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THERE WAS SUFFICIENT EVIDENCE DEFENDANT INTENTIONALLY AIDED THE PRINCIPALS IN THE KIDNAPPING; THE EVIDENCE THAT DEFENDANT CONSTRUCTIVELY POSSESSED A WEAPON, HOWEVER, WAS LEGALLY INSUFFICIENT (FOURTH DEPT).

The Fourth Department affirmed defendant’s kidnapping conviction but reversed the weapons-related counts because the evidence she constructively possessed a weapon found in the house was legally insufficient:

… [T]he evidence is legally sufficient to support [defendant’s] conviction of kidnapping in the second degree. Viewing the evidence in the light most favorable to the People … , we conclude that there is a valid line of reasoning and permissible inferences to support the conclusion that defendant had “a shared intent, or community of purpose’ with the principal[s]” … . Defendant was present in a house when the police raided it and rescued two victims who were being held captive there, and the identification of one of the victims was found in a backpack that defendant was wearing when the police entered the house. It could be readily inferred from the evidence that defendant was aware that the victims were being held there and that she intentionally aided the principals by providing them and the victims with food … . …

[The weapons-related] counts were based on her possession of a rifle that was found in the house after the police entered. To establish constructive possession of the weapon, the People had to establish that defendant “exercised dominion or control over [the weapon] by a sufficient level of control over the area in which [it was] found” … . Here, the evidence established that, prior to the arrival of the police, defendant was sitting in the living room of the house, the rifle was on a table in the living room, and one of the other perpetrators in the kidnapping put on a mask, grabbed the rifle, went to the room where the victims were being held, then came back to the living room and put the rifle back on the table. Contrary to the People’s contention, that evidence is insufficient to establish that defendant had constructive possession of the weapon. A defendant’s mere presence in the house where the weapon is found is insufficient to establish constructive possession … , and there was no evidence establishing that defendant exercised dominion or control over the weapon … . People v Rolldan, 2019 NY Slip Op 06913, Fourth Dept 9-27-19

 

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NO ESPINAL EXCEPTIONS WERE PLED SO THE SNOW REMOVAL CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PROPERLY GRANTED; QUESTIONS OF FACT WERE RAISED ABOUT WHETHER THE STORM IN PROGRESS RULE APPLIED AND WHETHER THE AREA WAS SLIPPERY BEFORE THE STORM, PRECLUDING SUMMARY JUDGMENT IN FAVOR OF THE OTHER DEFENDANTS (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, in this slip and fall case, determined: (1) the snow removal contractor’s (Fitzgerald’s) motion for summary judgment was properly granted because no Espinal exception was pled; and (2) there were questions of fact whether there was a storm in progress at the time of the fall and whether there were slippery areas prior to the storm:

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]). Although there are three well-established exceptions to that rule (see id. at 140), plaintiff did not allege facts in his complaint or bill of particulars that would establish the applicability of any of those exceptions, and thus Fitzgerald was not required to affirmatively negate the possible application of any of them in order to meet her initial burden … . Instead, Fitzgerald had to demonstrate only that plaintiff was not a party to the snow removal contract and that she therefore owed no duty to him, which she accomplished by submitting a copy of the contract … . …

… [D]efendants submitted the deposition testimony of plaintiff, who testified that snow and rain had been predicted that day, but during the time leading up to his fall it was merely overcast. Thus, defendants’ own submissions raise an issue of fact whether there was a storm in progress at the time of the fall …. Furthermore, defendants submitted the deposition testimony of an assistant store manager, who testified that there were “a few” “different” “slippery spots” in the parking lot when she arrived for her shift at 2:00 p.m. on the day of plaintiff’s fall, thus raising issues of fact whether the slippery condition preexisted the alleged storm … , and whether defendants had actual or constructive notice of the slippery condition … . Govenettio v Dolgencorp of N.Y., Inc., 2019 NY Slip Op 06907, Fourth Dept 9-27-19

 

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FATHER’S SUSPENDED JAIL SENTENCE FOR FAILURE TO PAY CHILD SUPPORT ARREARS SHOULD NOT HAVE BEEN REVOKED WITHOUT PROVIDING FATHER THE OPPORTUNITY TO PRESENT EVIDENCE RE: HIS INABILITY TO PAY (THIRD DEPT).

The Third Department, reversing Family Court, determined father’s suspended jail sentence should not have been revoked without an inquiry into father’s inability to pay the child support arrears:

… [T]he Warren County Department of Social Services, acting on behalf of the mother, submitted a request for an order of commitment based upon the father’s failure to comply with the support order or pay the arrears. The father … filed a petition seeking modification of the support order based upon his ongoing medical issues. During a hearing on the modification petition, it was revealed that the father’s child support obligation had ended and that he was seeking an adjustment to pay the arrears until he could return to work. It was also disclosed that the proceedings on the order of commitment had been adjourned pending the father’s sale of certain real property. … When these proceedings resumed, the father indicated that he did not have a contract to sell the real property or any means to pay the child support arrears. Family Court adjourned the proceedings to enable the father to undergo surgery, but directed him to return to court with a certified check for the child support arrears in the amount of $12,467.57. When the father did not appear in court on the adjourned date, Family Court issued a warrant and an order of commitment directing respondent’s confinement in jail for 60 days. …

We agree with the father that Family Court erred in revoking the suspension of his jail sentence without first affording him the opportunity to present evidence on his inability to pay the arrears (see Family Ct Act § 433 [a] …). … [T]he record does not reflect that Family Court conducted the necessary evidentiary hearing or undertook a sufficient inquiry as to the father’s inability to pay the child support arrears. Matter of Eddy v Eddy, 2019 NY Slip Op 06825, Third Dept 9-26-19

 

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THE WORKER’S COMPENSATION AWARD SHOULD NOT HAVE BEEN APPORTIONED BETWEEN THE COMPENSABLE INJURY AND A PREEXISTING CONDITION WHICH DID NOT AFFECT CLAIMANT’S ABILITY TO WORK (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the award should not have been apportioned between claimant’s compensable injury and his preexisting MS condition:

As a general rule, apportionment is not applicable as a matter of law where the preexisting condition was not the result of a compensable injury and the claimant was able to effectively perform his or her job duties at the time of the work-related accident despite the preexisting condition” … . “Significantly, degeneration and infirmities which have not previously produced disability are not a proper basis for reduction of compensation” … . …

… [C]laimant’s MS, although not diagnosed until after the work-related accident, was a preexisting condition. There is no evidence whatsoever that claimant’s MS precluded him from performing the duties of his employment. As there is no evidence of an apportionable disability prior to the … accident, apportionment of claimant’s award is, as a matter of law, inappropriate … . Matter of Whitney v Pregis Corp., 2019 NY Slip Op 06828, Third Dept 9-26-19

 

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PLAINTIFF WAS NOT INJURED BY THE CONDITION HE WAS HIRED TO FIX IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff, a cleaner employed by a nonparty to clean a NYC school, tripped and fell as he was walking across the auditorium stage to turn on the lights. The defendant argued it could not be liable because plaintiff was injured by the condition he was responsible to fix:

A plaintiff cannot recover against a defendant for common-law negligence if he or she was injured by the dangerous condition which he or she had been hired to remedy … . Here, the evidence submitted by the defendants established that the plaintiff was merely walking to the rear of the stage in order to turn on the lights in the auditorium. Thus, the plaintiff was not engaged in the type of cleaning activity aimed at eliminating the risk presented by the test board that had been left on the floor … . Additionally, the plaintiff’s duty to clean visible debris off the floor had not yet arisen, because the plaintiff testified that due to the dim lighting condition in the auditorium, he had not observed the test board before his fall. Torres v Board of Educ. of the City of New York, 2019 NY Slip Op 06818, Second Dept 9-25-19

 

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NEITHER A CERTIFICATION ORDER NOR A STIPULATION EXTENDING THE DATE FOR FILING A NOTE OF ISSUE MET THE REQUIREMENTS OF A 90-DAY NOTICE; THE DISMISSAL OF THE ACTION WAS INVALID; THE MOTION TO RESTORE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action was not properly dismissed pursuant to CPLR 3216 and plaintiff’s motion to restore the action to the calendar should have been granted:

… [T]he Supreme Court issued a certification order which … certified the matter for trial and directed the plaintiff to file a note of issue within 90 days. The order provided that “[i]f plaintiff does not file a note of issue within 90 days this action may be dismissed. (CPLR 3216).” Thereafter, the parties executed a stipulation dated June 15, 2017, extending the date by which the note of issue must be filed to September 7, 2017. The action was ministerially dismissed on June 21, 2017, without further notice to the parties. …

An action cannot be dismissed pursuant to CPLR 3216(a) “unless a written demand is served upon the party against whom such relief is sought’ in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed'” … .

The certification order, which purported to serve as a 90-day notice pursuant to CPLR 3216, was defective as it did not state that the plaintiff’s failure to comply with the demand would serve as a basis for the court, on its own motion, to dismiss the action for failure to prosecute … . Furthermore, contrary to the determination of the Supreme Court, the subsequent stipulation … , which purported to extend the plaintiff’s deadline for filing a note of issue … , did not constitute a valid 90-day demand … .

Moreover, it is evident from the record that the action was ministerially dismissed without a motion or notice to the parties, and there was no order of the court dismissing the action … . Rosenfeld v Schneider Mitola LLP, 2019 NY Slip Op 06813, Second Dept 9-25-19

 

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WAIVER OF APPEAL INVALID; MATTER REMITTED FOR THE STATUTORILY REQUIRED FINDINGS FOR THE DENIAL OF DEFENDANT’S SUPPRESSION MOTION; APPEAL HELD IN ABEYANCE (SECOND DEPT).

The Second Department determined defendant’s waiver of appeal was invalid. He therefore could challenge the denial of his suppression motion on appeal. However, Supreme Court did not make the statutorily required findings of fact and conclusions of law. The matter was remitted for findings on all the issues raised by the suppression motion, and the appeal is held in abeyance:

When the Supreme Court attempted to explain to the defendant the waiver of the right to appeal, it improperly conflated the right to appeal with rights automatically forfeited by a plea of guilty … . As such, the record does not demonstrate that the defendant understood the nature of the right he was being asked to waive or the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty … . Moreover, although the record of the proceedings reflects that the defendant executed a written waiver of his right to appeal, the court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel … . …

“[T]he CPL article 710 suppression procedure involves an adjudication based on mixed questions of law and fact”… . “The suppression court must make findings of fact, often requiring it to assess the credibility of witnesses” … . “Regardless of whether a hearing was conducted, the court, upon determining [an article 710] motion, must set forth on the record its findings of fact, its conclusions of law and the reasons for its determination” (CPL 710.60[6] …). People v Harris, 2019 NY Slip Op 06795, Second Dept 9-25-19

 

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THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim in this sidewalk slip and fall case should not have been granted:

Although the photographs submitted in support of the petition may have demonstrated that the City had prior knowledge of the defect in the asphalt, “actual knowledge of the defect is not tantamount to actual knowledge of the facts constituting the claim, since the City was not aware of the petitioner’s accident, her injuries, and the facts underlying her theory of liability” … .

A lack of due diligence in determining the identity of the owner of the property upon which the subject accident occurred is not a reasonable excuse for the failure to serve a timely notice of claim … . …

In addition, the petitioner failed to satisfy her initial burden of showing that the City would not be substantially prejudiced in maintaining a defense on the merits as a result of the delay … . Matter of Perez v City of New York, 2019 NY Slip Op 06774, Second Dept 9-25-19

 

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A FRAMED ISSUE HEARING IS REQUIRED TO DETERMINE IF THE CARRIER PROPERLY DISCLAIMED COVERAGE IN THIS TRAFFIC ACCIDENT CASE ON THE GROUND THAT ITS INSURED’S CAR HAD BEEN STOLEN; THE UNINSURED MOTORIST CARRIER’S PETITION FOR A TEMPORARY STAY OF ARBITRATION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a framed-issue hearing was required to determined if the insurer, National General, properly disclaimed coverage in this traffic accident case. The insured vehicle, owned by Singh, left the scene of the accident. National General disclaimed coverage alleging the vehicle had been stolen at the time of the accident. Santos, the driver of the car struck by the Singh car, then made a demand for arbitration of uninsured motorist against his insurer, Country-Wide. Country-Wide then brought the underlying petition to stay arbitration which was denied. Country-Wide appealed:

“The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay” … . “Thereafter, the burden is on the party opposing the stay to rebut the prima facie showing” … . “Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue” … .

… [T]the petitioner met its initial burden by submitting evidence establishing that at the time of the accident the Singh vehicle was covered by a policy of insurance issued by National General … . National General’s disclaimer letter, submitted by Country-Wide in support of its petition, constituted prima facie evidence as to the existence of a policy of insurance covering Singh’s vehicle at the time of the accident. That same letter was sufficient to raise a triable issue of fact as to the validity of National General’s disclaimer … . “Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner’s consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner’s permission” … . “[E]vidence that a vehicle was stolen at the time of the accident may overcome the presumption of permissive use” … . Under these circumstances, a framed-issue hearing is necessary to determine whether National General properly disclaimed coverage of Singh’s vehicle … . Matter of Country-Wide Ins. Co. v Santos, 2019 NY Slip Op 06767, Second Dept 9-25-19

 

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ALTHOUGH PLAINTIFF HERSELF MAY NOT HAVE BEEN ABLE TO IDENTIFY THE CAUSE OF HER SLIP AND FALL, HER DAUGHTER, WHO WITNESSED THE FALL, PROVIDED SUFFICIENT EVIDENCE TO WARRANT DENIAL OF DEFENDANT’S SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (New York City Housing Authority’s, NYCHA’s) motion for summary judgment in this slip and fall case should not have been granted. Plaintiff’s daughter, who witnessed the fall, provided sufficient evidence of the sidewalk defect:

“If a plaintiff is unable to identify the cause of a fall, any finding of negligence would be based upon speculation”  … . “That does not mean that a plaintiff must have personal knowledge of the cause of his or her fall” … . “It only means that a plaintiff’s inability to establish the cause of his or her fall — whether by personal knowledge or by other admissible proof — is fatal to a cause of action based on negligence” … . …

In support of its motion, NYCHA submitted a transcript of the deposition testimony of the plaintiff’s daughter, Galina Moiseyeva (hereinafter Galina), who testified that she saw the plaintiff fall because of a “crack” or “gap” in the sidewalk, which made the sidewalk a “different level.” Further, Galina, who lived with the plaintiff in the premises abutting the sidewalk, testified that she walked along the sidewalk while traveling to and from work, and was previously aware of the alleged crack in the sidewalk. Contrary to NYCHA’s contentions, the alleged failure of the plaintiff and Galina to identify the exact location of the plaintiff’s alleged fall on a photograph shown at their depositions and hearings pursuant to General Municipal Law § 50-h, which photograph was taken the day after the alleged accident occurred and after NYCHA had allegedly covered the subject part of the sidewalk with plywood, did not establish, prima facie, that the plaintiff is unable to identify the cause of her fall. Under the circumstances, NYCHA failed to eliminate triable issues of fact as to whether the plaintiff fell due to the alleged defective condition of the sidewalk … . Moiseyeva v New York City Hous. Auth., 2019 NY Slip Op 06766, Second Dept 9-25-19

 

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