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THE PEOPLE WERE NOT GIVEN THE OPPORTUNITY TO RESPOND TO THE ISSUE WHETHER THE CHEMICAL BREATH TEST SHOULD BE SUPPRESSED; NEW SUPPRESSION HEARING ORDERED (FOURTH DEPT).

The Fourth Department, on an appeal by the People, determined County Court should not have suppressed the chemical breath test evidence in this DWI case because the People were not given an opportunity to respond to that suppression issue. The matter was remitted for a new suppression hearing:

… [T]he court erred in granting that part of defendant’s omnibus motion seeking to suppress evidence because the court failed to notify the People of its intention to consider that issue and failed to give the People an opportunity to present evidence at the hearing on that issue … . At the Huntley hearing, the issues of the officer’s compliance with Vehicle and Traffic Law § 1194 and defendant’s limited right to counsel were merely ancillary. Moreover, we reject defendant’s contention that the limited evidence that was admitted at the hearing supports the court’s determination to suppress the chemical breath test results. The evidence at the hearing established that the police administered a field breath test and then a chemical breath test at the jail, only the latter of which is the subject of section 1194 (2) (a) and would be admissible at trial … , but the court conflated the administration of both tests in determining that suppression was warranted. On this record, it is unclear whether the officer complied with section 1194 (2) (b) by warning defendant of the consequences of refusal in ” ‘clear and unequivocal language’ ” before administering the chemical test … . The record is also unclear whether defendant, who made a request to speak with his attorney, was afforded the opportunity to do so prior to deciding whether to submit to the chemical breath test … . People v Williams, 2021 NY Slip Op 01570, Fourth Dept 3-19-21

 

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ALTHOUGH DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT DID RAISE A QUESTION OF FACT ON THE VALIDITY OF THE SERVICE OF PROCESS WHICH REQUIRES A HEARING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to vacate the default judgment on the ground defendant had not been properly served with the complaint should not have been granted. The matter was remitted for a hearing to determine the validity of the service of process:

” ‘Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served’ ” … . Although ” ‘bare and unsubstantiated denials are insufficient to rebut the presumption of service . . . , a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing’ ” … . Here, the presumption of service was created by the affidavit of plaintiff’s process server, but defendant rebutted that presumption by submitting, inter alia, his sworn affidavit in which he averred that he had never been personally served, that since at least 2013 he had rented out the dwelling at the address reflected on the affidavit of the process server, that it had been rented to the individual reflected on the affidavit of service, that defendant “did not live or otherwise reside [at the address] in any form,” and instead that he had been living at another address at the time of the purported service. Contrary to plaintiff’s contention, defendant’s submissions raised ” ‘a genuine question’ ” on the issue whether service was properly effected in accordance with CPLR 308 (2) … . Garvey v Global Asset Mgt. Solutions, Inc., 2021 NY Slip Op 01664, Fourth Dept 3-19-21

 

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THE ACKNOWLEDGED VIOLATION OF THE INDUSTRIAL CODE WAS MERELY “SOME EVIDENCE OF NEGLIGENCE” TO BE CONSIDERED BY THE FACTFINDER AND WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON THE LABOR LAW 241 (6) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court determined plaintiff was not entitled to summary judgment on the Labor Law 241 (6) cause of action, despite the acknowledged violation of an Industrial Code provision, 12 NYCRR 23-1.7 (d). Plaintiff alleged he slipped and fall on metal decking on which there was some snow. 12 NYCRR 23-1.7 (d) requires that snow be removed from places where worker walk. The Fourth Department noted that the violation of the regulation, as opposed to a statute, is merely “some evidence of negligence” to be considered by the jury:

… [P]laintiff’s claim that defendants are liable under Labor Law § 241 (6) is based on the alleged violation of 12 NYCRR 23-1.7 (d), which, in pertinent part, directs that workers not be permitted to use “a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and requires that substances such as snow and ice be “removed . . . or covered to provide safe footing.” It is undisputed that “12 NYCRR 23-1.7 (d) mandates a distinct standard of conduct, rather than a general reiteration of common-law principles, and [thus] is precisely the type of ‘concrete specification’ ” upon which liability under section 241 (6) may be premised … . Moreover, defendants do not challenge plaintiff’s showing that the subject regulation was violated. As defendants correctly contend, however, the violation of 12 NYCRR 23-1.7 (d) is not conclusive with respect to defendants’ liability and, instead, merely constitutes “some evidence of negligence and thereby reserve[s], for resolution by a [factfinder], the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances” … . In particular, we conclude that plaintiff’s own submissions, including the deposition of [defendant] Burke’s owner who testified—in contrast to plaintiff’s testimony—regarding his efforts to clear snow from the metal decking upon arriving at the work site prior to any workers, “raised factual issues with respect to the reasonableness of the safety measures undertaken at the work site” … . Chrisman v Syracuse Soma Project, LLC, 2021 NY Slip Op 01663, Fourth Dept 3-19-21

 

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DEFENDANTS WERE NOT ENTITLED TO A DIRECTED VERDICT ON THE EMPLOYMENT DISCRIMINATION CAUSE OF ACTION; DEFENSE COUNSEL’S REMARK ABOUT THE FINANCIAL CONSEQUENCES OF A PLAINTIFF’S VERDICT DEPRIVED PLAINTIFF OF A FAIR TRIAL; THE COURT OF CLAIMS HAS EXCLUSIVE JURISDICTION OVER ACTIONS SEEKING MONEY DAMAGES FROM THE STATE, RELEVANT CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendants’ motion for a directed verdict should not have been granted and the defense attorney’s remark in summation warranted a new trial. Plaintiff alleged he was denied promotion at the Central New York Psychiatric Center (CNYPC) because the defendants deemed him mentally unstable due to his status as a veteran of the Iraq war.  The directed verdict awarded defendants on that issue was reversed. The defense counsel’s remark in summation that one of the individual defendants would have to “open up her checkbook and write somebody a check” if plaintiff wins deprived plaintiff of a fair trial (the state is required to indemnify defendants as state officers and employees). This case was brought in Supreme Court. The Fourth Department noted that the Court of Claims has exclusive jurisdiction over actions against the state for money damages (apparently the relevant causes of action were properly dismissed for that reason):

Plaintiff … contends that the court erred in granting defendants’ motion for a directed verdict with respect to plaintiff’s cause of action under the New York Human Rights Law alleging discrimination based on military status … . We agree. * * * Based upon the … testimony that plaintiff was not promoted because “[t]here was a question after [plaintiff’s] military service about his [mental] stability,” the jury could have rationally inferred that defendants refused to promote plaintiff in part because they perceived that combat veterans, such as plaintiff, develop dangerous and disqualifying mental health issues as a result of their military service. Thus, “it cannot be said that ‘it would . . . be utterly irrational for a jury to reach [a verdict in favor of plaintiff]’ ” … . * * *

… [R]emarks about a party’s financial status “have been universally condemned by the courts of this State” … . The defense attorney’s argument that his clients should not be “forced to open [their] checkbook” likely conveyed that the individual defendants would be required to pay any damages out-of-pocket. That remark was “grossly improper” … . Moreover, it misrepresented the law to the jury. The State has a duty to indemnify its employees for judgments that arise out of actions within the scope of their public duties, although that duty does not arise from injury or damage resulting from intentional wrongdoing on the part of the employee (see Public Officers Law § 17 [3] [a]). Hubbard v New York State Off. of Mental Health, Cent. N.Y. Psychiatric Ctr., 2021 NY Slip Op 01661, Fourth Dept 3-19-21

 

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THE SENTENCE FOR CRIMINAL POSSESSION OF A WEAPON SHOULD HAVE BEEN CONCURRENT WITH THE SENTENCE FOR MURDER (FOURTH DEPT).

The Fourth Department determined the sentence for criminal possession of a weapon should not have been imposed consecutively to the sentence for murder:

… [T]he court erred in directing that the sentence imposed on count three of the indictment, charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (3), run consecutively to the sentence imposed on count one, i.e., murder in the second degree. The People had the burden of establishing that the consecutive sentences were legal, i.e., that the crimes were committed through separate acts or omissions … , and they failed to meet that burden. The People failed to present evidence at trial that defendant’s act of possessing the loaded firearm ‘was separate and distinct from’ his act of shooting the victim … . People v Alligood, 2021 NY Slip Op 01628, Fourth Dept 3-19-21

 

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DEFENDANT PRESENTED SUFFICIENT EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND RECANTATION TESTIMONY TO WARRANT A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, COUNTY COURT REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his conviction should not have been denied without a hearing. The defendant presented sufficient evidence of ineffective assistance of counsel and newly discovered evidence (recantation testimony), as well as evidence of actual innocence, to warrant a hearing on all three issues:

Defendant avers, in his sworn affidavit, that he repeatedly advised his trial counsel that the victim’s allegation that defendant did not live with her at the time of the incident was false and that this false claim could be easily disproven, but trial counsel “was not interested and did nothing.” Defendant supported this claim with four sworn affidavits of witnesses who all stated that defendant lived with the victim at the time of the incident. These affidavits were not merely conclusory, but rather contained factual allegations based upon firsthand observations by the witnesses … . * * *

… [D]efendant proffered three separate affidavits from witnesses, as well as text messages purportedly from the victim, asserting that they established that the victim had fabricated the allegations against him. * * *

Although we are mindful that recantation testimony is “inherently unreliable” … , the “totality of the circumstances” presented here demonstrates that a hearing is required to scrutinize the circumstances regarding the recantations as well as the credibility of the witnesses, and to create a record … . People v Stetin, 2021 NY Slip Op 01529, Third Dept 3-18-21

 

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THE POLICE DID NOT DEMONSTRATE A LAWFUL BASIS FOR IMPOUNDING DEFENDANT’S VEHICLE AND CONDUCTING AN INVENTORY SEARCH; DEFENDANT’S MOTION TO SUPPRESS THE SEIZED EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress evidence seized from his vehicle should have been granted. The police did not demonstrate a lawful bas for impounding the vehicle and conducting an inventory search:

… [T]he People failed to establish the lawfulness of the impoundment of the defendant’s vehicle and subsequent inventory search … . Although, at the suppression hearing, a police officer testified that the defendant’s vehicle was “parked on the corner” at the time of the defendant’s arrest, there was no testimony that the vehicle was parked illegally or that there were any posted time limits pertaining to the space where the vehicle was parked. The People presented no evidence demonstrating any history of burglary or vandalism in the area where the defendant had parked his vehicle, and the officer testified that the vehicle was driven to the precinct because it was used in the commission of a crime. Thus, the People failed to establish that the impoundment of the defendant’s vehicle was in the interests of public safety or part of the police’s community caretaking function … . Moreover, although the officer who performed the inventory search of the defendant’s vehicle testified that the policy for conducting such searches was located in the Patrol Guide, the People presented no evidence demonstrating the requirements of the policy for impounding and searching a vehicle, or whether the officer complied with that policy when she conducted the inventory search of the defendant’s vehicle … . People v Rivera, 2021 NY Slip Op 08256, Second Dept 3-17-21

 

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THE BORROWER’S APPLICATION FOR A LOAN MODIFICATION DID NOT RELIEVE THE BANK OF THE RPAPL 1304 NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION; THE BANK DID NOT PROVIDE SUFFICIENT PROOF OF THE MAILING OF THE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined (1) the bank was still required to provide the RPAPL1304 notice despite the application for a loan modification, and (2) the proof of mailing the notice was insufficient. The court noted that proof of mailing submitted for the first time in reply cannot be considered as part of the bank’s prima facie case:

When the instant action was commenced, RPAPL 1304(3) provided: “The ninety day period specified in the notice[ ] contained in [RPAPL 1304(1)] shall not apply, or shall cease to apply, if the borrower has filed [an application for the adjustment of debts of the borrower or an order for relief from the payment of debts], or if the borrower no longer occupies the residence as the borrower’s principal dwelling” … . A loan modification was not an adjustment of debts within the meaning of the version of RPAPL 1304(3) then in effect and, in any event, a lender was relieved only from the requirement to provide notice within the “ninety day period” (RPAPL 1304[3]), not from the requirement to provide the notice specified in RPAPL 1304(1) … . …

US Bank failed to establish, prima facie, that it complied with RPAPL 1304. Although Ubinas stated in her affidavit that the RPAPL 1304 notices were mailed by certified and regular first-class mail, and attached copies of those notices, of an envelope addressed to the defendant bearing a certified mail 20-digit barcode, and of an envelope bearing a first-class mail postage stamp, US Bank failed to attach, as exhibits to the motion, any documents to prove that the mailing actually occurred. There is no copy of any United States Post Office document indicating that the notice was sent by registered or certified mail as required by the statute. Further, while Ubinas attested that she had personal knowledge of the record-making practices of Ocwen, and that the 90-day notice was sent in compliance with RPAPL 1304, she did not attest to knowledge of the mailing practices of the Law Offices of McCabe, Weisberg, and Conway, P.C., the entity that allegedly sent the notices to the defendant on behalf of Ocwen. On appeal, US Bank relies upon the signed certified mail return receipt submitted in reply. The moving party, however, cannot meet its prima facie burden by submitting evidence for the first time in reply … . U.S. Bank N.A. v Hammer, 2021 NY Slip Op 01439, Second Dept 3-10-21

 

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THE COMPLAINT IN THIS LABOR LAW 200 ACTION ALLEGED INJURY CAUSED BY A DANGEROUS CONDITION AT THE WORK SITE; THE DEFENDANTS IGNORED THAT THEORY IN THEIR MOTION FOR A SUMMARY JUDGMENT AND FOCUSED ON AN INAPPLICABLE THEORY (THE MEANS AND MANNER OF WORK); THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this Labor Law 200 action should not have been granted. There are two distinct theories which will support a Labor Law 200 cause of action. If the injury stems from the means and manner of the work, the defendant must have supervisory authority over the way the work is done. If the injury stems from a dangerous condition, the defendant must have control over the work site and must have created or had notice of the dangerous condition. Here plaintiff alleged a door at the work site was not adequately secured and he was injured when wind blew the door shut. The door therefore was alleged to constitute a dangerous condition. In their motion papers, however, the defendants addressed only the means-and-manner-of-work theory:

… [T]he plaintiff’s complaint and verified bill of particulars sounded almost entirely in premises liability, and alleged, inter alia, that the door was not properly constructed, placed, or secured, and that it lacked adequate securing devices. To establish their prima facie entitlement to judgment as a matter of law, the defendants were obligated to address the proof applicable to the plaintiff’s dangerous condition theory of liability, or alternatively, to demonstrate, prima facie, that this case fell only within the ambit of the means and methods category of Labor Law § 200 cases … . On their motion, the defendants summarily concluded that the case exclusively implied a means and methods theory of liability, and contended that they only had general supervisory authority over the work site, which would be insufficient to impose liability for common-law negligence and under Labor Law § 200 in a means and methods case … . The defendants, however, failed to address premises liability and whether they either created the alleged dangerous condition or had actual or constructive notice of it … . Rodriguez v HY 38 Owner, LLC, 2021 NY Slip Op 01436, Second Dept 3-10-21

 

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DEFENDANTS DID NOT PRESENT SUFFICIENT EVIDENCE IN SUPPORT OF THEIR MOTION TO CHANGE VENUE (FIRST DEPT).

The First Department reversing Supreme Court, determined defendants did not present sufficient evidence in support of their motion to change venue. The plaintiffs alleged the defendants, who were hired to paint newly-constructed residential property, did substandard work. Suit was brought in the county of plaintiffs’ residence and business, New York County. The defendants sought to change the venue to Suffolk County where the property is located and defendants reside:

Where venue has properly been designated by the plaintiff based on the residence of either party, a defendant seeking a change of venue under CPLR 510(3) must make a detailed evidentiary showing that the nonparty witnesses will, in fact, be inconvenienced absent such relief. The affidavit of the moving party under CPLR 510(3) must (1) contain the names, addresses, and occupations of witnesses expected to be called; (2) disclose the facts upon which such witnesses are expected to testify, in order that the court may determine whether such witnesses are material and necessary; (3) demonstrate that such witnesses are willing to testify; and (4) show that the witnesses would be inconvenienced absent a change in venue … …

… [D]efendants neglected to show with sufficient particularity the facts upon which nonparty McAulife is expected to testify. … Defendants did not submit an affidavit from McAulife, relying instead on counsel’s affirmation wherein he states that McAulife was “familiar with the work performed by defendants at 10 Two Trees Lane,” and “familiar with defendants in their business capacity.” Without further detail about when, where, and under what circumstances McAulife had occasion to become “familiar with the work,” defendants’ burden has not been met … . Defendants also fail to set forth McAulife’s name, address, and occupation, or how he would be inconvenienced absent a change in venue. The fact that the case involves work on a property located in Suffolk County does not justify an inversion of the burden of proof or relieve the moving party of its burden of establishing that the convenience of the nonparty witnesses would be served by a discretionary change of venue … . 10 Two Trees Lane LLC v Mahone, 2021 NY Slip Op 01371, First Dept 3-9-21

 

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