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WIFE’S MOTION TO BE SUBSTITUTED FOR HER DECEASED HUSBAND TO ENFORCE THE PAYMENT OF THE SETTLEMENT IN HER HUSBAND’S SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s wife’s (Jesenia’s) motion pursuant to CPLR 1015 for leave to substitute herself for her deceased husband in this slip and fall case should have been granted. Defendant had settled the case and Jesenia was seeking payment:

Contrary to the Supreme Court’s determination, the settlement of the action did not preclude the granting of a motion for substitution (see CPLR 1015[a]; 1021 …). “The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a)” … . Without substitution as a party plaintiff, Jesenia may not seek relief pursuant to CPLR 5003-a. CPLR 5003-a provides that if a settling defendant fails to pay the sum due under a settlement agreement within 21 days of tender of a duly executed release and a stipulation discontinuing the action, the settling plaintiff may, without further notice, pursue the entry of a judgment in the amount of the settlement, plus interest, costs, and disbursements … . Rivera v Skeen, 2020 NY Slip Op 01100, Second Dept 2-13-20

 

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ALTHOUGH THE EXCUSE WAS NOT ADEQUATE PETITIONER’S APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED; RESPONDENTS HAD TIMELY NOTICE OF THE INCIDENT AND DEMONSTRATED NO PREJUDICE FROM THE DELAY (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim should have been granted. Although the excuse was inadequate, the respondents had timely notice of the incident and were not prejudiced by the delay:

In determining whether to grant an extension, the key factors to consider are: (1) “whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame”; (2) “whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter”; and (3) “whether the delay would substantially prejudice the municipality in its defense” … .

Here, although petitioners failed to offer any reasonable excuse for their failure to timely serve a notice of claim, this failure is not, standing alone, fatal … . Indeed, petitioners sufficiently demonstrated that respondents acquired actual notice of the event within a reasonable time thereafter, and that respondents would not be substantially prejudiced in their defense by the delay. Specifically, there is a surveillance video of the accident [which]  … the claims administrator … acknowledged having in its possession approximately six months after the accident. Moreover, the operator of the lift that injured petitioner was employed by respondents.

In addition, the correspondence … suggests that … only one month after plaintiff’s accident, respondents’ insurers were aware that the claims administrator anticipated that petitioner would be asserting a claim based on the … . … Our conclusion is further supported by the relatively short delay in petitioners’ moving for leave to file a late notice of claim. Matter of Sproule v New York Convention Ctr. Operating Corp., 2020 NY Slip Op 01015, First Dept 2-13-20

 

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PROSECUTORIAL MISCONDUCT AND IRRELEVANT MOLINEUX EVIDENCE REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that prosecutorial misconduct and the admission of irrelevant evidence of another crime required reversal:

“[O]n summation, a prosecutor may not improperly encourage[ ] inferences of guilt based on facts not in evidence'” …  As we determined in People v Ramirez (150 AD3d at 899-900), the prosecutor here improperly suggested that the jury should disregard the grand jury testimony of one of the People’s main witnesses, and invited the jury to speculate that a missing witness would have given supporting testimony if he had been called to testify. …

“The rule of Molineux is familiar: Evidence of uncharged crimes is inadmissible where its only purpose is to show bad character or propensity towards crime” … . However, “evidence of other crimes may be admitted to show motive, intent, the absence of mistake or accident, a common scheme or plan or the identity of the guilty party” … . “In addition, evidence of uncharged crimes may be admitted as necessary background material when relevant to a contested issue in the case, or to complete the narrative of the events if such evidence is inextricably interwoven with the crime charged” … . “Still, even if technically relevant for one of these or some other legitimate purpose, Molineux evidence will not be admitted if it is actually of slight value when compared to the possible prejudice to the accused'” … .

The fact that the defendant allegedly resisted arrest six months after the incident in question after violating an order of protection against him held by one of the complainants was not relevant in this matter. The defendant was not resisting arrest for the crimes charged at trial, and resisting arrest in this instance was too far removed from the underlying incident to be deemed admissible as evidence of consciousness of guilt … . People v Ramirez, 2020 NY Slip Op 01087, Second Dept 2-13-20

 

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VERDICT AWARDING $0 DAMAGES FOR FUTURE AND PAIN SUFFERING SHOULD HAVE BEEN SET ASIDE, $100,000 WOULD BE REASONABLE COMPENSATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the damages verdict awarding $0 for future pain and suffering should have been set aside:

The jury’s award of damages for past pain and suffering deviates materially from what would be reasonable compensation (see CPLR 5501[c]). Plaintiff sustained a bimalleolar ankle fracture and underwent two surgeries, the first involving implantation of hardware in the ankle and the second involving arthroscopy and removal of the hardware and some scar tissue. Comparing this matter to similar cases … , we find that $275,000 is reasonable compensation … .

The award for future damages also deviates materially from what would be reasonable compensation (CPLR 5501[c]). Defendant’s expert agreed that plaintiff’s injury is permanent and that he has developed arthritis in his left ankle, which may require treatment in the future, including the possibility of an ankle replacement. In light of the foregoing, we find that $100,000 for future pain and suffering is reasonable compensation … . Thomas v New York City Hous. Auth., 2020 NY Slip Op 01001, First Dept 2-13-20

 

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DEFENDANT, ALTHOUGH CONVICTED OF AN ARMED FELONY, SHOULD HAVE BEEN ACCORDED YOUTHFUL OFFENDER STATUS, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing County Court, determined defendant should have been accorded youthful offender status, despite the armed felony conviction:

As the defendant was convicted of an armed felony (see CPL 1.20[41]), he was eligible to have this conviction replaced with a youthful offender adjudication only if, inter alia, there were “mitigating circumstances that [bore] directly upon the manner in which the crime was committed” (CPL 720.10[3][i]). Mitigating circumstances include “[f]actors directly’ flowing from and relating to [the] defendant’s personal conduct while committing the crime,” but generally, do not include the “defendant’s age, background, criminal history and drug habit” … . Here, while there is no question that the defendant stands convicted of a serious crime, no physical harm or injury resulted to the complainant from the incident … , and the defendant was an “eligible youth” under CPL 720.10(2) for purposes of youthful offender treatment.

Moreover, in the exercise of our discretion, we determine that the defendant should be granted youthful offender treatment … . In making such a determination, factors to be considered by the court include “the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant’s prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant’s reputation, the level of cooperation with authorities, defendant’s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” … . Here, the evidence demonstrated that the defendant was only 16 years old when he participated in the subject robbery, using a BB gun. The defendant has no prior criminal record or violent history. He has strong family support. The presentence report recommended that the defendant be adjudicated a youthful offender and be sentenced to a term of probation supervision. Indeed, the recommendation in the presentence report was that “the defendant be given another chance to change his behavior and do better for himself and not let this one bad choice as a 16 year old determine the path for his adult life.” Moreover, the presentence report indicated that the defendant expressed genuine remorse and a sincere desire to make better choices in the future. Under all these circumstances, the interest of justice would be served by “relieving the defendant from the onus of a criminal record” … . People v Carlos M.-A., 2020 NY Slip Op 01083, Second Dept 2-13-20

 

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CONDEMNEE WAS ENTITLED TO ADDITIONAL ALLOWANCES (ATTORNEY’S FEES AND COSTS) BASED UPON THE DIFFERENCE IN COMPENSATION BETWEEN THAT OFFERED BY THE VILLAGE AND THE AWARD BY THE COURT IN THIS EMINENT DOMAIN PROCEEDING; THE STATUTORY INTEREST RATE OF 6%, NOT 9%, SHOULD HAVE BEEN APPLIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that some of the additional allowances for fees and costs (pursuant to Eminent Domain Procedure Law (EDPL) 701) should not have been granted and the statutory interest rate of 6%, not 9%, should have been applied. The additional allowances were sought based upon because the court awarded more compensation to the condemnees (Ferguson and Executive) than that offered by the condemnor (the Village):

Pursuant to EDPL 701, where a court’s award to a claimant in a condemnation proceeding is “substantially in excess of the amount of the condemnor’s proof” and where the court deems it necessary to “achieve just and adequate compensation,” the court may award the claimant an additional sum for costs including attorneys’ and other fees. The goal of this statute is to ” assure[ ] that a condemnee receives a fair recovery by providing an opportunity for condemnees whose property has been substantially undervalued to recover the costs of litigation establishing the inadequacy of the condemnor’s offer'” … . …

… [T]he Supreme Court’s award of $721,671 exceeded the Village’s advance payment of $575,000. While the difference is not insignificant, we find that it does not substantially exceed the Village’s advance payment within the meaning of EDPL 701 … . …

Although the Village, in effect, concedes that the Supreme Court’s award to Executive of $159,596 substantially exceeded its advance payment of $61,044, it correctly points out that Executive was unsuccessful as to the bulk of its claims for compensation and received an award of 16.4% of the $973,000 it sought. Contrary to the Village’s assertion, since Executive’s attorneys were compensated on a contingent basis, their fees were perforce proportionate to their success. Accordingly, the portion of the additional allowance awarded to Executive representing their fees should not be disturbed … . …

Although the Village, in effect, concedes that the Supreme Court’s award to Executive of $159,596 substantially exceeded its advance payment of $61,044, it correctly points out that Executive was unsuccessful as to the bulk of its claims for compensation and received an award of 16.4% of the $973,000 it sought. Contrary to the Village’s assertion, since Executive’s attorneys were compensated on a contingent basis, their fees were perforce proportionate to their success. Accordingly, the portion of the additional allowance awarded to Executive representing their fees should not be disturbed … . Matter of Village of Haverstraw, 2020 NY Slip Op 01068,  Second Dept 2-13-20

 

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EVIDENCE OF VOYEURISTIC DISORDER SHOULD NOT HAVE BEEN CONSIDERED IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING; THE HARE PSYCHOPATHY CHECKLIST-REVISED (PCL-R) WAS PROPERLY RELIED UPON (SECOND DEPT).

The Second Department, affirming the finding that appellant sex offender required civil management, found that the expert’s (Charder’s) testimony about appellant’s voyeuristic-disorder diagnosis should not have been credited. The Second Department further held the Frye hearing demonstrated that the Hare Psychopathy Checklist-Revised (PCL-R) is widely accepted and used in the psychological and psychiatric communities:

… [W]e agree with the appellant that Charder’s testimony regarding her diagnosis of a voyeuristic disorder should not have been credited. Charder admitted that her diagnosis of a voyeuristic disorder was inconsistent with the diagnostic criteria contained in section 302.82 of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Although her decision to apply an alternative definition of voyeuristic disorder does not necessarily render this diagnosis insufficient to establish a mental abnormality … , Charder failed to clearly set forth the diagnostic criteria that she utilized in diagnosing the appellant under this alternative definition of voyeuristic disorder … , and she otherwise failed to explain the basis of her opinion that certain conduct attributed to the appellant was “voyeuristic,” thus rendering such testimony conclusory … . * * *

… [T]he evidence adduced at the Frye hearing demonstrated that the PCL-R has enjoyed long and widespread use within the psychological and psychiatric communities as a tool to measure psychopathy. Even the expert witness called by the appellant to testify at the Frye hearing acknowledged that the PCL-R is generally accepted for this purpose. Although there was evidence adduced at the hearing indicating that the PCL-R has been criticized for a lack of “inter-rater reliability” and having an “allegiance effect,” the evidence adduced at the hearing showed that such problems could be effectively mitigated through proper training. Similarly, although there was evidence indicating that the PCL-R was not designed to function as a direct and stand-alone test of whether an individual has a mental abnormality within the meaning of the statute, expert testimony established that it could nevertheless “contribute to an assessment of the presence of mental abnormality.” Matter of State of New York v Marcello A., 2020 NY Slip Op 01067, Second Dept 2-13-20

 

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DISMISSAL OF THE ACTION SEEKING OVERTIME PAY IN FEDERAL COURT ON THE GROUND NO NOTICE OF CLAIM WAS FILED DID NOT PRECLUDE, PURSUANT TO THE DOCTRINE OF RES JUDICATA, AN ACTION IN SUPREME COURT SEEKING PERMISSION TO FILE A LATE NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dismissal of the action concerning overtime pay in federal court, on the ground no notice of claim had been filed, did not preclude the action in Supreme Court seeking leave to file a late notice of claim:

… [T]he federal court dismissed the New York Labor Law claims for failure to file a timely notice of claim (see County Law § 52; General Municipal Law § 50-e). …

… [S]o much of the petition as sought leave to deem the late notice of claim timely served nunc pro tunc is not barred by the doctrines of collateral estoppel and res judicata. Although collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue which was raised and decided in a prior action or proceeding … , the issue of whether the petitioners could obtain leave to deem the late notice of claim timely served nunc pro tunc pursuant to General Municipal Law § 50-e(5) was not litigated or decided by the 2017 federal order. As the issue was not litigated, the petitioners are not precluded from raising it … .

Res judicata also is inapplicable to so much of the petition as sought leave to deem the late notice of claim timely served nunc pro tunc. “Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding” … . Since the federal court was without jurisdiction to determine whether the petitioners could obtain leave to deem the late notice of claim timely served nunc pro tunc (see General Municipal Law § 50-e[7]), the petitioners are not precluded by the doctrine of res judicata from seeking a determination of this issue … . Matter of Chodkowski v County of Nassau, 2020 NY Slip Op 01058, Second Dept 2-13-20

 

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DECEDENT’S WORK AS A WELDER NOT A COVERED ACTIVITY UNDER LABOR LAW 240 (1) (CT APP).

The Court of Appeals, in a one-sentence memorandum, determined the plaintiff was not engaged in an activity covered by Labor Law 240 (1) when he was injured:

Decedent’s work as a welder during the “normal manufacturing process” of fabricating rotor components for air preheaters did not involve “erection, demolition, repairing, altering, painting, cleaning or pointing” of a building or structure (Jock v Fien , 80 NY2d 965, 968 [1992]; Labor Law § 240 [1]).  Preston v APCH, Inc., 2020 NY Slip Op 01000, Ct App 2-13-20

 

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ORDERS ISSUED WHEN THE STAY PURSUANT TO CPLR 321(c) WAS IN EFFECT, DUE TO THE INABILITY OF PETITIONER’S COUNSEL TO CONTINUE FOR MEDICAL REASONS, SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, reversing Surrogate’s Court, determined that orders issued when a stay was in effect pursuant to CPLR 321(c), due to the inability of petitioner’s counsel to continue for medical reasons, should have been vacated. The petitioner is Oleg Cassini’s (the fashion designer’s) wife and the underlying matter is the heavily litigated (to say the least) administration of his estate. The opinion is overwhelming in its detail and cannot be fairly summarized here:

On these appeals, we consider the interplay between CPLR 321(b)(2), which permits the attorney of record for a party to withdraw by order of the court, with the court having the ability to stay proceedings pending substitution of new counsel, and CPLR 321(c), which automatically and effectively suspends all proceedings against a party whose attorney becomes incapacitated until 30 days after notice to appoint another attorney has been served upon that party. In this contentious, complex estate litigation, the Surrogate’s Court determined, in the context of a motion by the attorneys for the petitioner to withdraw from representing her, that the attorney primarily responsible for the matter had become unable to continue to represent the petitioner due to health reasons. While the Surrogate’s Court relieved counsel and provided for a 30-day stay of proceedings, it failed to require that the adverse parties serve the orders relieving counsel upon the litigant whose counsel was permitted to withdraw. The adverse parties themselves failed to serve the orders and also to serve the petitioner with a notice to appoint new counsel. However, several months later, the petitioner appeared with prospective new counsel at a court conference and was advised by the court that a trial would be conducted some six weeks later, regardless of whether the petitioner was present and regardless of whether the petitioner had representation. This was, under the circumstances, the practical equivalent of more than 30 days’ notice to the litigant to appoint new counsel. In conformity with the controlling statutory and decisional authorities, and to protect the litigant’s right to legal representation, we conclude that the judicial determinations rendered in between the Surrogate’s Court determination of incapacity and its subsequent practical notification of a deadline to appoint counsel should be vacated. Matter of Cassini, 2020 NY Slip Op 01057, Second Dept 2-13-2o

 

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