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DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court determined plaintiff should have given defendant the opportunity to cure an inadvertent failure to make a monthly payment pursuant to stipulation of settlement. Defendant had repaid much of the debt and, based on the default, would owe more than twice the amount that remained to be paid:

… Supreme Court should have granted the alternate branch of the defendant’s motion, which was, in effect, to preclude the plaintiff from enforcing the default provision of the stipulation without affording the defendant a reasonable opportunity to cure his default. “Under almost any given state of facts, where to enforce a stipulation would be unjust or inequitable or permit the other party to gain an unconscionable advantage, courts will afford relief” … .

Here, the defendant’s default was inadvertent and minor in nature when measured against the harsh result that would be obtained upon literal enforcement of the default provision in the stipulation… . Insofar as the plaintiff failed to offer the defendant any opportunity to cure his default before seeking to recover the full amount due under the judgment, the plaintiff’s conduct could be interpreted as an attempt to take advantage of a technical default to obtain payment of the far greater sum which the plaintiff had originally sought, but agreed to forgo as part of the settlement … . RCS Recovery Servs., LLC v Mensah, 2018 NY Slip Op 07766, Second Dept 11-14-18

DEBTOR-CREDITOR (DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT))/STIPULATION OF SETTLEMENT (DEBTOR-CREDITOR, DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT))/LOANS  (DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT))/DEFAULT (LOAN PAYMENTS, DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT))/CURE (LOANS, DEFAULT, DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT))/CONTRACT LAW (STIPULATION OF SETTLEMENT, DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT))

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UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the shareholder derivative action against HSBC (bank) alleging breach of a fiduciary duty to implement money laundering prevention safeguards should not have been dismissed. The nominal defendant, HSBC Holdings, is organized under the laws of the United Kingdom and is headquartered in London. The motion to dismiss alleged the failure to seek permission for the action from the English High Court, as well as the failure to demonstrate the futility of seeking redress from the corporation, and the doctrine of forum non conveniens, required dismissal of the complaint. The Second Department held that the rule requiring permission of the English court was procedural and therefore the law of the forum (New York), not the United Kingdom, applied. The Second Department further held that the complaint demonstrated the futility of first seeking redress from the corporation and New York was the proper forum:

… [T]he Court of Appeals decided Davis v Scottish Re Group Ltd. (30 NY3d 247), which held that a Cayman Islands court rule requiring plaintiffs in shareholder derivative actions to first apply to the Cayman Islands Grand Court for leave to continue the action is a procedural rule of the Cayman Islands, and “therefore does not apply where, as here, a plaintiff seeks to litigate his derivative claims in New York” … . … Based upon the analysis set forth in Davis, we find that the judicial-permission requirement set forth in the UK Companies Act is a procedural rule applicable only in England and Wales, or Northern Ireland. …

As an alternative ground for affirmance … , the nominal defendants contend that the plaintiff lacks standing under New York law pursuant to Business Corporation Law § 626(c) because the amended complaint fails to allege that the plaintiff made efforts to secure initiation of the action by the board itself or set forth the reasons for not making such effort … . * * *

In view of the illegal purpose, magnitude, and duration of the alleged wrongdoing, as well as the identity of beneficiaries to the transactions, the allegations were such that the transactions should have come to the attention of senior management and the board of directors … . * * *

… [G]iven that the allegations of wrongdoing occurred in New York, that only 21 of the 75 individual defendants live and work outside of New York, and that 3 of the nominal defendants are either incorporated or headquartered in New York, the Supreme Court providently exercised its discretion in determining that the nominal defendants were not entitled to dismissal on the ground of forum non conveniens [CPLR 327]. Mason-Mahon v Flint, 2018 NY Slip Op 07716, Second Dept 11-14-18

CORPORATION LAW (UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/CIVIL PROCEDURE (CORPORATION LAW, UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/BANKING LAW  (UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/FIDUCIARY DUTY (CORPORATION LAW, UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/SHAREHOLDER DERIVATIVE ACTION (UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/MONEY LAUNDERING (BANKING LAW, UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/CPLR 327  (UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/BUSINESS CORPORATION LAW 626 (UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))

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EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conspiracy conviction, determined the evidence of defendant’s participation was legally insufficient:

… [T]he People in this case were required, inter alia, to establish that the defendant entered into an agreement that was specifically intended to result in the death of Friday (count one) and Morris (count two) … . While the record evidence, viewed in the light most favorable to the People, showed that the defendant conspired with others to retaliate against rival gang members for the recent shooting death of a member of the S.N.O.W. Gang, there was no direct or circumstantial evidence tying this defendant to any plan specifically intended to kill either Friday or Morris. Among other things, the defendant was not present at an alleged planning meeting in a park, at which many of the coconspirators were arrested. Moreover, the defendant is not listed as a participant in any social media discussions in which other S.N.O.W. Gang members named Friday and Morris as possible targets for retaliatory action. For this reason, the defendant’s timely motion for a trial order of dismissal should have been granted, and the indictment dismissed insofar as asserted against him … . People v Lucas, 2018 NY Slip Op 07755, Second Dept 11-14-18

CRIMINAL LAW (EVIDENCE, CONSPIRACY, EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, CONSPIRACY, EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONSPIRACY (EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/LEGALLY INSUFFICIENT EVIDENCE (CRIMINAL LAW, EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRIAL ORDER OF DISMISSAL (CRIMINAL LAW, EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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PLAINTIFF’S COMPLAINT SEEKING SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE CONTRACT PROPERLY DISMISSED BASED UPON THE LANGUAGE OF THE CONTRACT, PLAINTIFF DID NOT APPEAR AT EITHER SCHEDULED CLOSING AFTER SUBMITTING THE HIGHEST BID AND SIGNING THE CONTRACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the county’s motion to dismiss plaintiff’s complaint seeking specific performance, based on the language of the real estate purchase contract, should have been granted. Plaintiff was the highest bidder on real property and signed a purchase contract but did not appear on the closing dates:

… [W]e find that the terms and conditions of the contract of sale utterly refute the plaintiff’s allegations and establish a defense as a matter of law. The contract clearly provides that the plaintiff’s failure to close pursuant to the terms and conditions of sale will result in a forfeiture of the down payment; that in the event the closing is postponed at the plaintiff’s request, then the adjourned date shall be deemed the final law date; that the plaintiff’s failure to close on the final law date shall entitle the County to cancel the sale and to retain the down payment; and, in those circumstances, the plaintiff waives all claims of any right, title and interest in the subject property and the down payment. Additionally, the terms and conditions of the contract of sale demonstrate that a material fact claimed by the plaintiff—the alleged breach of contract by the County—is not a fact at all, and no significant dispute exists regarding it. Mahmood v County of Suffolk, 2018 NY Slip Op 07715, Second Dept 11-14-18

CONTRACT LAW (REAL ESTATE PURCHASE CONTRACT, PLAINTIFF’S COMPLAINT SEEKING SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE CONTRACT PROPERLY DISMISSED BASED UPON THE LANGUAGE OF THE CONTRACT, PLAINTIFF DID NOT APPEAR AT EITHER SCHEDULED CLOSING AFTER SUBMITTING THE HIGHEST BID AND SIGNING THE CONTRACT (SECOND DEPT))/REAL ESTATE  (REAL ESTATE PURCHASE CONTRACT, PLAINTIFF’S COMPLAINT SEEKING SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE CONTRACT PROPERLY DISMISSED BASED UPON THE LANGUAGE OF THE CONTRACT, PLAINTIFF DID NOT APPEAR AT EITHER SCHEDULED CLOSING AFTER SUBMITTING THE HIGHEST BID AND SIGNING THE CONTRACT (SECOND DEPT))/CIVIL PROCEDURE (REAL ESTATE PURCHASE CONTRACT, PLAINTIFF’S COMPLAINT SEEKING SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE CONTRACT PROPERLY DISMISSED BASED UPON THE LANGUAGE OF THE CONTRACT, PLAINTIFF DID NOT APPEAR AT EITHER SCHEDULED CLOSING AFTER SUBMITTING THE HIGHEST BID AND SIGNING THE CONTRACT (SECOND DEPT))/MUNICIPAL LAW  (REAL ESTATE PURCHASE CONTRACT, PLAINTIFF’S COMPLAINT SEEKING SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE CONTRACT PROPERLY DISMISSED BASED UPON THE LANGUAGE OF THE CONTRACT, PLAINTIFF DID NOT APPEAR AT EITHER SCHEDULED CLOSING AFTER SUBMITTING THE HIGHEST BID AND SIGNING THE CONTRACT (SECOND DEPT))

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POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s gang-related convictions, determined that the two police officers (Georg and Bracero) certified as experts in gang culture served as conduits for inadmissible testimonial hearsay and acted as summation witnesses usurping the jury’s role of interpreting the evidence:

As a threshold matter, we note that Crawford does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted (see Crawford v Washington, 541 US at 60 n 9…). Thus, “it is permissible for an expert witness to form an opinion by applying [his or] her expertise to otherwise inadmissible evidence because, in that limited instance, the evidence is not being presented for the truth of the matter asserted” … .

Here … information derived from the debriefing of arrested S.N.O.W. Gang members constitutes testimonial statements within the meaning of Crawford … . The more difficult question presented is whether the substance of such statements was impermissibly conveyed to the jury by Georg and/or Bracero in the guise of expert testimony … . We find that it was. …

Separate and apart from the Crawford errors, Georg’s testimony also ran afoul of the proscription against police experts acting as summation witnesses, straying from their proper function of aiding the jury in its factinding, and instead ” instructing the jury on the existence of the facts needed to satisfy the elements of the charged offense'” (People v Inoa, 25 NY3d 466, 475, quoting United States v Mejia, 545 F3d at 191). During the trial, Georg read Facebook posts verbatim to the jury, offered commentary about the time of each post in relation to key events in the case, and connected evidence of the parties exchanging their phone numbers with records confirming that a call was subsequently placed. The defendant’s counsel correctly objected to such testimony, citing Mejia and Inoa, on the ground that Georg was no longer acting as an expert witness but was usurping the jury’s function by interpreting, summarizing, and marshaling the evidence. Unlike the Crawford violation, this type of error is nonconstitutional in nature … . People v Jones, 2018 NY Slip Op 07752, Second Dept 11-14-18

CRIMINAL LAW (EVIDENCE, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/HEARSAY (CRIMINAL LAW, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/TESTIMONIAL HEARSAY ( POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/CRAWFORD EVIDENCE, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/EXPERT OPINION (CRIMINAL LAW, GANGS, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/GANGS  (EVIDENCE, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/SUMMATION WITNESS (CRIMINAL LAW, EVIDENCE, TESTIMONIAL HEARSAY, EXPERT OPINION, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))

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PLAINTIFF STUDENT INJURED WHEN GYMNASIUM DOOR CLOSED ON HIS FINGER, INADEQUATE SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE INJURY, CITY IS NOT LIABLE FOR TORTS OF THE DEPARTMENT OF EDUCATION, NOTICE OF CLAIM DID NOT INCLUDE ALLEGATION THAT THE DOOR WAS DEFECTIVE (SECOND DEPT).

The Second Department determined plaintiff student’s negligent supervision cause of action against the city and the school district was properly dismissed. The city cannot be liable for the torts of the Department of Education. The student was injured when the gymnasium door closed on his finger. Negligent supervision was not the proximate cause of the injuries because the injury happened so fast. The theory that the door was defective was not included in the notice of claim and could not be raised to defeat summary judgment:

Although schools have a duty to provide supervision to ensure the safety of those in their charge … , schools will be held liable only for foreseeable injuries proximately related to the absence of adequate supervision … . When an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate cause of the injury … .

Here, the defendants made a prima facie showing of the DOE’s entitlement to judgment as a matter of law dismissing the negligent supervision cause of action by establishing that any alleged inadequacy in the level of supervision was not a proximate cause of the accident … . …

The plaintiffs’ allegation that the subject door was negligently maintained does not defeat the defendants’ motion. Since this theory of liability was not included in the notice of claim or the complaint … , and there was nothing in the notice of claim that would provide notice to the defendants about this allegation … , it does not raise a triable issue of fact to defeat the defendants’ motion for summary judgment. Furthermore, the plaintiffs did not seek leave to amend the notice of claim pursuant to General Municipal Law § 50-e … . K.B. v City of New York, 2018 NY Slip Op 07710, Second Dept 11-14-18

EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, PLAINTIFF STUDENT INJURED WHEN GYMNASIUM DOOR CLOSED ON HIS FINGER, INADEQUATE SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE INJURY, CITY IS NOT LIABLE FOR TORTS OF THE DEPARTMENT OF EDUCATION, NOTICE OF CLAIM DID NOT INCLUDE ALLEGATION THAT THE DOOR WAS DEFECTIVE (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, PLAINTIFF STUDENT INJURED WHEN GYMNASIUM DOOR CLOSED ON HIS FINGER, INADEQUATE SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE INJURY, CITY IS NOT LIABLE FOR TORTS OF THE DEPARTMENT OF EDUCATION, NOTICE OF CLAIM DID NOT INCLUDE ALLEGATION THAT THE DOOR WAS DEFECTIVE (SECOND DEPT))/MUNICIPAL LAW (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, PLAINTIFF STUDENT INJURED WHEN GYMNASIUM DOOR CLOSED ON HIS FINGER, INADEQUATE SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE INJURY, CITY IS NOT LIABLE FOR TORTS OF THE DEPARTMENT OF EDUCATION, NOTICE OF CLAIM DID NOT INCLUDE ALLEGATION THAT THE DOOR WAS DEFECTIVE (SECOND DEPT))/NOTICE OF CLAIM  (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, PLAINTIFF STUDENT INJURED WHEN GYMNASIUM DOOR CLOSED ON HIS FINGER, INADEQUATE SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE INJURY, CITY IS NOT LIABLE FOR TORTS OF THE DEPARTMENT OF EDUCATION, NOTICE OF CLAIM DID NOT INCLUDE ALLEGATION THAT THE DOOR WAS DEFECTIVE (SECOND DEPT))

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT).

The Second Department, granting defendant’s motion to withdraw his guilty plea, determined defense counsel did not provide effective assistance on whether the guilty plea would result in deportation and there was a reasonable probability defendant would not have pled guilty had he been correctly informed. Defense counsel told the court that defendant was going to be deported based upon a prior offense, but the facts indicated otherwise:

The defendant, through his new counsel, subsequently made a timely motion to withdraw his plea, which was summarily denied by the County Court. Upon remittal from this Court, the County Court held a proceeding pursuant to People v Tinsley (35 NY2d 926) and, upon questioning the defendant, determined that he had not received effective assistance of counsel at the time of the plea. We discern no basis in the record to disturb the County Court’s findings in this regard.

In order for the defendant to obtain vacatur of his plea of guilty based on Padilla v Kentucky (559 US 356), he must establish that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial  … . Although the County Court did not specifically address this question in its report, the record is sufficient for us to conclude that, but for counsel’s errors, there is a reasonable probability that the defendant—who has lived in the United States since the age of four and has significant family ties here, including a wife and three children, as well as parents and siblings—would not have pleaded guilty … . People v Ghingoree, 2018 NY Slip Op 07748, Second Dept 11-14-18

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, IMMIGRATION LAW, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/ATTORNEYS, CRIMINAL LAW, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEPORTATION, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/IMMIGRATION LAW (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEPORTATION, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/GUILTY PLEA, MOTION TO WITHDRAW (INEFFECTIVE ASSISTANCE, IMMIGRATION LAW, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/DEPORTATION (CRIMINAL LAW, INEFFECTIVE ASSISTANCE,  DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))

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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF TESTIFIED OTHER SAFETY DEVICES (LADDERS, SCAFFOLDS) WERE AVAILABLE AND DID NOT DEMONSTRATE HIS ACTIONS WERE NOT THE SOLE PROXIMATE CAUSE OF HIS INJURIES (SECOND DEPT).

The Second Department determined plaintiffs’ motion for summary judgment on the Labor Law 240 (1) cause of action was properly denied. Plaintiff was directed to repair the top rung of a permanent ladder which was missing a bolt. Plaintiff tried to pull himself up by grabbing the top rung which allegedly gave way causing him to fall. Plaintiff testified there were other safety devices (ladders, scaffolding) he could have used and did not demonstrate his actions did not constitute the sole proximate cause of his injuries:

“The single decisive question in determining whether Labor Law § 240(1) is applicable is whether the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” … .

In order to obtain summary judgment on the issue of liability on a Labor Law § 240(1) cause of action, a plaintiff is required to demonstrate, prima facie, that there was a violation of the statute and that the violation was a proximate cause of his or her injuries … . “Merely because a worker is injured while working above ground does not ipso facto mean that the injury resulted from an elevation-related risk contemplated by Section 240(1) of the Labor Law'” … .

Here, the plaintiffs failed to establish, prima facie, that there was a violation of Labor Law § 240(1), or that the injured plaintiff’s actions were not the sole proximate cause of his injuries…  In support of their motion, the plaintiffs submitted the injured plaintiff’s deposition testimony in which he stated that he fell when the top rung of the ship’s ladder, which he knew was missing a bolt and which he had been sent up to the roof to replace, detached while he was in the process of climbing the ladder and after he had attempted to pull himself up by placing his hand on the top rung. The injured plaintiff also testified at his deposition that there were other ladders and pipe scaffolding available to use at the jobsite. Jones v City of New York, 2018 NY Slip Op 07708, Second Dept 11-14-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF TESTIFIED OTHER SAFETY DEVICES (LADDERS, SCAFFOLDS) WERE AVAILABLE AND DID NOT DEMONSTRATE HIS ACTIONS WERE NOT THE SOLE PROXIMATE CAUSE OF HIS INJURIES (SECOND DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF TESTIFIED OTHER SAFETY DEVICES (LADDERS, SCAFFOLDS) WERE AVAILABLE AND DID NOT DEMONSTRATE HIS ACTIONS WERE NOT THE SOLE PROXIMATE CAUSE OF HIS INJURIES (SECOND DEPT))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF TESTIFIED OTHER SAFETY DEVICES (LADDERS, SCAFFOLDS) WERE AVAILABLE AND DID NOT DEMONSTRATE HIS ACTIONS WERE NOT THE SOLE PROXIMATE CAUSE OF HIS INJURIES (SECOND DEPT))

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DESPITE FATHER’S PRO SE MOTION SEEKING VISITATION, NO PROVISION FOR VISITATION WAS MADE IN THE CUSTODY ORDER, MATTER REMANDED FOR A HEARING (FIRST DEPT).

The First Department, remanding the matter for a hearing in Family Court, noted that the final custody order did not make any provision for visitation:

… [T]he final custody order did not make any provision for visitation, and the father’s pro se motion explicitly sought visitation with the child. Family Court implicitly denied this request without providing any rationale. Visitation is a joint right of the child and noncustodial parent and, absent “exceptional circumstances,” it “follows almost as a matter of course,” and is presumed to be in the child’s best interest … . The record of the custody hearing established that the father had regular unsupervised and overnight visitation with the child throughout the prolonged custody proceedings, although there were some late pickups and missed visits in the months before the custody order was issued. We note the child’s attorney represents that the child strongly wishes to resume visits with the father … . Matter of Jolanda K. v Damian B., 2018 NY Slip Op 07675, First Dept 11-13-18

FAMILY LAW (VISITATION, DESPITE FATHER’S PRO SE MOTION SEEKING VISITATION, NO PROVISION FOR VISITATION WAS MADE IN THE CUSTODY ORDER, MATTER REMANDED FOR A HEARING (FIRST DEPT))/VISITATION (FAMILY LAW, DESPITE FATHER’S PRO SE MOTION SEEKING VISITATION, NO PROVISION FOR VISITATION WAS MADE IN THE CUSTODY ORDER, MATTER REMANDED FOR A HEARING (FIRST DEPT))

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QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff-decedent’s motion for summary judgment on his Labor Law 240 (1) cause of action should not have been granted. Decedent’s statement to his wife in the emergency room, to the effect he should not have used the ladder as he did, was admissible as a declaration against interest. There was evidence from a co-worker that the ladder may not have been the cause of decedent’s injuries, i.e., there was evidence decedent was suffering chest pains 10 feet away from the ladder, which was upright. The court noted that factual assertions included in a memorandum of law in opposition to plaintiff-decedent’s motion were properly considered and preserved issues for appeal:

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law § 240(1) claim by presenting decedent’s statement that he was working on a ladder when it started to move, and when he tried to stabilize the ladder, it tipped and struck him in the chest … . Plaintiff was not “required to present further evidence that the ladder was defective” … .

However, defendants raised triable issues of fact as to whether decedent’s injuries were caused by an accident involving a ladder. Two accident reports set forth his alleged statement that he was working on the ladder when he started feeling chest pains and his legs became “unsteady” or “wobbly.” Moreover, decedent’s coworker, who was working in the same apartment unit separated from decedent by a concrete wall but went over to decedent’s area, not in response to any commotion but for routine purposes, saw that the ladder was in the upright position about 10 feet away from decedent when he expressed that he was suffering from chest pains … . Although decedent was disoriented and unable to answer basic questions at some points, he eventually became alert while in the hospital, yet his medical records do not refer to any ladder accident.

Contrary to plaintiff’s assertion, defendants preserved their arguments about triable issues of fact by asserting them in their memorandum of law in opposition to plaintiff’s partial summary judgment motion. Caminiti v Extell W. 57th St. LLC, 2018 NY Slip Op 07667, First Dept 11-13-18

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/EVIDENCE (DECLARATION AGAINST INTEREST, QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/DECLARATION AGAINST INTEREST  (QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/SUMMARY JUDGMENT (EVIDENCE, QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/APPEALS (PRESERVATION, (QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))

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