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TRIAL JUDGE ALLOWED THE PROSECUTOR TO QUESTION DEFENDANT ABOUT THE FACTS UNDERLYING PRIOR CONVICTIONS IN VIOLATION OF THE SANDOVAL RULING, CONVICTIONS REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s convictions, determined the trial judge implicitly changed the Sandoval ruling by allowing the prosecutor to cross-examine the defendant about the underlying facts of prior convictions:

Prior to the trial, the Supreme Court conducted a Sandoval hearing (see People v Sandoval, 34 NY2d 371), after which the court ruled that, should the defendant testify on his own behalf, the People would be permitted to ask whether he had two prior felony convictions. However, the People were not permitted to elicit the underlying facts of either of those crimes. …

Without seeking an amendment of the Supreme Court’s Sandoval ruling, the prosecutor then asked whether he was being arrested that day in 2008 “because there was a DNA match of [him] committing a burglary.” Defense counsel objected, the objection was overruled, and the defendant denied that this was true. The prosecutor persisted in that line of inquiry, and asked whether the defendant had been convicted of burglary in the third degree in 2009. The defendant responded that “[y]es [he] was convicted of a case in 2008.” Nonetheless, without asking for a modified Sandoval ruling, the prosecutor brought up, no less than six times, that the 2008 conviction was for burglary and involved DNA, going so far to ask the defendant to “explain” the facts of his 2008 conviction, with the court instructing the defendant to do so. In one instance, after asking the defendant to confirm that he was charged in the instant case with burglary in the second degree, the prosecutor remarked, in effect, that the instant crime was “the same type of DNA hit that happened back in 2008.” …

The defendant here was denied … [the right to make an informed choice whether to testify] when, after making what he believed to be an informed judgment and taking the witness stand, the Supreme Court implicitly changed the ruling upon which he relied by allowing the prosecutor to continue her course of prejudicial questioning despite objections from defense counsel. People v Walters, 2019 NY Slip Op 03632, Second Dept 5-8-19

 

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DEFENDANT WAS PROPERLY PROHIBITED FROM CROSS-EXAMINING A POLICE OFFICER ABOUT FALSE ARREST AND POLICE BRUTALITY LAWSUITS FILED AGAINST THE OFFICER (SECOND DEPT).

The Second Department noted that the defendant was properly prohibited from cross-examining a police officer about four federal lawsuits filed against the officer:

The Supreme Court providently exercised its discretion in prohibiting the defendant from cross-examining a police witness with respect to the allegations of false arrest and/or police brutality in four federal lawsuits filed against that witness. “Where a lawsuit has not resulted in an adverse finding against a police officer . . . defendants should not be permitted to ask a witness if he or she has been sued, if the case was settled (unless there was an admission of wrongdoing) or if the criminal charges related to the plaintiffs in those actions were dismissed. However, subject to the trial court’s discretion, defendants should be permitted to ask questions based on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness” … . “In cross-examining a law enforcement witness, the same standard for good faith basis and specific allegations relevant to credibility applies, as does the same broad latitude to preclude or limit cross-examination” . “First, counsel must present a good faith basis for inquiring, namely, the lawsuit relied upon; second, specific allegations that are relevant to the credibility of the law enforcement witness must be identified; and third, the trial judge exercises discretion in assessing whether inquiry into such allegations would confuse or mislead t… he jury, or create a substantial risk of undue prejudice to the parties”… . Here, the complaints in each of the identified actions contain only allegations of unlawful police conduct by large groups of officers, and did not set forth specific acts of misconduct against the police witness individually. Thus, cross-examination of this witness regarding the federal lawsuits was properly denied … . People v Crupi, 2019 NY Slip Op 03614, Second Dept 5-8-19

 

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DEFENDANT HOUSING AUTHORITY DEMONSTRATED THE AREA WHERE PLAINTIFF SLIPPED AND FELL HAD BEEN INSPECTED ON THE MORNING OF THE ACCIDENT AND THERE HAD BEEN NO PRIOR COMPLAINTS ABOUT A WET CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).

The Second Department determined that defendant New York City Housing Authority’s (NYCHA’s) motion for summary judgment in this stairway slip and fall case was properly granted. Plaintiff alleged she slipped on a wet condition that was recurrent. The NYCHA presented evidence the stairway had been inspected the morning of the accident and there had been no prior complaints about a wet condition:

NYCHA established, prima facie, that it did not create or have actual or constructive notice of the condition alleged by the plaintiff to have caused the accident … . The deposition testimony of the building caretaker who was on duty the morning of the accident was sufficient to establish that the area where the plaintiff fell was inspected that morning before the plaintiff’s accident occurred, and would have been cleaned if there were any hazardous conditions present during the inspection. Furthermore, in regard to the claim that it had constructive notice of a recurrent dangerous condition, NYCHA submitted evidence that no complaints about the condition of the stairwell had been received for one year prior to and including the morning of the plaintiff’s accident. Pagan v New York City Hous. Auth., 2019 NY Slip Op 03608, Second Dept 5-8-19

 

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SUPREME COURT DID NOT HAVE THE AUTHORITY TO DISMISS THIS FORECLOSURE ACTION PURSUANT TO CPLR 3216 OR CPLR 3215 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the foreclosure action should not have been dismissed pursuant to CPLR 3216 or 3215 because the statutory criteria were not met. Issue had not been joined so dismissal pursuant to CPLR 3216 was not permitted. And plaintiff had not abandoned the action pursuant to CPLR 3215:

We agree with the plaintiff’s contention that the Supreme Court was without authority to direct dismissal of this action pursuant to CPLR 3216. CPLR 3216(b)(1) states that no dismissal should be made under this statute unless issue has been joined. Indeed, “[a] court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met” … . Here, none of the defendants submitted an answer to the complaint and, thus, issue was never joined.

We also agree with the plaintiff’s contention that the Supreme Court had no authority to direct dismissal of this action under CPLR 3215(c). “An action is deemed abandoned where a default has occurred and a plaintiff has failed to take proceedings for the entry of a judgment within one year thereafter” (…see CPLR 3215[c]). It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c) … . Nor is a plaintiff required to specifically seek the entry of a judgment within a year … . As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint pursuant to CPLR 3215(c) … .

Here, the plaintiff commenced the action on April 16, 2009. The Supreme Court granted the plaintiff’s motion for an order of reference only five months later, on September 14, 2009—well within one year of the commencement of the action. Although the plaintiff later withdrew its motion for a judgment of foreclosure and sale, in doing so, it stated that it “will not be discontinuing [this] action.” Thus, the plaintiff explicitly informed the court that it was not abandoning the action … . National City Mtge. Co. v Sclavos, 2019 NY Slip Op 03605, Second Dept 5-8-19

 

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PAROLE BOARD DID NOT CONSIDER PETITIONER’S YOUTH AT THE TIME OF THE OFFENSES AND APPEARS TO HAVE DENIED PETITIONER’S APPLICATION FOR RELEASE ON PAROLE SOLELY BASED ON THE SERIOUSNESS OF THE OFFENSES, DE NOVO INTERVIEW IN FRONT OF A DIFFERENT PANEL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the parole board did not support the denial of petitioner’s application for release on parole with detailed reasons as required by Executive Law 259-i[2][a][i]. Petitioner was a juvenile at the time of the murders during a robbery attempt. He has been incarcerated for 36 years. He earned college degrees and assumed an leadership role in helping inmates. The Second Department concluded the parole board focused on the nature of the offenses and did not take petitioner’s youth at the time of the offenses, or his accomplishments, into consideration:

“[A] juvenile homicide offender . . . has a substantive constitutional right not to be punished with life imprisonment for a crime reflect[ing] transient immaturity'”… . “[T]he foundational principle’ of the Eighth Amendment jurisprudence regarding punishment for juveniles is that [the] imposition of a [s]tate’s most severe penalties on juvenile offenders cannot proceed as though they were not children'” … . “A parole board is no more entitled to subject an offender to the penalty of life in prison in contravention of this rule than is a legislature or a sentencing court”… . Consequently, “[f]or those persons convicted of crimes committed as juveniles who, but for a favorable parole determination will be punished by life in prison, the [Parole] Board must consider youth and its attendant characteristics in relationship to the commission of the crime at issue” … . …

Neither the transcript of the September 2016 interview nor the Parole Board’s September 2016 determination shows that the Parole Board considered the petitioner’s youth at the time and “its attendant characteristics” in relationship to the crimes he committed. Instead, the record reflects that the Parole Board did not factor in the petitioner’s age at the time and the impact that his age had on his decisions and actions during the commission of these crimes when it decided to deny him parole release based on “the serious nature of the instant offenses.” Matter of Rivera v Stanford, 2019 NY Slip Op 03601, Second Dept 5-8-19

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, HEARSAY IS ADMISSIBLE IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, THERE WAS CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S DECEDENT’S FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this slip and fall case should not have been granted. The complaint alleged plaintiff’s decedent tripped over a raised portion of a sidewalk. The evidence included plaintiff’s decedent’s explanation of the cause of the fall as described by plaintiff-wife. Defendants argued plaintiffs could not prove the cause of the fall because decedent’s statements were inadmissible hearsay. The Second Department noted that hearsay is admissible in opposition to a summary judgment motion as long as it is not the only evidence. Here there was circumstantial evidence of the cause of the fall:

The defendants failed to establish their prima facie entitlement to judgment as a matter of law by eliminating all triable issues of fact. They failed to demonstrate that the cause of the decedent’s fall could not be established by admissible evidence, either direct or circumstantial … . While the defendants contend that the plaintiff’s deposition testimony as to what the decedent told her as to how the accident occurred constituted inadmissible hearsay, hearsay may be considered on a motion for summary judgment so long as the hearsay evidence is not the only evidence of a triable issue of fact … . The defendants’ submissions included the plaintiff’s own deposition testimony concerning her personal observations of the location of the accident shortly after the event and photographs of the claimed defect. Thus, the defendants failed to carry their burden of demonstrating that the plaintiff could not establish, through direct or circumstantial evidence, that the decedent tripped and fell as the result of a defect in the sidewalk.

Further, since the defendants failed to submit evidence as to when they last inspected the sidewalk, they failed to establish lack of constructive notice of the allegedly defective condition of the sidewalk … . Kontorinakis v 27-10 30th Realty, LLC, 2019 NY Slip Op 03579, Second Dept 5-8-19

 

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SURVIVING PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION DID NOT TIMELY MOVE TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEDENT PURSUANT TO CPLR 1021, ACTION PROPERLY DISMISSED (SECOND DEPT). ​

The Second Department determined the medical malpractice action brought on behalf of a deceased plaintiff by the surviving plaintiff was properly dismissed for failure to timely substitute a representative for the decedent pursuant to CPLR 1021:

“A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction” over a deceased party’s successors in interest, and such motion “is not a mere technicality” … . CPLR 1021 provides, in pertinent part, “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made.” “The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or defense has potential merit” … .

Here, the record does not support a finding that the surviving plaintiff diligently sought to substitute a representative for the decedent. The proffered explanation for the surviving plaintiff’s delay in obtaining letters of administration was unsubstantiated and insufficient to constitute a reasonable excuse. Moreover, the surviving plaintiff failed to submit an affidavit of merit by a medical expert and did not rebut the defendants’ allegations that they had been prejudiced by the delay in substitution. Contrary to the surviving plaintiff’s contention, the underlying pleadings and verified bill of particulars, standing alone, do not establish the potential merit of the medical malpractice action. Green v Maimonides Med. Ctr., 2019 NY Slip Op 03573, Second Dept 5-8-19

 

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EVIDENCE DID NOT SUPPORT THE FINDING THAT DEFENDANT BREACHED THE CONTRACT TO CREATE A WEBSITE FOR PLAINTIFF, JUDGMENT AFTER A NON-JURY TRIAL REVERSED (SECOND DEPT).

The Second Department, reversing a judgment in favor of plaintiff after a non-jury trial, determined the evidence did not support the finding that defendant breached the contract to develop a website for the plaintiff. The agreement did not require defendant to finish developing the website by a specific date and defendant was working on the website during the period the agreement was in effect:

“The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach” … . ” [A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms'” … . When a contract does not specify the time for performance, the law will imply a reasonable time … . What constitutes a reasonable time for performance depends upon the facts and circumstances of the case … .

Here, the parties’ agreement provided that the defendant would provide services related to developing and maintaining a website for the plaintiff’s business. The agreement did not mandate that the website be operational by any particular date; only that the defendant would receive an advance if the website was operational by February 14, 2012. The evidence adduced at trial established that the defendant did provide services related to the development of the website. Moreover, the evidence did not establish that the defendant breached the parties’ agreement by failing to provide an active and operational website within a reasonable time. Fernandez v Abatayo, 2019 NY Slip Op 03571, First Dept 5-8-19

 

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BROWN PAPER ON TOP OF GREEN DUST ALLEGEDLY CONSTITUTED A SLIPPERY CONDITION ON THE FLOOR CAUSING PLAINTIFF’S SLIP AND FALL, PLAINTIFF’S LABOR LAW 241 (6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department determined plaintiff’s Labor Law 241 (6) and 200 causes of action should not have been dismissed. Plaintiff alleged brown paper on top of green dust (used to keep down dust) created a dangerous slippery condition which caused his slip and fall:

The motion court improperly dismissed plaintiff’s Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(d). The alleged presence of green dust on the floor created a triable issue as to whether a “foreign substance” created a slippery condition on the floor, in violation of this Code section, and whether such condition caused plaintiff’s accident … .

Plaintiff’s Labor Law § 200 and common-law negligence claims should similarly be reinstated as the court should not have analyzed plaintiff’s accident under the manner and means standard, but should instead have applied the dangerous condition standard … . The green dust was a dangerous condition that existed prior to plaintiff’s arrival at the job site it was not part of the work plaintiff was performing … . As such, there are triable issues of fact as to whether the general contractor … had notice of the hazardous condition of the floor … . In addition, the owner … failed to demonstrate the absence of actual or constructive notice of the hazardous condition on its part, since it failed to point to any probative evidence on this issue … . DeMercurio v 605 W. 42nd Owner LLC, 2019 NY Slip Op 03550 First Dept 5-7-19

 

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PROVIDING WRITTEN INSTRUCTIONS TO THE JURY OVER DEFENDANT’S OBJECTION REQUIRED REVERSAL AND A NEW TRIAL, HOT LIQUID CAN BE A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE PENAL LAW (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that “defendant is entitled to a new trial because the court provided written instructions to the jury, at its request, but over defendant’s objection (see People v Johnson , 81 NY2d 980 [1993]).”  The court also noted that the jury could have reasonably found that the hot liquid thrown by defendant qualified as a dangerous instrument (see Penal Law §§ 10.00[10],[13]; see also People v Adolph , 299 AD2d 257, 257 [1st Dept 2002], lv denied 99 NY2d 579 [2003]).”  People v Peralta, 2019 NY Slip Op 03539, First Dept 5-7-19

 

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