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DESPITE THE ALLEGATION THAT THE DRIVER HAD LOGGED OFF THE UBER APP PRIOR TO THE PEDESTRIAN-VEHICLE ACCIDENT, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY THEORY; THE UNEMPLOYMENT INSURANCE APPEAL BOARD’S FINDING THAT THE DRIVER WAS EMPLOYED BY UBER WAS NOT ENTITLED TO PRECLUSIVE EFFECT; ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this pedestrian-vehicle accident case, determined: (1) a ruling by the Unemployment Insurance Appeal Board finding that defendant driver was an employee of defendant Uber was not entitled collateral-estoppel effect pursuant to Labor Law 623( 2); (2) although the Labor Law 623(2) argument was not raised below, it raised a question of law which could not have been avoided below and therefore was considered on appeal; (3) the claim that defendant driver had logged off the Uber app at the time of the accident did not warrant summary judgment in favor of Uber on the vicarious liability theory:

An action may be considered to be within the scope of employment, thus rendering an employer vicariously liable for the conduct, when “the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment” … . Whether an employee was acting within the scope of his or her employment is generally a question of fact for the jury … .

Here, contrary to Uber’s contention, the averments [that the driver] had logged off of the Uber app 40 minutes before the accident were simply insufficient, without more, to eliminate all questions of fact as to whether Hussein was acting within the scope of his alleged employment with Uber at the time of the incident … . Uy v Hussein, 2020 NY Slip Op 05080, Second Dept 9-23-30

 

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BECAUSE THE TRIAL JUDGE OMITTED A PORTION OF THE BURGLARY JURY INSTRUCTIONS AND THE PEOPLE DID NOT OBJECT, THE PEOPLE ARE HELD TO THE PROOF REQUIRED BY THE INCOMPLETE INSTRUCTIONS; THE BURGLARY CONVICTION WAS THEREFORE AGAINST THE WEIGHT OF THE EVIDENCE; DEFENSE COUNSEL’S FAILURE TO MAKE A SPEEDY TRIAL MOTION DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE BECAUSE THE ISSUE WAS NOT CLEAR-CUT AND DISPOSITIVE (SECOND DEPT).

The Second Department, reversing the burglary conviction as against the weight of the evidence, determined the People were held to the proof required by the the jury instructions to which the People did not object. The portion of the instructions which explained that entry into a private area of a building after entering the building through a public area constitutes unlawful entry. Because the defendant entered the building through a public entrance, the People did not prove unlawful entry as charged to the jury. The Second Department also held that defense counsel’s failure to make a speedy trial motion did not constitute ineffective assistance because it was not clear the motion would succeed:

While the failure to make a meritorious speedy trial motion can constitute ineffective assistance of counsel … , the speedy trial violation must have been “clear-cut and dispositive” … . In other words, the motion must not only be meritorious … , it generally must not require resolution of novel issues, or resolution of whether debatable exclusions of time are applicable … . Here, the issue cannot be fairly characterized as “clear-cut and dispositive” so as to render defense counsel ineffective for failing to make such a motion … . * * *

The testimony at trial was unequivocal that the defendant and two cohorts entered the subject premises, a self-storage facility, during business hours, using the entrance designated for use by the public. The defendant’s entry into the premises was therefore lawful … . While the defendant’s subsequent act of entering a nonpublic area of the premises could constitute an unlawful entry (see Penal Law § 140.00[5] … ), in light of the Supreme Court’s charge omitting that portion of the instruction elaborating upon license and privilege as it applies to nonpublic areas within public places, and asking the jury whether the defendant unlawfully entered the premises generally, it was factually insufficient to prove that the defendant’s entry was unlawful. People v McKinnon, 2020 NY Slip Op 05056, Second Dept 9-23-30

 

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THE ONLY WAY TO COMPEL A JUDGE TO SIGN A DOCUMENT TO CREATE AN APPEALABLE PAPER IS A MANDAMUS ACTION PURSUANT TO ARTICLE 78; THE FAILURE TO BRING THE ARTICLE 78 PROCEEDING PRECLUDED APPEAL IN THIS CASE; THE OPINION INCLUDES A COMPREHENSIVE EXPLANATION OF WHAT THE REQUIREMENTS OF AN APPEALABLE PAPER ARE AND SHOULD BE CONSIDERED DEFINITIVE ON THE TOPIC (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, over a concurrence, determined the plaintiffs’ only option when the judge refused to sign the transcript of the oral decision (CPLR 2219) and, in the alternative, refused to sign the proposed order with notice of settlement (22 NYCRR 202.48[a]), was a mandamus proceeding to compel the judge to sign. Without the judge’s signature, there was no appealable paper and plaintiffs could not appeal the decision disqualifying plaintiffs’ counsel. Because the four-month statute of limitations for bringing an Article 78 (mandamus) action had long passed, the plaintiffs could not bring the appeal. The opinion includes a clear and comprehensive explanation of what constitutes appealable paper pursuant to CPLR 2219 and 22 NYCRR 202.48[a] which should be saved as a reference resource:

… [T]he Justice failed or refused to later sign the transcript of the proceedings, and therefore, the transcript never qualified as an order for purposes of its enforcement or for an appeal … . While the transcript bears the signature of the court reporter who certified its truth and accuracy, the court reporter’s certification does not substitute for the plain and separate obligation set forth in CPLR 2219(a) that a judge or justice sign his or her name or initials to the document (see CPLR 5512[a] …). The absence of the Justice’s signature on the transcript had the effect of preventing the plaintiffs from directly appealing the adverse determination to the Appellate Division.

Likewise, the Justice failed or refused to sign the proposed order that was submitted to him, with a copy of the transcript and with notice of settlement. Such an order, if signed with or without modification of its proposed language, would have become an enforceable order and subject to appeal. Parties are entitled to orders that are both enforceable and appealable, and those fundamental rights should not be thwarted by any jurists’ unwitting failure to abide by the requirements of CPLR 2219(a) … . * * *

Absent a proceeding pursuant to CPLR article 78, the plaintiffs can receive no relief on this appeal. This Court cannot compel under the guise of CPLR 2219(a) and 22 NYCRR 202.48 relief that can only be properly accomplished by mandamus, which is now untimely. Charalabidis v Elnagar, 2020 NY Slip Op 04913, Second Dept 9-16-20

 

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ALTHOUGH THE QUESTION WHETHER THE NOTICE REQUIREMENTS OF RPAPL 1304 APPLIED ONLY TO HIGH-COST OR SUBPRIME LOANS WAS NOT RAISED BELOW, THE QUESTION WAS CONSIDERED AND REJECTED ON APPEAL; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department considered an issue raised for the first time on appeal because it raised an issue of law which could not have been avoided if raised below. The defendant argued that the strict compliance with the notice requirements of RPAPL 1304 applies only to high-cost or subprime loans, not the loan at issue in the case. The Second Department rejected the argument and reversed Supreme Court finding the plaintiff did not demonstrate compliance with RPAPL 1304:

We decline to construe RPAPL 1302(2) in a manner that would render the amendment to RPAPL 1304 superfluous and the requirements set forth in that statute ineffective. Thus … compliance with RPAPL 1304 was a component of its prima facie burden on its motion for summary judgment … . …

Although Mahdak [plaintiff’s representative] stated in her affidavit that the notices were sent to the defendant at his last known address and the subject property, Mahdak did not have personal knowledge of the mailing, and [plaintiff] failed to provide any documents to prove that the notices were actually mailed … . [Plaintiff] also failed to submit a copy of any United States Post Office document indicating that the notices were sent by registered or certified mail as required by the statute … . Furthermore, Mahdak did not aver that she was familiar with [plaintiff’s] mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . H&R Block Bank, FSB v Liles, 2020 NY Slip Op 04733, Second Dept 8-26-20

 

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TRIAL COURT MAY NOT SET ASIDE THE VERDICT PURSUANT TO CPL 330.30 ON A GROUND WHICH DOES NOT REQUIRE REVERSAL AS A MATTER OF LAW–HERE THE ALLEGED FACTUAL INCONSISTENCY BETWEEN THE CONVICTION OF ENDANGERING THE WELFARE OF A CHILD AND THE ACQUITTALS ON ALL THE OTHER SEXUAL-OFFENSE COUNTS (SECOND DEPT).

The Second Department, reversing County Court on the People’s appeal, in a full-fledged opinion by Justice Chambers, determined the verdict should not have been set aside based upon an alleged inconsistency between the conviction on one count and the acquittals on all other counts:

This appeal by the People and cross appeal by the defendant presents a rare opportunity to consider the circumstances under which a trial court, in reviewing the record on a motion pursuant to CPL 330.30(1) to determine whether a conviction on one count is supported by legally sufficient evidence, may consider a jury’s factually inconsistent acquittal on another count.

The defendant was charged with two counts of rape in the third degree (Penal Law § 130.25[2]), three counts of criminal sexual act in the third degree (Penal Law § 130.40[2]), and two counts of endangering the welfare of a child (Penal Law § 260.10[1]). * * *

The jury returned a verdict of guilty on count six [endangering the welfare of a child] and acquitted the defendant of all other charges. * * *

… [T]he defendant contends that a factual inconsistency in the verdict may … , under appropriate circumstances, provide grounds for a reviewing court to “consider a jury’s acquittal on one count in reviewing the record to determine if a factually inconsistent conviction on another count is supported by legally sufficient evidence” … .  …  [T]here is some support in the case law for the defendant’s contention—at least within the context of a direct appeal from the judgment of conviction, where this Court has both a unique power of factual review … as well as the discretionary authority, in the interest of justice, to reach unpreserved errors that deprived the defendant of a fair trial … . However, we now explicitly hold that a trial court determining a motion pursuant to CPL 330.30 lacks the power to overturn a verdict on this ground where, as here, the contention does not present an issue that “would require a reversal or modification of the judgment as a matter of law by an appellate court” (CPL 330.30[1] …). People v Taylor, 2020 NY Slip Op 04790, Second Dept 8-26-20

 

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THE SIX ‘LURING A CHILD’ CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing the “luring a child” convictions, over a two-justice dissent, determined the convictions were against the weight of the evidence. The court noted that if the evidence of an element of an offense is legally insufficient the conviction of that offense is against the weight of the evidence:

The evidence at trial established that, when defendant was 30 years old, he met 16-year-old BD on an adult dating website. The two thereafter communicated via cell phone, text messages, Facebook messaging, Skype and Snapchat. Shortly thereafter, NS, a friend of BD, initiated contact with defendant through Facebook. NS was also 16 years old at the time. While communicating for weeks with both BD and NS via cell phone, text messages, Facebook, Skype and Snapchat, defendant lied about his age and his military status, among other things. Also, he flattered the girls by saying that they were “really cute” and that he “really liked” them. Both girls lived in Ontario County and were juniors in high school.

Defendant eventually met NS in person and drove her to his house in Monroe County, where they had sexual intercourse. Over the ensuing two or three weeks, defendant drove NS to his house three more times to engage in sexual activity. In the meantime, defendant twice had both sexual intercourse and oral sexual contact with BD, once at her house in Ontario County after picking her up at school and driving her home, and the other time at his house after driving her there. * * *

… [T]o convict defendant of luring a child, the People were required to establish that, on or about the dates alleged in the indictment, defendant lured the victims into his motor vehicle, that the victims were less than 17 years of age, and that defendant engaged in that activity for the purpose of committing a felony sex offense against the victims … . In our view, the People failed to prove that defendant lured the victims into a motor vehicle. …

The fact that defendant drove the victims to his house days and weeks later cannot transform his statements into luring. People v Ringrose, 2020 NY Slip Op 04719, Fourth Dept 8-20-20

 

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THE ORAL STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION IS INVALID AND UNENFORCEABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined the oral stipulation of settlement in this divorce action is invalid and unenforceable. The dissent argued defendant wife was not aggrieved because the parties contentions were resolved by the stipulation which was incorporated into the judgment of divorce:

… [T]he parties placed on the record an oral stipulation of settlement that, inter alia, provided for the distribution of the marital property. Although the oral stipulation contemplated the signing of a postnuptial agreement, defendant wife refused to sign such an agreement. Nevertheless, Supreme Court issued a judgment that acknowledged that the parties had placed on the record in open court an oral stipulation resolving all disputed issues, and that provided, inter alia, that the oral stipulation was incorporated but not merged into the judgment. …

We agree with defendant that the oral stipulation rendered in open court did not satisfy the requirements of Domestic Relations Law § 236 (B) (3), and it is therefore invalid and unenforceable. “In matrimonial actions . . . an open court stipulation is unenforceable absent a writing that complies with the requirements for marital settlement agreements” … . “More particularly, to be valid and enforceable, marital settlement agreements must be in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded’ … . McGovern v McGovern, 2020 NY Slip Op 04635, Fourth Dept 8-20-20

 

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NOTWITHSTANDING ANY PRECEDENT TO THE CONTRARY, THE APPELLATE DIVISION CAN REVIEW THE RECORD OF A TRIAL AND FIND THE VERDICT UNSUPPORTED BY THE FACTS DESPITE THE ABSENCE OF A MOTION TO SET ASIDE THE VERDICT; HERE THE RECORD IN THIS TRAFFIC ACCIDENT CASE DID NOT SUPPORT THE FINDING THAT THE DRIVER OF A NEW YORK STATE THRUWAY DUMP TRUCK ACTED RECKLESSLY BY PARKING THE TRUCK ON THE SHOULDER OF THE THRUWAY (FOURTH DEPT).

The Fourth Department, refusing to follow any decisions to the contrary, determined, despite the defendant’s failure to make a motion to set aside the verdict, the appellate court may review the record and render a judgment warranted by the facts. The Fourth Department, over a two-justice dissent, reversed the plaintiffs’ verdict in this traffic accident case. Defendant, an employee of the New York State Thruway Authority, was the driver of a dump truck parked on the shoulder of the thruway while other employees picked up debris in the median. The truck was parked 18 inches to the left of the fog line. Plaintiffs’ van drifted out of its lane and struck the back of the dump truck. The plaintiffs argued defendant was required by the relevant regulations to pull off “as far from traffic as feasible.” The Fourth Department held that, although failure to pull off the highway further than 18 inches may demonstrate a lack of due care, it did not demonstrate recklessness as required by Vehicle and Traffic Law 1103:

… [A]t the time of the collision, defendant had parked the truck entirely outside of the travel lane approximately 18 inches to the left of the yellow fog line on or near the rumble strips located on the shoulder. Defendant had also activated multiple hazard lights on the truck, which consisted of regular flashers, two amber lights on the tailgate, beacon lights, and four flashing caution lights on the arrow board. Moreover, the undisputed evidence established that there were no weather, road, or lighting conditions creating visibility or control issues for motorists on the morning of the incident. Even if, as the court found, defendant knew or should have known that vehicles occasionally leave the roadway at a high rate of speed due to motorists being tired, distracted, or inattentive, we conclude that, here, it cannot be said that defendant’s actions were of an “unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and . . . done . . . with conscious indifference to the outcome” … . Alexandra R. v Krone, 2020 NY Slip Op 04631, Fourth Dept 8-20-20

 

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THE JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER THE INCLUSORY CONCURRENT COUNT (MURDER SECOND) AND THE TOP COUNT (MURDER FIRST) IN THE ALTERNATIVE; THE ERROR NEED NOT BE PRESERVED FOR APPEAL (FOURTH DEPT).

The Fourth Department, noting that the issues need not be preserved for appeal, determined the jury should have been instructed to consider the top count, murder first degree, and the inclusory concurrent count, murder second degree, in the alternative:

… [T]he court should have instructed the jury to consider count two “only in the alternative as an inclusory concurrent count” of count one … . The court, … erred when it did not instruct the jury to consider counts one and two in the alernative and instead directed the jury to consider the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree for each of the two murder charges. That error resulted in the jury improperly returning a verdict convicting defendant of two identical counts of manslaughter in the first degree with respect to the same victim. We therefore … modify the judgment by reversing the conviction of manslaughter in the first degree under count two of the indictment and dismissing that count of the indictment … . People v Smith, 2020 NY Slip Op 04702, Fourth Dept 8-20-20

 

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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS PLEA; MATTER CONSIDERED IN THE INTEREST OF JUSTICE; INEFFECTIVE ASSISTANCE ISSUE DEPENDS ON MATTERS OUTSIDE THE RECORD AND CAN ONLY BE ADDRESSED BY A MOTION TO VACATE (FOURTH DEPT).

The Fourth Department, remitting that matter to allow defendant to move to withdraw his guilty plea, considering the issue in the interest of justice, determined defendant was not informed of the deportation consequences of pleading guilty. Because the ineffective assistance claim depends in part on matters outside the record, it can only be addressed in a motion to vacate the conviction:

… [D]efendant, a noncitizen, contends that his felony guilty plea was not knowingly, voluntarily, and intelligently entered because Supreme Court failed to advise him of the potential deportation consequences of such a plea, as required by People v Peque (22 NY3d 168 [2013], cert denied 574 US 840 [2014]). As a preliminary matter, we note that defendant’s challenge to the voluntariness of his plea would survive even a valid waiver of the right to appeal … . Even assuming, arguendo, that defendant was required to preserve his contention under the circumstances of this case … , we exercise our power to address it as a matter of discretion in the interest of justice … . “[D]ue process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony” … . Here, the record of the plea proceeding establishes that the court failed to fulfill that obligation … . As defendant contends and contrary to the People’s suggestion, “the case should be remitted to afford defendant the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had the court advised him of the possibility of deportation” … . People v Jumale, 2020 NY Slip Op 04697, Fourth Dept 8-20-20

 

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