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AUTO DAMAGE APPRAISER NOT AN EMPLOYEE, UNEMPLOYMENT INSURANCE APPEAL BOARD REVERSED (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant appraiser was not an employee of SCA Enterprises and was not entitled to unemployment insurance benefits:

SCA Enterprises Inc. is engaged in the business of connecting appraisers with its clients, which are insurance carriers, to assist in processing automobile damage claims across the United States. Although it conducts the majority of its business through designated franchisees who perform appraisals in specific geographic regions, it also utilizes independent appraisers in areas that are not covered by its franchise agreements. SCA uses a computerized operating system, known as the dashboard, to match franchisees and independent appraisers with assignments that are posted by its insurance carriers. Claimant, doing business as New Hartford Appraisal Service, is an independent appraiser who obtained assignments through SCA and filed a claim for unemployment insurance benefits after those assignments ended. …

… SCA does not withhold taxes from the compensation that it pays to the independent appraisers, reimburse them for expenses or provide them with fringe benefits, training, equipment, tools, uniforms, business cards, supplies or office space. It also does not supervise their work, require them to attend meetings or review their final appraisal reports. Moreover, the independent appraisers set their own work schedules, are free to work for competitors, may take time off without SCA’s permission and refuse assignments without penalty. The requirements of the assignment, including the deadline by which the final report must be submitted, are dictated by the insurance carriers, not SCA. If there is a problem with an appraisal report, SCA simply passes the information on to the independent appraiser. The provisions of the service contract that the independent appraisers sign with SCA designate them as independent contractors and underscore their autonomy. Matter of Courto (SCA Enters. Inc.–Commissioner of Labor), 2018 NY Slip Op 01970, Third Dept 3-22-18

UNEMPLOYMENT INSURANCE (AUTO DAMAGE APPRAISER NOT AN EMPLOYEE, UNEMPLOYMENT INSURANCE APPEAL BOARD REVERSED (THIRD DEPT))/APPRAISER (UNEMPLOYMENT INSURANCE, AUTO DAMAGE APPRAISER NOT AN EMPLOYEE, UNEMPLOYMENT INSURANCE APPEAL BOARD REVERSED (THIRD DEPT))

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COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Supreme Court, determined the complaint stated causes of action against the city and a city police officer (DeBellis) in connection with, inter alia, warrantless home visits by the officer purportedly concerning the well-being of plaintiff’s child and allegedly false complaints by the officer to the Administration for Children’s Services (ACS):

… [A]lthough not expressly pleaded, the factual allegations in the complaint fit within a cause of action against DeBellis for intentional infliction of emotional distress based on her alleged malicious or reckless false reporting to ACS and malicious campaign of harassment. …

…[W]e cannot say, as a matter of law, that DeBellis’s actions did not rise to the requisite level of outrageous conduct. The facts alleged by plaintiff describe both (1) a deliberate and malicious campaign of harassment and intimidation and (2) an abuse of power. …

Plaintiff has also stated a claim against defendants under 42 USC § 1983 for deprivation of plaintiff’s constitutional rights, specifically, her right under the Fourth Amendment to be free from warrantless and unlawful entries into the home … . …

Despite … allegations of repeated notice to DeBellis’s superiors of her actions, there is no indication … any action was taken to restrain her. Accordingly … plaintiff has stated a claim for holding the City liable under § 1983 on account of its gross negligence or deliberate indifference to DeBellis’s unconstitutional actions … . …

…[Plaintiff] states a claim against the City for negligent supervision and retention of DeBellis … . Under this theory, an employer may be liable for the acts of an employee outside the scope of his or her employment … . Contrary to the City’s argument, the facts permit an inference that DeBellis was acting outside of the scope of her employment, and, as plaintiff argues, “had some personal axe to grind.” Scollar v City of New York, 2018 NY Slip Op 02032, First Dept 3-22-18

MUNICIPAL LAW (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/CIVIL RIGHTS LAW (42 USC 1983)  (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/NEGLIGENCE (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/INTENTIONAL TORTS (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/EMPLOYMENT LAW (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/NEGLIGENT SUPERVISION AND RETENTION COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))

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PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the plea was not knowing, voluntary and intelligent:

Although the claim has not been preserved for our review given the absence of an appropriate postallocution motion by defendant, we nevertheless exercise our interest of justice jurisdiction and take corrective action under the particular circumstances presented… . “While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … . Here, the record reveals the absence of a meaningful plea colloquy and that defendant entered his guilty plea without County Court providing any instruction on its implications or the rights that he was waiving by entering it … . People v Schmitz, 2018 NY Slip Op 01960, Third Dept 3-22-18

CRIMINAL LAW (PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/GUILTY PLEA  (PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/INTEREST OF JUSTICE (CRIMINAL LAW, APPEALS, PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/COLLOQUY (CRIMINAL LAW, (PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))

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TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT).

The First Department determined the trial court properly refused to discharge a juror and declare a mistrial after the juror conducted online research about false confessions and shared the information with other jurors:

After a jury note revealed that one juror had conducted online research on false confessions and shared it with the rest of the jury, the court providently exercised its discretion in denying defendant’s request to discharge the offending juror and concomitantly declare a mistrial. Defendant did not preserve his contention that the court should have conducted one or more individual inquiries … , and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. The court took adequate curative measures by thoroughly admonishing the jury to disregard the information obtained by a juror, not to conduct any outside research, and to decide the case solely based on the evidence presented at trial … . The jury presumably followed these instructions … . The court also granted defense counsel’s request for individual polling of the jurors as to whether they had reached the verdict based only on the evidence and the law as instructed by the court, and not based on any outside influence, to which all jurors answered in the affirmative. Under the circumstances, the juror’s misconduct in researching and telling the other jurors about false confessions did not prejudice defendant. People v Jimenez, 2018 NY Slip Op 02018, First Dept 3-22-18

CRIMINAL LAW (JURORS, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/JURORS (CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/MISTRIAL (CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/DISCHARGE (JURORS) (CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/ONLINE RESEARCH (JURORS, CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))

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NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT).

The First Department determined New York courts had jurisdiction over a New Jersey radiologist (Daulto) in this failure-to-diagnose-cancer medical malpractice action:

Plaintiff alleges that defendant Dauito, a radiologist, negligently read her sonogram, leading to a delay in the diagnosis and treatment of her breast cancer. Dr. Dauito avers that, at all relevant times, he was a New Jersey resident and worked only at an office in New Jersey. However, he acknowledges that he was licensed to practice medicine in New York and that he contracted with defendant Madison Avenue Radiology, P.C., a New York corporation, to provide radiology services to some of its New York patients. Plaintiff’s sonogram was performed in New York, Dr. Dauito relayed his diagnostic findings to Madison Avenue Radiology in New York, and Madison Avenue Radiology issued a report based on his findings that was allegedly relied upon by plaintiff and her doctors. Under these circumstances, New York courts may exercise jurisdiction over Dr. Dauito pursuant to CPLR 302(a)(1), notwithstanding his lack of physical presence in New York, because he transacted business with Madison Avenue Radiology and provided radiology services to patients in New York, including plaintiff, projecting himself into the State by electronically or telephonically transmitting his diagnostic findings … .

New York courts may also exercise jurisdiction over Dr. Dauito pursuant to CPLR 302(a)(3), because, as alleged, Dr. Dauito’s negligent misdiagnosis resulted in a delay in plaintiff’s treatment, thereby causing injury to plaintiff in New York, and Dr. Dauito should reasonably expect his out-of-state negligent misdiagnosis in plaintiff’s case to have consequences in New York … . Allen v Institute for Family Health, 2018 NY Slip Op 01998, First Dept 3-22-18

CIVIL PROCEDURE (LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))/LONG ARM JURISDICTION (NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT)))/CPLR 302(a) (LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))/MEDICAL MALPRACTICE (LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))

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MORTGAGE COMPANY SHOULD HAVE BEEN ALLOWED TO AMEND ITS COMPLAINT IN THIS FORECLOSURE ACTION TO SEEK EQUITABLE SUBROGATION TO THE WIFE’S INTEREST IN THE SUBJECT PROPERTY, CRITERIA FOR AMENDING A COMPLAINT, RATIFICATION OF THE EXECUTION OF A MORTGAGE, AND EQUITABLE SUBROGATION EXPLAINED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, over a partial dissent, determined plaintiff mortgage company should have been allowed to amend its complaint to seek equitable subrogation in this foreclosure action. Defendants husband (Feller) and wife had a mortgage on the subject property. Plaintiff’s predecessor in interest subsequently provided a mortgage loan to defendant husband alone and the proceeds were used to pay off the first mortgage. Plaintiff’s predecessor then procured a judgment in foreclosure, but only with respect to defendant husband’s interest in the property. Plaintiff  sought to amend its complaint alleging it was entitled to the wife’s interest in the property (equitable subrogation). The court further found that defendant wife did not ratify the execution of the husband’s mortgage and explained the criteria for ratification:

As we recently clarified, the party seeking leave to amend a pleading “need not establish the merits of the proposed amendment” … . Rather, the appropriate standard to be applied on a motion for leave to amend a pleading is that, “‘in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . …

Ratification … is the express or implied “adoption of the acts of another by one for whom the other assumes to be acting, but without authority” … . …[P]laintiff has not alleged any unauthorized act on the part of Feller. It is undisputed that Feller and defendant held the property at issue as tenants by the entirety, and “there is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy. To the contrary, each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other” … .

Here, plaintiff’s predecessor in interest, Countrywide, provided funds through a second mortgage on the subject property to pay off a first mortgage securing a loan that both defendant and Feller were obligated to pay. Defendant would therefore be unjustly enriched if the doctrine of equitable subrogation were not applied, as denial of this equitable remedy “would provide a windfall to [defendant] by allowing [her] to have [her] original mortgage debt extinguished while at the same time maintain a right to the subject property that is superior to the mortgagee that furnished the funds that extinguished the first mortgage” … . Green Tree Servicing, LLC v Feller, 2018 NY Slip Op 01973, Third Dept 3-22-18

CIVIL PROCEDURE (FORECLOSURE, MORTGAGE COMPANY SHOULD HAVE BEEN ALLOWED TO AMEND ITS COMPLAINT IN THIS FORECLOSURE ACTION TO SEEK EQUITABLE SUBROGATION TO THE WIFE’S INTEREST IN THE SUBJECT PROPERTY, CRITERIA FOR AMENDING A COMPLAINT, RATIFICATION OF THE EXECUTION OF A MORTGAGE, AND EQUITABLE SUBROGATION EXPLAINED (THIRD DEPT))/FORECLOSURE (MORTGAGE COMPANY SHOULD HAVE BEEN ALLOWED TO AMEND ITS COMPLAINT IN THIS FORECLOSURE ACTION TO SEEK EQUITABLE SUBROGATION TO THE WIFE’S INTEREST IN THE SUBJECT PROPERTY, CRITERIA FOR AMENDING A COMPLAINT, RATIFICATION OF THE EXECUTION OF A MORTGAGE, AND EQUITABLE SUBROGATION EXPLAINED (THIRD DEPT))/RATIFICATION (FORECLOSURE, MORTGAGE COMPANY SHOULD HAVE BEEN ALLOWED TO AMEND ITS COMPLAINT IN THIS FORECLOSURE ACTION TO SEEK EQUITABLE SUBROGATION TO THE WIFE’S INTEREST IN THE SUBJECT PROPERTY, CRITERIA FOR AMENDING A COMPLAINT, RATIFICATION OF THE EXECUTION OF A MORTGAGE, AND EQUITABLE SUBROGATION EXPLAINED (THIRD DEPT))/EQUITABLE SUBROGATION (FORECLOSURE,  MORTGAGE COMPANY SHOULD HAVE BEEN ALLOWED TO AMEND ITS COMPLAINT IN THIS FORECLOSURE ACTION TO SEEK EQUITABLE SUBROGATION TO THE WIFE’S INTEREST IN THE SUBJECT PROPERTY, CRITERIA FOR AMENDING A COMPLAINT, RATIFICATION OF THE EXECUTION OF A MORTGAGE, AND EQUITABLE SUBROGATION EXPLAINED (THIRD DEPT))/MORTGAGES (FORECLOSURE, MORTGAGE COMPANY SHOULD HAVE BEEN ALLOWED TO AMEND ITS COMPLAINT IN THIS FORECLOSURE ACTION TO SEEK EQUITABLE SUBROGATION TO THE WIFE’S INTEREST IN THE SUBJECT PROPERTY, CRITERIA FOR AMENDING A COMPLAINT, RATIFICATION OF THE EXECUTION OF A MORTGAGE, AND EQUITABLE SUBROGATION EXPLAINED (THIRD DEPT))

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FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP).

The Court of Appeals determined the trial court properly ordered a Frye hearing in this strangulation/drowning murder case. The court further found that testimony about an argument between defendant and the victim a month before the murder, in which the defendant threatened to kill the victim, was double hearsay and was not admissible under any hearsay exception. The error was deemed harmless. The Court explained the criteria for ordering a Frye hearing:

Under the Frye standard, expert testimony is admissible only if a scientific “principle or procedure has gained general acceptance’ in its specified field” … . The process is meant to assess “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally” … . Absent a novel or experimental scientific theory, a Frye hearing is generally unwarranted.

“The Frye inquiry is separate and distinct from the admissibility question applied to all evidence — whether there is a proper foundation — to determine whether the accepted methods were appropriately employed in a particular case” … . The proper procedure for addressing concerns about foundation can include an in limine hearing where the trial court determines whether ” there is simply too great an analytical gap between the data and the opinion proffered'” … . The question is whether the expert’s opinion sufficiently relates to existing data or “is connected to existing data only by the ipse dixit of the expert” … .

To the extent that the trial court improperly employed the Frye procedure to rule on the foundation of the defense expert’s testimony, any such error was harmless. People v Brooks, 2018 NY Slip Op 01956, CtApp 3-22-18

CRIMINAL LAW (EVIDENCE, FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))/EVIDENCE (CRIMINAL LAW,  FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))/FRYE HEARING (CRIMINAL LAW,  FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))/HEARSAY (CRIMINAL LAW, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))

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REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, reversing the appellate division, over a two-judge dissenting opinion, determined the trial court properly refused to instruct the jury on the justification defense. The dissent laid out the facts. At the time of the shooting defendant (Sanchez), who had just been beaten up, and defendant’s friends were confronted by several people who apparently had a knife and broken bottles. Although the defendant had retrieved a gun from a car and returned to the confrontation, it was defendant’s friend who took the gun and fired:

Viewing the evidence in the light most favorable to defendant … , the trial court properly declined to charge the jury on the justification defense because, even assuming that the jury could rationally find that defendant subjectively believed he had been threatened with the imminent use of deadly physical force, “the jury could not rationally conclude that his reactions were those of a reasonable [person] acting in self-defense” … . Further, on this record, there was no reasonable view of the evidence that defendant could not safely retreat at the time that deadly physical force was used … .

From the dissent:

Lurking somewhere beneath the majority’s opinion is the thought that you mustn’t bring a gun to a knife fight. We should keep in mind that, although there is no evidence that the group threatening Mr. Sanchez and his friends was armed with guns, courts of this state have held that the threat of deadly force may exist when a group of people attacking an individual is not armed at all … or when, in a one-on-one altercation, an unarmed victim “grabs” at a defendant’s gun … . Courts have also characterized a variety of items as dangerous instruments which, if used as part of a real or threatened attack, might justify the use of deadly force … . People v Sanchez, 2018 NY Slip Op 01957, CtApp 3-22-18

CRIMINAL LAW (JUSTIFICATION DEFENSE, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))/EVIDENCE (CRIMINAL LAW, (JUSTIFICATION DEFENSE, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))/JUSTIFICATION DEFENSE (CRIMINAL LAW, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))

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CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT).

The Second Department determined the negligent supervision lawsuit against the city by an inmate who was assaulted by another inmate was properly dismissed. The attack was not foreseeable from the standpoint of the correctional facility personnel:

A municipality owes a duty of care to inmates in correctional facilities to safeguard them from attacks from other inmates … . This duty, however, does not place the municipality in the role of insurers of inmate safety … . Rather, “the scope of the [municipality’s] duty to protect inmates is limited to risks of harm that are reasonably foreseeable” … . Foreseeability includes what the defendant municipality knew or should have known … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the assault upon the plaintiff was not reasonably foreseeable. In this regard, the defendants’ submissions demonstrated that the plaintiff’s assailant was not a known gang member, had no prior incidents of fighting or aggressive behavior while at Rikers Island, and was not classified as high risk for fighting. Additionally, their submissions established that the plaintiff did not know or see his assailant, who, without provocation, punched him in the jaw, and that at the time there was a correction officer present providing the proper level of supervision in accordance with the applicable standard of “active supervision” as defined in the State Commission of Correction Minimum Standards and Regulations for Management of County Jails and Penitentiaries … . McAllister v City of New York, 2018 NY Slip Op 01909, Second Dept 3-21-18

NEGLIGENCE (SUPERVISION OF INMATES, CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))/ASSAULT (NEGLIGENCE, INMATES, CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))/INMATES (NEGLIGENCE, SUPERVISION, MUNICIPAL LAW,  CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, INMATES, SUPERVISION, SUPERVISION OF INMATES, CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))/THIRD PARTY ASSAULT (INMATE ON INMATE, CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))

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PLAINTIFF’S SUBMISSIONS, INCLUDING CERTIFIED CLIMATOLOGICAL DATA AND THE DEPOSITION OF A NONPARTY, RAISED QUESTIONS OF FACT ABOUT THE PRESENCE OF ICE AND THE DEFENDANTS’ NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although defendants made out a prima facie case that they did not create or have notice of the icy condition where plaintiff fell, the plaintiff, with submissions which included certified climatological data and the deposition of the nonparty witness, raised questions of fact about the weather conditions, the presence of ice and defendants’ notice:

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they neither created the alleged ice condition nor had actual or constructive notice of it … . In opposition, however, the plaintiff submitted certified climatological data and the deposition testimony of the nonparty witness Fredy Calle, which raised triable issues of fact as to what the weather conditions were like preceding the accident, whether ice was present on the landing at the time of the accident, how long the ice may have been present, and whether the defendants had notice of the alleged ice condition that proximately caused the plaintiff to fall … . Monje v Guaraca, 2018 NY Slip Op 01911, Second Dept 3-21-18

NEGLIGENCE (SLIP AND FALL, PLAINTIFF’S SUBMISSIONS, INCLUDING CERTIFIED CLIMATOLOGICAL DATA AND THE DEPOSITION OF A NONPARTY, RAISED QUESTIONS OF FACT ABOUT THE PRESENCE OF ICE AND THE DEFENDANTS’ NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (PLAINTIFF’S SUBMISSIONS, INCLUDING CERTIFIED CLIMATOLOGICAL DATA AND THE DEPOSITION OF A NONPARTY, RAISED QUESTIONS OF FACT ABOUT THE PRESENCE OF ICE AND THE DEFENDANTS’ NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CLIMATOLOGICAL DATA (SLIP AND FALL,  PLAINTIFF’S SUBMISSIONS, INCLUDING CERTIFIED CLIMATOLOGICAL DATA AND THE DEPOSITION OF A NONPARTY, RAISED QUESTIONS OF FACT ABOUT THE PRESENCE OF ICE AND THE DEFENDANTS’ NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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