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THE BANK’S MOTION TO VACATE A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED BECAUSE OF THE BANK’S UNEXCUSED FAILURE TO APPEAR AT A SCHEDULED CONFERENCE IN VIOLATION OF 22 NYCRR 202.27(c) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s unexcused failure to appear at a scheduled conference required denial of the bank’s motion to vacate a default judgment:

Although CPLR 3215(c) was not an appropriate ground upon which to dismiss the complaint because the plaintiff initiated proceedings for the entry of a judgment by moving for an order of reference within one year of the defendant’s default …, dismissal of the complaint was appropriate pursuant to 22 NYCRR 202.27(c) since the plaintiff failed to appear for the scheduled October 2012 conference.

A plaintiff seeking to vacate a default in appearing at a conference is required to demonstrate both a reasonable excuse for its default and a potentially meritorious cause of action (see CPLR 5015[a][1] … ). Although “[t]he determination of whether an excuse is reasonable is committed to the sound discretion of the motion court” … , the defaulting party must submit evidence in admissible form establishing both a reasonable excuse and a potentially meritorious cause of action or defense … .

Here, the plaintiff alleged only that the failure of its two prior attorneys to timely file the attorney affirmation in accordance with the January 2011 order caused the delay in prosecuting this action, and failed to proffer any evidentiary support therefor or any excuse for its failure to appear at the October 2012 conference. Moreover, the record reflects that the plaintiff did not take any action for almost four years to cure its default after the action was marked off the calendar. Since the plaintiff failed to demonstrate a reasonable excuse for its default … , we need not reach the issue of whether it had asserted a potentially meritorious cause of action … . Wells Fargo Bank, N.A. v McClintock, 2019 NY Slip Op 06015, Second Dept 7-31-19

 

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PLAINTIFF CHURCH’S OBJECTION TO THE SYNOD’S TAKING CONTROL OF A SCHOOL OPERATED BY PLAINTIFF CHURCH IS A RELIGIOUS CONTROVERSY WHICH IS NOT JUSTICIABLE IN STATE COURTS (SECOND DEPT).

The Second Department determined three causes of action in a lawsuit brought by a church (Eltingville) against the Synod and its Bishop (stemming from the Synod’s decision to place a school owned and operated by Eltingville under its control) were not justiciable in state courts because of the constitutional separation of church and state:

… [T]he complaint challenged the Synod’s determination to impose synodical administration upon Eltingville. Such a determination could only be made upon finding that “the membership of a congregation has become so scattered or so diminished in numbers as to make it impractical for such a congregation to fulfill the purposes for which it was organized or that it is necessary for this synod to protect the congregation’s property from waste and deterioration” (Synod’s Constitution § 13.24; see Religious Corporations Law § 17-c[2][a][iii]). A Synod’s determination to impose synodical administration on a local church is a nonjusticiable religious determination … . Eltingville Lutheran Church v Rimbo, 2019 NY Slip Op 05957, Second Dept 7-31-19

 

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THE PURSUIT OF DEFENDANT WAS NOT JUSTIFIED AND DEFENDANT’S DISCARDING THE HANDGUN WAS IN RESPONSE TO POLICE ILLEGALITY, THE HANDGUN WAS NOT ABANDONED AND SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, vacating the guilty plea and dismissing the indictment, determined the handgun discarded by the defendant during a police chase should have been suppressed. The police were responding to information that a black male had discharged a weapon. There were several black males in the area and nothing indicated defendant was involved in criminal activity. The defendant did not abandon the weapon because it was discarded in response to police illegality:

… [T]he officer’s action of pursuing defendant in response to his flight was not justified at its inception inasmuch as there were no specific circumstances indicating that defendant may have been engaged in criminal activity so as to give rise to reasonable suspicion … . Although the officer observed defendant walking in the general vicinity of the reported gun shots, that observation does not provide the “requisite reasonable suspicion, in the absence of other objective indicia of criminality’ ” that would justify pursuit, and no such evidence was presented at the suppression hearing … . In the absence of other identifying information, the fact that defendant may have matched the vague, generic description of the suspect as a black male, which could have applied to any number of individuals in the area of the large apartment complex with hundreds of residents, did not sufficiently indicate that defendant may have been engaged in criminal activity … . Thus, the pursuit of defendant was unlawful. * * *

… [D]defendant’s act of discarding the handgun was “spontaneous and precipitated by the unlawful pursuit by the police” and, therefore, the handgun should have been suppressed … . People v Jones, 2019 NY Slip Op 05940, Fourth Dept 7-31-19

 

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ALTHOUGH THE JURY WAS PROPERLY INSTRUCTED TO ACQUIT ON ALL COUNTS IF THE JUSTIFICATION DEFENSE APPLIED, THE VERDICT SHEET DID NOT MENTION THE JUSTIFICATION DEFENSE WHICH MAY HAVE GIVEN THE JURY THE IMPRESSION THE JUSTIFICATION DEFENSE SHOULD BE CONSIDERED SEPARATELY FOR EACH COUNT, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the failure to include the justification defense on the verdict sheet may have led the jurors to believe they had to reconsider the justification defense for each count. The judge had correctly instructed the jurors to acquit on all counts if the justification defense applied, but the omission from the verdict sheet was enough to call the verdict into question:

Supreme Court properly instructed the jurors to consider justification as an element of each count submitted for their consideration. The court also properly instructed the jurors that they must find the defendant not guilty of all counts if they found that the People failed to disprove the defendant’s justification defense.

However, the verdict sheet did not mention justification, and instructed the jurors to “continue to” the following count if they found the defendant not guilty of count one, two, three, or four. Therefore, the Supreme Court’s instructions, taken together as a whole, may have led the jurors to conclude that deliberation on each crime required reconsideration of the justification defense, even if they had already acquitted the defendant of the previous count based on justification … . There is now no way of knowing whether the jurors acquitted the defendant of the greater counts on the ground of justification so as to mandate acquittal on the lesser counts … . People v Smith, 2019 NY Slip Op 06004, Second Dept 7-31-19

 

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CONFLICTING EVIDENCE WHETHER THE PLYWOOD WHICH FLEXED CAUSING PLAINTIFF TO FALL WAS OVER A THREE-FOOT DEEP HOLE OR TRENCH; LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court determined the Labor Law 240 (1) and 241 (6) causes of action should not have been dismissed. There was conflicting evidence whether the plywood which flexed causing plaintiff to fall was over a three-foot deep hole or trench:

… [T]here was conflicting deposition testimony regarding whether the plywood was, under the circumstances, the functional equivalent of a scaffold meant to prevent the plaintiff from falling into a three-foot-deep hole or trench … . …

… [T]he regulation which plaintiff alleges was violated concerns structural runways, ramps, and platforms (see 12 NYCRR 23-1.22[b]), which is a regulation that sets forth specific standards of conduct sufficient to support a Labor Law § 241(6) cause of action … . Similar to the plaintiff’s Labor Law § 240(1) cause of action, the conflicting deposition testimony … raised a triable issue of fact as to whether there was insufficient bracing under the plywood … . Davies v Simon Prop. Group, Inc., 2019 NY Slip Op 05955, Fourth Dept 7-31-19

 

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THE CLAIM WAS NOT JURISDICTIONALLY DEFECTIVE FOR FAILURE TO SPECIFICALLY ALLEGE LOST WAGES AS PART OF THE DAMAGES IN THIS PERSONAL INJURY ACTION, THE DISSENT DISAGREED AND WOULD HAVE VACATED THE AWARD FOR LOST WAGES (FOURTH DEPT).

The Fourth Department affirmed the award of money damages to claimant for personal injury. The claim did not specifically request lost wages as damages. The majority held the claim was not jurisdictionally deficient and the specific items of damage need not have been spelled out. The dissenter disagreed and argued the award for lost wages should be vacated:

Contrary to defendant’s contention, the court did not lack subject matter jurisdiction with respect to damages for past and future lost wages inasmuch as the facts alleged by claimant “were sufficient to apprise [defendant] of the general nature of the claim and to enable it to investigate the matter” … .

The plain language of the statute requires a claimant to specify “the items of damage or injuries claimed to have been sustained” and, “except in[, inter alia,] action[s] to recover damages for personal injury . . . , the total sum claimed” (Court of Claims Act § 11 [b]). Contrary to the view of our dissenting colleague, a natural reading of the statute requires a claimant to specify the items of damage to property or injuries to a person for which the claimant seeks compensation. Here, claimant sufficiently specified the nature of the claim, the time when and the place where the claim arose, and the injuries claimed to have been sustained, i.e., “injuries to his shoulder, bicep, and elbow” … . Inasmuch as this is an action for damages for personal injury, claimant was not required to specify, in total or itemized by category, his claimed items of damage … . Damages sought by claimant for medical expenses or lost wages are matters for the bill of particulars. Donahue v State of New York, 2019 NY Slip Op 05948, Fourth Dept 7-31-19

 

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DEFENDANT’S MANSLAUGHTER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, reversed defendant’s manslaughter conviction as against the weight of the evidence. The defendant had been alone with the victim, his girlfriend’s 13-month-old son, for a short time on the day the baby vomited and was gasping for breath (May 2). The baby died hours later at the hospital. Blunt force head trauma was deemed the cause of death. The defendant was not arrested until four years later after mother had unsuccessfully attempted to have the defendant admit to harming the child in recorded phone conversations. The medical examiner testified on direct that the baby was injured on May 2. But on cross the medical examiner acknowledged the baby could have been injured on May 1, when defendant had no contact with the baby. Other people had access to the baby on May 1, but they were not interviewed because the medical examiner had told the investigators the injuries occurred on May 2:

The only evidence adduced at trial that was not within the knowledge of the police in 2010, when they decided not to arrest defendant, was the testimony of a woman who dated him from 2008 to 2013, with a one-year break in 2010 when he dated [the baby’s mother]. The witness testified that, in the years following the victim’s death, defendant would sometimes talk about the victim and become emotional but would say that he was not guilty and “didn’t do it.” When questioned by the prosecutor about a written statement she had given to the police, the witness testified that defendant “admitted to doing something to the baby but he never said what or why.” On cross-examination, the witness testified that defendant, whom she had not dated for years, never admitted that he harmed the victim. All in all, the witness’ testimony was of only marginal probative value.

Given the equivocal medical evidence with respect to the time frame within which the fatal injuries could have been inflicted, the weakness of the circumstantial evidence, and the lack of direct evidence that defendant caused the victim’s injuries, we conclude that the People failed to prove defendant’s guilt beyond a reasonable doubt … . People v Gonzalez, 2019 NY Slip Op 05947, Fourth Dept 7-31-19

 

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PLAINTIFF BUS DRIVER WAS SPRAYED WITH DIESEL FUEL AS SHE ATTEMPTED TO FILL THE TANK OF THE BUS SHE WAS DRIVING; THE MANUFACTURER OF THE GAS PUMP NOZZLE AND THE GAS STATION DEMONSTRATED THE NOZZLE AND THE GAS PUMP WERE WORKING PROPERLY; THERE WAS EVIDENCE OF A RELEVANT DESIGN FLAW IN THE FUEL SYSTEM OF THE BUS; THE NOZZLE MANUFACTURER’S AND THE GAS STATION’S MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined that the products liability cause of action against the manufacturer of a gas pump fuel nozzle (Husky), and the premises liability cause of action against the gas station (Kwik Fill) should have been dismissed. The plaintiff was sprayed with diesel fuel as she attempted to fill the tank in the bus (manufactured by Coach) she was driving. There was evidence that the design of the fuel system of the bus may have been the cause:

In opposition to Husky’s motion, the Coach defendants submitted the affidavit of an expert and the deposition testimony of the vice president of engineering of defendant Motor Coach Industries, Ltd. The expert opined that the accident was caused by a nozzle malfunction. He did not, however, identify any particular defect in the nozzle, which he did not inspect. We thus conclude that the expert’s opinion is based on mere speculation and is insufficient to raise an issue of fact … . …

It is undisputed that the Kwik Fill defendants hired an outside vendor that regularly inspected and serviced their fuel pumps, and, in support of their motion, the Kwik Fill defendants submitted evidence establishing that the vendor determined that the fuel pumps were working properly before and after the accident, thus establishing that the Kwik Fill defendants maintained their property in a reasonably safe condition … . Menear v Kwik Fill, 2019 NY Slip Op 05845, Fourth Dept 7-31-19

 

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THE PEOPLE DID NOT PROVE DEFENDANT POSSESSED A RAZOR BLADE PARTIALLY WRAPPED IN TAPE WITH THE INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction as against the weight of the evidence, determined the People did not prove that defendant possessed a razor blade partially wrapped in tape with the intent to use it unlawfully against another:

Penal Law § 265.15(4) provides, in relevant part, that “[t]he possession by any person of any . . . weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.”

“The presumption of unlawful intent under Penal Law § 265.15(4), like all statutory presumptions in New York, is a permissive presumption, meaning that [it] allows, but does not require, the trier of fact to accept the presumed fact, and does not shift to the defendant the burden of proof'” … . “Before the presumption may apply, the People must establish beyond a reasonable doubt the predicate fact or facts the statute requires be proved'” … . “If the People succeed in this endeavor, they are entitled to rely on the presumption, which form[s] part of the support for [their] prima facie case’ against the defendant” … . “The presumption may be rebutted by any evidence in the case; that is, evidence presented by the defendant or the People” … “Evidence rebutting the presumption will not negate the existence of a prima facie case; rather it presents an alternate set of facts, or inferences from facts, to the jury. The jury then has the right to choose between the two versions'” … . …

… [T]he People failed to establish beyond a reasonable doubt that the razor blade recovered from the defendant was “designed, made or adapted for use primarily as a weapon” … . There was no testimony by the detectives indicating that they knew based on their experience that the primary use of this type of instrument, by virtue of being wrapped in black tape, was as a weapon, or that they attempted to ascertain from the defendant the manner in which he utilized the blade … . Furthermore, there was no evidence from which it could be inferred that the defendant considered the instrument to be a weapon … . People v Rodgers, 2019 NY Slip Op 06002, Second Dept 7-31-19

 

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FOR CAUSE CHALLENGE TO A JUROR WHO FELT POLICE OFFICERS WOULD NOT LIE SHOULD HAVE BEEN GRANTED; STATEMENTS MADE UNDER CUSTODIAL INTERROGATION IN DEFENDANT’S HOME SHOULD HAVE BEEN SUPPRESSED; STATEMENTS MADE AFTER DEFENDANT INVOKED HIS RIGHT TO COUNSEL SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and granting a new trial, determined that a defense for-cause challenge to a juror should have been granted, unwarned statements made by the defendant in his home were in response to custodial interrogation, and the statements made at the police station were made after defendant had invoked his right to counsel:

… [B]y repeatedly insisting that police officers were unlikely to lie under oath because doing so would endanger their pensions, the prospective juror “cast serious doubt on [her] ability to render a fair verdict under the proper legal standards” and to follow the court’s instructions concerning, at a minimum, issues of witness credibility … . The court was therefore “required to elicit some unequivocal assurance from the . . . prospective juror[] that [she was] able to reach a verdict based entirely upon the court’s instructions on the law” … . No such assurances were obtained from the prospective juror, …

… [I]t is undisputed that defendant was ordered out of his bedroom by police officers in the middle of the night, directed to remain in a vestibule outside his apartment, and thereafter subjected to pointed, accusatory questions for about an hour. Under those circumstances, we agree with defendant that a reasonable person, innocent of any crime, would not have felt free to leave, and that he was thus in custody during the questioning … . …

… [D]efendant unequivocally invoked his right to counsel by stating “I think I will take the lawyer” or “I think I need a lawyer” … . Thus, we agree with defendant that his statements following his unequivocal invocation of his right to counsel at the police station should have been suppressed as well … . People v Hernandez, 2019 NY Slip Op 05844, Fourth Dept 7-31-19

 

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