am to clear the recent snow (storm in progress rule):

Because it snowed overnight, defendant had until 11 a.m. to clear any fresh snow and ice … . However, an issue of fact exists regarding whether the ice on which plaintiff slipped was preexisting. Plaintiff testified and submitted witness affidavits to the effect that the ice was dirty and trod upon, and had been present for days … .

Moreover, while defendant submitted certified climatological records from Central Park in reply and in opposition to plaintiff’s cross motion, defendant cannot remedy a fundamental deficiency in its moving papers with evidence submitted in reply … , although they may be considered in opposition to plaintiff’s cross motion. In any event, the records show that the temperatures remained below or only slightly above freezing during much of the six days after defendant asserts that the last snow fall occurred, and defendant offers only speculation that such temperatures would have melted previous accumulations of snow and ice. Ruland v 130 FG, LLC, 2020 NY Slip Op 01558, First Dept 3-5-20

 

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$10.5 MILLION VERDICT FOR CONSCIOUS PAIN AND SUFFERING DEEMED EXCESSIVE IN THIS PEDESTRIAN TRAFFIC ACCIDENT CASE; PLAINTIFF ASKED TO STIPULATE TO $3 MILLION (FIRST DEPT).

The First Department, in a decision which does not discuss the relevant facts, determined the $10.5 million verdict for conscious pain and suffering was excessive and ordered a new trial unless plaintiff stipulates to $3 million. Plaintiff’s decedent was crossing the street when she was struck by defendant’s van:

The jury’s finding that defendant was solely at fault for the decedent’s death is supported by legally sufficient evidence and is not against the weight of the evidence … . Plaintiff’s evidence established that the decedent was crossing the street with the right-of-way when she was struck by a van operated by defendant’s employee making a left turn. Defendant presented no evidence to rebut plaintiff’s evidence. Its argument that the decedent may have been crossing the street outside of the crosswalk is speculative, given that its employee did not see the decedent until after the accident … . “[T]he position of [the decedent’s] body after impact is not probative as to whether she was walking in the cross-walk prior to being struck” … . In light of this determination, we do not reach defendant’s arguments about the propriety of testimony elicited, and statements made by plaintiff’s counsel, about its hiring practices generally and its hiring of the driver involved in the accident specifically.

We find the award for the decedent’s conscious pain and suffering excessive to the extent indicated … . Martinez v Premium Laundry Corp., 2020 NY Slip Op 01557, First Dept 3-5-20

 

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A WORN MARBLE STEP IS NOT AN ACTIONABLE DEFECT; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s slip and fall action should have been dismissed. The cause of the fall was alleged to be a worn marble step, which is not actionable:

Defendants established their entitlement to judgment as a matter of law in this action where plaintiff was injured when, while descending interior stairs in defendants’ building, she slipped and fell on a marble step that had a worn tread. A worn marble tread, without more, is not an actionable defect …

In opposition, plaintiff failed to raise a triable issue of fact. Having abandoned her claim that defendants were negligent in keeping the stairs free of moisture, plaintiff cannot now argue that the existence of moisture on the stairs would be an actionable condition. Nor did plaintiff’s experts establish that in addition to the worn marble stair treads, they lacked adequate slip resistance, as the coefficient of friction value that the experts used as a standard value was not shown to be an accepted industry standard … . Nor did the experts’ affidavits raise a triable issue of fact, since the opinions concerning the cause of plaintiff’s slip were speculative … . DeCarbo v Omonia Realty Corp., 2020 NY Slip Op 01555, First Dept 3-5-20

 

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LINEUP IDENTIFICATION WAS UNDULY SUGGESTIVE, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the lineup identification procedure was unduly suggestive:

… [W]e agree with the defendant’s contention that the hearing court erred in finding that the pretrial identification procedure, a lineup, was not unduly suggestive. The defendant was the only person in the lineup with dreadlocks, and dreadlocks featured prominently in the description of one of the assailants that the complainant gave to the police. In addition, the dreadlocks were distinctive and visible despite the fact that the defendant and the fillers all wore hats … . Accordingly, the lineup identification should have been suppressed. The error was not harmless as it cannot be said that there is no reasonable possibility that the error might have contributed to the defendant’s conviction … . Therefore, we reverse the judgment of conviction and order a new trial. People v Colsen, 2020 NY Slip Op 01514, Second Dept 3-4-20

 

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