You are here: / Evidence
,

THE EVIDENCE FATHER NEGLECTED THE DAUGHTER (EXCESSIVE CORPORAL PUNISHMENT) WAS SUFFICIENT; BUT THE EVIDENCE FATHER DERIVATIVELY NEGLECTED THE SON WAS NOT (FIRST DEPT).

The First Department, reversing (modifying Family Court) determined the evidence father derivatively neglected the son was insufficient:

Family Court’s determination that respondent derivatively neglected his son J.L. was not supported by a preponderance of the evidence. The finding was based entirely on the excessive corporal punishment of the daughter, which took place outside the home. There was no evidence that respondent’s excessive corporal punishment was ever directed at the older child, who was 14 years old at the time, or that he was even aware of the abuse. Furthermore, there was no evidence that the son was at risk of becoming impaired, as he continued to reside with respondent after the petitions were filed … . Matter of C.L. (Edward L.), 2023 NY Slip Op 01260, First Dept 3-14-23

Practice Point: There was no evidence the son was even aware of father’s excessive corporal punishment of the daughter, which took place outside the home. The evidence father derivatively neglected the son was insufficient.

 

,

THERE WAS NO EVIDENCE THE POLICE ANNOUNCED THEIR PURPOSE (ARREST WARRANT) BEFORE ENTERING THE APARTMENT; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the suppression motion should have been granted because there was no evidence the police announced their purpose (arrest warrant) before entering the apartment:

The hearing evidence supports findings as follows: The police executing the arrest warrant knocked and heard movement in the apartment but received no response, they announced that they were police and again received no response, and they then entered the apartment after finding that the door was unlocked. Only after opening the door, and after entering the apartment, a detective announced, “NYPD arrest warrant.” There was no evidence that in any way suggests that the police, before entering the apartment, attempted to satisfy the statutory requirement of giving “notice” of their “purpose” (CPL 120.80[4] …). Accordingly, the court should have granted defendant’s motion to suppress the physical evidence at issue. People v Jones, 2023 NY Slip Op 01262. First Dept 3-14-23

Practice Point: The did not comply with the statutory requirement that they announce their purpose, here the execution of an arrest warrant, before entering the apartment. The motion to suppress should have been granted.

 

,

INTRODUCTION OF DEFENDANT’S TWO-YEAR-OLD FIREARM CONVICTION UNDER THE THEORY THAT DEFENDANT “OPENED THE DOOR” WAS REVERSIBLE ERROR; DEFENDANT HAD NOT QUESTIONED THE PROPRIETY OF THE POLICE CONDUCT OR THE OFFICER’S CONCLUSION THE BULGE IN DEFENDANT’S POCKET WAS A FIREARM; THE JUDGE SHOULD HAVE APPLIED THE TWO-STEP MOLINEUX ANALYSIS, WHICH DOES NOT SUPPORT INTRODUCTION OF THE PRIOR CONVICTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing defendant’s conviction, determined the People’s introduction of evidence of defendant’s two-year-old possession of a weapon conviction was not was not justified under the Molineux criteria. A police officer, Lafemina, who was aware of defendant’s prior firearm conviction and a parole warrant for defendant’s arrest, saw a bulge in defendant’s pocket which Lafemina thought could have been a firearm. The defendant ran when approached by Lafemina and, during the chase, entered and exited two buildings. Because Lafemina radioed that defendant may be armed, more that 100 officers responded to the chase. Defendant was charged with burglary based upon the building-entries. No firearm was recovered:

… [O]n the erroneous theory that defendant opened the door, the trial court admitted evidence that defendant was previously convicted of second-degree attempted criminal possession of a weapon ostensibly to explain Lafemina’s actions on the day defendant was arrested. We find this was improper. The trial court should have, but failed to follow the necessary two-step Molineux test: first, determine whether the evidence is relevant to a material issue, and then, if so, whether its probative value outweighs any potential prejudice to defendant. Instead, the court improperly relied on Santana [16 AD3d 346], which does not apply here because defendant never opened the door. …

The court erred by granting the People’s application before defendant raised any issues as to the propriety of the officers’ conduct or as to the accuracy of Lafemina’s belief that defendant was armed … . People v Woody, 2023 NY Slip Op 01263, First Dept 3-14-23

Practice Point: Evidence of a prior conviction can be admitted if the defense “opens the door” to such evidence, even if the evidence would not be admissible under a Molineux analysis. Here the two-year-old firearm conviction was not admissible under Molineux and the defense did not “open the door” by questioning the propriety of the police conduct of the officer’s conclusion the bulge in defendant’s pocket indicated defendant was armed.

 

, ,

IN A FORECLOSURE ACTION THE BANK MUST PROVE COMPLIANCE WITH RPAPL 1306 WHICH REQUIRES PROOF PAPERS WERE FILED WITHIN THREE BUSINESS DAYS OF MAILING THE RPAPL 1304 NOTICE OF DEFAULT; HERE THERE WAS NO PROOF WHEN THE RPAPL 1304 NOTICE WAS MAILED, SO THE PROOF OF COMPLIANCE WITH RPAPL 1306 WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment dismissing an affirmative defense (alleging failure to comply with RPAPL 1306) should not have been granted to the plaintiff in this foreclosure action. Because there was no proof of when the notice of default required by RPAPL 1304 was mailed, proof that plaintiff had filed papers with the superintendent of financial services pursuant to RPAPL 1306 was insufficient. RPAPL 1306 requires filing within three business days of mailing the RPAPL 1304 notice. But the date of mailing was not proven:

… [I]n the absence of evidence establishing when the plaintiff mailed the notices required by RPAPL 1304, the plaintiff could not establish, as a matter of law, that it complied with the requirement of RPAPL 1306 to file with the superintendent of financial services within three business days of the mailing of the notice required by RPAPL 1304. Thus, the court should have denied that branch of the plaintiff’s motion which was, in effect, for summary judgment dismissing so much of the defendant’s fifth affirmative defense as alleged a failure to comply with RPAPL 1306…. . PROF-2013-S3 Legal Title Trust V v Johnson, 2023 NY Slip Op 01204, Second Dept 3-8-23

Practice Point: In a foreclosure action, if there is no proof when the RPAPL 1304 notice of default was mailed, the bank can’t prove the papers filed pursuant to RPAPL 1306 were filed within three business days of mailing the RPAPL 1304 notice (which is a requirement of strict compliance with RPAPL 1306).

 

,

THERE WAS EVIDENCE OF TWO PROXIMATE CAUSES OF PLAINTIFF’S SLIP AND FALL: (1) HER KNEE BUCKLED; AND (2) WHEN SHE TRIED TO STOP HER FALL BY GRABBING THE VANITY, THE VANITY MOVED FIVE INCHES AWAY FROM THE WALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was evidence of two proximate causes of the slip and fall: (1) plaintiff/s knee buckled when she stepped out of the shower; and (2) when plaintiff tried to stop her fall by grabbing onto the vanity, the vanity moved five inches and she fell. The building superintendent testified that a properly installed vanity would not move away from the wall:

“There can be more than one proximate cause of an accident, and a defendant moving for summary judgment must show that it is free from fault” … . “‘Generally, it is for the trier of fact to determine the issue of proximate cause'” … .

Here, the defendant failed to establish, prima facie, that the plaintiff losing her balance due to her knee buckling was the sole proximate cause of the accident and that the defendant was free from fault in the happening of the accident … . In support of its motion, the defendant submitted, inter alia, the transcript of the plaintiff’s deposition testimony, at which she testified that, after she lost her balance due to her knee buckling and she grabbed the vanity with one hand, the vanity moved about five inches away from the wall, “and when it moved I lost my balance even more and that’s when I fell.” Moreover, the plaintiff testified that the vanity had been installed around “a couple of weeks” prior to the accident. The defendant also submitted the transcript of the deposition testimony of the superintendent for the apartment building, who testified that a vanity which had been properly installed should not move away from the bathroom wall through “normal use.” Moe-Salley v Highbridge House Ogden, LLC, 2023 NY Slip Op 01187, Second Dept 3-8-23

Practice Point: There can be more than one proximate cause of a slip and fall. Here plaintiff’s knee buckled as she stepped out of the shower. When she tried to stop her fall by grabbing the vanity, the vanity moved and she fell. There was testimony that a properly installed vanity would not move away from the wall.

 

, ,

DEFENDANTS IN THIS ICY-STEP SLIP AND FALL CASE DID NOT DEMONSTRATE THEY WERE OUT-OF-POSSESSION LANDLORDS WHO WERE NOT RESPONSIBLE FOR ICE AND SNOW REMOVAL; DEFENDANTS DID NOT SUBMIT THE LEASE IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this icy-steps slip and fall case did not demonstrate they had transferred possession and control of the property such that they were not responsible for removal of ice and snow. The lease was not submitted in support of defendants’ motion for summary judgment:

… [T]he defendants’ submissions failed to establish, prima facie, that they were out-of-possession landlords. The defendants did not submit a copy of any lease, and the deposition testimony submitted in support of the motion failed to establish, prima facie, that the defendants had transferred possession and control of the premises … . Moreover, the deposition testimony submitted in support of the motion included testimony that the defendants were responsible for maintaining the property, including snow removal, and had engaged in snow removal on the premises. The defendants thus also failed to establish, prima facie, that they had no duty, by contract or course of conduct, to remove snow and ice from the premises … . Maharaj v Kreidenweis, 2023 NY Slip Op 01185, Second Dept 3-8-23

Practice Point: Here the defendant landlords did not submit the lease in support of their motion for summary judgment in this icy-step slip and fall case. Therefore the defendants did not demonstrate they were out-of-possession landlords not responsible for ice and snow removal.

 

,

ALTHOUGH DEFENDANT COMMITTED A HEINOUS SECOND DEGREE MURDER, THE PROOF OF THE STATUTORY ELEMENTS OF FIRST DEGREE MURDER WAS LEGALLY INSUFFICIENT (FIRST DEPT).

The First Department, reversing defendant’s first degree murder conviction, determined that, although defendant committed a heinous murder, the statutory criteria for first degree murder were not met:

… [T]he evidence was legally insufficient to prove that defendant inflicted torture on the victim within the meaning of the statute in two respects. First, we conclude that defendant did not engage in a “course of conduct” with the intention of inflicting “extreme physical pain” on the victim. Extreme physical pain cannot be defined precisely. However, it cannot be reasonably doubted that the fatal blow to the victim’s neck caused extreme pain. Yet, that blow was a single act rather than a course of conduct. Thus, we find that defendant and his accomplices did not engage in a “course of conduct” involving the intentional infliction of extreme physical pain. Accordingly, the conduct at issue here does not satisfy the statutory definition of torture in that respect.

… [T]he record also fails to support the conclusion that defendant “relished” or “evidenced a sense of pleasure in the infliction of extreme physical pain.” In arguing to the contrary, the People point out that, after the homicide, defendant twice told other gang members that he had “hit [the victim] in the neck,” in a tone that the listener considered boastful. This did not meet the statutory standard. In our view, the statute contemplates evidence that the defendant savored the infliction of extreme pain in the process of inflicting the pain, and for its own sake. The record does not indicate that this occurred here … . People v Estrella, 2023 NY Slip Op 01240, First Dept 3-9-23

Practice Point: Here the evidence of two elements of first degree murder, torture and “relishing” the infliction of pain, were not proven. Therefore the first degree murder conviction was vacated.

 

,

THE HANDWRITTEN ADDITION TO THE PRINTED CONTRACT IS PRESUMED TO EXPRESS THE LATEST INTENTION OF THE PARTIES; HERE THE ENTRY CREATED AMBIGUITY IN THE “NO DAMAGES FOR DELAY” CLAUSE REQUIRING DISCOVERY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined a handwritten entry in a printed contract is presumed to express the latest intention of the parties and created ambiguity requiring discovery:

The subcontractor agreement between plaintiff and defendant JDS Construction Group LLC contains clauses precluding damages for delay. It also provides that if plaintiff’s work was “delayed or disrupted by fault of [JDS], Architect, or any other contractor, or by abnormal weather conditions, then the time fixed for the completion of the Work shall be extended for a period equivalent to the time actually lost, in the discretion of [JDS] and compensated for additional, mutually agreed to costs,” with the words in italics handwritten onto the typed agreement.

… [A] handwritten provision that conflicts with the language of the preprinted form document will control, “as it is presumed to express the latest intention of the parties” … . The handwritten amendment to the no-damages-for-delay clause renders the clause ambiguous as to whether plaintiff is entitled to be compensated for costs incurred as a result of such delays, which requires discovery to discern the parties’ intent … . Henick-Lane, Inc. v 616 First Ave. LLC, 2023 NY Slip Op 01163, First Dept 3-7-23

Practice Point: A handwritten entry in a printed contract is presumed to reflect the latest intention of the parties.

 

,

IN A REAR-END COLLISION, THE ALLEGATION THE CAR IN FRONT STOPPED SHORT DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court in this rear-end traffic accident case, determined the allegation that the car in front stopped short did not raise a question of fact and summary judgment should have been awarded to driver/owner of the car in front:

Plaintiff alleges that he was injured in a two-car collision while he was a passenger in a car driven by Morera and owned by Giovanni. According to plaintiff, defendant Dan Espeut, who was driving behind the Morera defendants’ car, rear-ended the Morera defendants’ car.

It is well-settled law that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence by the driver of the rear vehicle, and imposes a duty on the driver of the rear vehicle to come forward with an adequate nonnegligent explanation for the accident … . Here, the Morera defendants made a prima facie showing of their entitlement to summary judgment by submitting Morera’s affidavit, in which he averred that he was driving straight and gradually applying his brakes because there was traffic ahead of him, and that as he was doing so, the Espeut vehicle rear-ended his vehicle … .

… Espeut’s affidavit, in which he averred that Morera stopped short in front of him after entering his lane of traffic, was insufficient to raise an issue of fact … . Moreover, Espeut had the obligation to maintain a safe distance between the vehicles, which, as the record evidence makes clear, he failed to do … . Obando v Espeut, 2023 NY Slip Op 01144, First Dept 3-2-23

Practice Point: In a rear-end collision case, the allegation by the driver of the rear-most car that the car in front stopped short is not a non-negligent explanation for the accident.

 

,

EVIDENCE OF NEGLECT BASED UPON ALCOHOL USE WAS INSUFFICIENT; THE BASIS WAS OUT-OF-COURT STATEMENTS OF THE CHILD WHICH WERE NOT CORROBORATED (FIRST DEPT).

The First Department, reversing (modifying) Family Court, determined the evidence of father’s neglect based upon alcohol use was insufficient:

… [A] preponderance of the evidence does not support a finding of neglect based on the father’s alcohol use or on any prior incidents of domestic abuse, as those findings were based on out-of-court statements of the child that were not sufficiently corroborated by any other evidence. Matter of Kaylee S. (Kyle L. S.), 2023 NY Slip Op 01150, First Dept 3-2-23

Practice Point: A neglect finding based upon uncorroborated out-of-court statements by a child is not supported by a preponderance of the evidence.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy