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THE PEOPLE’S GROUND FOR STEP ONE OF THE BATSON CHALLENGE PROCEDURE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT).

The Fourth Department reversed defendant’s conviction and dismissed the indictment because of the court’s errors in handling a Batson challenge. The People argued that defense counsel was using all peremptory challenges to exclude women, which was not the case. The court accepted the argument and proceeded to step two of the Batson procedure by asking defense counsel for a gender neutral explanation. Defense counsel stated that the potential juror was a nurse and may have seen victims of domestic abuse. The judge did not accept defense counsel’s reason. The Fourth Department found that step one of the procedure was flawed because defense counsel had excluded both men and women, and noted that the reason given by defense counsel for step two was sufficient:

… [T]he issue whether the People established a prima facie case of discrimination at step one of the Batson inquiry is not moot. Whether a Batson applicant made out a prima facie case of discrimination is moot only if the court proceeded to step three of the inquiry and ” has ruled on the ultimate question of intentional discrimination’ “… . Here, however, the court “stopped at step two and wrongly stated that the proffered reason for the challenge was not [gender] neutral[, and thus] . . . it cannot be said that the trial court [had] ruled on the ultimate question of intentional discrimination’ “… .

With respect to the merits of defendant’s contention concerning the step one inquiry, we agree with him that the People failed to establish a prima facie case of discrimination. The only ground asserted by the People in support of their Batson application was that every peremptory challenge exercised by defendant was used to strike a woman from the jury panel. As defendant argued in opposition, the People’s assertion was incorrect. In fact, defendant had previously exercised peremptory challenges to excuse two men from the jury panel. Thus, the only fact articulated by the People in support of their Batson application is belied by the record. Inasmuch as the People failed to make out a prima facie case of discrimination, the court erred in proceeding to step two of the inquiry and ultimately in seating the juror notwithstanding defendant’s peremptory challenge … . People v Smouse, 2018 NY Slip Op 02921, Fourth Dept 4-27-18

​CRIMINAL LAW (JURORS, BATSON, THE PEOPLE’S GROUND FOR STEP ONE OF THEIR BATSON CHALLENGE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT))/JURORS (CRIMINAL LAW, BATSON, THE PEOPLE’S GROUND FOR STEP ONE OF THEIR BATSON CHALLENGE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT))/BATSON CHALLENGE (CRIMINAL LAW, JURORS, THE PEOPLE’S GROUND FOR STEP ONE OF THEIR BATSON CHALLENGE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT))

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UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT). ​

The Fourth Department, reversing County Court, in a full-fledged opinion by Justice DeJoseph, in a matter of first impression, determined a defendant convicted of a qualifying drug felony cannot, under the Drug Law Reform Act (DLRA), be sentenced as a persistent felony offender (PFO):

In March 2016, defendant, by counsel, moved pursuant to CPL 440.20 to vacate his sentence on the ground that he was illegally sentenced as a PFO. Defendant contended that, because the crimes of CPCS in the third degree (Penal Law § 220.16 [1]) and CSCS in the third degree (§ 220.39 [1]) fall within Penal Law article 220, a defendant convicted of those crimes is not subject to sentencing as a PFO. Defendant contended that the 2004 DLRA removed the trial court’s discretion to sentence a defendant convicted of controlled substance or marihuana offenses as a PFO. * * *

The plain language of the statutes is clear that, when a defendant is convicted of a drug offense, he or she must be sentenced under the provisions outlined by Penal Law § 60.04, “notwithstanding the provisions of any law.” Thus, inasmuch as section 60.04 does not authorize sentencing such a defendant as a PFO, such a defendant cannot be sentenced pursuant to any provisions that do authorize sentencing as a PFO. While there are no definitive rulings on this issue by the Court of Appeals or any of the Appellate Divisions, trial courts have held that a drug offender is ineligible for PFO sentencing … .

As noted by the Court of Appeals, “when the legislature enacted the . . . DLRA, it sought to ameliorate the excessive punishments meted out to low-level, nonviolent drug offenders under the so-called Rockefeller Drug Laws, and therefore the statute is designed to spread relief as widely as possible, within the bounds of reason, to its intended beneficiaries” … . We believe that our interpretation of the DLRA is consistent with the remedial purpose of the DLRA, and we therefore conclude that Penal Law §§ 60.04 and 70.70 operate to preclude a court from sentencing a defendant found guilty of a qualifying drug felony as a PFO. People v Boykins, 2018 NY Slip Op 02919, Fourth Dept 4-27-18

​CRIMINAL LAW (UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT))/SENTENCING (PERSISTENT FELONY OFFENDER, UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT))/DRUG LAW REFORM ACT (PERSISTENT FELONY OFFENDER, UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT))/PERSISTENT FELONY OFFENDER (DRUG LAW REFORM ACT (DLRA), UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT))

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PLAINTIFF, PURSUANT TO THE CONDOMINIUM DECLARATION AND OFFERING PLAN, WAS THE OWNER OF THE BASEMENT SPACE USED BY DEFENDANTS, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ITS TRESPASS ACTION, BECAUSE THE DECLARATION AND OFFERING PLAN, AND THE REFERENCE TO IT IN THE DEEDS, WERE UNAMBIGUOUS, PAROL AGREEMENTS TRANSFERRING OWNERSHIP OF THE AREA TO DEFENDANTS WERE NOT ENFORCEABLE (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment on its trespass action against defendant condominium owners based on defendants’ use of a basement storage area which, according to the Declaration and Offering Plan, was owned by plaintiff. Any attempt to transfer ownership of the basement area to defendants’ condominium was ineffectual because there was never a meeting and vote by unit members:

The Declaration and Offering Plan are unambiguous and clearly state that the disputed basement space was a Limited Common Element of the front unit owned by plaintiff. The deeds to both parties’ units were silent on this issue, but provided that each buyer agreed that their ownership was subject to the Declaration. Paragraph Fifth of the Declaration provided that the use of the basement space was deemed conveyed with the conveyance of the front unit, even if the interest was not expressly described in the conveyance. In order to amend the Declaration, pursuant to paragraph Tenth(b), the board was required to execute an instrument upon the affirmative vote of 80% of the unit owners held at a duly called meeting. Moreover, paragraph Tenth(b)(I) provided that an amendment which altered the right to portions of the common elements required the consent of 100% of the affected unit owners.

Here, there was never a duly held meeting of the unit owners at which 80% voted to amend the Declaration to permit transfer of the right to use the basement space from the front unit to the rear unit. Thus, plaintiff retained the right to use the basement space. Parol evidence of the parties’ contrary intent is irrelevant in the face of the unambiguous governing documents … . Plaintiff’s acknowledgment in the contract of sale that it was not purchasing the right to use the basement storage space is not controlling because the deed contained a provision that the sale was subject to the provisions of the Declaration, which stated that the storage space was for the use of the front unit. P360 Spaces LLC v Orlando, 2018 NY Slip Op 02749, First Dept 4-27-18

​CONDOMINIUMS (PLAINTIFF, PURSUANT TO THE CONDOMINIUM DECLARATION AND OFFERING PLAN, WAS THE OWNER OF THE BASEMENT SPACE USED BY DEFENDANTS, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ITS TRESPASS ACTION, BECAUSE THE DECLARATION AND OFFERING PLAN, AND THE REFERENCE TO IT IN THE DEEDS, WERE UNAMBIGUOUS, PAROL AGREEMENTS TRANSFERRING OWNERSHIP OF THE AREA TO DEFENDANTS WERE NOT ENFORCEABLE (FIRST DEPT))/CONTRACT LAW (CONDOMINIUMS, PLAINTIFF, PURSUANT TO THE CONDOMINIUM DECLARATION AND OFFERING PLAN, WAS THE OWNER OF THE BASEMENT SPACE USED BY DEFENDANTS, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ITS TRESPASS ACTION, BECAUSE THE DECLARATION AND OFFERING PLAN, AND THE REFERENCE TO IT IN THE DEEDS, WERE UNAMBIGUOUS, PAROL AGREEMENTS TRANSFERRING OWNERSHIP OF THE AREA TO DEFENDANTS WERE NOT ENFORCEABLE (FIRST DEPT))/TRESPASS (CONDOMINIUMS,  PLAINTIFF, PURSUANT TO THE CONDOMINIUM DECLARATION AND OFFERING PLAN, WAS THE OWNER OF THE BASEMENT SPACE USED BY DEFENDANTS, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ITS TRESPASS ACTION, BECAUSE THE DECLARATION AND OFFERING PLAN, AND THE REFERENCE TO IT IN THE DEEDS, WERE UNAMBIGUOUS, PAROL AGREEMENTS TRANSFERRING OWNERSHIP OF THE AREA TO DEFENDANTS WERE NOT ENFORCEABLE (FIRST DEPT))

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PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court determined the cause action alleging defendant attorney’s fee was unconscionable should not have been dismissed. The court further determined that plaintiff’s motion to disqualify defendant’s attorney because plaintiff had initially consulted with an attorney at the defendant’s attorney’s firm was properly denied:

Accepting as true the allegations in the complaint and the averments in the affidavits submitted in opposition to the motion, we conclude that plaintiff has sufficiently alleged the elements of procedural and substantive unconscionability. As for procedural unconscionability, plaintiff alleged that, before entering into the agreement, he was not informed of the nature of the anticipated charges or the prospects of incarceration, and he was led to believe that defendant would be able to resolve the case without a prison sentence. At the time he entered into the agreement, plaintiff was in the hospital, and defendant was, or was perceived to be, an experienced attorney with unparalleled expertise in defending against cases involving driving while intoxicated. As for substantive unconscionability, plaintiff alleged that defendant’s $125,000 fee was at least three times larger than, and thus drastically out of proportion with, fees charged in similar cases. We further conclude that defendant’s evidentiary submissions in support of the motion, which included his own affidavit and that of an expert, did not conclusively establish that the agreement was ” fair, reasonable, and fully known and understood’ ” by plaintiff … . …

[The submitted] affidavits establish that the attorney with whom plaintiff consulted had no recollection and kept no notes of the consultation, did not share with defendant’s attorney any information that he learned during the consultation, and would not discuss the present action with defendant’s attorney in the future. Furthermore, the affidavits establish that the law firm employs screening procedures consistent with the Rules of Professional Conduct and that defendant’s attorney would not be sharing any fees with the attorney with whom plaintiff consulted. Thus, the affidavits establish compliance with rule 1.18 of the Rules of Professional Conduct (22 NYCRR 1200.0), and we conclude that the court properly exercised its discretion in denying the motion … . Divito v Fiandach, 2018 NY Slip Op 02922, Fourth Dept 4-27-18

ATTORNEYS (PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/ATTORNEY’S FEES (UNCONSCIONABLE, PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/UNCONSCIONABLE ATTORNEY’S FEES  (PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/DISQUALIFICATION OF ATTORNEYS (MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/CONFLICT OF INTEREST (ATTORNEYS, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/RULES OF PROFESSIONAL CONDUCT (ATTORNEYS, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))

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CRITERIA FOR DETERMINING WHETHER A SLIP AND FALL ENTITLES A POLICE OFFICER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS UNDER THE RETIREMENT AND SOCIAL SECURITY LAW EXPLAINED IN DEPTH, MATTER WAS REMITTED FOR FACTS AND CONCLUSIONS UNDER THE LAW ARTICULATED IN THE OPINION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, over a partial dissent, took pains to explain the current law distinguishing between a nonactionable misstep from an actionable slip and fall in the context of a police officer’s application for accidental disability retirement benefits. The officer fell descending stone steps which he had used without incident a couple days before. The officer testified there was a slimy or icy substance on the step which he did not notice until after the fall. The Third Department couldn’t discern the precise grounds for the state comptroller’s denial of the benefits and sent the matter back for findings and conclusions based upon the law as explained in the opinion (which is too detailed to be fully described here):

… [T]he controlling standard for determining whether an injury was caused by an accident for purposes of the Retirement and Social Security Law remains whether the precipitating event was sudden, unexpected and not a risk of the work ordinarily performed … . In considering whether a particular petitioner has met that standard, courts should not rely on whether a condition was readily observable. Denial of benefits continues to be appropriate where the injury was caused by the employee’s misstep. Whether the employee’s inattention caused an accidental injury depends on the circumstances — i.e., was it essentially a misstep, without more, or was it based on the failure to notice something that was readily observable — and presents a factual issue. Similarly, when determining whether a precipitating event was unexpected, respondent and courts may continue to consider whether the injured person had direct knowledge of the hazard prior to the incident or whether the hazard could have been reasonably anticipated, so long as such a factual finding is based upon substantial evidence in the record. Stancarone v DiNapoli, 2018 NY Slip Op 02844, Third Dept 4-26-18

​RETIREMENT AND SOCIAL SECURITY LAW (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICE OFFICERS, SLIP AND FALL CRITERIA FOR DETERMINING WHETHER A SLIP AND FALL ENTITLES A POLICE OFFICER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS UNDER THE RETIREMENT AD SOCIAL SECURITY LAW EXPLAINED IN DEPTH, MATTER WAS REMITTED FOR FACTS AND CONCLUSIONS UNDER THE LAW ARTICULATED IN THE OPINION (THIRD DEPT))/POLICE OFFICERS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, SLIP AND FALL CRITERIA FOR DETERMINING WHETHER A SLIP AND FALL ENTITLES A POLICE OFFICER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS UNDER THE RETIREMENT AD SOCIAL SECURITY LAW EXPLAINED IN DEPTH, MATTER WAS REMITTED FOR FACTS AND CONCLUSIONS UNDER THE LAW ARTICULATED IN THE OPINION (THIRD DEPT))/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (POLICE OFFICERS, SLIP AND FALL CRITERIA FOR DETERMINING WHETHER A SLIP AND FALL ENTITLES A POLICE OFFICER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS UNDER THE RETIREMENT AD SOCIAL SECURITY LAW EXPLAINED IN DEPTH, MATTER WAS REMITTED FOR FACTS AND CONCLUSIONS UNDER THE LAW ARTICULATED IN THE OPINION (THIRD DEPT))/RETIREMENT BENEFITS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS POLICE OFFICERS, SLIP AND FALL CRITERIA FOR DETERMINING WHETHER A SLIP AND FALL ENTITLES A POLICE OFFICER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS UNDER THE RETIREMENT AD SOCIAL SECURITY LAW EXPLAINED IN DEPTH, MATTER WAS REMITTED FOR FACTS AND CONCLUSIONS UNDER THE LAW ARTICULATED IN THE OPINION (THIRD DEPT))/SLIP AND FALL  (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICE OFFICERS, SLIP AND FALL CRITERIA FOR DETERMINING WHETHER A SLIP AND FALL ENTITLES A POLICE OFFICER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS UNDER THE RETIREMENT AD SOCIAL SECURITY LAW EXPLAINED IN DEPTH, MATTER WAS REMITTED FOR FACTS AND CONCLUSIONS UNDER THE LAW ARTICULATED IN THE OPINION (THIRD DEPT))

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VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT).

The Third Department determined plaintiff’s motion to set aside the defense verdict in this pedestrian-car accident case (exonerating defendant driver from any comparative fault) should have been granted. Defendant testified she saw persons in the road about 100 yards ahead but did not slow down. When she realized she was going to hit someone she swerved to the left, apparently striking plaintiff at that point:

As a general matter, a motorist has a duty to maintain a proper lookout under the driving circumstances presented and to maintain a reasonably safe rate of speed… . A motorist is further “required to keep a reasonably careful look out for pedestrians, to see what was there to be seen, to sound the horn when a reasonably prudent person would have done so to warn a pedestrian of danger and to operate the car with reasonable care to avoid hitting any pedestrian on the roadway” … . These principles in mind, defendant testified that she first observed three people at the edge of Route 9N in front of the Algonquin restaurant heading across the road toward the parking lot on the west side. She estimated being “[p]robably about a football field” away when she first saw the pedestrians. She also estimated her speed at 30 miles per hour and acknowledged that she did not slow down. Explaining how the accident occurred, defendant testified as follows: “As I got closer to the people, who I thought were crossing the road, they were not moving and I knew that if I continued I would hit them so I severely twisted my wheel of the car thinking I could get around them.” She stated that, as she turned her wheel to the right, the pedestrians were on her left. She did not decrease her speed prior to swerving and could not remember sounding her horn.

Defendant’s version of the accident places Blanchard in the roadway, while Blanchard testified that she was in the west shoulder area at the time of impact. Even accepting defendant’s version, her testimony confirms that Blanchard was within her view for a distance of about 100 yards and defendant was aware that Blanchard was crossing the road, and yet, defendant did not slow down or sound her horn. Defendant’s own account confirms that she failed to take any evasive action until the last moment. In our view, defendant’s failure to take reasonable measures to avoid hitting Blanchard gives rise to some degree of comparative fault for this accident. As the jury’s verdict exonerating defendant could not have been reached on any fair interpretation of this evidence, a new trial is in order. Blanchard v Chambers, 2018 NY Slip Op 02852, Third Dept 4-26-18

​NEGLIGENCE (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/VERDICT, MOTION TO SET ASIDE (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))

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TESTIMONY THERE HAD BEEN NO COMPLAINTS ABOUT A HOLE ON THE DEFENDANT CEMETERY GROUNDS DID NOT DEMONSTRATE A LACK OF NOTICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this “stepped in a hole” case was properly denied. The testimony that the defendant cemetery had not received any complaints about a hole and the absence of any evidence of when the area was last inspected did not demonstrate the lack of actual or constructive notice:

Defendant did not establish its entitlement to judgment as a matter of law in this action where plaintiff allegedly injured her ankle when she stepped in a hole on defendant’s grounds. The fact that defendant’s director testified that he did not receive any complaints about the condition of the grounds prior to the accident does not establish that defendant lacked actual notice of the hole, because the director did not state that he was working on the day of the accident … .

Defendant also failed to demonstrate that it lacked constructive notice of the hole. Its director’s testimony that he would inspect the premises when his duties permitted does not establish when the subject location was last checked before the accident … . Savio v St. Raymond Cemetery, 2018 NY Slip Op 02906, First Dept 4-26-18

​NEGLIGENCE (SLIP AND FALL, TESTIMONY THERE HAD BEEN NO COMPLAINTS ABOUT A HOLE ON THE DEFENDANT CEMETERY GROUNDS DID NOT DEMONSTRATE A LACK OF NOTICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (FIRST DEPT))/SLIP AND FALL (TESTIMONY THERE HAD BEEN NO COMPLAINTS ABOUT A HOLE ON THE DEFENDANT CEMETERY GROUNDS DID NOT DEMONSTRATE A LACK OF NOTICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (FIRST DEPT))/NOTICE (SLIP AND FALL, HOLE, TESTIMONY THERE HAD BEEN NO COMPLAINTS ABOUT A HOLE ON THE DEFENDANT CEMETERY GROUNDS DID NOT DEMONSTRATE A LACK OF NOTICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (FIRST DEPT))

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QUESTION OF FACT WHETHER PLAINTIFF WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE CLIMBED THE LADDER FROM WHICH HE FELL, THUS PLACING THE INCIDENT OUTSIDE THE PROTECTION OF LABOR LAW 240 (1) (FIRST DEPT).

The First Department determined that there was a question of fact whether plaintiff was acting within the scope of his employment when he climbed a ladder to troubleshoot a cable installation problem:

Plaintiff commenced this action to recover for personal injuries he allegedly sustained when he fell from a utility pole while attempting to troubleshoot a cable installation activation that did not work. However, his supervisor submitted an affidavit asserting, inter alia, that plaintiff’s sole job functions were as a manager, providing administrative services and training, assessing materials and equipment needed for a job, and occasionally following up with an activation from ground level only, but that in no event were his duties to entail climbing any poles.

Supreme Court correctly determined that issues of fact exist as to whether the aerial work plaintiff contends he was performing when he fell was outside the scope of his employment and thus outside the protection of Labor Law § 240(1) … . McCue v Cablevision Sys. Corp., 2018 NY Slip Op 02902, First Dept 4-26-18

​LABOR LAW-CONSTRUCTION LAW (SCOPE OF EMPLOYMENT, QUESTION OF FACT WHETHER PLAINTIFF WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE CLIMBED THE LADDER FROM WHICH HE FELL, THUS PLACING THE INCIDENT OUTSIDE THE PROTECTION OF LABOR LAW 240 (1) (FIRST DEPT))/EMPLOYMENT LAW (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER PLAINTIFF WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE CLIMBED THE LADDER FROM WHICH HE FELL, THUS PLACING THE INCIDENT OUTSIDE THE PROTECTION OF LABOR LAW 240 (1) (FIRST DEPT))

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THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, over a concurrence and a two-justice dissent, reversing County Court, determined that prison personnel violated defendant’s Fourth Amendment rights in the manner a body cavity search was conducted. A packet of cocaine was removed from defendant’s buttocks-area during a strip search. Apparently the package could be seen but did not fall out on its own:

Here, there was probable cause, but no showing or claim of an emergency … . Considering that defendant was lying face down, naked and handcuffed, it is evident that the officers could keep him under full surveillance without any concern that the wrapped drugs would be absorbed into his body while efforts were made to procure a warrant … . Nor was any attempt made to seek the assistance of medical personnel to secure the contraband in a safe, hygienic manner… . Also, the record is unclear as to whether [the officer] was wearing gloves. Under the second Bell factor [Bell v Wolfish, 441 US 520], the manner in which this search was conducted was not reasonable. Given the above, we conclude that the search was conducted in violation of the Fourth Amendment and that the recovered drugs should have been suppressed. People v Holton, 2018 NY Slip Op 02836, Third Deptp 4-26-18

​CRIMINAL LAW (BODY CAVITY SEARCH, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/BODY CAVITY SEARCH (CRIMINAL LAW, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/SEARCH AND SEIZURE (CRIMINAL LAW, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/SUPPRESSION (CRIMINAL LAW, BODY CAVITY SEARCH, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))

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DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the evidence was not sufficient to support the “drug factory” jury instruction:

The court’s jury instruction on the drug factory presumption of Penal Law § 220.25(2) was improper. The statutory presumption “does not require that mixing or compounding paraphernalia be found on the premises” … . However, where, as here, the quantity of drugs found does not show “circumstances evincing an intent to unlawfully mix, compound, package, or otherwise prepare for sale” … , giving the drug factory charge is unwarranted. Here, the officers recovered approximately one gram of crack cocaine divided between 26 “twists.” The fact that a larger bag contained individual twists was not a sufficient basis for the trial court to employ the drug factory presumption … . The presence of an unspecified, untested, white residue on a kitchen counter does not justify the charge, where such is equally consistent with the residue left by household cooking and cleaning products. People v Johnson, 2018 NY Slip Op 02879, First Dept 4-26-18

​CRIMINAL LAW (DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/DRUG FACTORY (CRIMINAL LAW, JURY INSTRUCTIONS, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))

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