Page 955 – New York Appellate Digest

/ Negligence

THE ROOT OVER WHICH PLAINTIFF TRIPPED WALKING THROUGH A LANDSCAPED AREA ADJACENT TO A PARKING LOT WAS INHERENT TO THE NATURE OF THE AREA AND THEREFORE NOT ACTIONABLE (SECOND DEPT).

The Second Department determined that the root plaintiff tripped over in a landscaped area was inherent to the area and was not actionable:

The plaintiff commenced this action seeking to recover damages for injuries he alleges he sustained when he tripped and fell as he was walking on a landscaped area on the defendants’ property. The plaintiff testified at his deposition that on the date at issue, he had parked his vehicle in the defendants’ parking lot and then stepped up over a curb and walked through a landscaped area of the grounds adjacent to the parking lot as a way of accessing the sidewalk to the defendants’ store. The landscaped area consisted of trees, shrubs, and mulch, and near the plaintiff’s parking spot, there was a gap in the shrubbery. The plaintiff was walking through the gap when he tripped and fell on a root just below the surface of the mulch. …

… [A] landowner “will not be held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it” … . Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the root that had caused the plaintiff to trip and fall was inherent or incidental to the landscaped area and that it could be reasonably anticipated by those using it … . Miano v Rite Aid Hdqtrs. Corp., 2018 NY Slip Op 02453, Second Dept 4-11-18

NEGLIGENCE (THE ROOT OVER WHICH PLAINTIFF TRIPPED WALKING THROUGH A LANDSCAPED AREA ADJACENT TO A PARKING LOT WAS INHERENT TO THE NATURE OF THE AREA AND THEREFORE NOT ACTIONABLE (SECOND DEPT))/SLIP AND FALL (THE ROOT OVER WHICH PLAINTIFF TRIPPED WALKING THROUGH A LANDSCAPED AREA ADJACENT TO A PARKING LOT WAS INHERENT TO THE NATURE OF THE AREA AND THEREFORE NOT ACTIONABLE (SECOND DEPT))/ROOTS (SLIP AND FALL, THE ROOT OVER WHICH PLAINTIFF TRIPPED WALKING THROUGH A LANDSCAPED AREA ADJACENT TO A PARKING LOT WAS INHERENT TO THE NATURE OF THE AREA AND THEREFORE NOT ACTIONABLE (SECOND DEPT))

April 11, 2018

/ Municipal Law, Negligence

A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined Supreme Court properly denied the petition for leave to file a late notice of claim. Petitioner alleged she fell and was injured while riding a bus owned by the county. A county police report was made about the incident. The Second Department held that the fact that the county was aware of the accident does not demonstrate the county was aware of the essential facts constituting the claim:

“In determining whether to grant a petition for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, [the] court must consider all relevant circumstances, including whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the delay would substantially prejudice the public corporation in its defense, and whether the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim”… . “While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance”… . “The determination of an application for leave to serve a late notice of claim is left to the sound discretion of the court” … .

The petitioner failed to establish that the respondents received timely, actual notice of the essential facts constituting the claim by reason of a police accident report filled out by an officer who responded to the scene of the petitioner’s accident. “Generally, knowledge of a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts of a claim” … . The fact that the Nassau County Police Department had actual knowledge of the accident, without more, cannot be considered actual knowledge of the essential facts underlying the claim against the respondents … . Matter of Cruz v Transdev Servs., Inc., 2018 NY Slip Op 02463, Second Dept 4-11-18

MUNICIPAL LAW (NOTICE OF CLAIM, A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/BUSES (NEGLIGENCE, MUNICIPAL LAW, NOTICE OF CLAIM, A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

April 11, 2018

/ Labor Law-Construction Law

PROPERTY OWNER’S LIABILITY UNDER LABOR LAW 240 (1) FOR PLAINTIFF’S FALL FROM A SCAFFOLD THAT DID NOT HAVE SAFETY RAILINGS IS BASED UPON ITS STATUS AS AN OWNER, NOT NEGLIGENCE, THEREFORE PROPERTY OWNER ENTITLED TO INDEMNIFICATION FROM GENERAL CONTRACTOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, who fell from a scaffold that did not have a safety railing, was entitled to summary judgment on his Labor Law 240 (1) cause of action. The property owner was entitled to summary judgment against the general contractor on its indemnification action because the property owner was not negligent:

Labor Law § 240(1) requires property owners and contractors to furnish, or cause to be furnished, safety devices, such as scaffolds, which are “so constructed, placed and operated as to give proper protection” to workers. “To establish liability pursuant to Labor Law § 240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries”… . Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that he was injured when he fell from a scaffold that lacked safety rails on the sides, and that he was not provided with a safety device to prevent him from falling … . In opposition, the defendant failed to raise a triable issue of fact.

Additionally, the Supreme Court should have granted the defendant’s (property owner’s) motion for summary judgment on the third-party cause of action for contractual indemnification against the general contractor. The defendant established its prima facie entitlement to judgment as a matter of law by submitting a copy of a “Release and Hold Harmless Agreement,” together with evidence showing that it was free from any negligence in connection with the accident … . … Here, the defendant is liable to the plaintiff under Labor Law § 240(1) based solely upon its status as the owner of the premises. There is no evidence that the defendant was negligent, or that it directed, controlled, or supervised the manner in which the plaintiff performed his work… . Marulanda v Vance Assoc., LLC, 2018 NY Slip Op 02452, Second Dept 4-11-18

LABOR LAW-CONSTRUCTION LAW (PROPERTY OWNER’S LIABILITY UNDER LABOR LAW 240 (1) FOR PLAINTIFF’S FALL FROM A SCAFFOLD THAT DID NOT HAVE SAFETY RAILINGS IS BASED UPON ITS STATUS AS AN OWNER, NOT NEGLIGENCE, THEREFORE PROPERTY OWNER ENTITLED TO INDEMNIFICATION FROM GENERAL CONTRACTOR (SECOND DEPT))/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, PROPERTY OWNER’S LIABILITY UNDER LABOR LAW 240 (1) FOR PLAINTIFF’S FALL FROM A SCAFFOLD THAT DID NOT HAVE SAFETY RAILINGS IS BASED UPON ITS STATUS AS AN OWNER, NOT NEGLIGENCE, THEREFORE PROPERTY OWNER ENTITLED TO INDEMNIFICATION FROM GENERAL CONTRACTOR (SECOND DEPT))

April 11, 2018

/ Family Law, Immigration Law

MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s immigration status did not prevent her from being appointed guardian of her children and Family Court should have made the findings necessary for the children to apply for special immigrant juvenile states (SIJS):

Family Court improperly dismissed the guardianship petitions. Contrary to the court’s determination, the mother was not required to demonstrate that she has “legal status in this country” or had taken steps to obtain such status to qualify as a guardian. “[D]omicile means living in [a] locality with intent to make it a fixed and permanent home” … . An individual’s lack of lawful status in the United States is “immaterial to the issue of his [or her] domicile and, therefore, his [or her] eligibility to receive letters [of guardianship]”… . Here, notwithstanding the mother’s immigration status, the record demonstrates her intent to permanently reside in New York State. Thus, the mother cannot be deemed a “non-domiciliary alien” who is ineligible to receive letters of guardianship … . …

Furthermore, the Family Court should have granted the children’s motions for the issuance of an order making the requisite declaration and specific findings so as to enable them to petition for SIJS. Matter of Alan S. M. C., 2018 NY Slip Op 02459, Second Dept 4-11-18

FAMILY LAW (GUARDIANSHIP, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/GUARDIANSHIP (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (GUARDIANSHIP, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/DOMICILE (FAMILY LAW, GUARDIANSHIP, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, (GUARDIANSHIP, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))

April 11, 2018

/ Family Law

EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (SECOND DEPT).

The Second Department determined extraordinary circumstances warranted the award of custody to a grandparent and the sharing of custody with the parents:

… [T]he Family Court properly found that the paternal grandmother demonstrated the existence of extraordinary circumstances. The children’s parents were either unable or unwilling to provide the children with basic personal hygiene, clean clothes, adequate medical or dental care, or an appropriate place to sleep, and they also lacked insight into the children’s particular needs, which included multiple special needs with respect to one of the children… . In particular, the mother forgot to feed the children on several occasions, and the children often came to school hungry and dressed in dirty clothing that smelled of cat urine and feces. Moreover, the parents did not remedy the situation, despite multiple efforts by school personnel.

After finding the existence of extraordinary circumstances, the Family Court next inquired into what custodial arrangement would serve the children’s best interests. The court properly determined that the children’s best interests would be served by shared legal custody among the paternal grandmother and parents, with primary residential custody to the paternal grandmother and frequent contact and visitation between the parents and the children. Matter of Conroy v Conroy, 2018 NY Slip Op 02462, Second Dept 4-11-18

FAMILY LAW (EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (SECOND DEPT))/CUSTODY (EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (SECOND DEPT))/GRANDPARENTS (FAMILY LAW, CUSTODY, EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (SECOND DEPT))

April 11, 2018

/ Criminal Law

THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT).

The Second Department determined the failure to resentence defendant in accordance with the plea agreement required that the defendant be given the opportunity to withdraw his pleas, not only to the charges in indictment on which he was resentenced, but also the charges in prior indictment from which the defendant had not appealed:

Here, the defendant contends that both of the underlying judgments should be reversed and the underlying guilty pleas vacated on the ground that the County Court deviated from the terms of the plea agreement by imposing an aggregate term of seven years’ imprisonment instead of the aggregate term of five years’ imprisonment that it had promised the defendant when he agreed to plead guilty. To the extent that the defendant seeks vacatur of the underlying pleas and reversal of the underlying judgments due to an alleged violation of the plea agreement, such a contention is not reviewable on this appeal since the defendant has only appealed from the resentence … . …

… [T]he County Court erred in resentencing the defendant to a period of postrelease supervision on the conviction of criminal sale of a firearm in the third degree that exceeded the period of postrelease supervision that had been promised to the defendant in connection with the plea agreement, without first affording the defendant the opportunity to withdraw his plea of guilty to that count … . Furthermore, inasmuch as the defendant’s plea of guilty on [the prior indictment], and his plea of guilty to the charge of criminal sale of a controlled substance in the third degree under [the second indictment] were induced by the promise that the sentences on the two indictments would all run concurrently, the defendant must be afforded the opportunity to withdraw his pleas of guilty under both of the indictments, for all three convictions … . People v Robinson, 2018 NY Slip Op 02490, Second Dept 4-11-18

CRIMINAL LAW (SENTENCING, THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT))/PLEA AGREEMENTS (SENTENCING, THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT))/SENTENCING (PLEA AGREEMENTS, (SENTENCING, THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT))/GUILTY PLEAS, WITHDRAWAL OF (THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT))

April 11, 2018

/ Criminal Law

DEFENDANT WAS ELIGIBLE FOR CONDITIONAL SEALING OF THE RECORDS OF DRUG-RELATED CONVICTIONS PURSUANT TO CPL 160.58 NOTWITHSTANDING THAT HE WAS ALSO CONVICTED OF DWAI WHICH IS NOT COVERED BY THE SEALING STATUTE, THE SHOCK INCARCERATION PROGRAM WHICH DEFENDANT COMPLETED MET THE JUDICIAL DIVERSION REQUIREMENTS OF THE SEALING STATUTE (SECOND DEPT).

The Second Department, reversing County Court, determined that defendant was eligible for conditional sealing of the record of his drug-related convictions pursuant to Criminal Procedure Law (CPL) 160.58. The fact that defendant was also convicted of Driving While Ability Impaired (DWAI), which is not an offense covered by CPL 160.58, did not preclude the sealing (as County Court had held). The Second Department rejected the argument that the shock incarceration program defendant completed was not the type of judicial diversion program contemplated by CPL 160.58:

We conclude, first, that the County Court erroneously interpreted CPL 160.58 as prohibiting sealing in light of the DWAI conviction. CPL 160.58 does not contain a “clearly expressed” limitation on a court’s authority to order sealing in cases in which a defendant pleads guilty to an accusatory instrument that contains an offense that does not qualify for sealing. Indeed, the fact that the statute refers to the sealing of an “offense” suggests that discrete offenses may be sealed even if an accusatory instrument to which a defendant pleaded guilty contained other offenses. Had the Legislature intended to limit the court’s authority as the County Court found, it could easily have specified that sealing was confined to cases in which a defendant was charged only with offenses defined in articles 220 and 221 of the Penal Law or a specified offense defined in CPL 410.91. Particularly in light of the expansive approach taken by the Court of Appeals in interpreting the DLRA [Drug Law Reform Act], the omission of a limitation on a court’s authority to seal qualifying drug offenses when coupled in an accusatory instrument with nonqualifying offenses should be interpreted as intentional … .

We further conclude that, contrary to the People’s contention, by successfully completing court-ordered Shock incarceration and further treatment during his period of PRS, the defendant successfully completed a “judicially sanctioned drug treatment program of similar duration, requirements and level of supervision” as judicial diversion and drug treatment alternative to prison. People v Parker, 2018 NY Slip Op 02487, Second Dept 4-11-18

CRIMINAL LAW (SEALING OF RECORDS, DEFENDANT WAS ELIGIBLE FOR CONDITIONAL SEALING OF THE RECORDS OF DRUG-RELATED CONVICTIONS PURSUANT TO CPL 160.58 NOTWITHSTANDING THAT HE WAS ALSO CONVICTED OF DWAI WHICH IS NOT COVERED BY THE SEALING STATUTE, THE SHOCK INCARCERATION PROGRAM WHICH DEFENDANT COMPLETED MET THE JUDICIAL DIVERSION REQUIREMENTS OF THE SEALING STATUTE (SECOND DEPT))/CRIMINAL PROCEDURE LAW 160.58 (SEALING OF RECORDS, DEFENDANT WAS ELIGIBLE FOR CONDITIONAL SEALING OF THE RECORDS OF DRUG-RELATED CONVICTIONS PURSUANT TO CPL 160.58 NOTWITHSTANDING THAT HE WAS ALSO CONVICTED OF DWAI WHICH IS NOT COVERED BY THE SEALING STATUTE, THE SHOCK INCARCERATION PROGRAM WHICH DEFENDANT COMPLETED MET THE JUDICIAL DIVERSION REQUIREMENTS OF THE SEALING STATUTE (SECOND DEPT))/SEALING (CRIMINAL RECORDS, DEFENDANT WAS ELIGIBLE FOR CONDITIONAL SEALING OF THE RECORDS OF DRUG-RELATED CONVICTIONS PURSUANT TO CPL 160.58 NOTWITHSTANDING THAT HE WAS ALSO CONVICTED OF DWAI WHICH IS NOT COVERED BY THE SEALING STATUTE, THE SHOCK INCARCERATION PROGRAM WHICH DEFENDANT COMPLETED MET THE JUDICIAL DIVERSION REQUIREMENTS OF THE SEALING STATUTE (SECOND DEPT))/SHOCK INCARCERATION PROGRAM (SEALING OF CRIMINAL RECORDS, DEFENDANT WAS ELIGIBLE FOR CONDITIONAL SEALING OF THE RECORDS OF DRUG-RELATED CONVICTIONS PURSUANT TO CPL 160.58 NOTWITHSTANDING THAT HE WAS ALSO CONVICTED OF DWAI WHICH IS NOT COVERED BY THE SEALING STATUTE, THE SHOCK INCARCERATION PROGRAM WHICH DEFENDANT COMPLETED MET THE JUDICIAL DIVERSION REQUIREMENTS OF THE SEALING STATUTE (SECOND DEPT))/JUDICIAL DIVERSION PROGRAM (SEALING OF CRIMINAL RECORDS, SHOCK INCARCERATION PROGRAM, DEFENDANT WAS ELIGIBLE FOR CONDITIONAL SEALING OF THE RECORDS OF DRUG-RELATED CONVICTIONS PURSUANT TO CPL 160.58 NOTWITHSTANDING THAT HE WAS ALSO CONVICTED OF DWAI WHICH IS NOT COVERED BY THE SEALING STATUTE, THE SHOCK INCARCERATION PROGRAM WHICH DEFENDANT COMPLETED MET THE JUDICIAL DIVERSION REQUIREMENTS OF THE SEALING STATUTE (SECOND DEPT))

April 11, 2018

/ Criminal Law

THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT).

The Second Department determined Supreme Court should have instructed the jury on cross-racial identification, but further determined the error was harmless:

In People v Boone (30 NY3d 521, 535), the Court of Appeals held that where, as here, “a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness’s identification.”

… [U]nder the circumstances of the present case, the Supreme Court’s failure to give a cross-racial identification charge constituted harmless error. The defendant identified himself as the individual shown in a surveillance video taken inside a deli adjacent to the smoke shop approximately 40 minutes before the robbery. A surveillance video taken outside the deli at that time showed the individual on the sidewalk walking past the smoke shop and entering the deli. Additionally, the surveillance video taken outside the deli showed the same individual entering and exiting the smoke shop at the exact time of the robbery. Immediately after the crime, the complainant gave a very precise and detailed description of the defendant to a detective, which included a unique identifying characteristic, namely, a brown birthmark on the white of the defendant’s eye. During the arrest process of the defendant, the arresting detective immediately observed the distinctive marking on the defendant’s eye. Under the circumstances, the error in failing to administer the charge on cross-racial identification was harmless, as there was overwhelming evidence of the defendant’s guilt, and no significant probability that the defendant would have been acquitted if not for the error … . People v Bradley, 2018 NY Slip Op 02481, Second Dept 4-11-18

CRIMINAL LAW (JURY INSTRUCTIONS, THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT))/IDENTIFICATION (CRIMINAL LAW, JURY INSTRUCTIONS, THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT))/CROSS-RACIAL IDENTIFICATION (CRIMINAL LAW, JURY INSTRUCTIONS, THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT))

April 11, 2018

/ Civil Procedure

A PLAINTIFF FACED WITH A MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION NEED NOT SUBMIT ANY EVIDENCE OR AFFIDAVITS IN OPPOSITION BUT RATHER CAN STAND ON THE SUFFICIENCY OF THE COMPLAINT (SECOND DEPT).

The Second Department noted that a plaintiff, when faced with a motion to dismiss for failure to state a cause of action, need not submit any evidence or affidavits in opposition, but may simply stand on the pleadings:

While a court is permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)… , “affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action” … . The plaintiff “may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face” … . Indeed, if a plaintiff chooses to stand on his or her pleading alone, “confident that its allegations are sufficient to state all the necessary elements of a cognizable cause of action, he [or she] is at liberty to do so and, unless the motion to dismiss is converted by the court to a motion for summary judgment, he [or she] will not be penalized because he [or she] has not made an evidentiary showing in support of his [or her] complaint” … .

Here, the Supreme Court did not convert motion pursuant to CPLR 3211(a)(7) to dismiss to a motion for summary judgment. The amended complaint states a cause of action as against [defendant] and [defendant’s] submissions, including an affidavit of its president, did not conclusively establish that the plaintiff has no cause of action against it … . Yu Chen v Kupoint (USA) Corp., 2018 NY Slip Op 02498, Second Dept 4-11-18

CIVIL PROCEDURE (MOTION TO DISMISS, A PLAINTIFF FACED WITH A MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION NEED NOT SUBMIT ANY EVIDENCE OR AFFIDAVITS IN OPPOSITION BUT RATHER CAN STAND ON THE SUFFICIENCY OF THE COMPLAINT (SECOND DEPT))/CPLR 3211 (MOTION TO DISMISS, A PLAINTIFF FACED WITH A MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION NEED NOT SUBMIT ANY EVIDENCE OR AFFIDAVITS IN OPPOSITION BUT RATHER CAN STAND ON THE SUFFICIENCY OF THE COMPLAINT (SECOND DEPT))/DISMISS, MOTION TO (CIVIL PROCEDURE, A PLAINTIFF FACED WITH A MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION NEED NOT SUBMIT ANY EVIDENCE OR AFFIDAVITS IN OPPOSITION BUT RATHER CAN STAND ON THE SUFFICIENCY OF THE COMPLAINT (SECOND DEPT))

April 11, 2018

/ Civil Procedure

DECLARATORY JUDGMENT DECIDED BY DEFAULT CANNOT SUPPORT THE APPLICATION OF THE DOCTRINE OF COLLATERAL ESTOPPEL, THE ISSUES HAVE NOT BEEN LITIGATED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that a declaratory judgment decided on default does not support the application of the doctrine of collateral estoppel because the issues were not litigated:

“The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate” … . “If the issue has not been litigated, there is no identity of issues between the present action and the prior determination” … . In this case, since the determination in the declaratory judgment action regarding insurance coverage for the subject van was decided on default and, thus, was not actually litigated … , [the nominal defendants] failed to demonstrate that there was an identity of issues between the present proceeding and the determination in the declaratory judgment action. Matter of Hereford Ins. Co. v McKoy, 2018 NY Slip Op 02466, Second Dept 4-11-18

CIVIL PROCEDURE (COLLATERAL ESTOPPEL, DECLARATORY JUDGMENT DECIDED BY DEFAULT CANNOT SUPPORT THE APPLICATION OF THE DOCTRINE OF COLLATERAL ESTOPPEL, THE ISSUES HAVE NOT BEEN LITIGATED (SECOND DEPT))/COLLATERAL ESTOPPEL (DECLARATORY JUDGMENT DECIDED BY DEFAULT CANNOT SUPPORT THE APPLICATION OF THE DOCTRINE OF COLLATERAL ESTOPPEL, THE ISSUES HAVE NOT BEEN LITIGATED (SECOND DEPT))/DECLARATORY JUDGMENT (COLLATERAL ESTOPPEL, DECLARATORY JUDGMENT DECIDED BY DEFAULT CANNOT SUPPORT THE APPLICATION OF THE DOCTRINE OF COLLATERAL ESTOPPEL, THE ISSUES HAVE NOT BEEN LITIGATED (SECOND DEPT))/DEFAULT (COLLATERAL ESTOPPEL, DECLARATORY JUDGMENT DECIDED BY DEFAULT CANNOT SUPPORT THE APPLICATION OF THE DOCTRINE OF COLLATERAL ESTOPPEL, THE ISSUES HAVE NOT BEEN LITIGATED (SECOND DEPT))

April 11, 2018

Search Results

THE ROOT OVER WHICH PLAINTIFF TRIPPED WALKING THROUGH A LANDSCAPED AREA ADJACENT TO A PARKING LOT WAS INHERENT TO THE NATURE OF THE AREA AND THEREFORE NOT ACTIONABLE (SECOND DEPT).

A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

PROPERTY OWNER’S LIABILITY UNDER LABOR LAW 240 (1) FOR PLAINTIFF’S FALL FROM A SCAFFOLD THAT DID NOT HAVE SAFETY RAILINGS IS BASED UPON ITS STATUS AS AN OWNER, NOT NEGLIGENCE, THEREFORE PROPERTY OWNER ENTITLED TO INDEMNIFICATION FROM GENERAL CONTRACTOR (SECOND DEPT).

MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (SECOND DEPT).

THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT).

THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (SECOND DEPT).

A PLAINTIFF FACED WITH A MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION NEED NOT SUBMIT ANY EVIDENCE OR AFFIDAVITS IN OPPOSITION BUT RATHER CAN STAND ON THE SUFFICIENCY OF THE COMPLAINT (SECOND DEPT).

DECLARATORY JUDGMENT DECIDED BY DEFAULT CANNOT SUPPORT THE APPLICATION OF THE DOCTRINE OF COLLATERAL ESTOPPEL, THE ISSUES HAVE NOT BEEN LITIGATED (SECOND DEPT).

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