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THE COURT DID NOT AUTHORIZE THE SECOND SUPERSEDING INDICTMENT PROCURED BY THE PEOPLE AFTER A MISTRIAL, THE SECOND SUPERSEDING INDICTMENT WAS A NULLITY, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the second superseding indictment, procured after a mistrial, was a nullity:

Before trial commenced, the People obtained a superseding indictment … . A jury trial on the superseding indictment ensued; however, after the jury was impaneled and sworn, defendant’s motion for a mistrial was granted. The People subsequently obtained a second superseding indictment … . …

… [T]he second superseding indictment is a nullity and assert, therefore, that defendant’s conviction must be reversed and the matter remitted for further proceedings on the first superseding indictment. In declaring a mistrial, County Court did not dismiss the superseding indictment or authorize the People to re-present new charges to a grand jury. Accordingly, the People were limited to retrying defendant upon the superseding indictment, and the second superseding indictment was a nullity … . Where, as here, an indictment is a nullity, “any action or consequence that flowed from its filing . . . was necessarily a nullity as well”… . Accordingly, the judgment must be reversed. People v Moseley, 2019 NY Slip Op 03408, Third Dept 5-2-19

 

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THE PURPORTED WAIVER OF THE STATUTE OF LIMITATIONS DEFENSE WAS NOT IN WRITING AS REQUIRED BY GENERAL OBLIGATIONS LAW 17-103, PLAINTIFF’S BREACH OF CONTRACT ACTION IS TIME-BARRED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, determined that, because the defendant’s (CFA’s) purported waiver of the statute of limitations defense was not in writing as required by General Obligations Law 17-103, plaintiff’s breach of contract action was time-barred:

To govern the … “subtle interplay . . . between the freedom to contract and New York public policy” … , the legislature enacted General Obligations Law § 17-103 (“Agreements waiving the statute of limitation”), the first paragraph of which provides:

“A promise to waive, to extend, or not to plead the statute of limitation applicable to an action arising out of a contract express or implied in fact or in law, if made after the accrual of the cause of action and made, either with or without consideration, in a writing signed by the promisor or his agent is effective, according to its terms, to prevent interposition of the defense of the statute of limitation in an action or proceeding commenced within the time that would be applicable if the cause of action had arisen at the date of the promise, or within such shorter time as may be provided in the promise” (General Obligations Law § 17-103[1] … ).

“An agreement to extend the statute of limitations that does not comply with these requirements [of § 17-103(1)] has no effect'” … . Sotheby’s, Inc. v Mao, 2019 NY Slip Op 03477, First Dept 5-2-18

 

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FALL FROM A FOLDED, UNSECURED A-FRAME LADDER AFTER PLAINTIFF RECEIVED AN ELECTRIC SHOCK ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, SUPREME COURT REVERSED, TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff, who fell from a folded, unsecured A-frame ladder after receiving an electric shock, was entitled to summary judgment on his Labor Law 240 (1) cause of action. The majority distinguished a Court of Appeals decision involving a properly opened and locked A-frame ladder which fell over when plaintiff was shocked:

The “safety device” provided to plaintiff was an unsecured and unsupported A-frame ladder that was inadequate to perform the assigned task. The ladder could not be opened or locked while plaintiff was performing his task, and the only way plaintiff could gain access to his work area on the ceiling at the end of the room was by folding up the ladder and leaning it against the wall. It is undisputed that the ladder was not anchored to the floor or wall. There were no other safety devices provided to plaintiff. Plaintiff’s expert opined that had the ladder been supported or secured to the floor or wall by anchoring, it would have remained stable when plaintiff was shocked. He further opined that given the nature of plaintiff’s work, which involved cutting pipes and the use of hand tools at an elevated height, plaintiff should have been furnished with a more stable device such as a Baker scaffold or a man lift. …

The fact that the fall was precipitated by an electric shock does not change this fact. This case is distinguishable from Nazario v 222 Broadway, LLC (28 NY3d 1054 [2016]), relied on by the dissent. The plaintiff in Nazario fell while “holding the ladder, which remained in an open locked position when it landed” … . Thus, there was no evidence that the ladder was defective or that another safety device was needed. Here, on the other hand, it is undisputed that the ladder provided was not fully open and locked, nor was it otherwise secured, as plaintiff’s expert opined it ought to have been. Cutaia v Board of Mgrs. of the Varick St. Condominium, 2019 NY Slip Op 03458, First Dept 5-1-19

 

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THE WARRANTLESS SEARCH OF A HOME TO RETRIEVE A HANDGUN DEFENDANT HAD THROWN UNDER A CHAIR IN THE PRESENCE OF THE POLICE WAS NOT JUSTIFIED UNDER ANY EXCEPTION TO THE WARRANT REQUIREMENT, THE PLAIN VIEW DOCTRINE DID NOT APPLY BECAUSE THE OFFICER DID NOT KNOW WHAT THE DEFENDANT HAD THROWN UNDER THE CHAIR, THE EMERGENCY EXCEPTION DID NOT APPLY BECAUSE THE DEFENDANT WAS IN CUSTODY WHEN THE OFFICER REENTERED THE HOME TO LOOK UNDER THE CHAIR (SECOND DEPT).

The Second Department determined the handgun seized in a warrantless search inside a home should have been suppressed, and subsequent statements made by the defendant should have been suppressed as the fruit of the illegal search. The defendant’s psychiatrist had called the police to tell them defendant had a gun and was paranoid. The defendant had previously threatened to shoot police officers. Officer Temple was given permission by defendant’s mother to enter the home. Then defendant ran to the back of the house and threw something under a chair. After the defendant was in custody Officer Temple went back into the house, lifted up the chair and seized a handgun from under the chair. Up until that point Officer Temple did not know what the object was, so the plain-view justification for a warrantless search was not available:

Contrary to the People’s contention, the consent of the defendant’s mother to the police to enter the home to speak with the defendant did not constitute a consent to Officer Temple’s search of the living room … . Moreover, contrary to the People’s contention, the seizure of the firearm does not fall within the plain view exception … . Officer Temple’s testimony as to what he believed the object was, based upon the 911 call, his police experience, and military training, does not meet the requirement of the plain view doctrine, since he testified that he did not know what the object was until he moved the chair … . The People do not assert on appeal that the seizure was lawful pursuant to the emergency exception and, in any event, any exigency abated once the defendant was detained … .

Under the circumstances of this case, the physical evidence that was recovered from the residence must be suppressed, as the search was illegal, and the defendant’s subsequent statements to law enforcement officials must be suppressed as fruit of the poisonous tree … . People v Hickey, 2019 NY Slip Op 03364, Second Dept 5-1-19

 

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STATEMENTS MADE BY THE DEFENDANT WHEN HE WAS HANDCUFFED IN THE BACK SEAT OF A POLICE CAR SHOULD HAVE BEEN SUPPRESSED, TANGIBLE EVIDENCE RETRIEVED AS A RESULT OF THE STATEMENTS SHOULD HAVE BEEN SUPPRESSED AS WELL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant’s statements, made when he was handcuffed in the back seat of a police car, should have been suppressed. Defendant had possession of a wallet and had demanded money from the owner of the wallet in exchange for its return. The owner of the wallet went to the police. The police spoke to the defendant on the phone, and he again demanded money for the wallet. The defendant again demanded money for the wallet when the police went to his house. The wallet was retrieved after defendant made the statements in the police car, so the wallet should have been suppressed as well:

Not only was the defendant handcuffed in the back seat of a police vehicle, the detectives testified that the defendant was bargaining with them for his freedom by offering to get the wallet if they would remove the handcuffs and release him. Detective Bookstein specifically testified that the defendant was not free to leave the police vehicle. The record also demonstrates that the statements that the defendant made to the detectives during their conversation with him about the wallet were the result of the functional equivalent of interrogation and should have been suppressed … . People v Torres. 2019 NY Slip Op 03380, Second Dept 5-1-19

 

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FINDING OF CIVIL CONTEMPT AGAINST THE CHAIR OF THE NYS PAROLE BOARD WAS WARRANTED, ALTHOUGH ORDERED TO CONDUCT A DE NOVO HEARING ON PETITIONER-INMATE’S APPLICATION FOR RELEASE ON PAROLE, THE EVIDENCE SUPPORTED THE CONCLUSION THAT THE BOARD DENIED PAROLE BASED ON THE SEVERITY OF THE OFFENSE ALONE, WITHOUT CONSIDERING THE STRONG FACTORS WHICH FAVORED RELEASE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that the Chair of the NYS Parole Board was properly held in contempt for failing to comply with an order granting petitioner, in inmate who had served 40 years in prison for murdering a police office, a de novo hearing on his application for parole release. The court noted that this is the first time a court had held a parole board chair in contempt. The court found that the Board based its denial of parole solely on the severity of the offense, and did not consider the strong factors favoring release, in violation of the order:

Here, under the unique facts of this particular case, we agree with the Supreme Court’s exercise of its discretion in granting the petitioner’s motion to hold the appellant … in civil contempt for the Board’s failure to comply with the Supreme Court’s judgment dated October 2, 2015. In the judgment dated October 2, 2015, the Supreme Court, after concluding, among other things, that the Board’s determination to deny parole release was not supported by an application of the factual record to the statutory factors set forth in Executive Law § 259-i, that the Board’s determination was based exclusively on the severity of the petitioner’s offense, and that there was no rational support in the record for the Board’s determination, remitted the matter to the Board “to make a de novo determination on petitioner’s request for parole release” to be held before a different panel of the Board.

As previously noted, the Board did not appeal from that judgment. Rather, it purported to comply with the judgment by rendering a new determination following a de novo interview before a different panel and, in its written decision and in the transcript of the interview, purported to comply with its responsibilities to consider the requisite statutory factors. However, the Supreme Court, after conducting an evidentiary hearing, decided that the Board again denied parole release exclusively on the basis of the underlying conviction without giving consideration to the statutory factors. Consequently, the Supreme Court held that a finding of civil contempt was warranted. Matter of Ferrante v Stanford, 2019 NY Slip Op 03334, Second Dept 5-1-19

 

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DESPITE MOTHER’S VIOLATION OF SIX CONDITIONS OF A SUSPENDED JUDGMENT, TERMINATING HER PARENTAL RIGHTS WAS NOT IN THE BEST INTERESTS OF HER SPECIAL NEEDS CHILD (SECOND DEPT). ​

The Second Department, reversing Family Court, noting that mother had violated six conditions of a suspended judgment, determined it was not in the best interests of the child to terminate mother’s parental rights. The special needs child had been severely neglected by mother (medical neglect). However, mother demonstrated she genuinely loved the child and had learned how to care for him:

The record evidence demonstrated that the mother had learned how to provide the special care that the child needs and that the mother was emotionally attuned to the child’s needs … . Furthermore, the mother obtained stable housing and engaged in counseling … . While the mother expressed her distrust of the preventive services workers and refused to provide releases for her other children’s schools, the evidence demonstrated that the mother never denied the preventive services workers access to her home or to her other children.

The mother also made progress in addressing the issues that led to the child being removed from her custody by taking responsibility for the initial neglect that led to the child being removed from her care. Moreover, the mother has cooperated with other services and providers. In addition, the record demonstrates that the mother genuinely loves the child and has shown vigilance in attending to his needs. The testimony at the hearing demonstrated that the mother’s interaction with the child was appropriate, the visits were going well, and the interaction between the mother and the child has been positive. The record further demonstrates that the child’s siblings are connected to him and desire for him to return to the home. Finally, the mother has a support system in place that she had not had previously. Matter of Markel C. (Kwanza H.), 2019 NY Slip Op 03332, Second Dept 5-1-19

 

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NEGLIGENT SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE PLAINTIFF-STUDENT’S INJURIES, ANOTHER STUDENT, WHO WAS BEING CHASED BY A DOG WHICH HAD BROKEN LOOSE, RAN INTO PLAINTIFF DURING LACROSSE PRACTICE (SECOND DEPT).

The Second Department determined the plaintiff-student’s negligent supervision action against the board of education was properly dismissed. The plaintiff was injured during lacrosse practice when a dog brought into the field area by a nonstudent broke loose and chased a student who ran into plaintiff:

… [T]he defendants established …that they had no specific knowledge of any prior instances of dogs being brought into the field area during sports practices. Furthermore, the act of a student running into the infant plaintiff was a spontaneous, impulsive, and intervening act that could not have been anticipated. Therefore, the defendants established … that any alleged lack of supervision was not a proximate cause of the infant plaintiff’s injuries … . B.J. v Board of Educ. of the City of N.Y., 2019 NY Slip Op 03325, Second Dept 5-1-19

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ALTHOUGH THE TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, IT DID NOT DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT CREATE THE DANGEROUS CONDITION, THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town’s motion for summary judgment in this sidewalk slip and fall case should not have been granted. Although the town did not have written notice of the dangerous condition, the town did not demonstrate it did not create the dangerous condition by piling snow that melted and re-froze:

… Since the plaintiff alleged that the defendant affirmatively created the allegedly dangerous ice condition through its snow removal operations, the defendant, in addition to establishing that it did not receive prior written notice, was also required, on its motion for summary judgment, to make a prima facie showing that it did not create the condition complained of … . …

A municipality’s act in piling snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous ice condition, constitutes an affirmative act excepting the dangerous condition from the prior written notice requirement  … . The defendant’s evidence provided information about its general snow removal operations, but failed to show what the sidewalk abutting the accident site looked like immediately after it completed its snow removal operations. The defendant failed to establish, prima facie, that the 6 to 12 inches of snow that the plaintiff observed on the sidewalk, making it impassable, was not the product of its snow removal operations. The defendant also failed to submit any evidence as to what the temperature was from the time that it last performed its snow removal operations on January 24, 2016, and the time of the accident. Given that the defendant’s submissions failed to eliminate all triable issues of fact as to whether its snow removal efforts created the ice condition, the defendant’s motion for summary judgment dismissing the complaint should have been denied … . Eisenberg v Town of Clarkstown, 2019 NY Slip Op 03319, Second Dept 5-1-19

 

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QUESTION OF FACT WHETHER DEFENDANT VIOLATED VEHICLE AND TRAFFIC LAW 1141 BY MAKING A LEFT TURN IN FRONT OF PLAINTIFF’S VEHICLE, DEFENDANT AVERRED PLAINTIFF WAS DRIVING TOO FAST, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s motion for summary judgment in this intersection traffic accident case should not have been granted. Although plaintiff made out a prima facie case, alleging the defendant, without warning, made a left turn in front of him in violation of Vehicle and Traffic law 1141, defendant raised a question of fact about whether she violated the statute by averring plaintiff was driving too fast:

Pursuant to Vehicle and Traffic Law § 1141, “[t]he driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard” … . A violation of this statute constitutes negligence per se … . …

The defendant driver averred that, as she approached the intersection, she slowed her vehicle, activated her left hand turn signal, and “looked to ensure that the roadway was clear.” As she was in the process of turning, she noticed the plaintiff’s vehicle for the first time and observed it traveling toward her at such an excessive rate of speed that she was unable to avoid the impact. The foregoing was sufficient to raise a triable issue of fact as to whether, at the time the defendant driver initiated her turn, the plaintiff’s vehicle was “so close as to constitute an immediate hazard” … . Brodney v Picinic, 2019 NY Slip Op 03314, Second Dept 5-1-19

 

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