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INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the SORA court assessment of points for substance abuse was not supported by the evidence:

Assessment of points under risk factor 11 may be appropriate if the offender has a “history” of substance abuse or if the offender “was abusing drugs and or alcohol at the time of the offense” … . Here, the People did not meet their burden of proving the facts underlying the disputed point assessment by clear and convincing evidence … . The presentence report contained only ambiguous information about the extent of the defendant’s use of alcohol and marijuana between the ages of 16 and 20, at least 7 years before the sex offense at issue in this proceeding, and no information about the defendant’s use of those substances in the 7 years before the sex offense. Moreover, the evidence at the hearing did not establish that the defendant abused or was under the influence of alcohol or marijuana at the time of the offense … . People v Trotter, 2018 NY Slip Op 05211, Second Dept 7-11-16

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) ( INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT))/SUBSTANCE ABUSE (SEX OFFENDER REGISTRATION ACT (SORA), INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT))

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MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED BY COUNSEL OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction should not have been summarily granted and remanded the matter for a hearing. The defendant alleged defense counsel was ineffective for failure to correctly inform him of the deportation consequences of his guilty plea. The First Department offered a detailed explanation of the three criteria for granting a motion to vacate in this context on ineffective assistance of counsel grounds.

CPL 440.30 authorizes the summary granting of a motion to vacate a judgment of conviction where the moving papers allege a ground constituting a legal basis for the motion (CPL 440.30[3][a]); where that ground, if factually based, is supported by sworn allegations of fact essential to support the motion (CPL 440.30[3][b]); and where the sworn allegations of essential fact are either conceded by the People to be true or are conclusively substantiated by unquestionable documentary proof (CPL 440.30[3][c]). If all three of these statutory criteria are not met, the court may not grant a CPL 440.10 motion without first conducting a hearing (CPL 440.30[5]). …

… [T]he People did not concede the essential factual allegations on the issue of prejudice. Indeed, they expressly noted that defendant’s allegations of longstanding ties to the United States and lack of any connection to Haiti were entirely unsubstantiated. Neither did defendant proffer documentary proof conclusively substantiating his sworn factual allegations in support of his claim that “but for [his plea] counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” … . …Thus, defendant’s CPL 440.10 motion failed to satisfy the third criterion of CPL 440.30(3), and for that reason, the motion court abused its discretion in granting defendant’s CPL 440.10 motion without first conducting a hearing and making findings of fact … . People v Gaston, 2018 NY Slip Op 05122, First Dept 7-10-18

CRIMINAL LAW (MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))/IMMIGRATION LAW (CRIMINAL LAW, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, (MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))/VACATE CONVICTION, MOTION TO (MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))

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CONTRARY TO THE TRIAL JUDGE’S RULING, DEFENDANT HAD SATISFIED THE FIRST STEP OF A BATSON CHALLENGE TO THE PEOPLE’S STRIKING OF AN AFRICAN-AMERICAN PROSPECTIVE JUROR, THE BURDEN THEN SHIFTED TO THE PEOPLE TO ARTICULATE A NONDISCRIMINATORY REASON, THE MATTER IS SENT BACK FOR A DETERMINATION OF THE BATSON CHALLENGE USING THE CORRECT PROCEDURE (FOURTH DEPT).

The Fourth Department sent the case back for a determination of a Batson challenge to the People’s use of peremptory challenge to strike an African-American prospective juror. The court had not used the correct procedure on first step. The Fourth Department held that defendant had satisfied the first step:

In order for the moving party to satisfy its burden at step one, it must ” show[ ] that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason’ ” … . “A defendant need not show [either] a pattern of discrimination’ ” … or, as the court stated here, “a systematic approach by the prosecution.” Rather, a defendant may satisfy his or her burden under the first step by demonstrating that “members of the cognizable group were excluded while others with the same relevant characteristics were not” or that the People excluded members of the cognizable group “who, because of their background and experience, might otherwise be expected to be favorably disposed to the prosecution” … .

We conclude that defendant met his burden under step one by establishing that there is a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner. Here, defense counsel explained to the court that the relevant prospective juror was the first African-American male “that’s been available without a [for]-cause” challenge and that the prospective juror provided answers during voir dire that were favorable to the prosecution, i.e., that the prospective juror had a number of family members in law enforcement, had a college degree and had at one time been robbed. Defense counsel thus implied that he could not ascertain from the prospective juror’s answers a reason for the peremptory challenge other than racial bias. The court did not provide defense counsel with any further opportunity to develop that argument and, instead, interrupted defense counsel and concluded that a pattern of discrimination had not been established.

Inasmuch as there is a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner, we conclude that “the burden shifted to the People to articulate a nondiscriminatory reason for striking the juror, and the court then should have determined whether the proffered reason was pretextual” … . People v Herrod, 2018 NY Slip Op 05110, Fourth Dept 7-6-18

​CRIMINAL LAW (CONTRARY TO THE TRIAL JUDGE’S RULING, DEFENDANT HAD SATISFIED THE FIRST STEP OF A BATSON CHALLENGE TO THE PEOPLE’S STRIKING OF AN AFRICAN-AMERICAN PROSPECTIVE JUROR, THE BURDEN THEN SHIFTED TO THE PEOPLE TO ARTICULATE A NONDISCRIMINATORY REASON, THE MATTER IS SENT BACK FOR A DETERMINATION OF THE BATSON CHALLENGE USING THE CORRECT PROCEDURE (FOURTH DEPT))/JURORS (CRIMINAL LAW, BATSON, CONTRARY TO THE TRIAL JUDGE’S RULING, DEFENDANT HAD SATISFIED THE FIRST STEP OF A BATSON CHALLENGE TO THE PEOPLE’S STRIKING OF AN AFRICAN-AMERICAN PROSPECTIVE JUROR, THE BURDEN THEN SHIFTED TO THE PEOPLE TO ARTICULATE A NONDISCRIMINATORY REASON, THE MATTER IS SENT BACK FOR A DETERMINATION OF THE BATSON CHALLENGE USING THE CORRECT PROCEDURE (FOURTH DEPT))/BATSON PROCEDURE (CRIMINAL LAW, ONTRARY TO THE TRIAL JUDGE’S RULING, DEFENDANT HAD SATISFIED THE FIRST STEP OF A BATSON CHALLENGE TO THE PEOPLE’S STRIKING OF AN AFRICAN-AMERICAN PROSPECTIVE JUROR, THE BURDEN THEN SHIFTED TO THE PEOPLE TO ARTICULATE A NONDISCRIMINATORY REASON, THE MATTER IS SENT BACK FOR A DETERMINATION OF THE BATSON CHALLENGE USING THE CORRECT PROCEDURE (FOURTH DEPT))

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COLLEGE’S DISCIPLINARY DETERMINATION REGARDING A STUDENT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND EXPUNGED (FOURTH DEPT).

The Fourth Department annulled the determination that a SUNY Buffalo student possessed weapons and engaged in harassment because of the poor quality of the proof, a seriously controverted hearsay statement:

We agree with petitioner that the record is devoid of any evidence, much less substantial evidence, to support respondent’s determination… . Instead, respondent’s determination rests exclusively on a “seriously controverted” hearsay statement, and that does not, as a matter of law, constitute substantial evidence … . We therefore annul the determination, grant the petition, and direct respondent to expunge all references to this matter from petitioner’s school record … .

We decline respondent’s invitation to remit this matter for a new hearing in light of its failure to transcribe the disciplinary hearing. Annulment and expungement is the prescribed remedy for an administrative determination that is unsupported by substantial evidence… , and it would be anomalous if respondent was afforded a new opportunity to establish petitioner’s culpability based on its own procedural error in failing to transcribe the initial hearing.  Matter of Hill v State Univ. of N.Y. At Buffalo, 2018 NY Slip Op 05104, Fourth Deptp 7-6-18

EDUCATION-SCHOOL LAW (COLLEGE’S DISCIPLINARY DETERMINATION REGARDING A STUDENT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND EXPUNGED (FOURTH DEPT))/ADMINISTRATIVE LAW (EDUCATION-SCHOOL LAW, COLLEGE’S DISCIPLINARY DETERMINATION REGARDING A STUDENT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND EXPUNGED (FOURTH DEPT))/EVIDENCE (EDUCATION-SCHOOL LAW, ADMINISTRATIVE LAW, COLLEGE’S DISCIPLINARY DETERMINATION REGARDING A STUDENT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND EXPUNGED (FOURTH DEPT))

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POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the show up identification of the defendant should have been suppressed because the police did not have a reasonable suspicion of criminal activity at the time the police approached and stopped the defendant. The police responded to a 911 dispatch indicating three black men, one with a book bag, had robbed a taxi driver on State Street and were headed east. Within two or three minutes a police officer spotted three men dressed in black, one with a book bag walking on a street west of State Street. Two of the men fled, but defendant remained. After defendant was taken into custody he was identified by the victim in a showup procedure. The Fourth Department noted that the three men were half a mile from the area indicated by the unidentified 911 caller and did not appear to be out of breath. The court also noted the fact that two of the men fled was not enough to create a reasonable suspicion of criminal activity on defendant’s part. The defendant also moved to suppress a cell phone that was found near where defendant was stopped. Denial of suppression was proper because there was no showing the phone was discarded because of unlawful conduct by the police. A new trial was ordered:

The necessary predicate for stopping and detaining defendant was that the officer have ” at least a reasonable suspicion that [defendant] ha[d] committed, [was] committing, or [was] about to commit a crime’ “… . Here, even assuming, arguendo, that the as-yet unidentified 911 caller was reliable and had a sufficient basis of knowledge… , we conclude that the information available to the detaining officer did not provide reasonable suspicion to stop and detain defendant. People v Spinks, 2018 NY Slip Op 05103, Fourth Dept 7-6-18

​CRIMINAL LAW (STREET STOPS, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, STREET STOPS, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SHOWUP IDENTIFICATION (STREET STOPS, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SUPPRESSION  (STREET STOPS, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SEARCH AND SEIZURE (STREET STOPS, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/STREET STOPS (CRIMINAL LAW, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/DE BOUR (STREET STOPS, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))

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THE ARBITRATOR’S DECISION TO OVERLOOK AN INSTANCE OF TARDINESS (ONE MINUTE LATE DUE TO A DISABLED TRAIN BLOCKING TRAFFIC) WHICH OTHERWISE WOULD REQUIRE THE GRIEVANT’S TERMINATION WAS NOT IRRATIONAL AND DID NOT EXCEED THE ARBITRATOR’S ENUMERATED POWERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the arbitrator’s finding there was just cause to overlook the grievant’s one-minute tardiness for work. The collective bargaining agreement (CBA) included an eight-step disciplinary procedure for tardiness. Essentially eight instances of tardiness led to termination. Grievant had seven instances of tardiness at the time she was one minute late. She was delayed by a disabled train and she had called 10 minutes before her starting time to say she might be late because of the train:

We agree with respondent that the arbitrator’s award was not irrational. An award is irrational “if there is no proof whatever to justify” it… , and “[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached’ ” … . Here, there is a colorable justification for the arbitrator’s determination. The attendance policy was a no-fault, straightforward progression of discipline that would be imposed for every incident of tardiness. Nevertheless, the CBA also had the “just cause” provision, and the arbitrator concluded that strict adherence to the attendance policy could be rejected in exceptional cases. …

We also agree with respondent that the arbitrator did not exceed a specifically enumerated limitation on his power. The CBA provided that the arbitrator “shall have no power or authority to add to, subtract from, modify, change, or alter any provisions of this Agreement.” Contrary to petitioner’s contention, the arbitrator did not impose any new requirement upon petitioner before it could discipline its employees and thus did not add to or alter the CBA. As explained above, the arbitrator determined, under the specific facts of this case, that the penalty of termination could not be upheld. The arbitrator did not adopt any new rules that petitioner must follow in future disciplinary cases, and we therefore reject petitioner’s slippery slope argument … . Matter of Lift Line, Inc. (Amalgamated Tr. Union, Local 282), 2018 NY Slip Op 05102, Fourth Dept 7-6-18

​ARBITRATION (THE ARBITRATOR’S DECISION TO OVERLOOK AN INSTANCE OF TARDINESS (ONE MINUTE LATE DUE TO A DISABLED TRAIN BLOCKING TRAFFIC) WHICH OTHERWISE WOULD REQUIRE THE GRIEVANT’S TERMINATION WAS NOT IRRATIONAL AND DID NOT EXCEED THE ARBITRATOR’S ENUMERATED POWERS (FOURTH DEPT))/EMPLOYMENT LAW (ARBITRATION, THE ARBITRATOR’S DECISION TO OVERLOOK AN INSTANCE OF TARDINESS (ONE MINUTE LATE DUE TO A DISABLED TRAIN BLOCKING TRAFFIC) WHICH OTHERWISE WOULD REQUIRE THE GRIEVANT’S TERMINATION WAS NOT IRRATIONAL AND DID NOT EXCEED THE ARBITRATOR’S ENUMERATED POWERS (FOURTH DEPT))/CONTRACT LAW (COLLECTIVE BARGAINING AGREEMENT, THE ARBITRATOR’S DECISION TO OVERLOOK AN INSTANCE OF TARDINESS (ONE MINUTE LATE DUE TO A DISABLED TRAIN BLOCKING TRAFFIC) WHICH OTHERWISE WOULD REQUIRE THE GRIEVANT’S TERMINATION WAS NOT IRRATIONAL AND DID NOT EXCEED THE ARBITRATOR’S ENUMERATED POWERS (FOURTH DEPT))/COLLECTIVE BARGAINING AGREEMENT  (THE ARBITRATOR’S DECISION TO OVERLOOK AN INSTANCE OF TARDINESS (ONE MINUTE LATE DUE TO A DISABLED TRAIN BLOCKING TRAFFIC) WHICH OTHERWISE WOULD REQUIRE THE GRIEVANT’S TERMINATION WAS NOT IRRATIONAL AND DID NOT EXCEED THE ARBITRATOR’S ENUMERATED POWERS (FOURTH DEPT))

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PLAINTIFF STAFFING AGENCY WAS NOT ENTITLED, BASED UPON A BALANCING OF THE EQUITIES, TO A PRELIMINARY INJUNCTION ENFORCING A RESTRICTIVE COVENANT WHICH OSTENSIBLY PROHIBITED DEFENDANT FROM CONTINUING TO WORK AT THE HOSPITAL WHERE PLAINTIFF HAD PLACED HIM AFTER DEFENDANT TERMINATED HIS CONTRACT WITH PLAINTIFF (FOURTH DEPT).

The Fourth Department determined plaintiff staffing agency was not entitled to a preliminary injunction in this action to enforce a restrictive covenant which ostensibly prohibited defendant, for a period of time, from working at the hospital where plaintiff had placed him. Defendant had terminated his contract with plaintiff, contracted with a competitor staffing agency, and continued to work at the same hospital. Defendant demonstrated the alternatives to working at the same hospital would either require a 3 to 4 hour commute, or result in his not working at all while he renewed his credentials in Pennsylvania. Plaintiff alleged allowing defendant to continue to work at the hospital would damage its business model and lead to competitors taking away contracts. The Fourth Department noted that the harm to plaintiff would only occur if the court rules in its favor, not during the pendency of the action:

It is well settled that ” [p]reliminary injunctive relief is a drastic remedy [that] is not routinely granted’ ” … . Moreover, “[i]n reviewing an order denying a motion for [a] preliminary injunction, we should not determine finally the merits of the action and should not interfere with the exercise of discretion by [the court] but should review only the determination of whether that discretion has been abused” …

“In order to establish its entitlement to a preliminary injunction, the party seeking the injunction must establish, by clear and convincing evidence, . . . three separate elements: (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party’s favor’ ” … . Delphi Hospitalist Servs. LLC v Patrick, 2018 NY Slip Op 05100, Fourth Dept 7-6-18

​EMPLOYMENT LAW (RESTRICTIVE COVENANTS, PLAINTIFF STAFFING AGENCY WAS NOT ENTITLED, BASED UPON A BALANCING OF THE EQUITIES, TO A PRELIMINARY INJUNCTION ENFORCING A RESTRICTIVE COVENANT WHICH OSTENSIBLY PROHIBITED DEFENDANT FROM CONTINUING TO  WORK AT THE HOSPITAL WHERE PLAINTIFF HAD PLACED HIM AFTER DEFENDANT TERMINATED HIS CONTRACT WITH PLAINTIFF (FOURTH DEPT))/RESTRICTIVE COVENANTS (EMPLOYMENT LAW, PRELIMINARY INJUNCTIONS, PLAINTIFF STAFFING AGENCY WAS NOT ENTITLED, BASED UPON A BALANCING OF THE EQUITIES, TO A PRELIMINARY INJUNCTION ENFORCING A RESTRICTIVE COVENANT WHICH OSTENSIBLY PROHIBITED DEFENDANT FROM CONTINUING TO  WORK AT THE HOSPITAL WHERE PLAINTIFF HAD PLACED HIM AFTER DEFENDANT TERMINATED HIS CONTRACT WITH PLAINTIFF (FOURTH DEPT))/CIVIL PROCEDURE (PRELIMINARY INJUNCTION, EMPLOYMENT LAW, RESTRICTIVE COVENANTS, PLAINTIFF STAFFING AGENCY WAS NOT ENTITLED, BASED UPON A BALANCING OF THE EQUITIES, TO A PRELIMINARY INJUNCTION ENFORCING A RESTRICTIVE COVENANT WHICH OSTENSIBLY PROHIBITED DEFENDANT FROM CONTINUING TO  WORK AT THE HOSPITAL WHERE PLAINTIFF HAD PLACED HIM AFTER DEFENDANT TERMINATED HIS CONTRACT WITH PLAINTIFF (FOURTH DEPT))/PRELIMINARY INJUNCTIONS (EMPLOYMENT LAW, RESTRICTIVE COVENANTS, PLAINTIFF STAFFING AGENCY WAS NOT ENTITLED, BASED UPON A BALANCING OF THE EQUITIES, TO A PRELIMINARY INJUNCTION ENFORCING A RESTRICTIVE COVENANT WHICH OSTENSIBLY PROHIBITED DEFENDANT FROM CONTINUING TO  WORK AT THE HOSPITAL WHERE PLAINTIFF HAD PLACED HIM AFTER DEFENDANT TERMINATED HIS CONTRACT WITH PLAINTIFF (FOURTH DEPT))

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SPECTATOR’S CLAIM JURORS REFERRED TO DEFENDANT AS A ‘SCUMBAG’ WAS NOT CREDIBLE, TRIAL JUDGE PROPERLY DECIDED A JUROR-BIAS (BUFORD) HEARING WAS NOT REQUIRED (FOURTH DEPT).

The Fourth Department, upon remittitur from the Court of Appeals, determined that the weight of the evidence supported the trial judge’s conclusion a spectator’s claim that jurors had referred to the defendant as a “scumbag” was not credible and therefore no juror-bias (Buford) hearing was required:

Upon exercising our factual review power, we conclude that the weight of the evidence supports the court’s implicit factual determination that the spectator was not credible. Initially, we note that the better practice would have been for the court, when making its determination, to make specific factual findings regarding whether and why it found the spectator not credible, and to set forth its determination and the reasons for it. Nevertheless, in view of the evidence regarding the spectator’s credibility, including the internal inconsistencies in her testimony as well as the differences between her description of the sequence of events and the court’s record of the proceedings, and after according the requisite “[g]reat deference . . . to the fact[]finder’s opportunity to view the witness[ ], hear the testimony and observe demeanor” … , we conclude that the weight of the evidence supports the court’s credibility determination. Consequently, the court “was justified in finding the spectator incredible and therefore determining [that] the Buford inquiry was not required” … . People v Kuzdzal, 2018 NY Slip Op 05099, Fourth Dept 7-6-18

​CRIMINAL LAW (SPECTATOR’S CLAIM JURORS REFERRED TO DEFENDANT AS A ‘SCUMBAG’ WAS NOT CREDIBLE, TRIAL JUDGE PROPERLY DECIDED A JUROR-BIAS (BUFORD) HEARING WAS NOT REQUIRED (FOURTH DEPT))/JURORS (CRIMINAL LAW, SPECTATOR’S CLAIM JURORS REFERRED TO DEFENDANT AS A ‘SCUMBAG’ WAS NOT CREDIBLE, TRIAL JUDGE PROPERLY DECIDED A JUROR-BIAS (BUFORD) HEARING WAS NOT REQUIRED (FOURTH DEPT))/BUFORD HEARING (CRIMINAL LAW, JUROR BIAS, SPECTATOR’S CLAIM JURORS REFERRED TO DEFENDANT AS A ‘SCUMBAG’ WAS NOT CREDIBLE, TRIAL JUDGE PROPERLY DECIDED A JUROR-BIAS (BUFORD) HEARING WAS NOT REQUIRED (FOURTH DEPT))

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QUESTION OF FACT WHETHER DEFENDANT BUS COMPANY HAD NOTICE OF A PUDDLE OF HYDRAULIC FLUID ON THE FLOOR OF THE BUS IN THIS SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department noted that the cause of action alleging defendant bus company had notice of the presence of hydraulic fluid on the floor of the bus, which caused plaintiff to slip and fall, properly survived defendants’ motion for summary judgment. There was a video from inside the bus which appeared to show that the puddle of fluid had been “tracked through” before plaintiff boarded the bus:

” [V]iew[ing] the evidence in the light most favorable to the party opposing the motion, [and] giving that party the benefit of every reasonable inference’ ” … , we conclude that there is a triable issue of fact because the evidence of the size of the puddle and that the puddle had been “tracked through” before any passengers boarded the bus following the layover constitutes circumstantial evidence that would permit a jury to infer that the puddle had existed for a sufficient length of time for defendants to have discovered and remedied it … . Mills v Niagara Frontier Transp. Auth., 2018 NY Slip Op 05098, Fourth Dept 7-6-18

​NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER DEFENDANT BUS COMPANY HAD NOTICE OF A PUDDLE OF HYDRAULIC FLUID ON THE FLOOR OF THE BUS IN THIS SLIP AND FALL CASE (FOURTH DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER DEFENDANT BUS COMPANY HAD NOTICE OF A PUDDLE OF HYDRAULIC FLUID ON THE FLOOR OF THE BUS IN THIS SLIP AND FALL CASE (FOURTH DEPT))/BUSES (SLIP AND FALL,  QUESTION OF FACT WHETHER DEFENDANT BUS COMPANY HAD NOTICE OF A PUDDLE OF HYDRAULIC FLUID ON THE FLOOR OF THE BUS IN THIS SLIP AND FALL CASE (FOURTH DEPT))

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CONDUCT OF THE BUFFALO BILLS OR THE COUNTY OF ERIE AS THE OWNER OF THE FOOTBALL STADIUM WAS NOT THE PROXIMATE CAUSE OF AN UNPROVOKED CRIMINAL ASSAULT ON THE PLAINTIFF AT THE STADIUM, NEGLIGENCE ACTION PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined the action against the Buffalo Bills and the County of Erie, the owner of the football stadium where the Bills played, based upon an unprovoked attack on the plaintiff at the stadium, was properly dismissed:

Contrary to plaintiff’s contention, the court properly determined that the conduct of the Bills and the County was not a proximate cause of his injuries. “[A]s an independent act far removed from [the allegedly negligent] conduct [of the Bills and the County], the [assailants’ unprovoked] criminal assault broke the causal nexus [between such allegedly negligent conduct and plaintiff’s injury]. The attack was extraordinary and not foreseeable or preventable in the normal course of events” … . Indeed, “[i]t is difficult to understand what measures could have been undertaken to prevent plaintiff’s injury except presumably to have had a security officer posted at the precise location where the incident took place or wherever [rival football fans] were gathered, surely an unreasonable burden” … . We thus conclude that the court properly granted the motion of the Bills and the County and dismissed the amended complaint against them. Wrobel v Doe, 2018 NY Slip Op 05097, Fourth Dept 7-6-18

​NEGLIGENCE (THIRD PARTY ASSAULT, CONDUCT OF THE BUFFALO BILLS OR THE COUNTY OF ERIE AS THE OWNER OF THE FOOTBALL STADIUM WAS NOT THE PROXIMATE CAUSE OF AN UNPROVOKED CRIMINAL ASSAULT ON THE PLAINTIFF AT THE STADIUM, NEGLIGENCE ACTION PROPERLY DISMISSED (FOURTH DEPT))/ASSAULT (NEGLIGENCE, THIRD PARTY ASSAULT, CONDUCT OF THE BUFFALO BILLS OR THE COUNTY OF ERIE AS THE OWNER OF THE FOOTBALL STADIUM WAS NOT THE PROXIMATE CAUSE OF AN UNPROVOKED CRIMINAL ASSAULT ON THE PLAINTIFF AT THE STADIUM, NEGLIGENCE ACTION PROPERLY DISMISSED (FOURTH DEPT))/THIRD PARTY ASSAULT (NEGLIGENCE, CONDUCT OF THE BUFFALO BILLS OR THE COUNTY OF ERIE AS THE OWNER OF THE FOOTBALL STADIUM WAS NOT THE PROXIMATE CAUSE OF AN UNPROVOKED CRIMINAL ASSAULT ON THE PLAINTIFF AT THE STADIUM, NEGLIGENCE ACTION PROPERLY DISMISSED (FOURTH DEPT))

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