Appeals – Page 34 – New York Appellate Digest

THE ELECTRONICALLY RECORDED HEARING INCLUDED 80 QUESTIONS POSED TO A WITNESS BY COUNSEL BUT ONLY FOUR ANSWERS WERE AUDIBLE; NEW HEARING WITH A STENOGRAPHER ORDERED (THIRD DEPT).

The Third Department determined the record on appeal was insufficient and ordered a new hearing with a stenographer. The hearing was electronically recorded. Counsel ask a witness 80 questions but only four answers were audible. Matter of Jereline Z. v Joseph AA., 2022 NY Slip Op 02848, Third Dept 4-28-22

Practice Point: If a hearing is electronically recorded but most of a significant witness’s answers are inaudible, the appeal cannot be considered. Here a new hearing with a stenographer was ordered.

April 28, 2022

Appeals, Civil Procedure, Labor Law-Construction Law

THE APPELLATE DIVISION INITIALLY REVERSED SUPREME COURT AND HELD PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) LADDER-FALL CASE; THERE WAS A DEFENSE VERDICT AFTER TRIAL; THE ORDER DENYING SUMMARY JUDGMENT IS NOT APPEALABLE TO THE COURT OF APPEALS (CT APP).

The Court of Appeals determined the Appellate Division order denying summary judgment in this Labor Law 240(1) ladder-fall case did not “affect the final judgment” after trial. Therefore the order was not appealable to the Court of Appeals:

The 2018 Appellate Division order may be reviewed on appeal from a final paper only if, pursuant to CPLR 5501 (a), the nonfinal order “necessarily affects” the final judgment. “It is difficult to distill a rule of general applicability regarding the ‘necessarily affects’ requirement” … and “[w]e have never attempted, and we do not now attempt, a generally applicable definition” … . That said, to determine whether a nonfinal order “necessarily affects” the final judgment, in cases where the prior order “str[uck] at the foundation on which the final judgment was predicated” we have inquired whether “reversal would inescapably have led to a vacatur of the judgment” … . This is not such a case. In other cases, we have asked whether the nonfinal order “necessarily removed [a] legal issue from the case” so that “there was no further opportunity during the litigation to raise the question decided by the prior non-final order” … .

In resolving plaintiff’s summary judgment motion, the Appellate Division held that factual questions existed as to whether a statutory violation occurred and as to proximate cause, or more specifically as to whether plaintiff’s own acts or omissions were the sole proximate cause of the accident … . That nonfinal order did not remove any issues from the case. Rather, the question of proximate cause and liability was left undecided. The parties had further opportunity to litigate those issues and in fact did so during the jury trial. Bonczar v American Multi-Cinema, Inc., 2022 NY Slip Op 02835, CtApp 4-28-22

Practice Point: A nonfinal order is not appealable to the Court of Appeals unless it “affects the final judgment.” If questions of fact remain after the nonfinal order is issued, the order does not “affect the final judgment” and is not appealable. Here the nonfinal order was the Appellate Division’s denial of plaintiff’s summary judgment motion. The order left open factual questions resolved at trial. Therefore the order did not “affect the final judgment.”

April 28, 2022

Appeals, Criminal Law, Evidence, Judges

THE JUDGE’S INTERFERENCE IN AND RESTRICTIONS ON THE DEFENSE SUMMATION AND IMPROPER EXCLUSION AND ADMISSION OF EVIDENCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s murder, assault and weapon-possession convictions in the interest of justice, determined the judge improperly restricted defense counsel’s summation and evidence submissions, and improperly allowed hearsay identification evidence which supported the People’s theory. Identification of the shooter was the key issue, and the eyewitness accounts were inconsistent and contradictory. The judge prohibited defense counsel from questioning the fairness of the identification procedure (line up) in summation and repeatedly interposed “objections” during the defense summation, in the absence of any objection by the prosecutor:

The Supreme Court’s limitation of the defendant’s cross-examination of the police witness and its sua sponte admonishments to defense counsel during summation improperly limited the defendant’s right to challenge the lineup procedures as unfair and suggestive … . Moreover, the court erred in informing the jury and the parties in front of the jury that it had already determined that the pretrial identification procedure was fair and not suggestive, and that the lineup was “constitutional,” wrongly intimating that those facts were not within the jury’s province to determine … . …

The Supreme Court also substantially impaired the defendant’s right “to make an effective closing argument” … through sua sponte “objection sustained” interruptions without any actual objection being posited by the People…. . …

The Supreme Court also erred in admitting into evidence the hearsay statement of an unidentified woman that a man “wearing all gray had the firearm” as an excited utterance exception to the hearsay rule … .. The record contained no evidence from which a trier of fact could reasonably infer that the statement was based on the woman’s personal observation … . …

… [T]he Supreme Court should have granted the defendant’s application to admit into evidence the photographs of the defendant and Cruzado [who was also at the scene] to allow the jury to compare their likenesses, since, under the circumstances of this case, such evidence was highly probative of the defense of third-party culpability and plainly outweighed any danger of delay, prejudice, and confusion … .People v Aponte, 2022 NY Slip Op 02813, Second Dept 4-27-22

Practice Point: In this case, where identification of the shooter was the central issue, the judge improperly prohibited defense counsel from questioning the fairness of the line-up procedure in summation. This and other substantial interference and evidentiary errors by the judge required reversal of the murder conviction in the interest of justice.

April 27, 2022

Appeals, Attorneys, Constitutional Law, Criminal Law

THE MAJORITY CONCLUDED (1) THE RECORD SUPPORTED THE FINDING THAT DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST FOR COUNSEL, AND (2) WHETHER A REQUEST FOR COUNSEL IS UNEQUIVOCAL IS A MIXED QUESTION OF LAW AND FACT WHICH IS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP).

The Court of Appeals, over a two-judge extensive dissenting opinion, determined (1) the record supported the finding that the defendant’s request for counsel was not unequivocal and (2) whether the request was unequivocal presents a mixed question of law and fact which is not reviewable by the Court of Appeals:

Once a defendant in custody unequivocally requests the assistance of counsel, the right to counsel may not be waived outside the presence of counsel … . But “[a] suggestion that counsel might be desired; a notification that counsel exists; or a query as to whether counsel ought to be obtained will not suffice” to unequivocally invoke the indelible right to counsel … . Furthermore, “[w]hether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” … .

Here, there is support in the record for the lower courts’ determination that defendant—whose inquiries and demeanor suggested a conditional interest in speaking with an attorney only if it would not otherwise delay his clearly-expressed wish to speak to the police—did not unequivocally invoke his right to counsel while in custody. That mixed question of law and fact is therefore beyond further review by this Court … .

From the dissent:

Here, Mr. Dawson [defendant] unequivocally invoked his right to counsel — the record supports no other conclusion. As is clear from the quoted portion of the colloquy with the detective, he twice said he wanted to call his lawyer, and the detective twice expressly stated that he understood Mr. Dawson had asked to call counsel and therefore the detective could no longer speak to Mr. Dawson. Additionally, the detective then told Mr. Dawson to wait while the detective retrieved Mr. Dawson’s phone so he could call counsel. People v Dawson, 2022 NY Slip Op 02772, CtApp 4-26-22

Practice Point: Whether a defendant’s request for counsel in “unequivocal,” thereby requiring police interrogation to cease, is a mixed question of law and fact. As long as there is support in the record for the lower court’s finding the request was not unequivocal, the issue cannot be reviewed by the Court of Appeals.

April 26, 2022

Appeals, Contract Law, Criminal Law, Judges

ALTHOUGH THE ISSUE WAS NOT PRESERVED, DEFENDANT’S GUILTY PLEA WAS VACATED BECAUSE IT WAS INDUCED BY THE JUDGE’S PROMISE THAT ALL THE COURT’S ORDERS COULD BE APPEALED; IN FACT, THE DEFENDANT’S CONTENTION THAT TWO COUNTS OF THE INDICTMENT WERE DUPLICITOUS COULD NOT BE RAISED ON APPEAL (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence in the interest of justice, determined the defendant’s guilty plea was induced by the judge’s promise that defendant could appeal from all the court’s orders. In fact, however, by pleading guilty defendant could not appeal the order rejecting his argument that the first two counts of the indictment were duplicitous:

We agree … with defendant that his plea was not knowingly, voluntarily, and intelligently entered. Although defendant failed to preserve that contention for our review … , we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). “A trial court is constitutionally required to ensure that a defendant, before entering a guilty plea, has a full understanding of what the plea entails and its consequences” … , and where “a guilty plea has been induced by an unfulfilled promise, the plea must be vacated or the promise must be honored” … . Here, the court repeatedly promised defendant, who was proceeding pro se, that he would retain the right to appeal from all of its orders. The court reiterated that promise during the plea colloquy and did not advise defendant that he was forfeiting any challenge by pleading guilty. We conclude, however, that “[b]y pleading guilty, defendant forfeited his . . . contention that the first two counts of the indictment were duplicitous” … . Consequently, “[i]nasmuch as the record establishes that defendant, in accepting the plea, relied on a promise of the court that could not, as a matter of law, be honored, defendant is entitled to vacatur of his guilty plea” … . People v Mothersell, 2022 NY Slip Op 02661, Fourth Dept 4-22-22

Practice Point: Here the defendant’s guilty plea was induced by the judge’s promise all the court’s orders could be appealed. In fact, the guilty plea precluded raising on appeal defendant’s contention two indictment counts were duplicitous. Even though the issue was not preserved for appeal, the Fourth Department vacated the guilty plea.

April 22, 2022

Appeals, Mental Hygiene Law

BECAUSE OF A LACK OF PLACEMENT OPTIONS, A CHILD REMOVED FROM SCHOOL WHEN SHE BECAME UNMANAGEABLE REMAINED IN A HOSPITAL EMERGENCY ROOM FOR WEEKS; THE PETITION SOUGHT HER RELEASE FROM THE EMERGENCY ROOM; THE APPEAL WAS DEEMED MOOT BECAUSE THE NYS OFFICE OF PEOPLE WITH DEVELOPMENTAL DISABILITIES HAD FOUND SUITABLE PLACEMENT AND INSTITUTED A PROGRAM TO ENSURE THE PROBLEM WOULD NOT RECUR (CT APP).

The Court of Appeals, dismissing the appeal as moot, over an extensive dissent, determined the exception to the mootness doctrine should not be applied because the problem at the heart of the petition had been adequately addressed by the NYS Office for People with Developmental Disabilities (OPWDD). The subject child had been removed from school and sent to a hospital emergency room because she had become unmanageable. The child ended up staying in the emergency room for weeks because suitable placement was not available. The habeas corpus petition sough her release from the emergency room. During the weeks the child was in the emergency room programs were instituted to facilitate prompt suitable placement of children facing similar circumstances:

… [D]uring the pendency of petitioner’s appeal to this Court, OPWDD developed a new program, Crisis Services for Individuals with Intellectual and/or Developmental Disabilities ([CSIDD] 14 NYCRR 635-16.1 et seq.), aimed at preventing persons with developmental disabilities from experiencing a crisis that may result in hospitalization and thereby reducing the likelihood of these issues recurring. At oral argument before this Court, counsel for OPWDD and DOH represented that the services provided by CSIDD are now available throughout the entirety of the State of New York, and particularly in the region where the child resided. Matter of Mental Hygiene Legal Serv. v Delaney, 2022 NY Slip Op 02578, CtApp 4-21-22

Practice Point: An appeal may be dismissed as moot if the appellate court is presented with evidence the underlying issue has been adequately addressed while the appeal was pending. Here a child removed from school because she became unmanageable had been held in a hospital emergency room for weeks because suitable placement was not available. At the time of oral argument, the child had been placed and a program to prevent recurrence of the problem had been instituted.

April 21, 2022

Appeals, Family Law

CHANGED CIRCUMSTANCES BROUGHT TO THE APPELLATE COURT’S ATTENTION BY THE ATTORNEYS FOR THE CHILDREN RENDERED THE RECORD INSUFFICIENT FOR REVIEW OF THE CUSTODY RULING; MATTER REMITTED (SECOND DEPT).

The Second Department determined changed circumstances brought to the Second Department’s attention by the attorneys for children rendered the appellate record insufficient for review of Family Court’s custody ruling. The matter was remitted:

… [T]he Family Court determined that it was in the best interests of the children for the mother to have sole residential custody. However, the respective attorneys for the children, in their briefs submitted to this Court, have brought to this Court’s attention certain alleged new developments since the order under review was issued in June 2019. As the Court of Appeals has recognized, changed circumstances may have particular significance in child custody matters and may render the record on appeal insufficient to review whether a child custody determination is still in the best interests of the children … . Matter of Fitzsimmons v Fitzsimmons, 2022 NY Slip Op 02411, Second Dept 4-13-22

Practice Point: In a child custody case, changed circumstances may render the record on appeal insufficient. Here the attorneys for the children brought the changed circumstances to the attention of the appellate court in their briefs and the court remitted the matter to Family Court.

April 13, 2022

Appeals, Employment Law, Municipal Law, Negligence

PLAINTIFF SUED BOTH THE COUNTY AND THE SHERIFF FOR ALLEGED EXPOSURE TO CONTAMINATED WATER IN THE SHOWER AT THE JAIL; THE ACTION AGAINST THE COUNTY WAS NOT BROUGHT UNDER A VICARIOUS LIABILITY THEORY (THE COUNTY IS NOT VICARIOUSLY LIABLE FOR THE ACTS OR OMISSIONS OF THE SHERIFF); RATHER THE CAUSE OF ACTION ALLEGED THE COUNTY WAS NEGLIGENT IN ITS OWN RIGHT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, an inmate at the Orange County Correctional Facility (OCCF), stated a cause of action against the county, as well as the county sheriff. Plaintiff alleged he was exposed to contaminated shower water at the jail. The cause of action against the county was not based on a vicarious liability theory (the county is not vicariously liable for the acts or omissions of the sheriff’s office). Rather plaintiff stated a cause of action alleging the county was negligent in failing to ensure the safety of the water at the jail. That cause of action is distinct from the sheriff’s duty to keep inmates safe. The issue was properly raised for the first time on appeal:

… [T]he complaint did not solely seek to hold the County vicariously liable for the actions and omissions of the sheriff and his deputies. The complaint alleged that the County had a duty to maintain the OCCF, including its water supply, in a safe and proper manner, and that the County’s breach of that duty caused the plaintiff to sustain personal injuries. The County’s duty to provide and maintain the jail building is distinguishable from the sheriff’s duty to receive and safely keep inmates in the jail over which the sheriff has custody … . Contrary to the defendants’ contention, the plaintiff’s argument that the County is liable for its own negligence, as opposed to being vicariously liable for the negligence of the sheriff or his deputies, is not improperly raised for the first time on appeal. Aviles v County of Orange, 2022 NY Slip Op 02384, Second Dept 4-13-22

Practice Point: The county is not liable for the acts or omissions of the county sheriff under a vicarious liability theory. However, here the allegation that the shower water at the jail was contaminated stated a cause of action against the county for its own negligence. Therefore the action against the county should not have been dismissed.

April 13, 2022

Appeals, Civil Procedure, Family Law, Judges

IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, ALTHOUGH FAMILY COURT THREATENED TO FIND RESPONDENT IN DEFAULT WHEN HE DID NOT PROVIDE PROOF HE FAILED TO APPEAR BECAUSE HE WAS HOSPITALIZED, FAMILY COURT DID NOT ULTIMATELY GIVE RESPONDENT A “DEFAULT WARNING;” RESPONDENT AND HIS COUNSEL WERE PRESENT AT THE FACT-FINDING BUT WERE PRECLUDED BY THE COURT FROM PARTICIPATING; RESPONDENT HAS A RIGHT TO BE HEARD ON THE ABANDONMENT ISSUE; REVERSED AND REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, determined respondent father in this termination of parental rights proceeding was not in default and that he was entitled to present a defense. To explain his failure to appear, respondent said he was hospitalized but he did not provide any proof of hospitalization when the court requested it. The court then found respondent to be in default and precluded respondent and his counsel from participating in the termination hearing:

Petitioner and the attorney for the child argue that the appeal must be dismissed because the challenged order was entered upon respondent’s default. We disagree. In its written decision, Family Court stated that it had advised respondent’s counsel at the December 18, 2019 appearance that, if the requested medical documentation was not timely provided, it “would find [respondent] in default” and “the trial would be an [i]nquest.” Our review of the record, however, confirms that no such warning was given. Instead, the court cautioned that if respondent failed to comply, it would “proceed with the proceeding with regard to the termination of his parental rights.” This is not a default warning but notice that the hearing would go forward on January 15, 2020. However frustrating respondent’s noncompliance with the court’s reasonable directive to provide documentation of his hospitalization may have been, the key point here is that respondent and his counsel were in attendance at the fact-finding hearing. We fully appreciate that trial courts are vested with broad authority to maintain the integrity of their calendars. Under the circumstances presented, however, we conclude that Family Court abused its discretion in holding respondent to be in default and precluding any participation at the hearing … . Matter of Makayla NN. (Charles NN.), 2022 NY Slip Op 02165, Third Dept 3-31-22

Practice Point: Here Family Court never gave a “default warning” to respondent father when he failed to provide proof he did not appear because he was hospitalized. Father, who was present at the fact-finding, should not have been found to be in default and precluded from participating in the termination of parental rights proceeding.

March 31, 2022

Appeals, Civil Procedure, Medical Malpractice, Negligence

PLAINTIFFS STATED A CAUSE OF ACTION FOR MEDICAL MALPRACTICE BY ALLEGING THE TREATMENT OF PLAINTIFF’S DECEDENT AGAINST THE WISHES OF DECEDENT AND DECEDENT’S HEALTH-CARE AGENTS PROLONGED DECEDENT’S PAIN AND SUFFERING; THE “WRONGFUL LIFE” LINE OF CASES DOES NOT APPLY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing Supreme Court, determined plaintiff stated a cause of action sounding in medical malpractice by alleging the treatment of plaintiff’s decedent against decedent’s wishes and the wishes of his health-care agents prolonged his pain and suffering. This action was distinguished from the “wrongful life” line of case which held that being born alive with disabilities does not constitute an injury in New York [therefore a medical malpractice lawsuit alleging the parents should have been advised to terminate the pregnancy does not state a cause of action]. Supreme Court had based its dismissal of the complaint on a Second Department case (Cronin) which followed the “wrongful life” line of reasoning. The First Department refused to follow the Second Department:

… [In] Cronin, it appears that plaintiff sought damages based on a claim “that the defendant wrongfully prolonged the decedent’s life by resuscitating him against the express instructions of the decedent and his family” (Cronin, 60 AD3d at 804). In contrast, here, plaintiff seeks damages for decedent’s pain and suffering, which the complaint alleges was the result of medical malpractice in that defendants breached the standard of care by administering treatments without consent and in direct contravention of decedent’s wishes expressed in his advance directives as reaffirmed by his health care agents … .Greenberg v Montefiore New Rochelle Hosp., 2022 NY Slip Op 02194, First Dept 3-31-22

Practice Point: A decision in one appellate-division department does not bind another department. Here the “wrongful life” line of cases did not preclude a medical malpractice action alleging the treatment of plaintiff’s decedent against decedent’s wishes and against the wishes of decedent’s health-care agents prolonged decedent’s pain and suffering.