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APPEAL RENDERED MOOT BY THE RETURN OF THE CHILD IN THIS CHILD NEGLECT – TEMPORARY REMOVAL PROCEEDING AND THE EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY, TWO JUSTICE DISSENT ARGUED A NOVEL ISSUE HAD BEEN RAISED CONCERNING CONSENT TO THE TEMPORARY REMOVAL AND THE EXCEPTION TO THE MOOTNESS DOCTRINE WAS APPLICABLE (THIRD DEPT).

The Third Department, over a two-justice dissent, determined that the appeal in this child neglect/temporary matter removal had been rendered moot by a disposition which returned the child and the exception to the mootness doctrine, which would allow consideration on appeal, did not apply. The dissent argued that the exception to the mootness doctrine was applicable:

Family Court … rejected respondent’s offer to consent to the continued removal without also admitting that the removal was “necessary to avoid imminent risk to the child’s life or health”… . Family Court made such a finding at the conclusion of the hearing and issued an order continuing the temporary removal. …

Following the issuance of the appealed-from order, respondent agreed to a resolution in which the violation petition was withdrawn, the neglect petition was adjourned in contemplation of dismissal and the child returned to respondent’s care. Contrary to her contention, these developments rendered her appeal moot…  She further argues that this case presents an issue that is “likely to recur, typically evades review, and raises a substantial and novel question” so as to fall within the exception to the mootness doctrine, pointing to Family Court’s refusal to allow her to waive the removal hearing and consent to the continued removal absent an admission of imminent risk … . Appeals from temporary removal orders are often rendered moot when the petition is disposed of before an appeal on the temporary order is decided … , but issues arising from such orders need not evade review considering the preference available for appeals from orders issued under Family Ct Act article 10 …  More importantly, the law is clear that any order of temporary removal must include a finding that removal “is necessary to avoid imminent risk to the child’s life or health” … . The contention that this requirement can be waived at respondent’s convenience is not “sufficiently substantial to warrant [invoking] the exception to the mootness doctrine” … .

From the dissent:

While we agree with the majority that this appeal is moot, we find that the exception to the mootness doctrine applies. The substantive issue presented is whether a respondent in a proceeding under Family Ct Act article 10, part 2 may consent to the temporary removal of his or her child. The record shows that Family Court interpreted both Family Court §§ 1022 and 1027 as requiring the court to make a factual finding that a child is in imminent danger before issuing a temporary removal order. That is certainly the case in a contested proceeding… . The distinct question here, however, is whether a parent may consent to the temporary removal, obviating the need for either an admission of wrongdoing or a hearing eliciting facts of imminent risk as required by Family Court. Given the court’s position, it is evident that the issue will readily recur in proceedings before that court. Moreover, appeals from temporary removal orders are routinely found to be moot because a disposition is reached before an appeal is decided … . Because the procedures surrounding the removal of children from their parents are manifestly of public importance, we consider the consent issue important to resolve. It also appears to be novel. As such, we are persuaded that the exception to the mootness doctrine should be applied … . Matter of Tyrell FF. (Jaquasisa GG.), 2018 NY Slip Op 07985, Third Dept 11-21-18

FAMILY LAW (APPEAL RENDERED MOOT BY THE RETURN OF THE CHILD IN THIS CHILD NEGLECT – TEMPORARY REMOVAL PROCEEDING AND THE EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY, TWO JUSTICE DISSENT ARGUED A NOVEL ISSUE HAD BEEN RAISED CONCERNING CONSENT TO THE TEMPORARY REMOVAL AND THE EXCEPTION TO THE MOOTNESS DOCTRINE WAS APPLICABLE (THIRD DEPT))/APPEALS (FAMILY LAW, APPEAL RENDERED MOOT BY THE RETURN OF THE CHILD IN THIS CHILD NEGLECT – TEMPORARY REMOVAL PROCEEDING AND THE EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY, TWO JUSTICE DISSENT ARGUED A NOVEL ISSUE HAD BEEN RAISED CONCERNING CONSENT TO THE TEMPORARY REMOVAL AND THE EXCEPTION TO THE MOOTNESS DOCTRINE WAS APPLICABLE (THIRD DEPT))/MOOTNESS DOCTRINE, EXCEPTION TO (APPEALS, FAMILY LAW, APPEAL RENDERED MOOT BY THE RETURN OF THE CHILD IN THIS CHILD NEGLECT – TEMPORARY REMOVAL PROCEEDING AND THE EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY, TWO JUSTICE DISSENT ARGUED A NOVEL ISSUE HAD BEEN RAISED CONCERNING CONSENT TO THE TEMPORARY REMOVAL AND THE EXCEPTION TO THE MOOTNESS DOCTRINE WAS APPLICABLE (THIRD DEPT))

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RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s resisting arrest conviction, determined that the trial evidence rendered the resisting arrest count of the indictment duplicitous. At trial evidence of two separate circumstance where defendant was alleged to have resisted arrest, involving different police officers, was presented. Although the error was not preserved, the court considered the issue under its interest of justice jurisdiction:

“Even if a count facially charges one criminal act, that count is duplicitous if the evidence makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … . The indictment charged defendant with one count of resisting arrest. According to the record evidence, however, the jury was presented with two instances where defendant resisted an officer’s arrest — one involving the victim that turned violent and the other involving the officers who discovered him in the dumpster. We also note that, during deliberation, the jury asked whether it could consider the incident at the dumpster with respect to the resisting arrest charge or solely defendant’s encounter with the victim. In our view, Supreme Court’s response in rereading count 5 of the indictment failed to dispel any confusion by the jury… . Although this argument is unpreserved for review, we take corrective action in the interest of justice by dismissing count 5 of the indictment with leave to the People to re-present any appropriate charges to a new grand jury … . People v Hilton. 2018 NY Slip Op 07981, Third Dept 11-21-18

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EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP).

The Court of Appeals, over a two-judge dissent, determined the evidence of serious physical injury in this first degree assault case met the “legally sufficient evidence” standard of appellate review. The victim was shot in the leg and bullet fragments remain in his body:

The victim testified that he can still “feel [the bullet] poking out,” and that he continues to endure the effects “of the metal inside [his] leg.” Even four years after the shooting, the victim noted that the injury still “disturbs” him at times, and that “something is wrong with [his] leg.” The victim stated that, because the bullet “didn’t come out of [his] leg,” his “life” had been “tampered with.” For instance, he can no longer participate in competitive sports, as the injury would present a “very, very, very, very big risk.” The medical expert further testified that there are “many repercussions” of the type of muscle damage that the victim sustained: “Muscle damage can cause long-term injuries to the kidneys from leakage of chemicals from the muscle, toxic to the kidneys, can cause pain and weakness, difficulty walking.”

As the dissent notes, there is certainly record evidence favorable to the defense that, when viewed in isolation, might have presented an issue of fact for the jury. That said, viewing the evidence in the light most favorable to the People, as our legal sufficiency standard requires, we have no trouble concluding that the jury acted rationally in finding that the victim’s gunshot wound constituted a “serious physical injury” … . People v Garland, 2018 NY Slip Op 07927, CtApp 11-20-18

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THE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP).

The Court of Appeals, over a two-judge concurrence, determined the defendant’s argument that the integrity of the grand jury proceedings was impaired by the prosecution’s failure to call a witness requested by the defendant did not raise a constitutional issue and therefore was precluded by defendant’s guilty plea:

Defendant does not contend that the evidence before the grand jury was insufficient to support the indictment. Instead, defendant claims that the prosecutor’s conduct impaired the integrity of the grand jury proceeding and argues his motion to dismiss the indictment for defective grand jury proceedings on that ground is not forfeited by his guilty plea. …

… [W]e have explained that even after entering a valid guilty plea, “a defendant may not forfeit a claim of a constitutional [*2]defect implicating the integrity of the process” …  and we have recognized that certain claimed defects in a grand jury proceeding rise to this level … .

Defendant’s claim in this case rests on the purported exclusion of a witness, the substance of whose testimony was contained in an affidavit provided to the courts below. That proffered testimony was largely inadmissible and, in any event, would have inculpated him by establishing that he had a relationship with the complainant and had been in her presence in violation of an order of protection. The exclusion of such testimony before the grand jury does not present “a constitutional defect implicating the integrity of the process”…  and accordingly the claimed violation in this case did not survive defendant’s guilty plea.  People v Manragh, 2018 NY Slip Op 07924, CtApp 11-20-18

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APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT).

The Fourth Department determined the appeal must be dismissed for three reasons: the stipulation appealed from was entered into by consent, the appeal is not from an appealable order under CPLR 5701, and the matters raised on appeal could have been raised on a prior appeal. The court noted that counsel should have informed the court of the prior dismissed appeal:

We now dismiss the instant appeal for the following three reasons. First, defendant is not aggrieved by the “Stipulation and Order” on appeal because, as its title reflects, it constitutes an order entered on consent. As such, defendant “may not appeal from it” (…  see CPLR 5511…). The fact that defendant is aggrieved by the prior summary judgment order is of no moment because the “Stipulation and Order” is not a final order or judgment, and it thus does not bring up for review that prior order … .

Second, the appeal must be dismissed because the paper from which defendant purports to appeal is not an appealable order under CPLR 5701 (a) (2), which authorizes an appeal as of right from certain specified orders “where the motion it decided was made upon notice.” That provision is inapplicable here because the “Stipulation and Order” on appeal did not decide a motion, much less a motion made on notice … .

Third, it is well established that “[a]n appeal that has been dismissed for failure to prosecute bars, on the merits, a subsequent appeal as to all questions that could have been raised on the earlier appeal had it been perfected” … . Defendant’s substantive contentions on the instant appeal could have been raised on the prior appeal, had it been perfected. Thus, dismissal of the instant appeal is also warranted on that ground … . …

Finally, given the parties’ failure to inform us of the prior dismissed appeal in their appellate briefs, we must remind counsel that “attorneys for litigants in [an appellate] court have an obligation to keep the court informed of all . . . matters pertinent to the disposition of a pending appeal and cannot, by agreement between them, . . . predetermine the scope of [its] review”  … . Dumond v New York Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 07853, Fourth Dept 11-16-18

APPEALS (APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT))/cIVIL PROCEDURE (APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT))/CPLR 5701  (APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT))/ATTORNEYS  (APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT)

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PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT).

The Fourth Department determined petitioner had the right to appeal a ruling which granted relief he had requested in the alternative but denied the more complete relief requested in the petition. The court further found that the evidence supported the finding that petitioner is a detained sex offender with a mental abnormality and required a regimen of strict and intensive superivsion and treatment (SIST):

… [W]e conclude that petitioner is aggrieved by the order because, although Supreme Court granted one of the forms of the relief he requested in the alternative, i.e., release under a regimen of SIST, the primary relief he sought was release to the community without conditions, and the denial of that part of the petition involved a substantial right of petitioner … . …

We … reject petitioner’s contention that basing the determination that he has a mental abnormality on a diagnosis of unspecified paraphilic disorder does not comport with the requirements of due process. That diagnosis is contained in the current edition of the Diagnostic and Statistical Manual — Fifth Edition (DSM-5). Although there is limited case law concerning that diagnosis, the Court of Appeals has repeatedly held that basing such a determination on the very similar former diagnosis of paraphilia not otherwise specified (paraphilia NOS) meets the requirements of due process … , and the diagnosis of unspecified paraphilic disorder has similar diagnostic requirements as the former diagnosis of paraphilia NOS. …

In addition, “to the extent that [petitioner] challenges the validity of [unspecified paraphilic disorder] as a predicate condition, disease or disorder,’ we need not reach that argument because he did not mount a Frye challenge to the diagnosis” … . Matter of Luis S. v State of New York, 2018 NY Slip Op 07852, Fourth Dept 11-16-18

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FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT).

The Fourth Department reversed Family Court’s custody ruling because the ruling was not supported by factual findings. The matter was remitted:

It is “well established that the court is obligated to set forth those facts essential to its decision’ ” (…see CPLR 4213 [b]; Family Ct Act § 165 [a]). Here, the court utterly failed to follow that well-established rule inasmuch as it made no findings to support its determination. “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . We therefore reverse the order, reinstate the mother’s petition, and remit the matter to Family Court to make a determination on the petitions, including specific findings as to a change in circumstances and the best interests of the child, following an additional hearing if necessary … . Matter of Brown v Orr, 2018 NY Slip Op 07905, Fourth Dept 11-16-28

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STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, IMMIGRATION LAW VIOLATIONS ARE NOT CRIMES, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Scheinkman, considering a matter of first impression, determined state and local law enforcement officers are not authorized to effect civil immigration arrests in connection with ICE [Immigration and Customs Enforcement] detainers. The matter came before the court as a habeas corpus petition. The petition alleged that the continued detention (in county jail) of Frances, a citizen of India who had been in the US since his visa expired in 1996, after his criminal sentence was complete, was illegal. Although Frances was in ICE custody at the time of the appeal, Frances’s circumstance was deemed likely to recur and the appeal was therefore heard as an exception to the mootness doctrine:

Following the conclusion of his court proceeding, at which he was sentenced to time served, [Frances] was handcuffed and taken to a courthouse holding cell by members of the Sheriff’s Office …  . … [B]ased on the ICE warrant, … Francis was regarded by the Sheriff as being in the custody of ICE. Francis was placed in a jail cell rented by ICE. * * *

Illegal presence in the country, standing alone, is not a crime… ; it is a civil violation that subjects the individual to removal … . The federal process for removing someone from the country is a civil administrative matter, not a criminal one … . * * *

New York statutes do not authorize state and local law enforcement to effectuate warrantless arrests for civil immigration law violations. An arrest without a warrant is permitted where an individual “has committed or is believed to have committed an offense and who is at liberty within the state” under certain circumstances prescribed by statute (CPL 140.05). County sheriffs and their deputies are police officers (see CPL 1.20[34]), as are members of the state police, county police, and municipal police. * * *

The narrow issue in this case is whether New York law permits New York state and local law enforcement officers to effectuate civil immigration arrests, and not whether federal civil immigration officers have the authority to effectuate such arrests. Nor do we decide any issues under federal law deputizing state and local law enforcement officers to act as federal immigration officers. … [W]e conclude that the Sheriff’s policy … directing the retention of prisoners, who would otherwise be released, pursuant to ICE detainers and administrative warrants is unlawful … . People ex rel. Wells v DeMarco, 2018 NY Slip Op 07740, Second Dept 11-14-18

IMMIGRATION LAW (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/MUNICIPAL LAW (IMMIGRATION LAW, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/APPEALS (IMMIGRATION LAW, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/MOOTNESS DOCTRINE (APPEALS, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/IMMIGRATION AND CUSTOMS ENFORCEMENT (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/ICE (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/DETAINERS (ICE, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/CIVIL IMMIGRATION ARRESTS  (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/CRIMINAL LAW (IMMIGRATION LAW VIOLATIONS ARE NOT CRIMES, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))

, , ,

PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT).

The Second Department determined the plaintiff’s verdict in this subway slip and fall case should be set aside as against the weight of the evidence. The trial evidence indicated comparative fault on the part of the plaintiff. Plaintiff stepped into a gap between the train and the platform, just after she had stepped over it. In addition, plaintiff had used that same train for a year:

The jury found that the NYCTA [New York City Transit Authority] was negligent, that its negligence was a substantial factor in causing the accident, and that the injured plaintiff was not negligent. The NYCTA moved, in effect, pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial. The Supreme Court denied the motion. Insofar as relevant on this appeal, a judgment was subsequently entered in favor of the injured plaintiff and against the NYCTA.

“A jury verdict is contrary to the weight of the evidence when the evidence so preponderates in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence” … . “Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors”… .

The jury’s finding that the NYCTA was solely at fault for the accident was contrary to the weight of the evidence. The evidence at trial demonstrated that, just prior to the accident, the injured plaintiff had exited the B train and stepped over the subject gap, without incident, onto the platform of the Prospect Park station. She then stepped into that same gap while attempting to reenter the train moments later. Additionally, the injured plaintiff had used the Prospect Park station on previous occasions. She testified that, for approximately one year, she had been taking the B train to the Prospect Park station where she would transfer to the shuttle train if it was at the station when she arrived. Under the circumstances, the jury’s verdict on the issue of liability completely absolving the injured plaintiff of comparative fault was not supported by a fair interpretation of the evidence … . Stallings-Wiggins v New York City Tr. Auth., 2018 NY Slip Op 07774, Second Dept 11-14-18

NEGLIGENCE (PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))/CIVIL PROCEDURE (SET ASIDE THE VERDICT, NEGLIGENCE, PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))/EVIDENCE (SET ASIDE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE, PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))/APPEALS (NEGLIGENCE, WEIGHT OF THE EVIDENCE, PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))/WEIGHT OF THE EVIDENCE (NEGLIGENCE, PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))/SLIP AND FALL (PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))/COMPARATIVE NEGLIGENCE (SLIP AND FALL, PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))

, , ,

QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff-decedent’s motion for summary judgment on his Labor Law 240 (1) cause of action should not have been granted. Decedent’s statement to his wife in the emergency room, to the effect he should not have used the ladder as he did, was admissible as a declaration against interest. There was evidence from a co-worker that the ladder may not have been the cause of decedent’s injuries, i.e., there was evidence decedent was suffering chest pains 10 feet away from the ladder, which was upright. The court noted that factual assertions included in a memorandum of law in opposition to plaintiff-decedent’s motion were properly considered and preserved issues for appeal:

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law § 240(1) claim by presenting decedent’s statement that he was working on a ladder when it started to move, and when he tried to stabilize the ladder, it tipped and struck him in the chest … . Plaintiff was not “required to present further evidence that the ladder was defective” … .

However, defendants raised triable issues of fact as to whether decedent’s injuries were caused by an accident involving a ladder. Two accident reports set forth his alleged statement that he was working on the ladder when he started feeling chest pains and his legs became “unsteady” or “wobbly.” Moreover, decedent’s coworker, who was working in the same apartment unit separated from decedent by a concrete wall but went over to decedent’s area, not in response to any commotion but for routine purposes, saw that the ladder was in the upright position about 10 feet away from decedent when he expressed that he was suffering from chest pains … . Although decedent was disoriented and unable to answer basic questions at some points, he eventually became alert while in the hospital, yet his medical records do not refer to any ladder accident.

Contrary to plaintiff’s assertion, defendants preserved their arguments about triable issues of fact by asserting them in their memorandum of law in opposition to plaintiff’s partial summary judgment motion. Caminiti v Extell W. 57th St. LLC, 2018 NY Slip Op 07667, First Dept 11-13-18

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/EVIDENCE (DECLARATION AGAINST INTEREST, QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/DECLARATION AGAINST INTEREST  (QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/SUMMARY JUDGMENT (EVIDENCE, QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/APPEALS (PRESERVATION, (QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))

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