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MOTION TO AMEND THE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, THE NOTICE ADDED A NEW THEORY OF CAUSATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend her notice of claim in this slip and fall case should not have been granted. The motion was made two years after the complaint was filed and included a new theory of causation:

A timely served notice of claim dated June 1, 2015, alleged, in relevant part, that the steps and/or stairs were “defective,” “uneven, misleveled, smooth” with a “slick surface,” and that the New York City Transit Authority and the Metropolitan Transportation Authority (hereinafter together the defendants), were negligent “in the ownership, operation, control, and maintenance” of the stairs. The plaintiff subsequently filed a complaint dated April 12, 2016, alleging, in relevant part, that her injuries were caused by the defendants’ negligence in the ownership, operation, management, maintenance, care, custody, and control of the premises.

More than two years later, in April 2018, the plaintiff moved pursuant to General Municipal Law § 50-e(6) for leave to amend her notice of claim to remove any mention of the stairs being “uneven, misleveled, smooth” with a “slick surface,” and to add new allegations that the stairs were “defectively installed . . . and/or designed . . . with a hole/gap upon which [the plaintiff’s] foot was caused to trip and fall.” …

“A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability” … . Amendments of a substantive nature are not within the purview of General Municipal Law § 50-e(6) … .

Here, the plaintiff’s notice of claim made no allegations of any “hole/gap” in which the plaintiff’s foot got caught, or that the stairs were defectively installed or designed … . Therefore, the proposed amendments were not technical in nature; rather, they were of a substantive nature beyond the purview of General Municipal Law § 50-e(6) … . Ryabchenko v New York City Tr. Auth., 2019 NY Slip Op 05430, Second Dept 7-3-19

 

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VIRGINIA MURDER CONVICTION WHICH REQUIRED DEFENDANT TO REGISTER AS A SEX OFFENDER IN VIRGINIA DID NOT QUALIFY DEFENDANT AS A SEX OFFENDER IN NEW YORK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should not have been adjudicated a sex offender in New York based upon a murder conviction in Virginia, where he was required to register as a sex offender under Virginia law. The defendant was convicted of murdering a three year old child who had suffered trauma to his genitalia:

The defendant subsequently relocated to New York in November 2017. Following a hearing pursuant to Correction Law article 6-C, the Supreme Court adjudicated the defendant a level three sex offender. Insofar as relevant to this appeal, the court determined that the defendant’s mandatory registration under Virginia law made him a “sex offender” under Correction Law § 168-a(2)(d)(ii). The defendant appeals.

The victim’s extensive injuries in this case included “significant traumatic injuries to [his] scrotum and penis,” which were described at trial by the prosecution’s expert medical witness as having been inflicted “within hours to one day from the time of [the infant’s] death” and were “caused by blunt force trauma, probably squeezing” … . Nevertheless, as the People correctly concede, the order appealed from must be reversed in light of the Court of Appeals’ recent opinion in People v Diaz (32 NY3d 538), which held that mandatory registration as a murderer under Virginia Code § 9.1-902(D) does not qualify the defendant as a “sex offender” within the meaning of Correction Law § 168-a(2)(d)(ii). People v Covington, 2019 NY Slip Op 05429, Second Dept 7-3-19

 

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RECORD WAS INSUFFICIENT TO DETERMINE THE LEVEL OF PREJUDICE CAUSED BY PLAINTIFF’S FAILURE TO PRESERVE THE PHONE WHICH ALLEGEDLY CAPTURED IMAGES OF THE INCIDENT AT THE HEART OF THE LAWSUIT, DISMISSAL OF THE COMPLAINT REVERSED AND MATTER REMITTED FOR FURTHER DISCOVERY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined that the record was not sufficient to conclude whether dismissal of the complaint was a proper sanction for spoliation of evidence. Plaintiff alleged defendant negligently or intentionally struck defendant with an all-terrain vehicle (ATV). Defendant asked plaintiff to preserve a phone which allegedly contained images of the incident. Plaintiff did not preserve the phone but provided one image and one video which were alleged to have been on the phone. Supreme Court dismissed the complaint as a sanction for spoliation. The Third Department noted there was evidence that all the metadata on the phone had been preserved and remitted the matter for discovery and, if necessary, an appropriate sanction:

… [T]he factors to be considered in determining the appropriate sanctions for such failures are “the extent that the spoliation of evidence may prejudice a party and whether a dismissal will be necessary as a matter of elementary fairness” … . …

… [W]e remit to Supreme Court with direction for plaintiff to promptly obtain and provide to defendant all photos, videos and metadata pertinent to the incident that have been preserved in any source, or to provide defendant with full access to any such stored photos, videos and metadata. The retrieval and examination of this information — or the continued failure to do so — will permit Supreme Court to reexamine, upon a full record, whether pertinent electronic information has been lost as a result of plaintiff’s failure to preserve the phone, to what extent defendant has been prejudiced by that loss and, thus, whether dismissal, an adverse inference charge or some other sanction may be appropriate … . LaBuda v LaBuda, 2019 NY Slip Op 05372, Third Dept 7-3-19

 

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ARBITRATOR’S AWARD OF ATTORNEY’S FEES TO PLAINTIFF IN THIS BREACH OF CONTRACT DISPUTE REINSTATED; MONEY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO A PARTY WHICH HAD CONTRACTED WITH PLAINTIFF, BUT WITH WHICH DEFENDANT DID NOT HAVE AN AGREEMENT TO ARBITRATE; COURT-REVIEW OF ARBITRATION AWARDS DISCUSSED IN DETAIL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined the arbitrator’s award of attorney’s fees to the plaintiff should not have been vacated, but the arbitrator’s award of a money judgment to OHM, which had contracted with plaintiff but was not a party to any agreement to arbitrate with the defendant, should be vacated. The opinion includes a clear explanation of a court’s limited powers of review of an arbitration award and is too comprehensive to fairly summarize here. The court noted, with regard to the American rule generally prohibiting the award of attorney’s fees, New York law is preempted by the Federal Arbitration Act (FAA):

… [T]he parties agree that manifest disregard of the law is the only appropriate ground to vacate the arbitrator’s award of attorneys’ fees … .

For an award to be set aside for manifest disregard, the arbitrator must understand and correctly state the law, but proceed to disregard the same … . Application of the “manifest disregard of law” standard requires the court to make, in essence, three inquiries: (1) whether the legal principle allegedly ignored by the arbitrator was well defined, explicit, and clearly applicable; (2) whether the arbitrators knew of the governing legal principle; and, (3) whether knowing that principle, the arbitrators refused to apply it or ignored it … . A court may not vacate an arbitration award because it thinks the arbitrators made the wrong decision … . Indeed, even if the court thinks that the arbitrator reached the wrong result or applied the law incorrectly, the court should nevertheless confirm the award, “despite [the] court’s disagreement with it on the merits, if there is a barely colorable justification for the outcome reached” … . * * *

Under established law, “[t]he question whether the parties have submitted a particular dispute to arbitration, i.e., the question of arbitrability, is an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise”  … . * * *

Arbitration is a matter of contract, and a party cannot be forced to arbitrate a dispute that it did not expressly agree to submit to arbitration … . “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so . . . . In this manner the law treats silence or ambiguity about the question who (primarily) should decide arbitrability’ differently from the way it treats silence or ambiguity about the question whether a particular merits-related dispute is arbitrable because it is within the scope of a valid arbitration agreement’ for in respect to this latter question the law reverses the presumption” … . An arbitrator’s decision to assert jurisdiction, over objection, is subject to a much broader and more rigorous judicial review than an arbitral decision on the merits, and because it is “a question for the court to decide,” it is subject to de novo judicial review … . Matter of Steyn v CRTV, LLC, 2019 NY Slip Op 05341, First Dept 7-2-19

 

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PLAINTIFF FELL IN A POTHOLE IN THE PATH FROM THE BUS TO THE CURB, TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT).

The First Department determined the defendant  New York City Transit Authority’s (NYCTA’s) motion for summary judgment in this slip and fall case was properly denied. Plaintiff was let off at a bus stop about seven or eight feet from the curb and stepped into a pothole:

NYCTA’s motion was properly denied since the record presents triable issues of fact as to whether NYCTA breached its duty as a common carrier to provide plaintiff with a safe place to board the bus … . The record shows that the bus stopped seven or eight feet from the curb adjacent to the bus stop, with a pothole, into which plaintiff fell, in the path that passengers would take walking from the sidewalk to board the bus. The fact that approximately 10 other passengers safely boarded the bus at the same time that plaintiff fell in the hole while attempting to board does not entitle NYCTA to summary judgment … . Defay v City of New York, 2019 NY Slip Op 05325, First Dept 7-2-19

 

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THE EVIDENCE DEFENDANT USED A PEN TO PUNCTURE THE CHEEK OF THE VICTIM CONSTITUTED EVIDENCE THE DEFENDANT USED A DANGEROUS INSTRUMENT IN THIS ASSAULT SECOND CASE, THE DEFENDANT WAS NOT ENTITLED TO A JURY INSTRUCTION ON THE ORDINARY-NONDEADLY-FORCE JUSTIFICATION DEFENSE (FIRST DEPT).

The First Department determined defendant’s request for a jury instruction on the ordinary-nondeadly-force justification defense in this Assault Second prosecution was properly denied. The defendant did not request a jury instruction on the deadly-force-justification defense. Defendant’s use of a pen to puncture the victim’s cheek constituted use of a dangerous instrument:

The video surveillance captures the defendant reaching into his bag or pocket with his right hand and then immediately striking the complainant with that same hand. Photographs of the complainant’s cheek reflect what appears to be a puncture of the cheek. The photograph of the outside of the complainant’s cheek shows that there was a thin, horizontal cut adjacent to the round through-and-through puncture on the complainant’s cheek, consistent with a sharp object, such as the point of a pen, scratching the complainant’s cheek before the object plunged into it.

The record further reveals that police officers who arrived at the scene observed the complainant bleeding from a puncture wound on the side of his face. At the time of defendant’s arrest, the police recovered a pen that defendant was holding in his right hand. …

Under the facts presented, the only possible justification charge that would have been available to defendant would have been a charge of justifiable use of deadly, not ordinary, physical force (see Penal Law § 35.15[2]; People v Mickens, 219 AD2d 543, 544 [1st Dept 1995] …). People v Marishaw, 2019 NY Slip Op 05320, First Dept 7-2-19

 

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STATEMENTS MADE BY DEFENDANT DURING A CONTROLLED PHONE CONVERSATION WITH THE MOTHER OF THE ALLEGED CHILD VICTIM SHOULD NOT HAVE BEEN SUPPRESSED; STATEMENTS MADE BY DEFENDANT IN A CLOSED ROOM AT THE SHERIFF’S OFFICE, WHERE DEFENDANT WAS INTERROGATED AND CONFRONTED WITH HIS INCULPATORY STATEMENTS, SHOULD NOT HAVE BEEN SUPPRESSED; ALTHOUGH DEFENDANT WAS INTERROGATED, HE WAS NOT IN CUSTODY (FOURTH DEPT).

The Fourth Department, on an appeal by the People in this child sexual contact case, determined defendant’s statement, made during a controlled phone conversation with the mother of the child, should not have been suppressed. The Fourth Department further found that statements made by the defendant during interrogation at the sheriff’s office should not have been suppressed because the defendant was not in custody at the time of the interrogation:

… [W]e conclude that the mother “did not make a threat [or a promise] that would create a substantial risk that defendant might falsely incriminate himself”… . We further conclude that the controlled call did not constitute an unconstitutionally coercive police tactic; nor were the tactics employed by the mother during the call unconstitutionally coercive (see generally CPL 60.45 [2] [b] [ii] …), and “[d]eceptive police stratagems in securing a statement need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession’ ” … . …

… [A]lthough defendant’s interview occurred at the Sheriff’s Office, that fact “does not necessarily mean that he is to be considered in custody’ ” … . Defendant voluntarily agreed to meet the investigators at the Sheriff’s Office and arranged for his own transportation to and from the interview … . When defendant arrived, the investigators informed him that he was free to leave … . In fact, defendant left the Sheriff’s Office at the conclusion of the interview despite making inculpatory statements. Further, defendant was not restrained during the interview, and the door to the interview room was unlocked … . Although the investigators confronted defendant with the statements that he made during the controlled call, the fact that the questioning may have turned accusatory in nature did not render the interview custodial given the other circumstances present in this case … . People v Morris, 2019 NY Slip Op 05264, Fourth Dept 6-28-19

 

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RESTITUTION SHOULD NOT HAVE BEEN ORDERED BECAUSE IT WAS NOT PART OF THE PLEA AGREEMENT, THE ARGUMENT SURVIVES THE GUILTY PLEA AND THE WAIVER OF APPEAL; DEFENDANT’S CONTENTION HE WAS DEPRIVED OF HIS RIGHT TO COUNSEL DID NOT SURVIVE THE WAIVER OF APPEAL BECAUSE DEFENDANT DID NOT ASSERT THE DEPRIVATION INFECTED THE PLEA AGREEMENT OR THE VOLUNTARINESS OF THE PLEA (FOURTH DEPT).

The Fourth Department determined restitution should not have been ordered because it was not part of the plea agreement. The court noted that defendant’s argument he was deprived of his right to counsel with respect to his decision to testify before the grand jury was not forfeited by his guilty plea, but was encompassed by his waiver of appeal. The Fourth Department declined to follow a 3rd Department decision which held a deprivation-of-counsel argument survives a waiver of appeal irrespective of whether the deprivation infected the guilty plea. Here defendant did not assert that the alleged deprivation of his right to counsel infected the plea bargaining process or tainted the voluntariness of the plea:

Defendant’s further contention that County Court erred in ordering him to pay restitution because restitution was not part of the plea agreement survives both his guilty plea and his unchallenged waiver of the right to appeal … . Moreover, contrary to the People’s contention, defendant preserved his contention for appellate review by objecting to the imposition of restitution on the same ground he now advances … . On the merits, it is undisputed that the plea bargain did not include restitution, and the court therefore erred in awarding restitution without affording defendant the opportunity to withdraw his plea … . People v Richardson, 2019 NY Slip Op 05310, Second Dept 6-28-19

 

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DENIAL OF MOTHER’S REQUEST FOR AN ADJOURNMENT WAS AN ABUSE OF DISCRETION (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the court abused its discretion when it failed to grant mother’s request for an adjournment:

The record demonstrates that the mother presented a valid and specific reason for her inability to attend the hearing well before the hearing date and supported her request for an adjournment, which was her first, with a letter from her inpatient provider. Further, although the mother’s counsel appeared on her behalf at the hearing, the record supports the mother’s contention that she was prejudiced by her inability to provide testimony at the hearing. The court denied the adjournment based on its general desire to effect a quick and efficient resolution of this matter. There was, however, no evidence that the child would have been harmed by an adjournment. Matter of Sullivan v Sullivan, 2019 NY Slip Op 05289, Fourth Dept 6-28-19

 

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DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DEFENSE COUNSEL RELIED ON A CONSTITUTIONAL SPEEDY TRIAL ARGUMENT WHEN DEFENDANT WAS ENTITLED TO DISMISSAL OF THE INDICTMENT PURSUANT TO THE SPEEDY TRIAL STATUTE (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defense counsel was ineffective because defendant was entitled to dismissal of the indictment pursuant to the speedy trial statute. Defense counsel was aware of the correct dates, but only argued defendant was deprived of his constitutional right to a speedy trial and did not correct County Court’s erroneous time calculation:

Although defense counsel set forth the pertinent dates of the commencement of the action and defendant’s arraignment, at which time the People announced their readiness for trial (see CPL 30.30 [1] [a]), he failed to argue that the relevant period exceeded six months and was a clear violation of defendant’s statutory speedy trial rights. Instead, defense counsel focused on the constitutional speedy trial claim. At oral argument of the motion, the court addressed the statutory speedy trial claim, set forth the pertinent dates, and then stated that, according to its calculation, “without specifically crunching the numbers, but by estimates, that is a period of five months and seven days.” After addressing the circumstances of the superceding indictment and the constitutional speedy trial claim, the court asked defense counsel if there were “any fact[s] that would be pertinent that [it] did not recite in discussing the matter.” Instead of pointing out the court’s erroneous calculation of the statutory speedy trial period, defense counsel stated, “I think my motion was essentially based on the 30.20 Constitutional speedy trial . . .” … . …

Here, although, as noted, defense counsel made a speedy trial claim, we conclude that there was no strategic or legitimate explanation for defense counsel’s failure to alert the court that it had inaccurately calculated that only five months and seven days had passed between the commencement of the action and the People’s statement of readiness and that, instead, more than six months had elapsed … . People v Bloodworth, 2019 NY Slip Op 05284, Fourth Dept 6-28-19

 

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