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LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, over a partial dissent, determined that local laws governing the use of agricultural land did not violate the public trust doctrine:

The Supreme Court correctly determined that the public trust doctrine applied to the property interest at issue, namely, development rights in agricultural land, as the plaintiffs demonstrated prima facie that the County acquired these development rights for public use and not in its “corporate capacity” … . …

… [T]he County defendants demonstrated, prima facie, that the contested provisions in Local Law Nos. 52-2010 and 44-2013, namely, those concerning commercial horse boarding and equine operations, agricultural development permits for structures and alternative energy systems, maximum lot coverages and the hardship exemption thereto, agricultural tourism, special use permits to conduct a site disturbance or a special event, agricultural processing facilities, hay rides, and agricultural educational tours, did not waste public property or violate the public trust doctrine … . Long Is. Pine Barrens Socy., Inc. v Suffolk County Legislature, 2018 NY Slip Op 01598, Second Dept 3-14-18

ENVIRONMENTAL LAW (PUBLIC TRUST DOCTRINE, LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))/MUNICIPAL LAW (PUBLIC TRUST DOCTRINE, LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))/PUBLIC TRUST DOCTRINE (LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))/AGRICULTURAL LAND  (PUBLIC TRUST DOCTRINE, LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))/LAND USE (PUBLIC TRUST DOCTRINE, LOCAL LAWS GOVERNING USE OF AGRICULTURAL LAND DID NOT VIOLATE THE PUBLIC TRUST DOCTRINE (SECOND DEPT))

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DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, remitted the matter for a new SORA hearing because the court cut off the defendant’s testimony and arguments in support of a downward departure:

“A court determining a defendant’s risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines'” … .

In this case, during the SORA hearing, the Supreme Court improperly, sua sponte, curtailed the defendant’s testimony and arguments in support of, inter alia, his request for a downward departure. People v Williams, 2018 NY Slip Op 01629, Second Dept 3-14-18

CRIMINAL LAW (SORA, DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))/JUDGES (CRIMINAL LAW, SORA, DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))

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DEFENDANT WAS NOT APPRISED OF THE DEPORTATION CONSEQUENCES OF HIS PLEAS, MATTER REMITTED FOR OPPORTUNITY TO MOVE TO VACATE THE PLEAS (SECOND DEPT).

The Second Department determined defendant was not warned of the deportation consequences of his guilty pleas. The matter was remitted to give the defendant the opportunity to move to vacate the pleas:

Here, the record does not demonstrate that the Supreme Court apprised the defendant of the possibility of deportation as a consequence of the defendant’s pleas. Accordingly, we remit the matter to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas, and for a report by the Supreme Court thereafter. Any such motion shall be made by the defendant within 60 days after the date of this decision and order … , and, upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation… . In its report to this Court, the Supreme Court shall state whether the defendant moved to vacate his pleas of guilty, and if so, shall set forth its finding as to whether the defendant made the requisite showing or failed to make the requisite showing … . People v Cole, 2018 NY Slip Op 01612, Second Dept 3-14-18

CRIMINAL LAW (DEFENDANT WAS NOT APPRISED OF THE DEPORTATION CONSEQUENCES OF HIS PLEAS, MATTER REMITTED FOR OPPORTUNITY TO MOVE TO VACATE THE PLEAS (SECOND DEPT))/DEPORTATION (CRIMINAL LAW, DEFENDANT WAS NOT APPRISED OF THE DEPORTATION CONSEQUENCES OF HIS PLEAS, MATTER REMITTED FOR OPPORTUNITY TO MOVE TO VACATE THE PLEAS (SECOND DEPT))

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DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined a defamation action against an unincorporated association (the Grand Lodge of Free & Accepted Masons of the State of New York) was properly dismissed, but the defamation action against individuals acting in individual capacities should not have been dismissed. The court further held that the breach of contract action against the association should not have been dismissed. The action was brought against a lodge after plaintiff was accused of fraud and was expelled:

Actions against unincorporated associations, whether for breaches of agreements or for tortious wrongs, are limited to cases where the individual liability of every single member can be alleged and proven … . The Martin rule “bars all actions against an unincorporated voluntary membership association, and bars claims against the officers of such an association in their representative capacities where there is no allegation that the members of the association authorized or ratified the wrongful conduct complained of” … .

Here, the plaintiff made no factual allegations in the complaint or in opposition to the motion to dismiss to indicate that all members of the Grand Lodge did in fact ratify the allegedly defamatory statements. …

… [T]he Martin rule does not purport to immunize individual members of an unincorporated association, acting in their individual capacities, from the consequences of their own tortious conduct… . …

Moreover, the Martin rule does not preclude breach of contract causes of action against unincorporated associations and their officers acting in their representative capacities based on an allegedly wrongful expulsion from the association … . Bidnick v Grand Lodge of Free & Accepted Masons of the State of N.Y., 2018 NY Slip Op 01591, Second Dept 3-14-18

CORPORATION LAW (UNINCORPORATED ASSOCIATIONS, MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/UNINCORPORATED ASSOCIATIONS (MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/MARTIN RULE (UNINCORPORATED ASSOCIATIONS, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/DEFAMATION (UNINCORPORATED ASSOCIATIONS, MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/CONTRACT LAW  (UNINCORPORATED ASSOCIATIONS, MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/MASONS (UNINCORPORATED ASSOCIATIONS, MARTIN RULE, DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))

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RECOVERY FOR INJURY TO A KITTEN SHIPPED BY AIR LIMITED TO $50 BY THE TERMS OF THE AIR WAYBILL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s recovery for injury to a kitten shipped by air was subject to the $50 limit in the air waybill signed by plaintiff:

An air waybill forms the basic contract between a shipper and an air carrier … . In order to enforce a limited liability provision contained in an air waybill, a carrier must demonstrate that its contract satisfies the released-valuation doctrine … . Under the released-valuation doctrine, the shipper “is deemed to have released the carrier from liability beyond a stated amount” in exchange for a low shipping rate … . The shipper is bound by the limited liability provision if he or she (1) has reasonable notice of the rate structure, and (2) is given a fair opportunity to pay a higher rate in order to obtain greater protection … . … The fact that the language setting forth the limited liability provision is found on the reverse side of the air waybill does not render the provision unable to satisfy the released-valuation doctrine … . …

Here, the air waybill signed by the plaintiff’s shipper demonstrates that the shipper did not declare a value for the kitten and no additional coverage was purchased. The terms of the air waybill also provided a fair opportunity to purchase greater coverage … . …… [T]he plaintiff had the burden of showing that she did not have a fair opportunity to purchase greater liability protection … . The plaintiff, who submitted only her attorney’s affirmation and certain veterinary bills in opposition, failed to raise a triable issue of fact as to whether she was not given the opportunity to purchase additional coverage. Lentini v Delta Air Lines, Inc., 2018 NY Slip Op 01597, Second Dept 3-14-18

CONTRACT LAW (RECOVERY FOR INJURY TO A KITTEN SHIPPED BY AIR LIMITED TO $50 BY THE TERMS OF THE AIR WAYBILL (SECOND DEPT))/AIR WAYBILL (RECOVERY FOR INJURY TO A KITTEN SHIPPED BY AIR LIMITED TO $50 BY THE TERMS OF THE AIR WAYBILL (SECOND DEPT))/DAMAGES (CONTRACT LAW, AIR WAYBILL, RECOVERY FOR INJURY TO A KITTEN SHIPPED BY AIR LIMITED TO $50 BY THE TERMS OF THE AIR WAYBILL (SECOND DEPT))

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A SCAFFOLD, PROPERLY GRANTED, DEFENDANT’S ATTEMPTS TO RELY ON AN ALLEGED HEARSAY STATEMENT BY THE PLAINTIFF TO THE EFFECT THAT HE FELL WHEN CLIMBING UP TO THE SCAFFOLD, REJECTED, NO APPLICABLE EXCEPTION TO THE HEARSAY RULE (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) action was properly granted. Plaintiff alleged he fell from a scaffold which did not have railings. Defendant’s attempts (for the first time on appeal) to introduce plaintiff’s alleged hearsay statement that he fell when climbing up to the scaffold were rejected:

It is undisputed that the subject scaffold did not have railings, toe boards, or cross-bracing, and there was no place for plaintiff to tie off his safety harness. As such, plaintiff established a violation of the statute. Moreover, plaintiff testified that the accident occurred when he was on the scaffold, tripped on a block, and fell backward, off the scaffold to the ground, and his worker’s compensation claim also provides that he slipped and fell while on the scaffold. This is sufficient to establish that the violation was a proximate cause of the injury … . …

[Re: plaintiff’s alleged statement:] The business record exception is inapplicable, since defendants have not submitted the incident report for the … accident. The present sense impression exception is also inapplicable, since the out-of-court statement from plaintiff to the foreman that he fell while climbing up the scaffold is not corroborated by independent evidence … . The excited utterance exception does not apply, since defendants have not provided sufficient evidence of plaintiff’s mental state or established that he made the hearsay statement to the foreman under the stress of excitement … . Furthermore, plaintiff’s statement to the foreman does not fall within the declaration against interest exception because plaintiff was available to, and did, testify as a witness; there is no evidence that plaintiff knew the statement was adverse to his interests when it was made; and the supporting circumstances do not attest to its trustworthiness or reliability … . Gomes v Pearson Capital Partners LLC, 2018 NY Slip Op 01560, First Dept 3-8-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A SCAFFOLD, PROPERLY GRANTED, DEFENDANT’S ATTEMPTS TO RELY ON AN ALLEGED HEARSAY STATEMENT BY THE PLAINTIFF TO THE EFFECT THAT HE FELL WHEN CLIMBING UP TO THE SCAFFOLD, REJECTED, NO APPLICABLE EXCEPTION TO THE HEARSAY RULE(FIRST DEPT))/EVIDENCE (HEARSAY, LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A SCAFFOLD, PROPERLY GRANTED, DEFENDANT’S ATTEMPTS TO RELY ON AN ALLEGED HEARSAY STATEMENT BY THE PLAINTIFF TO THE EFFECT THAT HE FELL WHEN CLIMBING UP TO THE SCAFFOLD, REJECTED, NO APPLICABLE EXCEPTION TO THE HEARSAY RULE(FIRST DEPT))/HEARSAY (LABOR LAW-CONSTRUCTION LAW, (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A SCAFFOLD, PROPERLY GRANTED, DEFENDANT’S ATTEMPTS TO RELY ON AN ALLEGED HEARSAY STATEMENT BY THE PLAINTIFF TO THE EFFECT THAT HE FELL WHEN CLIMBING UP TO THE SCAFFOLD, REJECTED, NO APPLICABLE EXCEPTION TO THE HEARSAY RULE(FIRST DEPT))

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CRITERIA FOR DETERMINING WHETHER A PARTY IS A STATUTORY AGENT OF THE OWNER IN LABOR LAW 240 (1) AND 241 (6) ACTIONS EXPLAINED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, STEMMING FROM A FALL FROM A LADDER, SHOULD NOT HAVE BEEN DENIED (FIRST DEPT).

The First Department determined Supreme Court should not have determined defendant (Rose Associates) was not a statutory agent of the owner in this Labor Law 240 (1) and 24 1 (6) action, explaining the correct criteria. In addition Supreme Court should not have denied plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action, which was based upon the allegation the ladder plaintiff was on moved:

The motion court erred in determining that Rose Associates is not an agent of defendant owner Continental Towers Condominium. Labor Law §§ 240(1) and 241(6) impose absolute liability on owners, contractors, and their agents for a statutory violation resulting in injury, regardless of whether they directed or controlled the work … . Thus…  the test of whether a defendant is a statutory agent subject to liability under those sections is not whether it actually supervised the work, but whether it had the authority to do so … . …

… [T]he court should have granted plaintiff’s cross motion, as the evidence establishes that plaintiff slipped or fell from an unsecured ladder upon which he was working because it moved … . The testimony of plaintiff’s coworker that plaintiff stated he slipped was “not inconsistent with plaintiff’s version that he slipped after the ladder moved” … . Moreover, defendants’ expert affidavits asserting that no force acted upon the ladder that could have caused it to move were speculative. Merino v Continental Towers Condominium, 2018 NY Slip Op 01549, First Dept 3-8-18

LABOR LAW-CONSTRUCTION LAW (CRITERIA FOR DETERMINING WHETHER A PARTY IS A STATUTORY AGENT OF THE OWNER IN LABOR LAW 240 (1) AND 241 (6) ACTIONS EXPLAINED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, STEMMING FROM A FALL FROM A LADDER, SHOULD NOT HAVE BEEN DENIED (FIRST DEPT))/STATUTORY AGENT (LABOR LAW-CONSTRUCTION LAW, CRITERIA FOR DETERMINING WHETHER A PARTY IS A STATUTORY AGENT OF THE OWNER IN LABOR LAW 240 (1) AND 241 (6) ACTIONS EXPLAINED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, STEMMING FROM A FALL FROM A LADDER, SHOULD NOT HAVE BEEN DENIED (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, STEMMING FROM A FALL FROM A LADDER, SHOULD NOT HAVE BEEN DENIED (FIRST DEPT))

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EVIDENCE PETITIONER HAD ACCESS TO THE AREA WHERE THE CONTRABAND WAS FOUND WAS NOT SUFFICIENT TO DEMONSTRATE PETITIONER’S POSSESSION OF THE CONTRABAND (THIRD DEPT).

The Third Department, annulling the misbehavior determination, found that the evidence petitioner possessed contraband was insufficient. The fact that petitioner had access to the area where the contraband was found was not enough. A lock pick had been found in a door mechanism:

The correction officer who served as the facility’s locksmith testified that the lock pick did not belong to him and that, because the lock pick was observed to be dirty, the lock pick had probably been in the tracking of the cell door for a while prior to its discovery. The Hearing Officer accepted as true petitioner’s testimony that he had initially complained that the cell door would not close and that the door had been opened and closed numerous times without a problem on the day in question. We find significant petitioner’s testimony that he alerted facility staff to the malfunctioning door and the locksmith’s testimony suggesting that the lock pick had most likely been hidden in the tracking of the cell door for an extended period of time and prior to petitioner’s occupation of the cell … . In our view, these circumstances do not permit a reasonable inference that petitioner possessed the contraband simply because he might have had access to the area where the contraband was found and that it, to some extent, was under his control … . Matter of Perez v Annucci, 2018 NY Slip Op 01521, Third Dept 3-8-18

DISCIPLINARY HEARINGS (INMATES) EVIDENCE PETITIONER HAD ACCESS TO THE AREA WHERE THE CONTRABAND WAS FOUND WAS NOT SUFFICIENT TO DEMONSTRATE PETITIONER’S POSSESSION OF THE CONTRABAND (THIRD DEPT))

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NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, over a dissent, determined the evidence was insufficient to support the robbery first degree charge (no evidence of threat with a dangerous instrument) and the trial court should have conducted an inquiry into defense counsel’s request to withdraw:

Indisputably, the “gun” was plastic and did not work, and there was no evidence that it could potentially harm someone… . Similarly, while there was testimony that one of the men entering the motel room was holding the tire checker, there was no evidence that any individual brandished the tire checker in a threatening manner… . … [T]here is no question that one of the individuals possessed a dangerous instrument. What was missing was any evidence that there was any verbal threat of immediate use of the instrument or that it was “employ[ed]” in any way … . * * *

… [D]efendant’s right to counsel was not adequately protected. County Court’s determination focused on the inconveniences that would result if counsel were substituted and the trial were delayed one month, as well as defendant’s propensity to complain. But it was trial counsel, not defendant, complaining that the relationship had broken down, and the request was not made on the eve of trial. While we are not suggesting that a request made by counsel warrants heightened inquiry, “a conflict of interest or other irreconcilable conflict with counsel” may constitute good cause for substitution… , and there was no inquiry here to assess the gravity of counsel’s concerns in this regard. The motion raised specific examples to support trial counsel’s claim that there was “an irretrievable breakdown” in the relationship with defendant. As such, the court should have first questioned both defendant and trial counsel about “the nature of the disagreement or its potential for resolution” prior to denying the motion … . Absent such a “minimal inquiry,” we are compelled to reverse the judgment of conviction … . People v Matthews, 2018 NY Slip Op 01499, Second Dept 3-8-18

CRIMINAL LAW (EVIDENCE, ATTORNEYS, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))/ROBBERY (DANGEROUS INSTRUMENT, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED (THIRD DEPT))/EVIDENCE (ROBBERY, DANGEROUS INSTRUMENT, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED (THIRD DEPT))/DANGEROUS INSTRUMENT (ROBBERY, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))/RIGHT TO COUNSEL  (CRIMINAL LAW, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))/WITHDRAW (CRIMINAL LAW, DEFENSE COUNSEL, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))

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ALTHOUGH DEFENDANT PULLED OUT IN FRONT OF PLAINTIFF, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this traffic accident case should not have been granted. Although defendant apparently pulled out in front of plaintiff, plaintiff did not demonstrate freedom from comparative fault:

… [T]he defendant failed to establish, prima facie, that the injured plaintiff’s negligence in pulling out of a curbside parking spot was the sole proximate cause of the accident and that the defendant was free from comparative fault … . In particular, the defendant failed to eliminate triable issues of fact as to whether she failed to see what was there to be seen through the proper use of her senses and to use reasonable care to avoid a collision … . Inesta v Florio, 2018 NY Slip Op 01455, Second Dept 3-7-18

NEGLIGENCE (TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT PULLED OUT IN FRONT OF PLAINTIFF, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS ( ALTHOUGH DEFENDANT PULLED OUT IN FRONT OF PLAINTIFF, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT PULLED OUT IN FRONT OF PLAINTIFF, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUMMARY JUDGMENT (TRAFFIC ACCIDENTS, COMPARATIVE FAULT, ALTHOUGH DEFENDANT PULLED OUT IN FRONT OF PLAINTIFF, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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