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ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT).

The Second Department, reversing defendant’s conviction after a weight of the evidence analysis, determined the evidence did not support the conclusion defendant acted as an accomplice in the assault of a homeless man. The codefendant doused the homeless man with lighter fluid and set him on fire. The defendant said “Do that shit man” and recorded the incident on his phone for one minute before attempting put out the fire:

For the defendant to be held criminally liable for the conduct of the codefendant, the People had to prove beyond a reasonable doubt that the defendant solicited, requested, commanded, importuned, or intentionally aided the codefendant to engage in that conduct, and that the defendant did so with the state of mind required for the commission of the offense (see Penal Law § 20.00). A defendant’s mere presence at the scene of a crime, even with knowledge that the crime is taking place, or mere association with the perpetrator of a crime, is not enough for accessorial liability … .

It is undisputed that the defendant did not assist the codefendant in dousing the victim with lighter fluid or setting fire to the victim, and did not supply any of the materials to the codefendant to commit the criminal act. The defendant’s actions, in uttering, “Do that shit, man,” as the codefendant doused the victim with lighter fluid, and in filming this incident for approximately one minute before rendering any aid to this particularly vulnerable and helpless victim, were deplorable. However, his actions did not support the jury’s finding beyond a reasonable doubt that he solicited, requested, commanded, importuned, or intentionally aided the codefendant to assault the victim, and that he did so sharing the codefendant’s state of mind. People v Fonerin, 2018 NY Slip Op 01480, Second Dept 3-7-18

CRIMINAL LAW (ACCOMPLICE LIABILITY, ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/ACCOMPLICE LIABILITY (CRIMINAL LAW,  ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, ACCOMPLICE LIABILIITY, ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/APPEALS (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, ACCOMPLICE LIABILITY,  ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, ACCOMPLICE LIABILITY, ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))

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OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, over an extensive dissent, in a comprehensive street stop (DeBour) analysis too detailed to fairly summarize here, determined the police officer did not have a reasonable suspicion that criminal activity was afoot when he asked defendant, a passenger in a car, “what do you have.” Defendant replied that he had a “piece” and he was convicted of possession of a weapon:

There was nothing improper about the police officers’ direction that the defendant and the two other occupants exit the vehicle. “In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” … . However, the scope of that authority is limited to guarding against “the unique danger of a partially concealed automobile occupant by allowing the officer to order occupants out of a car and readily observe their movements” … . …

In the context of a traffic stop, the Court of Appeals has made clear that “a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot” …, thereby squarely placing this type of inquiry within De Bour level two. Moreover, mere nervousness does not provide the requisite indication of criminality … .

Here, the circumstances described by Officer Weibert at the suppression hearing did not establish “a founded suspicion that criminality [was] afoot” … . Significantly, there was no testimony of a bulge at the defendant’s waistband … , or any indication that the defendant was reaching for, grabbing at, or adjusting his waistband … . To the contrary, Officer Weibert denied that the defendant made any furtive gesture or reached for anything; he testified only that the defendant was acting nervous, shaking his knees and legs up and down, and leaning forward in his seat with his hands in his lap and his arms tightly at his side. People v White, 2018 NY Slip Op 01492, Second Dept 3-7-18

CRIMINAL EVIDENCE (STREET STOPS, OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, STREET STOPS, SUPPRESSION, OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/STREET STOPS (CRIMINAL LAW, SUPPRESSION, OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SUPPRESSION (CRIMINAL LAW, STREET STOPS,  OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/DE BOUR (CRIMINAL LAW, STREET STOPS, OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))

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PLAINTIFF, IN THE FACE OF WRITTEN CONTRACTS TO THE CONTRARY, DID NOT DEMONSTRATE AT TRIAL THAT A PARTNERSHIP, AS OPPOSED TO AN INDEPENDENT CONTRACTOR, RELATIONSHIP EXISTED BETWEEN PLAINTIFF AND DEFENDANT, DEFENDANT’s MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s(Kaufman’s) motion for judgment as a matter of law pursuant to CPLR 4401 should have been granted. There were written contracts between plaintiff and Kaufman indicating plaintiff was an independent contractor. Plaintiff alleged he was a partner, entitled to 50% of the income. The proof submitted by plaintiff, a vague email and testimony by an accountant that plaintiff and Kaufman often received equal pay, was deemed insufficient:

“A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party”… . In considering such a motion, ” the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'” … .

The Supreme Court erred in denying the defendants’ motion, made at the close of trial, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint. The existence of a partnership agreement between Kaufman and the plaintiffs with respect to Kaufman’s businesses cannot be inferred from the evidence presented at the trial. The parties’ relationship was governed by written agreements. The 2005 email which makes reference to splitting income is not sufficient to draw such an inference. Although an email message can constitute a binding contract if it sets forth the material terms of the agreement, and contains an expression of mutual assent … , the email in question fails to set forth the material terms of a partnership agreement. There was no valid line of reasoning and permissible inferences from which the jury could have concluded that there was such a partnership agreement in this case. Weg v Kaufman, 2018 NY Slip Op 01567, Second Dept 3-7-18

CONTRACT LAW (PLAINTIFF, IN THE FACE OF WRITTEN CONTRACTS TO THE CONTRARY, DID NOT DEMONSTRATE AT TRIAL THAT A PARTNERSHIP, AS OPPOSED TO AN INDEPENDENT CONTRACTOR, RELATIONSHIP EXISTED BETWEEN PLAINTIFF AND DEFENDANTS, DEFENDANTS’ MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (JUDGMENT AS A MATTER OF LAW, PLAINTIFF, IN THE FACE OF WRITTEN CONTRACTS TO THE CONTRARY, DID NOT DEMONSTRATE AT TRIAL THAT A PARTNERSHIP, AS OPPOSED TO AN INDEPENDENT CONTRACTOR, RELATIONSHIP EXISTED BETWEEN PLAINTIFF AND DEFENDANTS, DEFENDANTS’ MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 4401  (JUDGMENT AS A MATTER OF LAW, PLAINTIFF, IN THE FACE OF WRITTEN CONTRACTS TO THE CONTRARY, DID NOT DEMONSTRATE AT TRIAL THAT A PARTNERSHIP, AS OPPOSED TO AN INDEPENDENT CONTRACTOR, RELATIONSHIP EXISTED BETWEEN PLAINTIFF AND DEFENDANTS, DEFENDANTS’ MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (SECOND DEPT))/JUDGMENT AS A MATTER OF LAW (CPLR 4401, PLAINTIFF, IN THE FACE OF WRITTEN CONTRACTS TO THE CONTRARY, DID NOT DEMONSTRATE AT TRIAL THAT A PARTNERSHIP, AS OPPOSED TO AN INDEPENDENT CONTRACTOR, RELATIONSHIP EXISTED BETWEEN PLAINTIFF AND DEFENDANTS, DEFENDANTS’ MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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DESPITE PROBATE OF WILL IN FLORIDA, DECEDENT WAS A DOMICILIARY OF NEW YORK, ANCILLARY PROCEEDINGS IN NEW YORK INAPPROPRIATE, NONANCILLARY LETTERS GRANTED (FIRST DEPT).

The First Department, reversing Surrogate’s Court, determined decedent was a domiciliary of New York, despite the probate of the will in Florida:

Even if the Florida court had decided that decedent was a domiciliary of that state, “the decree of the State of original probate is not conclusive on the question of domicile or residence” … . Accordingly, this Court may make an independent inquiry into domicile … .

[Petitioner] failed to meet her burden of showing, by clear and convincing evidence, that decedent had changed her domicile from New York to Florida … . The documentation submitted by petitioner in support of her motion to renew, showed that decedent voted in New York, her driver’s license was from New York, and her passport application used her New York address… . She filed New York State tax returns … , and her will and death certificate said she was from New York … . Moreover, when decedent left New York for Florida in July 2009, she said she intended to return, but never did because of medical complications … .

Since decedent was a New York domiciliary, ancillary probate in this state is inappropriate, even though her will has already been probated in Florida … . Therefore, the grant of ancillary letters to [petitioner] is revoked, and nonancillary letters are granted to the Public Administrator. Matter of Assimakopoulos, 2018 NY Slip Op 01440, First Dept 3-6-18

TRUSTS AND ESTATES (DESPITE PROBATE OF WILL IN FLORIDA, DECEDENT WAS A DOMICILIARY OF NEW YORK, ANCILLARY PROCEEDINGS IN NEW YORK INAPPROPRIATE, NONANCILLARY LETTERS GRANTED (FIRST DEPT))/DOMICILE (TRUSTS AND ESTATES, ANCILLARY PROCEEDINGS, DESPITE PROBATE OF WILL IN FLORIDA, DECEDENT WAS A DOMICILIARY OF NEW YORK, ANCILLARY PROCEEDINGS IN NEW YORK INAPPROPRIATE, NONANCILLARY LETTERS GRANTED (FIRST DEPT))/ANCILLARY PROCEEDINGS (TRUSTS AND ESTATES, DESPITE PROBATE OF WILL IN FLORIDA, DECEDENT WAS A DOMICILIARY OF NEW YORK, ANCILLARY PROCEEDINGS IN NEW YORK INAPPROPRIATE, NONANCILLARY LETTERS GRANTED (FIRST DEPT))

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DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this staircase slip and fall case should not have been granted. Defendant demonstrated it did not have notice of the wet condition of the stairs. Plaintiff’s opposing affidavit contradicted her deposition testimony. Although the deposition was unsigned, defendant demonstrated the certified transcript was provided to plaintiff’s attorneys but it was never returned. Therefore the deposition served as plaintiff’s admission:

Defendant met its prima facie burden on the motion of establishing that it neither created the alleged wet condition nor had prior actual or constructive notice of it. By plaintiff’s own admission, the wet condition, which she never saw but assumes was there, could only have been created moments earlier, having not been present when she walked up the steps … .

Based upon plaintiff’s testimony that she was using both hands to carry her daughter down the steps when she fell, without any indication that she reached for a handrail, defendant established that the lack of a handrail did not proximately cause or contribute to the accident … .

Plaintiff’s affidavit in opposition, wherein she claimed that she tried to reach for a handrail when she fell, raised only feigned issues of fact, as it directly contradicted, and appears to have been tailored to avoid the consequence of, her earlier testimony … .

Pursuant to CPLR 3116(a), plaintiff’s unsigned deposition transcript may be used as though fully signed, as defendant submitted proof that the certified transcript was provided to her attorneys for execution and not returned. Moreover, an unsigned but certified transcript may be used as an admission… , especially where, as here, there is no dispute as to the accuracy of the transcript … . Luna v CEC Entertainment, Inc., 2018 NY Slip Op 01429, First Dept 3-6-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/CIVIL PROCEDURE (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/CPLR 3116 (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/DEPOSITION (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/EVIDENCE (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/ADMISSION  (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/STAIRS  (SLIP AND FALL, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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CONSTRUCTIVE NOTICE OF RUSTED CONDITION OF STAIRCASE WHICH COLLAPSED DEMONSTRATED WITH PHOTOGRAPHS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this staircase collapse case was properly granted. Plantiff demonstrated the defendant had constructive notice of the rusted condition of the staircase:

Plaintiff, a handyman employed by defendant’s managing agent, was injured when the landing of a metal staircase in the sub-basement of defendant’s building collapsed under him, causing him to fall about 20 feet to the cement floor below. Plaintiff established prima facie that defendant had constructive notice of the defective condition of the stairs by submitting photographs showing the staircase covered in rust, and evidence that defendant had no program of inspection for the staircase and had never inspected it in the 27 years preceding the accident … . Conklin v 500-512 Seventh Ave., LP, LLC, 2018 NY Slip Op 01437, First Dept 3-6-18

NEGLIGENCE (CONSTRUCTIVE NOTICE OF RUSTED CONDITION OF STAIRCASE WHICH COLLAPSED DEMONSTRATED WITH PHOTOGRAPHS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/CONSTRUCTIVE NOTICE (NEGLIGENCE, CONSTRUCTIVE NOTICE OF RUSTED CONDITION OF STAIRCASE WHICH COLLAPSED DEMONSTRATED WITH PHOTOGRAPHS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/STAIRS (CONSTRUCTIVE NOTICE OF RUSTED CONDITION OF STAIRCASE WHICH COLLAPSED DEMONSTRATED WITH PHOTOGRAPHS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))

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EVEN THOUGH PLAINTIFF BICYCLIST HAD THE RIGHT OF WAY AND DEFENDANT’S TRUCK CROSSED INTO HIS PATH, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF COULD HAVE AVOIDED THE ACCIDENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this truck-bicycle accident case should not have been granted. Although plaintiff had the right of way and defendant crossed into plaintiff’s path, there was a question of fact whether plaintiff could have avoided the accident:

Plaintiff, while traveling south on a bicycle, collided with the passenger side of defendants’ northbound truck as it turned left across his path. While the record establishes that plaintiff had the right of way, an issue of fact exists as to whether plaintiff was negligent in that he could have avoided the collision through the exercise of reasonable care but failed to do so. Accordingly, plaintiff was not entitled to summary judgment on the issue of liability. Bermeo v Time Warner Entertainment Co., L.P., 2018 NY Slip Op 01433, First Dept 3-6-18

NEGLIGENCE (EVEN THOUGH PLAINTIFF BICYCLIST HAD THE RIGHT OF WAY AND DEFENDANT’S TRUCK CROSSED INTO HIS PATH, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF COULD HAVE AVOIDED THE ACCIDENT (FIRST DEPT))/TRAFFIC ACCIDENTS (EVEN THOUGH PLAINTIFF BICYCLIST HAD THE RIGHT OF WAY AND DEFENDANT’S TRUCK CROSSED INTO HIS PATH, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF COULD HAVE AVOIDED THE ACCIDENT (FIRST DEPT))/BICYCLES (TRAFFIC ACCIDENTS, EVEN THOUGH PLAINTIFF BICYCLIST HAD THE RIGHT OF WAY AND DEFENDANT’S TRUCK CROSSED INTO HIS PATH, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF COULD HAVE AVOIDED THE ACCIDENT (FIRST DEPT))

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QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT).

The First Department, modifying Supreme Court, determined that the cause of action against the elevator company (Nouveau) alleging negligence should not have been dismissed in this personal injury action. Plaintiff alleged she was struck on her head by a hot object when she was in the elevator. A washer was found in the elevator. Nouveau was working in an adjacent elevator shaft at the time. The court noted it was not necessary for plaintiff to plead the doctrine of res ipsa loquitur in order to assert it, however, the record was not sufficient for the court to consider it:

… [P]laintiff raised triable issues of fact, as circumstantial evidence showed that a prompt investigation of the incident indicated that Nouveau’s workers were installing equipment in an adjacent elevator shaft several floors above where plaintiff’s elevator cab had come to a stop, and that no other construction crews were in the vicinity of the elevator bank in question. Contrary to the motion court’s finding, the evidence could be sufficient to support an inference that it was more likely that the injury was caused by negligence on the part of Nouveau rather than by some other actor … .

Contrary to the motion court’s finding, “neither plaintiff’s failure to specifically plead res ipsa loquitur nor the allegation of specific acts of negligence . . . constitutes a bar to the invocation of res ipsa loquitur where the facts warrant its application”… . However, we are unable to determine on this record whether, as plaintiff contends, the doctrine of res ipsa loquitur is applicable to Nouveau. Ocasio v Dormitory Auth. of the State of N.Y., 2018 NY Slip Op 01424, Frist Dept 3-6-18

NEGLIGENCE (QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT))/ELEVATORS (NEGLIGENCE, QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT))/RES IPSA LOQUITUR (QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT))/ELEVATORS (QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT))

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PLAINTIFF DID NOT ATTACH HIMSELF TO AN AVAILABLE LIFELINE, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly denied. Plaintiff fell from a platform. He was wearing a vest and lanyard but did not attach himself to an available lifeline:

Plaintiff Luis Colon was injured when he fell from a makeshift platform while torquing bolts on the Henry Hudson Bridge restoration project. At the time of his fall, plaintiff was wearing a vest and lanyard; however, he did not attach himself to the available lifeline. There are questions of fact on this record concerning whether it was feasible or even practical for Colon to have attached himself to the lifeline or whether another safety device was required and whether it was provided … . Colon v Metropolitan Transp. Auth., 2018 NY Slip Op 01436, First Dept 3-6-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF DID NOT ATTACH HIMSELF TO AN AVAILABLE LIFELINE, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT))

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MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT).

The First Department determined defendant’s motion for resentencing under the Drug Law Reform Act of 2005 was properly denied because the motion was made within three years of defendant’s parole eligibility date:

Defendant argues that the 2005 Act should be reinterpreted in light of recent developments, including those relating to the resentencing of persons convicted of other types of drug felonies. However, no decision finding eligibility with regard to any other Drug Law Reform Act has vitiated the 2005 Act’s clear eligibility requirement that the applicant’s parole eligibility date be at least three years in the future. To accept defendant’s argument, we would have to rewrite the statute to treat persons convicted of class A-II felonies the same as persons convicted of other drug felonies … . People v Moore, 2018 NY Slip Op 01428, First Dept 3-6-18

CRIMINAL LAW (MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT))/SENTENCING (DRUG LAW REFORM ACT, MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT))/RESENTENCING (DRUG LAW REFORM ACT, MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT))/DRUG LAW REFORM ACT (MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT))

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