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DEFENDANT’S MOTION TO DISMISS IN THE INTEREST OF JUSTICE SHOULD NOT HAVE BEEN GRANTED; THE MOTION, BROUGHT AFTER CONVICTION BY A JURY, WAS UNTIMELY AND NOT WARRANTED ON THE MERITS (SECOND DEPT).

The Second Department, in an appeal by the People, determined defendant’s motion to dismiss the criminal mischief count in the interest of justice, after conviction by a jury, should not have been granted. The motion was untimely and not warranted on the merits: The People argue on appeal, as they did in opposition to the […]

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SUPREME COURT MISCHARACTERIZED THE SCOPE OF THE WAIVER OF APPEAL BY NOT CLARIFYING THAT CERTAIN FUNDAMENTAL ISSUES REMAIN APPEALABLE DESPITE THE WAIVER; WAIVER INVALID (SECOND DEPT).

The Second Department determined Supreme Court mischaracterized the scope of the waiver of appeal rendering the waiver invalid: … [T]he court mischaracterized the effect of the waiver on the defendant’s right to appeal. In this regard, the court, after describing the function of an appellate court, concluded its explanation of the waiver by stating: “What […]

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DEFENDANT OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED; THE LEASE DID NOT OBLIGATE THE LANDLORD TO MAINTAIN THE AREA AND NO STATUTORY VIOLATION WAS ALLEGED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant out-of-possession landlord’s motion for summary judgment in this slip and fall case should have been granted. Plaintiff allegedly slipped on ice which formed from a leak in a pipe in a walk-in freezer. The lease did not require the landlord to maintain the freezer. No statutory violation […]

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BANK DID NOT PROVE COMPLIANCE WITH RPAPL 1303; BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted because the bank did not prove compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1303: “Proper service of the notice required by RPAPL 1303 notice is a condition […]

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SUMMARY JUDGMENT PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR WAS NOT WARRANTED BECAUSE EXCLUSIVE CONTROL WAS NOT DEMONSTRATED; SANCTIONS FOR THE LOSS OF THE LIGHT FIXTURE WHICH FELL ON PLAINTIFF WERE NOT WARRANTED BECAUSE THE BENT PIPE TO WHICH THE FIXTURE WAS ATTACHED WAS PRESERVED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should not have been granted pursuant to the doctrine of res ipsa loquitur. Plaintiff was injured when a light fixture fell on him. The pipe to which the fixture was attached was bent and was preserved by the defendant. The light fixture, which was same as […]

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THE HOLDER OF A DEED INTENDED AS SECURITY IN THE NATURE OF A MORTGAGE MUST PROCEED BY FORECLOSURE TO EXTINGUISH THE MORTGAGOR’S INTEREST; HERE THE SUBSEQUENT GOOD FAITH PURCHASERS OF THE PROPERTY WERE ENTITLED TO SUMMARY JUDGMENT DISMISSING THE MORTGAGEE’S CAUSES OF ACTION SEEKING RESCISSION OF THEIR DEED AND A DECLARATION THEIR DEED WAS NULL AND VOID (SECOND DEPT).

The Second Department determined a deed which facially appears to evidence an absolute conveyance was actually intended as security in the nature of a mortgage. The holder of such a deed (here American Lending) must proceed by foreclosure to extinguish the mortgagor’s interest. The subsequent purchasers of the property (the Romond defendants) were good faith […]

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FRYE HEARING SHOULD HAVE BEEN HELD TO DETERMINE THE ADMISSIBILITY OF DNA EVIDENCE DERIVED USING THE FORENSIC STATISTICAL TOOL (FST); NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined either the DNA evidence should have been precluded, or a Frye hearing should have been held for DNA evidence derived using the Forensic Statistical Tool (FST): Prior to trial, the defendant moved to preclude evidence sought to be introduced by the People regarding DNA testing derived […]

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FLAWED LINEUP IDENTIFICATION WAS NOT CORROBORATED BY OTHER EVIDENCE; CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the lineup identification by the victim was flawed. The conviction was deemed against the weight of the evidence because the flawed identification was not corroborated by other evidence: The evidence presented at trial established that the complainant described the perpetrator to the police as balding with no facial […]

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WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK AFTER HE WAS HANDCUFFED NOT JUSTIFIED; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the warrantless search of defendant’s backpack was not justified. The appeal was heard because the waiver of appeal was deemed invalid: Officer Musa approached the defendant, who, in response to Officer Musa’s inquiry, provided his name. The defendant was carrying a backpack, and Officer Musa observed what appeared […]

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HEARSAY STATEMENTS BY THE ONLY WITNESS TO IDENTIFY DEFENDANT AS A PERPETRATOR INDICATED THE WITNESS WAS NOT IN FACT ABLE TO IDENTIFY ANY OF THE PERPETRATORS; THE INCONSISTENT STATEMENTS SHOULD HAVE BEEN ADMITTED BECAUSE THEY WENT TO A CORE ISSUE IN THE CASE IMPLICATING THE RIGHT TO PUT ON A DEFENSE; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that a hearsay statement allegedly made by the only witness (Lindsay) to identify the defendant as one of the masked intruders in this home-invasion murder-assault-burglary case should have been allowed in evidence. Lindsay, who was shot by one of the intruders, initially claimed he could not identify anyone […]

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