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PLAINTIFF’S COUNSEL’S REMARKS DURING SUMMATION DEPRIVED DEFENDANT RESIDENTIAL HEALTH CARE FACILITY OF A FAIR TRIAL; OVER $1 MILLION JUDGMENT IN THIS NEGLIGENCE/PUBLIC-HEALTH-LAW ACTION REVERSED (SECOND DEPT).

The Second Department, reversing the over $1 million judgment in this negligence and Public-Health-Law-2801-d violation case, determined plaintiff’s counsel’s remarks in summation required a new trial. Plaintiff’s decedent, who was at risk for falling, fell after getting up from a wheelchair at defendant residential health care facility and ultimately died:

“[L]itigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” … . “The interest of justice thus requires a court to order a new trial where comments by an attorney for a party’s adversary deprived that party of a fair trial or unduly influenced a jury” … .

Here, during summation, the plaintiff’s counsel improperly appealed to the passion of the jurors by characterizing the defendant as a “corporation” that has “two lawyers,” a “tech person,” “general counsel,” and “video people.” Counsel also improperly accused the defendant of willfully depriving the plaintiff of evidence that would have been harmful to the defendant’s case, accused the defendant’s witnesses of having “changed” their testimony after their depositions or pretrial affirmations, which were not in evidence, “because they saw that they couldn’t win,” and improperly argued that the defendant failed to call certain witnesses, who were not under the defendant’s control. Thus, “the comments of the plaintiff[‘s] counsel . . . were not isolated, were inflammatory, and were unduly prejudicial. These prejudicial comments so tainted the proceedings as to have deprived the defendant . . . of a fair trial” … . Nieves v Clove Lakes Health Care & Rehabilitation, Inc., 2020 NY Slip Op 00422, Second Dept 1-22-20

 

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DEFENDANTS’ FAILURE TO ANSWER THE FORECLOSURE COMPLAINT WAIVED THE STATUTE OF LIMITATIONS DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this foreclosure action, by defaulting, had waived the statute of limitations defense:

CPLR 3211(e) provides that a defense based upon the statute of limitations is waived if not asserted in an answer or in a timely motion to dismiss pursuant to CPLR 3211(a). Such a motion is timely if it is made before service of the answer is required (see CPLR 3211[e]). Here, the defendants never answered the complaint, and their cross motion, inter alia, to dismiss the complaint was served at least six months after service of the answer was required. Thus, unless the defendants’ default is vacated or excused, the defendants waived their statute of limitations defense, and in their cross motion, the defendants did not seek relief from that waiver. Accordingly, the Supreme Court should not have granted that branch of the defendants’ cross motion which was to dismiss the complaint insofar as asserted against them as time-barred without first determining whether the defendants were properly held in default … . Nestor I, LLC v Moriarty-Gentile, 2020 NY Slip Op 00421, Second Dept 1-22-20

 

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STATEMENT FROM PLAINTIFF’S OUT-OF-STATE EXPERT IN THIS DENTAL MALPRACTICE ACTION NOT IN ADMISSIBLE FORM; CPLR 2106 REQUIRES A SWORN AFFIDAVIT FROM A DENTIST LICENSED IN ANOTHER STATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the statement by a New Jersey dentist offered by the plaintiff in this dental malpractice action was not admissible because it was not in the form of a sworn affidavit. Therefore plaintiff did not raise a question of fact in opposition to defendants’ motions for summary judgment:

In opposition, the plaintiff submitted, among other things, the unsworn affirmation of Martin, who was licensed to practice dentistry in the State of New Jersey. Consequently, the out-of-state dentist’s statement did not constitute admissible evidence in that CPLR 2106 only authorizes attorneys, physicians, osteopaths, or dentists licensed in this state to utilize an affirmation in lieu of a sworn affidavit … . …

While an otherwise qualified expert physician, osteopath, or dentist, who is not licensed in this state, may submit a statement in support of or in opposition to a party’s position in a case at bar, that statement must be in the form of a sworn affidavit. CPLR 2106(a), which permits such a statement to be in the form of an affirmation, only applies to attorneys, physicians, osteopaths, and dentists licensed to practice in the State of New York. Nelson v Lighter, 2020 NY Slip Op 00420, Second Dept 1-22-20

 

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DEFAMATION ACTION BASED UPON A REPORTER’S NAMING THE WRONG TEACHER AS HAVING BULLIED A FIFTH-GRADER PROPERLY DISMISSED; THE REPORTER HAD SUFFICIENT REASON TO RELY ON THE STUDENT’S MOTHER AND ANOTHER SOURCE BOTH OF WHOM PROVIDED THE WRONG NAME (FIRST DEPT).

The First Department determined defendant WPIX was not liable for an article about the bullying of a fifth-grader by a teacher. The teacher allegedly involved in the bullying had the last name “Rainbow,” but plaintiff, Starlight Rainbow, also a teacher, had no involvement with the student. The article misidentified the involved teacher as Starlight Rainbow. The First Department explained the standard of proof and found that the WPIX reporter had sufficient reason to rely on the wrong name provided by the student’s mother and another source. The court further found that there was no duty to retract the story:

The parties … agree that the article concerned a matter of public concern, and that plaintiff is not a public figure. Thus, to prevail on a defamation claim, plaintiff must show, by a preponderance of the evidence, that WPIX was “grossly irresponsible” in publishing the article on its website, in that it acted “without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties” (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 199 [1975]). The gross irresponsibility standard of Chapadeau is more lenient than the actual malice standard applicable to public figures … . * * *

… .WPIX could not be held liable for failure to retract the article during the nearly seven months that elapsed from her August 2014 retraction demand to its removal of the article from its website in March, 2015 upon her commencement of this case. Plaintiff provides “no authority to support [her] argument that the Chapadeau standard imposes a duty to correct previously-acquired information — and the law does not recognize such an obligation” … . Rainbow v WPIX, Inc., 2020 NY Slip Op 00499, First Dept 1-23-20

 

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DEFENSE MOTION TO SET ASIDE THE VERDICT BASED UPON THE ALLEGED MISCONDUCT OF TWO JURORS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FIRST DEPT).

The First Department, ordering a hearing, determined a juror’s expression of a romantic interest in a member of the prosecution team could amount to disqualifying juror misconduct. Allegations about another juror’s close relationship with a witness also warranted a hearing. The defense had moved to set aside the verdict alleging juror misconduct:

The court improvidently exercised its discretion in denying, without a hearing, that branch of defendant’s motion to set aside the verdict on the ground of alleged misconduct by two jurors (see CPL 330.40[2][f]).

The People’s trial preparation assistant, who assisted the trial prosecutors, disclosed that some time after the trial and before sentencing, he received a handwritten note in the mail from the jury foreperson, stating: “Now that the trial is over . . .” (ellipsis in original), followed by the juror’s first and last name, her juror number, the court part in which the trial had occurred, her phone number, and her address. The note also included a crossed-out phrase from which it could be inferred that the original version of the note had been written during the trial.

Under the circumstances, the note itself was sufficient evidence to raise an issue of fact about whether the foreperson’s apparent romantic interest in the trial preparation assistant prevented her from deliberating fairly … . The assistant’s affidavit stating that he did not respond to the juror’s note or otherwise communicate with her at any time is not dispositive, as the issue is the juror’s misconduct or bias during the trial.

The court also erred with regard to a second juror. That juror had a sufficiently close relationship with a witness to warrant a hearing as to whether that juror engaged in misconduct by failing to disclose the relationship to the court. People v Guillen, 2020 NY Slip Op 00387, First Dept 1-21-20

 

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CLASS ACTION AGAINST NYC HOUSING AUTHORITY FOR BREACH OF THE WARRANTY OF HABITABILITY RE: LOSS OF HEAT AND/OR HOT WATER GOES FORWARD (FIRST DEPT).

The First Department, reversing Supreme Court, determined the breach of the warranty of habitability cause of action should not have been dismissed . The plaintiff’s motion for certification of the “damages class” was granted. The class action concerned the loss of heat and/or hot water in NYC Housing Authority properties:

In order to prove a claim for breach of the warranty of habitability, plaintiffs must show the extensiveness of the breach, the manner in which it affected the health, welfare or safety of the tenants, and the measures taken by the landlord to alleviate the violation … .

NYCHA conceded that 80% of its housing units experienced heat and/or hot water outages during the relevant period, which demonstrates that the problems that affected each class member were system-wide. Thus, much of the proof will likely concern NYCHA’s overall deficiencies, rather than the breakdown of individual heating systems in individual buildings. The need to conduct individualized damages inquiries does not prevent class certification as long as common issues of liability predominate … .

In any event, the heating systems that failed served multiple housing units, and proof of NYCHA’s efforts to repair each system will be common to numerous class members. In order to address any concerns with the size or disparity of the class, the court can designate subclasses consisting of tenants of a particular NYCHA complex, development or building … .

Moreover, class action treatment is the most efficient method for adjudicating the claims of class members who lack the resources to bring individual actions for the small recovery they might obtain … . Diamond v New York City Hous. Auth., 2020 NY Slip Op 00376, First Dept 1-21-20

 

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IN PERHAPS THE FIRST APPELLATE-JUSTICE REVIEW OF A PROTECTIVE ORDER UNDER THE NEW PROVISIONS OF CRIMINAL PROCEDURE LAW 245.70, JUSTICE SCHEINKMAN FOUND THE PEOPLE DID NOT SUBMIT SUFFICIENT EVIDENCE TO JUSTIFY WITHHOLDING FROM THE DEFENSE THE IDENTITIES OF WITNESSES IN THIS RAPE/MURDER CASE (SECOND DEPT).

The Second Department, in one of the first decisions under the new discovery provisions of the Criminal Procedure Law, after an expedited review by Justice Scheinkman pursuant to CPL 245.70, reversing Supreme Court, determined the protective order prohibiting defense access to the names, addresses and other identifying information of witnesses in this rape/murder case must be vacated without prejudice:

CPL 245.70(1) provides that, upon a showing of good cause by either party, the court may order that disclosure and inspection be denied, restricted, conditioned, or deferred, or make such order as appropriate. The court is now specifically permitted to condition discovery on making the information available only to counsel for the defendant (see CPL 245.70[1]). Alternatively, the court is permitted to order defense counsel, or persons employed by the attorney or appointed by the court to assist in the defense, not to disclose physical copies of discoverable documents to the defendant or anyone else, subject to the defendant being able to access redacted copies at a supervised location … . Should the court restrict access to discovery by the defendant personally, the court is required to inform the defendant on the record that counsel is not permitted by law to disclose the material or information to the defendant … . * * *

This case is one of the first under this new review procedure. The threshold question is what standard is the intermediate appellate justice to apply in performing the expedited review. The statute is silent on that subject.

This Justice accepts the proposition that where a pure question of law is concerned, the reviewing justice decides the question de novo … . Where, however, the issue involves balancing the defendant’s interest in obtaining information for defense purposes against concerns for witness safety and protection, the question is appropriately framed as whether the determination made by the trial court was a provident exercise of discretion … .

… [T]he People’s affirmation was unaccompanied by any affidavit from anyone with personal or direct knowledge of the relevant circumstances. … [W]hile alleging that a witness had been approached in person and by use of social media by “associates” of the defendant, the People did not set forth the name of any such associate, the relationship between the defendant and any associate, the date or approximate date of the alleged improper approach, or even a general description of the incident. While the use of social media is alleged, no screen shot or other depiction of the communication was provided. Further, the four corners of the affirmation do not contain the identity of the witnesses subject to the contact that caused concern. In short, the sealed affirmation submitted to justify the issuance of the protective order is vague, speculative, and conclusory. Under these circumstances, the affirmation was legally insufficient to support the granting of the relief sought. People v Beaton, 2020 NY Slip Op 00372, Second Dept 1-17-20

 

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ANNOUNCING A SIGNIFICANT CHANGE IN ITS APPELLATE-REVIEW CRITERIA, THE 3RD DEPARTMENT NOW HOLDS THE FAILURE TO INCLUDE THE DATE, APPROXIMATE TIME OR PLACE OF A CHARGED OFFENSE IN A SUPERIOR COURT INFORMATION (SCI) OR A WAIVER OF INDICTMENT IS NOT A JURISDICTIONAL DEFECT AND THEREFORE MUST BE PRESERVED FOR APPEAL (THIRD DEPT).

The Third Department, departing from its precedent based upon a recent (November 2019) ruling by the Court of Appeals, determined the failure to include the date, approximate time or place of the charged offense in a superior court information (SCI) and/or a waiver of appeal is not a jurisdictional defect:

Defendant’s sole contention on this appeal, which the People have conceded based on this Court’s decision in People v Busch-Scardino (166 AD3d 1314 [2018]), is that the waiver of indictment is invalid and the superior court information (hereinafter SCI) is jurisdictionally defective for failing to set forth the approximate time of the charged offense in accordance with CPL 195.20. Indeed, that has been the standard we have applied since Busch-Scardino, and we further recognize that this is not a case where the time of the offense “is unknown or, perhaps, unknowable” … . …

The Court of Appeals recently addressed the validity of appeal waivers in three consolidated appeals, and, in one of the appeals, the Court also addressed the validity of that defendant’s waiver of indictment with respect to charges involving child sexual abuse (People v Lang, ___ NY3d ___, ___, 2019 NY Slip Op 08545, *7-9 [2019]). * * *

The reasoning of Lang requires this Court to reassess and abandon the standard enunciated in Busch-Scardino. There is no question here that the waiver of indictment was signed in open court with counsel present in accordance with the procedural requirements set forth in NY Constitution, article I, § 6, which “establishes the prima facie validity of the waiver of the right to prosecution by indictment” … . The “approximate time” of the arson charge under review constitutes nonelemental factual information. Lang instructs that we should look not only at the waiver of indictment and the SCI, but also at the local accusatory instruments to ascertain whether adequate notice was provided. Here, the felony complaint mirrors both the waiver and the SCI by providing the date and specific address, but without specifying the approximate time. Nonetheless, defendant raised no objection before County Court, made no demand for a bill of particulars and “lodges no claim that he lacked notice of the precise crime[] for which he waived prosecution by indictment” … . In context, we conclude that the defect here was not jurisdictional and that defendant forfeited his challenge upon his plea of guilty … . People v Elric YY., 2020 NY Slip Op 00326, Third Dept 1-16-20

 

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IN A SIGNIFICANT DEPARTURE FROM PRECEDENT BASED UPON A NOVEMBER 2019 COURT OF APPEALS DECISION, THE FAILURE TO INCLUDE THE DATE, APPROXIMATE TIME OR PLACE OF A CHARGED OFFENSE IN A SUPERIOR COURT INFORMATION (SCI) OR A WAIVER OF INDICTMENT IS NOT A JURISDICTIONAL DEFECT AND THEREFORE MUST BE PRESERVED FOR APPEAL (THIRD DEPT).

The Third Department, departing from its precedent based upon a recent (November 2019) ruling by the Court of Appeals, determined the failure to include the date, approximate time or place of the charged offense in a superior court information (SCI) and/or a waiver of appeal is not a jurisdictional defect. Any challenge to the SCI or waiver of appeal on this ground must be preserved and, if it is not, the challenge is forfeited by a guilty plea:

… [W]e note that this Court, relying on People v Boston (75 NY2d 585, 589 [1990]), has previously held that the failure to strictly comply with the statutory requirements for waiving indictment pursuant to CPL 195.20 — including the failure to include the approximate time of each offense charged in the waiver of indictment or SCI — constitutes a jurisdictional defect that may be raised at any time, is not subject to the preservation requirement and is not precluded by a defendant’s guilty plea or waiver of the right to appeal … . However, the Court of Appeals recently decided People v Lang (___ NY3d ___, 2019 NY Slip Op 08545 [2019]) wherein it rejected the argument that omission of the approximate time of the charged offense in the waiver of indictment and/or SCI constitutes a jurisdictional defect — the same argument presently raised by defendant — specifically holding that the omission of such a fact presents a mere “technical challenge” as it constitutes “non-elemental factual information that is not necessary for a jurisdictionally-sound indictment” … . Accordingly, insofar as the subject waiver of indictment and SCI provided defendant with adequate notice of the date and location of the charged offenses, and as omission of the approximate time of the charged offense from the waiver of indictment and/or SCI constituted a nonjurisdictional defect … to which defendant did not object at a time when Supreme Court could have addressed the alleged deficiency, defendant’s present challenge was forfeited by his guilty plea … . People v Shindler, 2020 NY Slip Op 00327, Third Dept 1-16-20

 

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FATHER, WHO WAS INCARCERATED IN PENNSYLVANIA, INFORMED FAMILY COURT HE WISHED TO APPEAR BY TELEPHONE IN THE CUSTODY MATTER; FAMILY COURT DENIED THE REQUEST STATING THE COURT DID NOT HAVE JURISDICTION OVER FATHER; THE 3RD DEPARTMENT HELD FATHER, WHO HAD NOT CHALLENGED THE COURT’S JURISDICTION, SHOULD HAVE BEEN ALLOWED TO APPEAR BY PHONE (THIRD DEPT).

The Third Department, reversing Family Court, determined that father, who was incarcerated in Pennsylvania, should have been allowed to appear in the custody proceeding by telephone. Father had informed the court of his wish to appear and had not challenged the court’s jurisdiction and informed Family Court he wished to appear by telephone. Family Court denied father’s request stating that the court did not have jurisdiction over father:

“The right to be heard is fundamental to our system of justice” … . Further, “[p]arents have an equally fundamental interest in the liberty, care and control of their children” … . “[E]ven an incarcerated parent has a right to be heard on matters concerning [his or her] child, where there is neither a willful refusal to appear nor a waiver of appearance” … . Here, the father had notice of the proceeding, did not challenge Family Court’s jurisdiction and the court could have permitted him to testify telephonically … . Because the record demonstrates that the father was not given an opportunity to participate in the proceedings, we must reverse and remit for a new hearing … . Matter of Starasia E. v Leonora E., 2020 NY Slip Op 00334, Third Dept 1-16-20

 

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