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DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION AND DID NOT DEMONSTRATE IT DID NOT HAVE KNOWLEDGE OF THE CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s (Stop 1’s) motion for summary judgment in this slip and fall case should not have been granted. The decision does not describe the facts but apparently rainfall had something to do with the fall:

Defendant (Stop 1) did not meet its initial burden of demonstrating “that it neither created a hazardous condition, nor had actual or constructive notice of its existence” … , as it made no specific, affirmative showing that it did not have actual or constructive notice of the hazardous condition. Defendants failed to establish their prima facie entitlement to summary judgment as they “failed to offer specific evidence as to their activities on the day of the accident, including evidence indicating the last time [the area in question] was inspected, cleaned, or maintained before [the] fall” … . Witness Nashwen Nagi testified that he was not in the bodega at the time of plaintiff’s accident because he was on vacation, and did not have any knowledge of the accident until Stop 1 received a letter from plaintiff’s lawyer. According to Nagi, Stop 1 did not maintain employment or repair records for the bodega.

The record in any event raises triable issues of fact sufficient for trial, as the affidavit from a nonparty witness presents an issue as to how long before the accident the rain had started. Ruiz v Stop 1 Gourmet Deli, 2020 NY Slip Op 04000, First Dept 7-16-20

 

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WHETHER THE TRAFFIC ACCIDENT INVOLVING A SALT-SPREADING TRUCK OCCURRED ON A PUBLIC OR PRIVATE PARKING LOT AFFECTED THE APPROPRIATE STANDARD OF CARE UNDER THE VEHICLE AND TRAFFIC LAW, PROOF ON THAT ISSUE SHOULD HAVE BEEN ALLOWED; DEFENDANTS’ ACCIDENT RECONSTRUCTIONIST SHOULD HAVE BEEN ALLOWED TO TESTIFY; THE $12 MILLION VERDICT WAS PROPERLY SET ASIDE AS EXCESSIVE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined a new trial was necessary on both liability and damages in this traffic accident case. Supreme Court had found the $12,000,000 verdict excessive and had ordered a new damages trial. The accident occurred in a parking lot at LaGuardia Airport during a snowfall and involved a salt-spreading truck. Proof whether the parking was public or private should have been allowed because the reckless disregard standard (Vehicle and Traffic Law) would apply if the parking lot was public. The First Department further found that the defendants’ accident reconstructionist should have been allowed to testify:

Plaintiff, an employee at a Dunkin Donuts franchise in LaGuardia Airport, was involved in an accident with a salt spreading truck operating in parking lot 10 of the airport during a snowfall. The trial court erred in truncating proof on the issue of whether lot 10 was public or private. This error then directly impacted whether the jury should have been charged with the recklessness standard as set forth in Vehicle and Traffic Law § 1103, or Vehicle and Traffic Law § 1163 … . The error in the charge warrants a new trial … .

The court also erred in precluding defendants’ accident reconstructionist from testifying … . The court’s in limine inquiry of the expert concerning scientific studies was not relevant, as the subject of the testimony, accident reconstruction and perception reaction time are not novel scientific theories, such as to require a Frye hearing … . The proposed expert testimony was based on evidence in the record concerning the accident, and was not entirely speculative … . Similarly, defendants’ notice of expert exchange was not insufficient such as to warrant his in toto preclusion. The remedy for any alleged failures in specificity could have been handled by limiting his testimony to the subject matters listed in the exchange (CPLR 3101[d]). Cabrera v Port Auth. of N.Y. & N.J., 2020 NY Slip Op 03993, First Dept 7-16-20

 

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DEFENDANT DOCTORS’ MOTIONS FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED; ONE DOCTOR DID NOT DEMONSTRATE HE DID NOT PARTICIPATE IN THE RESUSCITATION OF THE NEWBORN; THERE WAS A QUESTION OF FACT WHETHER A SECOND DOCTOR EMPLOYED THE PROPER RESUSCITATION METHOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the summary judgment motions brought by two defendant doctors in this medical malpractice action should not have been granted. Essentially the alleged malpractice concerned the resuscitation of plaintiffs’ baby, E.K., in the seconds and minutes after birth. There were questions of fact about whether Dr. De Christofaro participated in the resuscitation efforts. And there were questions of fact whether Dr. Aleti-Jacobs used a proper resuscitation method:

De Christofaro failed to demonstrate his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him. The expert affirmations submitted in support of De Christofaro’s motion failed to address, inter alia, the plaintiffs’ allegation i… that De Christofaro departed from the standard of care with regard to the resuscitation and intubation that took place in the minutes following E. K.’s birth. In particular, De Christofaro failed to eliminate triable issues of fact regarding his level of participation in the resuscitation and intubation of E. K. … . While De Christofaro testified at his deposition that there was nothing in E. K.’s medical records indicating that he was present in the delivery room during the intubation of E. K., the record does not conclusively establish his absence … . Critically, De Christofaro testified that he could not place an exact time at which he first became involved in E. K.’s care, that he “most certainly could have been there and helped in the resuscitation,” and that he could not recall the circumstances regarding E. K.’s intubation or who performed the intubation. …

… [T]he plaintiffs raised a triable issue of fact through the affirmation of their expert, who opined, inter alia, that Aleti-Jacobs breached the standard of care by administering PPV [positive pressure ventilation] to E. K. upon his birth rather than immediately intubating him. The plaintiffs’ expert opined that a baby, such as E. K., who was born with an Apgar score of one should have been intubated “within the first 15 to 20 second[s] of life.” According to one hospital record, E. K. was not successfully intubated until four minutes after his birth. Additionally, the plaintiffs’ expert’s opinion was sufficient to raise a triable issue of fact as to whether the alleged failure to timely intubate E. K. was a proximate cause of his injuries. E.K. v Tovar, 2020 NY Slip Op 03904, Second Dept 7-15-20

 

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EVIDENCE THE AREA WAS INSPECTED ONCE A MONTH DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION OF THE DRIVEWAY IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined there were questions of fact about the cause of the fall (cracks in the asphalt), whether the defendant had notice of the condition, and whether the defect was trivial. Evidence the area was inspected once a month was no sufficient. Therefore defendant’s motion for summary judgment should not have been granted:

The defendant … failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition of the driveway … . To meet its initial burden to show a lack of constructive notice, the defendant must offer probative evidence demonstrating a proximity in time between when the area in question was last cleaned or inspected relative to the time when the plaintiff fell … . The affidavit of the defendant’s maintenance worker submitted in support of the defendant’s motion referred only to his general inspection practices but did not refer to any specific inspection in the area of the plaintiff’s fall relative to the date of the incident. Another employee of the defendant averred in an affidavit that she had inspected the driveway approximately seven weeks prior to the plaintiff’s fall and found all routes were clear of obstructions. She also averred that the defendant’s maintenance department inspected the driveway at least once per month. This evidence was insufficient to establish, prima facie, lack of constructive notice … .

The defendant also failed to establish its prima facie entitlement to judgment as a matter of law on the basis that the alleged defect was trivial. The defendant failed to establish, prima facie, that the cracked condition of the driveway was trivial as a matter of law, and thus, nonactionable … . Croshier v New Horizons Resources, Inc., 2020 NY Slip Op 03892, Second Dept 7-15-20

 

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PLAINTIFF BANK DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank (US Bank) did not demonstrate it had standing to bring the foreclosure action:

A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced … . Here, the plaintiff established that Chase had possession of the note at issue at the time this action was commenced. However, the plaintiff failed to establish that Chase had the authority to act on its behalf at that time … . US Bank N.A. v Cusati, 2020 NY Slip Op 03943, Second Dept 7-15-20

 

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DESPITE HAVING MADE A PRIOR MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT WAS ENTITLED TO A HEARING ON THE INSTANT MOTION WHICH WAS SUPPORTED BY AN AFFIDAVIT BY HIS ATTORNEY WHO ACKNOWLEDGED HE TOLD DEFENDANT A GUILTY PLEA WOULD NOT RESULT IN DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. The fact that defendant had made a similar motion which was denied did not preclude the instant motion which, unlike the prior motion, was supported by an affidavit from the attorney who handled defendant’s guilty plea. Defendant argued he would not have pled guilty had he been aware of the deportation consequences:

Contrary to the People’s contention, defendant’s failure to include an affidavit from this attorney on the first CPL article 440 motion did not preclude him from filing the second CPL article 440 motion that did contain such an affidavit (see CPL 440.10 [3] [c]… ). We further note that County Court’s denial of defendant’s motion was not mandatory as CPL 440.10 (3) provides that “in the interest of justice and for good cause shown [the court] may in its discretion grant the motion if it is otherwise meritorious and vacate the judgment” … .

In that vein, we note the numerous statements made in the supporting affidavit of defendant’s former attorney with respect to his representation of defendant in his 2000 criminal matter. The affidavit indicates that, upon being retained by defendant, his sole focus was on negotiating a favorable split sentence that would allow defendant to be released from custody as soon as possible. He admits that, in pursuing a favorable sentence, he did not conduct any investigation of the facts surrounding the underlying criminal offense, initiate any preindictment discovery or otherwise raise what he now identifies are arguably fatal deficiencies in the charges brought against defendant. With respect to defendant’s allegation that he was affirmatively misinformed regarding the potential immigration consequences of entering a guilty plea to a class C drug felony, the attorney candidly concedes that, despite being aware of the fact that defendant was only a lawful permanent resident and not a citizen of the United States at the time that defendant entered his September 2000 guilty plea, he specifically advised defendant that his guilty plea would have no effect on his lawful permanent resident status and that he would not be deported from the country. People v Perez, 2020 NY Slip Op 03825, Third Dept 7-9-20

 

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ALL THE ITEMS IN DEFENDANT’S CAR WERE NOT LISTED IN A WRITTEN INVENTORY, IN VIOLATION OF THE POLICE DEPARTMENT’S INVENTORY-SEARCH POLICY; THEREFORE THE FIREARM WAS NOT FOUND DURING A VALID INVENTORY SEARCH AND SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined the firearm seized from defendant’s car before the car was towed from a crash scene was not found in a valid inventory search. No written inventory was created. The Third Department held that, under the Albany Police inventory search policy, which the court found reasonable, all items in the vehicle should be listed in written inventory. The dissent argued the policy only required “valuable” property to be listed:

Despite the reasonableness of the policy, [Officer] Elliott’s testimony reveals that he did not comply with it and, therefore, Supreme Court erred in denying defendant’s suppression motion. To that end, Elliott testified that it is the Albany Police Department’s policy, as related to inventory searches, that “[a]nything valuable is . . . logged and placed into our property for safekeeping.” Elliott further testified that, because nothing of value was found in the car, nothing was seized and an inventory list was not created relative to the contents of the vehicle. This testimony conflates the requirement that a written inventory always be created with the discretion given to police officers to determine which property is valuable and, as such, must be taken into custody for safekeeping. Thus, from his testimony, it is apparent that Elliott did not comply with the policy regarding inventory searches, as it clearly mandates that an inventory search always be completed and the vehicle be “completely inventoried,” not allowing for discretion of the individual officers … . People v Jones, 2020 NY Slip Op 03826, Third Dept 7-9-20

 

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GRAND JURY EVIDENCE WAS LEGALLY SUFFICIENT IN THIS AGGRAVATED UNLICENSED OPERATION CASE; THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing County Court, determined, on the People’s appeal, the evidence presented to the grand jury was legally sufficient to support the charged crimes (aggravated unlicensed operation of a motor vehicle). One issue was whether the ID defendant showed to the officer at the traffic stop was sufficient to connect the defendant to the Department of Motor Vehicles abstract:

In view of defendant’s admission to the police officer during the stop that he did not have a driver’s license, as well as the information in the certified abstract from the Department of Motor Vehicles, the evidence was legally sufficient to support the charges in the indictment … . Furthermore, by producing the identification card to the police officer, defendant adopted the information therein, including his date of birth … . Accordingly, contrary to defendant’s assertion … , there was admissible evidence connecting defendant to the abstract. Because the record discloses that the evidence before the grand jury was legally sufficient to support the charged crimes, the indictment must be reinstated … . People v Reid, 2020 NY Slip Op 03827, Third Dept 7-9-20

 

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MOTHER PRESENTED SUFFICIENT EVIDENCE IN SUPPORT OF HER PRO SE PETITION FOR A MODIFICATION OF CUSTODY TO WARRANT A HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined that mother presented enough evidence in her pro se petition for a modification of custody to warrant a hearing:

“A parent seeking to modify an existing custody order first must demonstrate that a change in circumstances has occurred since the entry thereof that is sufficient to warrant the court undertaking a best interests analysis in the first instance; assuming this threshold requirement is met, the parent then must show that modification of the underlying order is necessary to ensure the child’s continued best interests” … . “[I]n determining whether a pro se petitioner made a sufficient evidentiary showing to warrant a hearing, we construe the pleadings liberally and afford the petitioner the benefit of every favorable inference. As a general matter, custody determinations should be rendered only after a full and plenary hearing” … .

In her petition, the mother alleged, among other things, that the father repeatedly attempted to take the child with him to a prison to visit an inmate who was convicted of murder and on at least one occasion was successful. She also asserted that the child had no desire to accompany the father on these visits and, in fact, they caused the child significant distress. Furthermore, the mother alleged in her petition that the father has refused to allow any additional parenting time, despite numerous requests, and that he has threatened to take away her court-ordered parenting time. Finally, the mother averred that she has completed therapeutic counseling, is continuing with further therapy and is a fit parent. We find that the pro se petition is sufficient to warrant an evidentiary hearing based on these allegations. “We also note that the prior custody order was entered upon consent of the parties and there has not . . . been a plenary hearing regarding custody” since 2014 … . Matter of Kimberly H. v Daniel I., 2020 NY Slip Op 03830, Third Dept 7-9-20

 

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POLICE DID NOT HAVE REASONABLE SUSPICION DEFENDANT WAS ENGAGED IN CRIMINAL ACTIVITY AT THE TIME OF THE STOP AND PURSUIT; THEREFORE THE WEAPON DISCARDED BY DEFENDANT SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing Supreme Court and dismissing the indictment, determined the police who stopped and pursued the defendant did not have reasonable suspicion of criminal activity at the outset. So the weapon discarded by the defendant should have been suppressed:

“Police pursuit is regarded as significantly impeding a person’s freedom of movement, thus requiring justification by reasonable suspicion that a crime has been, is being, or is about to be committed” … . By contrast, “mere surveillance need not be justified by reasonable suspicion” … .

Although the police actions began as permissible observation, while following defendant slowly in their car without turning on their lights or sirens … , observation gave way to pursuit when the officers turned on their lights and sirens to cross the street against traffic and pull up ahead of defendant. Even crediting one of the officer’s testimony that his intent was to get a better view and alert oncoming traffic, not to cut off, block, or alarm defendant, the objective impact of this maneuver was “intimidating” and communicated “an attempt to capture or . . . intrude upon [defendant’s] freedom of movement” … .

Because it is undisputed that the circumstances before this police activity were not sufficient to create reasonable suspicion, it was unlawful and could not be validated by any subsequently acquired suspicion … . When defendant discarded a handgun during the course of the illegal pursuit, he did not voluntarily abandon it and it should have been suppressed … . People v Collins, 2020 NY Slip Op 03852, First Dept 7-9-20

 

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