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SUPREME COURT ABUSED ITS DISCRETION IN PRECLUDING PLAINTIFF FROM PRESENTING EVIDENCE OF ITEMS ALLEGEDLY SOLD OR DAMAGED BY DEFENDANTS (OWNERS-OPERATORS OF A STORAGE UNIT) AS A SANCTION FOR PLAINTIFF’S ALLEGED SPOLIATION OF ITEMS IN THE STORAGE UNIT (SECOND DEPT).

In this Lien Law action, the Second Department determined Supreme Court improperly precluded the plaintiff from offering evidence of the value and condition of items allegedly sold or damaged by defendants, the owners/operators of a storage unit plaintiff had rented. Defendants allegedly mistakenly believed plaintiff had failed to pay the rental fees and held an auction. After plaintiff regained control of the unit, plaintiff disposed of most of the contents, despite defendants' requests to inspect the items:

Although the defendants demonstrated that the plaintiff disposed of the majority of the items remaining in the storage unit after he regained control and possession of the unit, the defendants failed to demonstrate that the plaintiff's conduct rose to the level of being intentional or willful … . …

Under the circumstances of this case, the appropriate sanction is to preclude evidence of the items disposed by the plaintiff that were not available for inspection by the defendants … . Heins v Public Stor., 2018 NY Slip Op 05919, Second Dept 8-29-18

CIVIL PROCEDURE (SPOLIATION, SUPREME COURT ABUSED ITS DISCRETION IN PRECLUDING PLAINTIFF FROM PRESENTING EVIDENCE OF ITEMS ALLEGEDLY SOLD OR DAMAGED BY DEFENDANTS (OWNERS-OPERATORS OF A STORAGE UNIT) AS A SANCTION FOR PLAINTIFF'S ALLEGED SPOLIATION OF ITEMS IN THE STORAGE UNIT (SECOND DEPT))/EVIDENCE (SPOLIATION, SUPREME COURT ABUSED ITS DISCRETION IN PRECLUDING PLAINTIFF FROM PRESENTING EVIDENCE OF ITEMS ALLEGEDLY SOLD OR DAMAGED BY DEFENDANTS (OWNERS-OPERATORS OF A STORAGE UNIT) AS A SANCTION FOR PLAINTIFF'S ALLEGED SPOLIATION OF ITEMS IN THE STORAGE UNIT (SECOND DEPT))/SPOLIATION (SUPREME COURT ABUSED ITS DISCRETION IN PRECLUDING PLAINTIFF FROM PRESENTING EVIDENCE OF ITEMS ALLEGEDLY SOLD OR DAMAGED BY DEFENDANTS (OWNERS-OPERATORS OF A STORAGE UNIT) AS A SANCTION FOR PLAINTIFF'S ALLEGED SPOLIATION OF ITEMS IN THE STORAGE UNIT (SECOND DEPT))/LIEN LAW (SPOLIATION, SUPREME COURT ABUSED ITS DISCRETION IN PRECLUDING PLAINTIFF FROM PRESENTING EVIDENCE OF ITEMS ALLEGEDLY SOLD OR DAMAGED BY DEFENDANTS (OWNERS-OPERATORS OF A STORAGE UNIT) AS A SANCTION FOR PLAINTIFF'S ALLEGED SPOLIATION OF ITEMS IN THE STORAGE UNIT (SECOND DEPT))

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MOTION TO STRIKE SCHOOL’S ANSWER FOR SPOLIATION OF EVIDENCE PROPERLY DENIED, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, PLAINTIFF WAS INJURED BY ANOTHER STUDENT (SECOND DEPT).

The Second Department determined Supreme Court properly granted defendant board of education's motion for summary judgment in this student-on-student assault case. In addition, Supreme Court properly denied plaintiff's motion to strike the answer based upon spoliation of evidence (a video):

The complaint alleges that L.F., an infant, sustained injuries when he was picked up and dropped on his head by a fellow student at Mount Vernon High School. The plaintiff, suing individually and as the parent and natural guardian of L.F., commenced this action against the defendant, Mount Vernon Board of Education, to recover damages for personal injuries, alleging that it failed to provide adequate supervision. * * *

… [A] video recording which captured the incident from a distance could not be located after it had been viewed by the plaintiff, the police, and school administrators. According to the Principal of Mount Vernon High School, he did not know when the video disappeared but he asserted that its disappearance was accidental and a search had been conducted to locate it. Under these circumstances, where the defendant lost the video recording after having provided it for viewing to the plaintiff and others, the plaintiff would still be able to establish her case at trial despite the absence of the video. * * *

The defendant submitted evidence that L.F. and the other student had no previous interaction and that the other student's prior disciplinary record did not include any violent act, thereby establishing that the defendant had no specific knowledge or notice of any prior conduct such that L.F.'s alleged assault … could reasonably have been anticipated … . Francis v Mount Vernon Bd. of Educ., 2018 NY Slip Op 05916, Second Dept 8-29-18

NEGLIGENCE (MOTION TO STRIKE SCHOOL'S ANSWER FOR SPOLIATION OF EVIDENCE PROPERLY DENIED, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, PLAINTIFF WAS INJURED BY ANOTHER STUDENT (SECOND DEPT))/EVIDENCE (NEGLIGENCE, SPOLIATION, MOTION TO STRIKE SCHOOL'S ANSWER FOR SPOLIATION OF EVIDENCE PROPERLY DENIED, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, PLAINTIFF WAS INJURED BY ANOTHER STUDENT (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, MOTION TO STRIKE SCHOOL'S ANSWER FOR SPOLIATION OF EVIDENCE PROPERLY DENIED, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, PLAINTIFF WAS INJURED BY ANOTHER STUDENT (SECOND DEPT))/ASSAULT, LIABILITY IN NEGLIGENCE (EDUCATION-SCHOOL LAW, MOTION TO STRIKE SCHOOL'S ANSWER FOR SPOLIATION OF EVIDENCE PROPERLY DENIED, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, PLAINTIFF WAS INJURED BY ANOTHER STUDENT (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, MOTION TO STRIKE SCHOOL'S ANSWER FOR SPOLIATION OF EVIDENCE PROPERLY DENIED, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, PLAINTIFF WAS INJURED BY ANOTHER STUDENT (SECOND DEPT))

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NO ONE WITNESSED FOUR-YEAR-OLD’S INJURY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED, PLAINTIFFS COULD NOT IDENTIFY THE CAUSE OF THE INJURY, INFANT PLAINTIFF SAID SHE WAS INJURED ON AN INFLATABLE SLIDE (SECOND DEPT).

The Second Department determined defendant property-owner's motion for summary judgment in the inflatable-slide injury case was properly granted:

The plaintiff's daughter allegedly was injured as she slid down an inflatable slide at a facility owned and operated by the defendant Live, Play and Bounce Corp. (hereinafter the defendant). Although both of her parents were present when the accident allegedly occurred, neither witnessed it. The child, four years old at the time, came to her mother crying, and reporting that she fell and hurt her arm while on a slide. The plaintiff commenced this action to recover damages for personal injuries on behalf of her daughter. …

Based on the deposition testimony of the child's parents, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the plaintiff was unable to identify the cause of the child's accident … . Harris v Live, Play & Bounce Corp., 2018 NY Slip Op 05918, Second Dept 8-29-18

NEGLIGENCE (NO ONE WITNESSED FOUR-YEAR-OLD'S INJURY, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED, PLAINTIFFS COULD NOT IDENTIFY THE CAUSE OF THE INJURY, INFANT PLAINTIFF SAID SHE WAS INJURED ON AN INFLATABLE SLIDE (SECOND DEPT))/INFLATABLE SLIDE (NEGLIGENCE, NO ONE WITNESSED FOUR-YEAR-OLD'S INJURY, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED, PLAINTIFFS COULD NOT IDENTIFY THE CAUSE OF THE INJURY, INFANT PLAINTIFF SAID SHE WAS INJURED ON AN INFLATABLE SLIDE (SECOND DEPT))

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EMAILS SUBMITTED WITH REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined emails submitted in reply papers should not have been considered:

The purpose of a reply affidavit or affirmation is to respond to arguments made in opposition to the movant's motion and not to introduce new arguments or grounds in support of the relief sought … . There are exceptions to this rule, including when evidence is submitted in response to allegations made for the first time in opposition, or when the other party is given an opportunity to respond to the reply papers … . Neither of those exceptions applies here. The time for the defendant to produce the letters allegedly from the plaintiff transferring his interest in the shares would have been in support of her cross motion, inter alia, for summary judgment declaring that she is the sole owner of the shares. There was no new allegation in the plaintiff's opposition to the cross motion that would have warranted the defendant's submission of the letters in reply. Further, the plaintiff was not given an opportunity to respond by way of surreply or oral argument. An unrecorded, in-chambers discussion of the cross motion cannot be deemed an opportunity to respond, especially in light of the plaintiff's claim on appeal that the letters are forgeries. Moreover, the defendant did not plead a demand for a declaratory judgment in a counterclaim … . The defendant also did not assert a claim to sole ownership of the shares in her pleading. Gelaj v Gelaj, 2018 NY Slip Op 05917, Second Dept 8-29-18

CIVIL PROCEDURE (REPLY, EMAILS SUBMITTED WITH REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REPLY (EMAILS SUBMITTED WITH REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE  (REPLY, EMAILS SUBMITTED WITH REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUMMARY JUDGMENT (REPLY, EVIDENCE, MAILS SUBMITTED WITH REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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ALTHOUGH DEFENDANT CORPORATION WAS NOT PERSONALLY SERVED WITH THE SUMMONS AND COMPLAINT, SUPREME COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO VACATE THE DEFAULT JUDGMENT, DEFENDANT DID NOT ADEQUATELY EXPLAIN ITS CLAIM THAT NOTICE BY MAIL WAS NOT RECEIVED (SECOND DEPT).

The Second Department determined Supreme Court did not abuse its discretion in refusal to vacate a default judgment. Although the corporate defendant (Greenville) was not served personally, it failed to explain why it did not receive the summons and complaint:

CPLR 317 permits a defendant who has been served with a summons other than by personal delivery to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense … . “[S]ervice on a corporation through delivery of process to the Secretary of State is not personal delivery' to the corporation” … . “The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317” … . Whether to grant relief pursuant to CPLR 317 is discretionary … , and relief may be denied “where, for example, a defendant's failure to personally receive notice of the summons was a result of a deliberate attempt to avoid such notice” … .

Here, Greenville did not contend that the address it kept on file with the Secretary of State was incorrect, and its shareholders effectively claimed ignorance as to why the summons and complaint were “unclaimed,” without offering any details as to how Greenville ordinarily received mail at that address. Further, Greenville offered no explanation as to why it did not receive any of the other correspondence from the plaintiff, all of which were sent to the same address. Under these circumstances, Greenville's conclusory and unsubstantiated denial of service of the certified mailing card and other correspondence from the plaintiff was insufficient to establish that it did not have actual notice of the action in time to defend … . Stevens v Stepanski, 2018 NY Slip Op 05954, Second Dept 8-29-18

CIVIL PROCEDURE (ALTHOUGH DEFENDANT CORPORATION WAS NOT PERSONALLY SERVED WITH THE SUMMONS AND COMPLAINT, SUPREME COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO VACATE THE DEFAULT JUDGMENT, DEFENDANT DID NOT ADEQUATELY EXPLAIN ITS CLAIM THAT NOTICE BY MAIL WAS NOT RECEIVED (SECOND DEPT))/CPLR 317  (ALTHOUGH DEFENDANT CORPORATION WAS NOT PERSONALLY SERVED WITH THE SUMMONS AND COMPLAINT, SUPREME COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO VACATE THE DEFAULT JUDGMENT, DEFENDANT DID NOT ADEQUATELY EXPLAIN ITS CLAIM THAT NOTICE BY MAIL WAS NOT RECEIVED (SECOND DEPT))/SERVICE OF PROCESS  (ALTHOUGH DEFENDANT CORPORATION WAS NOT PERSONALLY SERVED WITH THE SUMMONS AND COMPLAINT, SUPREME COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO VACATE THE DEFAULT JUDGMENT, DEFENDANT DID NOT ADEQUATELY EXPLAIN ITS CLAIM THAT NOTICE BY MAIL WAS NOT RECEIVED (SECOND DEPT))/DEFAULT JUDGMENT (ALTHOUGH DEFENDANT CORPORATION WAS NOT PERSONALLY SERVED WITH THE SUMMONS AND COMPLAINT, SUPREME COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO VACATE THE DEFAULT JUDGMENT, DEFENDANT DID NOT ADEQUATELY EXPLAIN ITS CLAIM THAT NOTICE BY MAIL WAS NOT RECEIVED (SECOND DEPT))/CORPORATION LAW (ALTHOUGH DEFENDANT CORPORATION WAS NOT PERSONALLY SERVED WITH THE SUMMONS AND COMPLAINT, SUPREME COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO VACATE THE DEFAULT JUDGMENT, DEFENDANT DID NOT ADEQUATELY EXPLAIN ITS CLAIM THAT NOTICE BY MAIL WAS NOT RECEIVED (SECOND DEPT))

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ABUTTING PROPERTY OWNER NOT LIABLE FOR HOLE IN BRICKWORK PUBLIC SIDEWALK IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined the abutting property-owner's summary judgment motion in this sidewalk slip and fall case was properly granted. There was no statute or ordinance which imposed liability and the defendant demonstrated it did not create the defect and did not cause the defect by a special use. The defendant owned a cafe and had tables near, but not on, the sidewalk:

The plaintiff allegedly sustained injuries when she tripped and fell after stepping into a hole in the brickwork portion of a public sidewalk … .

… [T]he Cafe demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it did not create the alleged defect in the brickwork, did not cause the alleged defect to occur because of a special use, and did not violate a statute or ordinance that would impose liability for failing to maintain the sidewalk. Moreover, the Cafe demonstrated, prima facie, that the placement of outdoor tables and chairs on the cement portion of the public sidewalk abutting the storefront was not a proximate cause of the plaintiff's alleged injuries … . Finocchiaro v Town of Islip, 2018 NY Slip Op 05915, Second Dept 8-29-18

NEGLIGENCE (ABUTTING PROPERTY OWNER NOT LIABLE FOR HOLE IN BRICKWORK PUBLIC SIDEWALK IN THIS SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (ABUTTING PROPERTY OWNER NOT LIABLE FOR HOLE IN BRICKWORK PUBLIC SIDEWALK IN THIS SLIP AND FALL CASE (SECOND DEPT))

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QUESTION OF FACT WHETHER LOCATION OF THE DOORWAY AND THE STAIRWAY PILLAR, WHICH WAS OPEN AND OBVIOUS, WAS AN INHERENTLY DANGEROUS CONDITION, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant property-owner's motion for summary judgment in this slip and fall case should not have been granted. Although the pillar of an exterior stairway (which allegedly caused plaintiff to trip) was open and obvious, there was a question of fact whether the location of the pillar and the exit door created an inherently dangerous condition:

The accident occurred after the injured plaintiff exited the building through a door located next to an opening between the door and the railing. The opening was at the top of the staircase and provided access to the steps descending from the landing. According to the injured plaintiff, the opening was less than two feet wide. When the door was completely open, it blocked the opening leading to the stairs. The injured plaintiff testified at her deposition that she was attempting to reach the opening to access the steps when her left foot hit the pillar of the railing, causing her to fall. * * *

… [t]he defendant failed to establish, prima facie, that it maintained its premises in a reasonably safe condition. Thus, the Supreme Court should have denied the defendant's motion regardless of the sufficiency of the plaintiffs' opposition papers … . Contrary to the defendant's contention, it cannot be said as a matter of law that the metal railing, which was open and obvious, was not inherently dangerous given its location within the accident site … . The defendant also failed to establish, prima facie, that it did not have notice of the alleged dangerous condition … . Dudnik v 1055 Hylan Offs., LLC, 2018 NY Slip Op 05914, Second Dept 8-29-18

NEGLIGENCE (QUESTION OF FACT WHETHER LOCATION OF THE DOORWAY AND THE STAIRWAY PILLAR, WHICH WAS OPEN AND OBVIOUS, WAS AN INHERENTLY DANGEROUS CONDITION, DEFENDANT PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER LOCATION OF THE DOORWAY AND THE STAIRWAY PILLAR, WHICH WAS OPEN AND OBVIOUS, WAS AN INHERENTLY DANGEROUS CONDITION, DEFENDANT PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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FAILURE TO SPECIFY THE GENDER OF THE CANDIDATE REQUIRED DENIAL OF THE DESIGNATING PETITION (CT APP).

The Court of Appeals, over a two-judge dissenting opinion, determined a designating petition was properly denied because the gender of the candidate was not specified:

Election Law § 6-132 directs, among other things, that the public office or party position sought be identified on the designating petition. Further, where, as here, a political party provides by rule for equal representation of the sexes on its state committee, “the designating petitions . . . shall list candidates for such party positions separately by sexes” (Election Law § 2-102[4]). Thus, the courts below did not err in denying the petition to validate the designating petition due to the failure to specify whether the office sought was that of male or female member of the state committee … . Matter of Mintz v Board of Elections in the City of N.Y., 2018 NY Slip Op 05958, CtApp 8-29-28

ELECTION LAW (FAILURE TO SPECIFY THE GENDER OF THE CANDIDATE REQUIRED DENIAL OF THE DESIGNATING PETITION (CT APP))

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ALTHOUGH PLAINTIFF TURNED RIGHT INTO DEFENDANT DRIVER’S PATH AT AN INTERSECTION, DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM FAULT AND DEFENDANT TOWN DID NOT DEMONSTRATE FOLIAGE OBSTRUCTING A STOP SIGN DID NOT CONTRIBUTE TO THE ACCIDENT, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver and municipality's motions for summary judgment in this intersection accident case should not have been granted. Apparently plaintiff made a right turn at an intersection into the path of defendant driver, Ayers. According to Ayers, plaintiff did not stop at the stop sign before turning. Plaintiff alleged foliage obscured the stop sign:

The driver defendants failed to eliminate triable issues of fact as to whether Ayers contributed to the happening of the accident. In particular, Ayers testified at his deposition that he was traveling 40 miles per hour as he approached the intersection, and that although nothing obstructed his view of the intersection, he did not see the plaintiff's vehicle until he was one car length from the intersection. Further, Ayers could not say whether he took any evasive action to avoid the collision. Under the circumstances, it cannot be said as a matter of law that Ayers used reasonable care to avoid the accident … ….

Contrary to the Town's contention, there is evidence in the record that the foliage which allegedly obscured the stop sign was located within the right-of-way of a Town road. …

The Town further failed to eliminate triable issues of fact as to whether any such obstruction of the stop sign was a proximate cause of the accident. “Such proximate cause may be found only where it is shown that it was the very [obstruction] of the stop sign . . . which rendered the driver[ ] unaware of the need to stop before proceeding across the intersection'”… . Where the driver “had all the warning, all the notice of danger, that a stop sign would have afforded,” there is no basis for finding that the obstruction of a sign caused the driver “to do anything other than [he or] she would have done had it been present” … .

The Town failed to demonstrate, prima facie, that despite the obstructed stop sign, the plaintiff, who was lost in an unfamiliar area, “had all the warning, all the notice of danger, that a stop sign would have afforded”… . In particular, the Town presented no definitive evidence of either the plaintiff's knowledge of the need to stop at the intersection, or conditions necessitating that she bring her vehicle to a complete stop prior to entering the intersection. Viewing the record evidence in the light most favorable to the plaintiff, and resolving all reasonable inferences in her favor … , the Town failed to eliminate issues of fact as to whether the obstruction of the stop sign contributed, to some degree, to the happening of the accident. Rivera v Town of Wappinger, 2018 NY Slip Op 05953, Second Dept 8-29-18

NEGLIGENCE (ALTHOUGH PLAINTIFF TURNED RIGHT INTO DEFENDANT DRIVER'S PATH AT AN INTERSECTION, DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM FAULT AND DEFENDANT TOWN DID NOT DEMONSTRATE FOLIAGE OBSTRUCTING A STOP SIGN DID NOT CONTRIBUTE TO THE ACCIDENT, DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (ALTHOUGH PLAINTIFF TURNED RIGHT INTO DEFENDANT DRIVER'S PATH AT AN INTERSECTION, DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM FAULT AND DEFENDANT TOWN DID NOT DEMONSTRATE FOLIAGE OBSTRUCTING A STOP SIGN DID NOT CONTRIBUTE TO THE ACCIDENT, DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (TRAFFIC ACCIDENTS, ALTHOUGH PLAINTIFF TURNED RIGHT INTO DEFENDANT DRIVER'S PATH AT AN INTERSECTION, DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM FAULT AND DEFENDANT TOWN DID NOT DEMONSTRATE FOLIAGE OBSTRUCTING A STOP SIGN DID NOT CONTRIBUTE TO THE ACCIDENT, DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT).

The Second Department determined the questioning of defendant, without repeating the Miranda warnings, was appropriate. Defendant had not unequivocally invoked his right to remain silent the night before and the questioning continued the next morning. The court noted that the admission of evidence of prior uncharged crime was not error because the evidence completed the narrative. The court further noted that defendant should have been allowed to interview a prosecution witness without the presence of a prosecutor or a detective. The error was deemed harmless however:

The defendant's morning statement was properly admitted at trial. Had the defendant unequivocally and unqualifiedly invoked her right to remain silent the previous evening, the request would have had to be scrupulously honored … , and further interrogation would have had to cease… . Under such circumstances, further inquiry can be made, but only if a significant period of time has passed and the police reiterate the requisite warnings … . However, since the defendant in this case had not unequivocally and unqualifiedly invoked her right to remain silent … and remained in continuous custody in the interim, police and prosecutors were free to resume their questioning of the defendant within a reasonable time, and to do so without repeating the Miranda warnings … . The further questioning at issue here was within a reasonable time under this Court's precedent … . People v Wisdom, 2018 NY Slip Op 05950, Second Dept 8-29-18

CRIMINAL LAW (RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))/MIRANDA  (RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))/MOLINEUX (CRIMINAL LAW, RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))/SUPPRESS, MOTION TO (RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))

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