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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE DEFENDANT’S ALLEGATION PLAINTIFFS’ CAR STOPPED SUDDENLY DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s allegation plaintiffs’ vehicle came to a sudden stop did not raise a question of fact about defendant’s negligence in this rear-end collision case:

… [T]he defendants failed to raise a triable issue of fact as to whether there was a nonnegligent explanation for the happening of the accident, or whether the emergency doctrine applied to this case … . “[T]he emergency doctrine does not apply to typical accidents involving rear-end collisions because trailing drivers are required to leave a reasonable distance between their vehicles and vehicles ahead” … . Although the defendants submitted a police accident report and the affidavit of Miller, both of which contained statements that the plaintiffs’ vehicle made a sudden stop behind a vehicle that came to an abrupt stop in front of them, Miller testified at his deposition that he could not recall the speed at which he was traveling, or when he first observed the plaintiffs’ vehicle, prior to the accident. “Without such evidence, the assertion that the [plaintiffs’] vehicle came to a sudden stop was insufficient to rebut the inference that [Miller] was negligent” … , and failed to demonstrate that the emergency doctrine was applicable to this case … . Capuozzo v Miller, 2020 NY Slip Op 07026, Second Dept 11-25-20

 

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CRIMINAL POSSESSION OF A WEAPON THIRD DEGREE IS NOT AN ARMED FELONY; MATTER REMITTED FOR A NEW YOUTHFUL OFFENDER STATUS DETERMINATION (SECOND DEPT).

The Second Department determined defendant was eligible for youthful offender status because criminal possession of a weapon third degree is not an armed felony:

The Supreme Court denied the defendant’s application for youthful offender status based upon its mistaken belief that he had been convicted of an armed felony, which required the court to find either mitigating circumstances that bear directly upon the manner in which the crime was committed or that the defendant was only a minor participant in the crime (see CPL 720.10[3]). The People correctly concede that the court erred in finding that the defendant had been convicted of an armed felony, since criminal possession of a weapon in the third degree pursuant to Penal Law 265.02(7) does not require proof that the firearm was loaded (see CPL 1.20[41] …). Thus, the defendant was eligible for youthful offender treatment without any finding of mitigation (see CPL 720.10[2]). Accordingly, we remit the matter … for a new determination of the defendant’s application for youthful offender status and resentencing thereafter. People v Javon L., 2020 NY Slip Op 07094, Second Dept 11-25-20

 

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EVIDENCE OF A 1990 ROBBERY AND SEXUAL ASSAULT TO PROVE IDENTITY SHOULD NOT HAVE BEEN ADMITTED; THE SIMILARITIES WERE NOT STRONG ENOUGH (SECOND DEPT).

The Second Department, reversing defendant’s attempted rape conviction, determined the evidence of a 1990 robbery and sexual assault should not have been admitted as evidence of the identity of the perpetrator. But the burglary, robbery and sexual abuse convictions, apparently stemming from the same incident, were not disturbed:

… [T]he similarities between the alleged 1990 robbery and sexual assault and the attack on the complainant were not sufficiently unique or unusual and did not establish a distinctive modus operandi relevant to establishing the defendant’s identity as the perpetrator in this case. While both incidents involved robberies and sexual assaults of unaccompanied Caucasian women, during daytime hours, in the lobbies of residential buildings, these similarities were not so unique as to give rise to an inference that the perpetrator of each crime was the same individual … . Accordingly, the Supreme Court erred in permitting the People to present evidence regarding the 1990 robbery and assault in order to establish the defendant’s identity … .

The error was harmless as to all of the charges except the attempted rape in the first degree since the proof of the defendant’s guilt, without reference to the erroneously admitted Molineux evidence, was overwhelming as to those other charges, and there was no reasonable possibility that the jury would have acquitted the defendant on those charges had it not been for the error … . Furthermore, the erroneous admission of the Molineux evidence did not deprive the defendant of a fair trial … . We reach a different conclusion with respect to the defendant’s conviction of attempted rape in the first degree. Because the evidence of the defendant’s guilt of that charge was not overwhelming, the error cannot be deemed harmless, and the defendant’s conviction of that charge must be vacated and a new trial ordered as to that charge … . People v Duncan, 2020 NY Slip Op 07090, Second Dept 11-25-20

 

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AN ALLEGED CONTROLLED SUBSTANCE WAS NOT IN PLAIN VIEW IN THE VEHICLE; THEREFORE THE WARRANTLESS SEARCH OF A CLOSED CONTAINER IN THE VEHICLE, WHICH REVEALED A WEAPON, WAS NOT JUSTIFIED; WEAPONS CHARGES DISMISSED (SECOND DEPT).

The Second Department, dismissing the weapons charges, determined the search of defendant’s vehicle was not justified. The officer (Chowdhury) saw the top of a prescription bottle, pulled the bottle out of a pouch, determined it contained a controlled substance, a searched a closed container to find the weapon:

Chowdhury observed “two clear cups of brown liquid, alcohol” in the cup holders in the vehicle’s front console and smelled an odor of alcohol emanating from the vehicle. Chowdhury asked the defendant and an individual in the front passenger seat to exit the vehicle, and they complied. Chowdhury further testified that the rear passenger side door was open and that, with the aid of a flashlight, he observed the “white top” of a prescription bottle sticking out of the pouch on the back of the front passenger seat. Chowdhury then entered the vehicle, pulled the bottle out, and observed that it was clear, with no prescription label, and had unlabeled white pills inside that Chowdhury and [officer] Carrieri identified as Oxycodone. Carrieri then began searching the vehicle for any weapons or other contraband and found a handgun inside of a closed compartment under the rug behind the driver’s seat. The defendant was arrested, and later made a statement to the police regarding the gun. …

The Supreme Court should have granted that branch of the defendant’s omnibus motion which was to suppress the gun and his statement. The officers’ observations of the brown liquid in the cups in the front console and the smell emanating from the vehicle gave them probable cause to suspect a violation of Vehicle and Traffic Law § 1227, which prohibits the possession of open containers containing alcohol in a vehicle located upon a public highway, and would have justified their entry into the vehicle to seize the cups of liquid and search for additional open containers … . However, since there was nothing from Officer Chowdhury’s observation of the top of the prescription bottle located in the seat pocket that indicated that the bottle contained contraband, there was no justification for his removal of the bottle and detailed inspection of it and its contents or for the subsequent search of the car for weapons or other contraband. Chowdhury testified that it was only after he pulled the bottle out of the pouch and pulled upward on the top of it that he was able to see that it was unlabeled and contained what he identified as Oxycodone. Thus, contrary to the People’s contention, it cannot be said that a suspected controlled substance was in plain sight … . People v Boykin, 2020 NY Slip Op 07085, Second Dept 11-25-20

 

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THE EVIDENCE OF PHYSICAL INJURY WAS LEGALLY INSUFFICIENT; ASSAULT SECOND CONVICTION VACATED; UNPRESERVED ISSUE CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT). ​

The Second Department, vacating the assault second conviction, considering the issue in the interest of justice, determined the evidence of physical injury was legally insufficient:

Viewing the evidence in the light most favorable to the prosecution … , it was legally insufficient to establish, beyond a reasonable doubt, that the child complainant sustained a “physical injury” within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain”… . The several witnesses described only a minor injury, stated variously that they saw “a redness” on the child’s cheek, or a slight swelling under his eye and cheek, or a bruise to the right cheek, which was treated with a cold pack. Nor did the record support a finding that the child complainant experienced substantial pain because he experienced only tenderness for one to two hours after the incident. Accordingly, there was insufficient evidence that the child complainant suffered a “physical injury” within the meaning of Penal Law § 10.00(9) … . People v Bernazard, 2020 NY Slip Op 07083, Second Dept 11-25-20

 

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THE DRY BUT ALLEGEDLY SLIPPERY FLOOR WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should have been granted. Plaintiff alleged slipped on a dry but slippery floor:

Plaintiff testified that he slipped while working in the kitchen of a hotel, due to slippery flooring material that had just been installed. He stated that the floor was dry, but the flooring did not “grip,” and the layers were not properly installed. …

Absent competent evidence of a defect in the surface or some deviation from an applicable industry standard, liability is not imposed for a slippery floor … . Here, all of the experts stated that the flooring was at least in the “acceptable” range for slip resistance using industry standards. Moreover, plaintiff failed to present any evidence raising an issue of fact concerning improper installation or defective materials. Evidence of subsequent repairs or remediation is not admissible, unless there is an issue of control or an alleged defect in manufacture, not present here, and does not create an issue of fact as to prior negligence … . Arias v Stonhard, Inc., 2020 NY Slip Op 06944, First Dept 11-24-20

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert’s affidavit did not raise a question of fact:

… [P]laintiff alleges that due to defendants’ negligence in diagnosing a skull fracture during an emergency room visit …, he sustained permanent and disabling neurological damage. …

Defendants’ expert opined that defendants did not depart from good and accepted practice by not ordering a CT head scan based on plaintiff’s initial clinical presentation in the emergency room. Defendants’ expert opined that plaintiff did not meet any of the criteria of the Canadian CT Head Rule (CCHR) used in the emergency room setting to determine which head injuries warrant CT imaging.  [P]laintiff did not exhibit any neurological deficits, such as loss of consciousness, vomiting, headaches, or dizziness, and he was alert and mobile.

In opposition, plaintiff submitted a conclusory affirmation that failed to specifically address the criteria relied upon by defendants’ expert in opining that plaintiff’s presentation did not warrant further investigation of a possible skull fracture.

Rather, without support from the medical record, plaintiff’s expert opined that the injury occurred in the pterion region of the skull, and, moreover, defendants negligently failed to elicit the “mechanism” of injury, i.e., that plaintiff was stabbed, which, when taken together with the location of the wound, would have indicated a likelihood that plaintiff had sustained a skull fracture. Plaintiff’s expert further opined, without elaboration, that plaintiff must have had evidence of injury during his initial ER visit since he was diagnosed with a days-old skull fracture less than a week later, and therefore defendants’ examination of him was cursory and deficient. These opinions, which rely on hindsight and are both speculative and conclusory, are insufficient to raise a triable issue of fact … . Cruz v New York City Health & Hosps. Corp., 2020 NY Slip Op 06946, First Dept 11-24-20

 

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PLAINTIFF FELL FROM A SCAFFOLD AFTER TOUCHING A LIVE ELECTRIC WIRE; FAILURE TO TURN OFF THE ELECTRICITY MAY BE COMPARATIVE NEGLIGENCE WHICH DOES NOT DEFEAT A LABOR LAW 240 (1) CAUSE OF ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1 cause of action should have been granted. Plaintiff was standing on a scaffold installing an exit sign when he touched a live wire and fell. Failure to turn off the electricity was at most comparative negligence which does not defeat the action:

The undisputed evidence in the record shows that plaintiff was attempting to install an exit sign in a building under construction while standing about 12 feet above the floor on a scaffold platform, without using any safety harness or safety lines, when he touched a live wire to a component of the sign, causing him to receive an electrical shock and then fall off the scaffold and onto the floor. Plaintiff made a prima facie showing that his accident was proximately caused by the inadequacy of the safety devices he was using or the absence of other safety devices necessary to protect him from the risks posed by working at a significant elevation above the floor … .

Defendants did not raise issues of fact by pointing to evidence that plaintiff checked the scaffold before using it and did not find it to be defective, and that the scaffold had safety railings on all four sides, or by asserting that no other devices such as a safety harness or safety line would have prevented his fall … .

Defendants failed to raise an issue of fact as to whether “plaintiff knew that he was supposed to use a harness” or safety line, “or that he disregarded specific instructions to do so” … . …

Plaintiff’s failure to turn off the power supply before working with a live wire was at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Goundan v Pav-Lak Contr. Inc., 2020 NY Slip Op 06950, First Dept 11-24-20

 

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PLAINTIFF’S DECEDENT FELL FROM AN UNGUARDED TOP BUNK AT A TEMPORARY SHELTER AND WAS RENDERED A QUADRIPLEGIC; THE SHELTER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; THERE WAS EVIDENCE THE SHELTER HAD INSTALLED GUARDRAILS ON OTHER TOP BUNKS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the negligence cause of action against defendant temporary housing shelter (CAFLF) should not have been dismissed. Plaintiff’s decedent (Philips) was rendered a quadriplegic and later died after falling from an unguarded top bunk. The shelter’s maintenance director testified it was dangerous for anyone to sleep in an unguarded top bunk and that the shelter had installed guardrails on other top bunks:

Summary judgment should be denied to CAFLF. An unguarded top bunk is not an inherently dangerous instrumentality, and a property owner or manager has no duty to install guardrails absent notice that an unguarded top bunk presents a dangerous condition. However, Ida Morris, Philip’s late wife, testified that she and Philip had complained to a CAFLF social worker about the lack of guardrails before Philip’s accident. CAFLF’s maintenance director testified that he and his staff knew it was dangerous for anyone to sleep in an unguarded top bunk and that they installed guardrails on top bunks that were going to be slept in. While the breach of an internal policy that transcends the duty of reasonable care cannot be considered evidence of negligence … , this testimony raises an issue of fact as to whether CAFLF knew or should have known that the unguarded top bunk from which Philip fell was dangerous and, if so, whether CAFLF breached its duty to exercise reasonable care by failing to install a guardrail on the top bunk before Philip’s accident. Slaughter v City of New York, 2020 NY Slip Op 06972, First Dept 11-24-20

 

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CONVERSATIONS ABOUT AND PLANNING OF THE MURDER OF DEFENDANT’S WIFE AND MOTHER-IN-LAW DID NOT CONSTITUTE LEGALLY SUFFICIENT EVIDENCE OF ATTEMPTED MURDER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a three-judge dissent, determined the evidence of attempted first and second degree murder was legally insufficient. Defendant’s conversations and planning with a feigned confederate did not constitute an “actual step” toward killing his wife and mother-in-law:

… [T]he only conduct to be considered is defendant’s own acts because his purported accomplice [MS], who was working with the authorities, did not take any steps toward furthering the planned murders other than listening to defendant’s scheme. MS did not, for example, acquire the instrumentality for the crimes (such as drugs or poison), verify the existence of the keys and obtain them from the stated location, or stake out the address supplied by defendant to make sure that the wife and mother-in-law were present at the location specified. Nevertheless, the People, mostly by parsing defendant’s communications with MS, argue that defendant engaged in sufficient conduct by: (1) promising to provide a house to MS; (2) giving MS the purported address of the targets; (3) instructing MS when to carry out the murders; (4) providing MS with a hand-drawn map of the location of the third party’s house, where MS was to drop off the children after the murders; (5) handing MS a detailed plan of how to carry out the murders; (6) telling MS the location of the keys to the house; (7) calling MS’s girlfriend to arrange for MS to visit the jail; (8) writing a fake suicide note; (9) showing MS the suicide note; and (10) creating a prearranged code to discuss the postmortem over the recorded jail phone.

Not only are these acts “preparatory in a dictionary sense” … , they are also limited to the planning stages of committing the offense: they specify the who, what, where, when, and how of defendant’s murder plans. Notably absent are any acts that can be deemed to bring the crimes dangerously close to completion. People v Lendof-Gonzalez, 2020 NY Slip Op 06940, CtApp 11-24-20

 

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