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Trial Court’s Failure to Properly Characterize the Nature of the Jury’s Request for “Clarification” of Certain Counts Was a Reversible Mode of Proceedings Error

The Second Department determined Supreme Court committed a reversible mode of proceedings error when it mischaracterized the meaning of a jury note.  The note requested clarification of the criminal possession of a weapon counts.  The court explained the note as a request for a readback of the relevant jury instructions: …[T]he jury requested “clarification on the […]

Plaintiff Sufficiently Raised Issue of “Actual Innocence” in Motion to Vacate His Conviction to Warrant Hearing—Affidavits from Alibi Witnesses Identified Before Trial

The Second Department determined defendant had presented sufficient evidence of “actual innocence” to support his motion to vacate his conviction to warrant a hearing: …[O]n remittal, the Supreme Court should hold a hearing to address the defendant’s claim that the judgment of conviction should be vacated because the defendant is “actually innocent” of the crimes […]

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Dismissal of Deported Defendant’s Appeal (Without Prejudice) Appropriate Where Defendant’s Continued Participation in the Proceedings Would Be Required Should the Appeal Be Successful

The Second Department determined defendant’s appeal of his motion to vacate his conviction should be dismissed without prejudice because he had been deported and his continued participation in the proceedings would be required if the appeal were successful, distinguishing People v Ventura, 17 NY3d 675, where dismissal was not appropriate because the defendant’s participation in the case […]

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Question of Fact Whether Out of Possession Landlord, Based on the Terms of the Lease, Had a Duty to Keep the Premises Safe (Labor Law 200)

The Second Department determined the provisions of a lease raised a question of fact about whether an out-of-possession landlord had a duty to keep the premises safe: “Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work” … .  * […]

Basketball Player Assumed Risk of Running Into Glass Doors Behind Baseline

The Second Department determined a basketball player assumed the risk of the injuries suffered when his arm went through a glass door located behind the baseline.  The glass door constituted an open and obvious condition: The doctrine of primary assumption of risk provides that “by engaging in a sport or recreational activity, a participant consents to those […]

Passengers in Car Struck from Behind Entitled to Summary Judgment Despite Issue of Comparative Fault on the Part of the Driver of the Car in which They Were Passengers

The Second Department determined plaintiffs, who were passengers in a car struck from behind by the defendant (Farrell), were entitled to summary judgment in spite of the possible comparative negligence of the driver of the car in which they were passengers (Moncion): Both plaintiffs established their entitlement to judgment as a matter of law by […]

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Conditioning Co-Defendant’s Plea on a Promise Not to Testify in Defendant’s Trial Is a Denial of the Right to Present a Defense

Although the Fourth Department affirmed defendant’s conviction, the court agreed with the defendant that the People improperly conditioned co-defendant’s plea upon his promise not to testify at defendant’s trial and threatened to increase the co-defendant’s sentence if he did testify.  The trial court eliminated the problem by permitting the co-defendant to testify without exposure to […]

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City-Judge Pay Disparity Justified by Population of Cities

The Fourth Department reversed Supreme Court finding that the pay disparity between City of Buffalo and City of Tonawanda judges, as set forth in Judiciary Law 221-i, was constitutional: It is undisputed that the disparate judicial salary schedule set forth in Judiciary Law § 221-i does not implicate a suspect class or a fundamental right, […]

Construction Manager Not Liable Under Labor Law 241(6), Labor Law 200, or Under Common Law Negligence/No Control Over Work or Responsibility for the Premises

Over a dissent, the Fourth Department determined a construction manager was not liable as an agent of the owner under Labor Law 241(6) because the manager did not control the activity which resulted in the injury.  In addition the court determined the Labor Law 200 and common law negligence causes of action should hav been dismissed: […]

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Requirements for a Negligence Action Against a Municipality (Based Upon Personal Injuries Allegedly Caused by the Actions of Police Officers) Explained

The Fourth Department, in affirming the grant of summary judgment to the defendant municipality in a suit based upon injuries alleged to have been caused by police officers, the court explained the law relevant to negligence suits against municipalities: With respect to the negligence cause of action, it is well settled that, in an action […]

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