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SECOND DEGREE MURDER COUNTS DISMISSED AS INCLUSORY CONCURRENT COUNTS RE FIRST DEGREE MURDER; CROSS EXAMINATION OF A POLICE OFFICER RE EXCESSIVE FORCE PROPERLY PRECLUDED BECAUSE THE ALLEGATIONS WERE NOT RELEVANT TO CREDIBILITY (SECOND DEPT).

The Second Department determined the second degree murder counts must be dismissed as inclusory concurrent counts of the convictions of first degree murder. The court noted that the trial court properly precluded cross examination of a police officer about allegations of the officer’s use of excessive force because the allegations were not relevant to credibility:

While specific and relevant allegations of misconduct in a civil action filed against a law enforcement officer may be used for the limited purpose of impeaching that law enforcement witness at trial … , such impeachment is subject to the court’s broad discretion in controlling the permissible scope of cross-examination … . Here, the defendant failed to demonstrate that specific allegations of excessive force in a federal action pending against the detective and a finding in 2010 by the Civilian Complaint Review Board that the detective used excessive force were relevant to the detective’s credibility … . People v Brown, 2020 NY Slip Op 01632, Second Dept 3-11-20

 

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PROTECTIVE ORDER PRECLUDING DISCLOSURE OF EVIDENCE TO THE DEFENSE REVERSED (SECOND DEPT).

The Second Department, in a decision by Justice Scheinkman, reversing Supreme Court, vacated a protective order concerning the disclosure of certain evidence to the defense:

I agree with the defendant that the People should have been required to disclose to defense counsel the general nature of the information that the People sought to be protected (see CPL 245.10[1][a] [“Portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under 245.70 of this article; but the defendant shall be notified in writing that information has not been disclosed under a particular subdivision of (CPL 245.20)”]).

The defendant and his counsel were not informed as to whether what was sought to be protected were only witness names and personal information as opposed to witness statements, police reports, grand jury testimony, video or audio recordings, or other evidence.

I also agree with the defendant that, under the circumstances of this case, the People should have been required to disclose information about the reasons for the application that would not reveal the existence of the information sought to be protected. As I stated in People v Bonifacio (179 AD3d 977, 979), “proceedings on applications for a protective order should be entirely ex parte only where the applicant has demonstrated the clear necessity for the entirety of the application, and the submissions in support of it, to be shielded from the opposing party” and that it may be that “even where some aspects of the application should be considered by the court ex parte, other portions of the application may be appropriately disclosable.” Here, much of the written application could have been disclosed to defense counsel in redacted form without any danger of revealing the information sought to be protected … . People v Belfon, 2020 NY Slip Op 01630, Second Dept 3-11-20

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THE REFEREE’S FINDINGS WERE BASED UPON INADMISSIBLE HEARSAY, JUDGMENT OF FORECLOSURE REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s findings in this foreclosure action were based upon inadmissible hearsay:

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . Here, contrary to the plaintiff’s contention, the affidavit of its document execution specialist, submitted for the purpose of establishing the amount due and owing under the subject mortgage loan, constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records he purportedly relied upon in making his calculations … . Under the circumstances, the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . Nationstar Mtge., LLC v Cavallaro, 2020 NY Slip Op 01624, Second Dept 3-11-20

 

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A REVOLVER WHICH COULD NOT BE CONNECTED TO THE SHOOTING SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ERROR HARMLESS HOWEVER (THIRD DEPT).

The Third Department determined the admission into evidence of a revolver which could not be connected to the shooting at issue was (harmless) error:

Defendant next argues that County Court erred in admitting into evidence an operable .38-caliber revolver, containing five spent rounds, that was recovered from a nearby rooftop a few days after the shooting. Testing could not conclusively show that the revolver was used in the shooting or that it had been handled by defendant, but it remained relevant given the circumstances of its recovery and the fact that it could not be ruled out as the one used by the shooter … . The revolver was accordingly admissible unless its probative value was “substantially outweighed by the danger that it [would] unfairly prejudice the other side or mislead the jury,” and County Court attempted to reduce that danger by telling the jury why the revolver was being admitted into evidence and urging it to give the revolver whatever weight it deemed appropriate … . County Court’s ameliorative efforts arguably fell short but, in our view, any resulting error was harmless “in light of the overwhelming testimony identifying defendant as [the] assailant” … . People v Banks, 2020 NY Slip Op 01525, Third Dept 3-5-20

 

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PLAINTIFF’S EXPERT DID NOT PRESENT ANY EVIDENCE DEMONSTRATING THE REMOTELY OPERATED CRANE COULD FEASIBLY BE MADE SAFER; THEREFORE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS PRODUCTS LIABILITY CASE WAS PROPERLY GRANTED (THIRD DEPT).

The Third Department determined plaintiff’s expert did not raise a question of fact in this products liability case. Plaintiff’s decedent was killed by a crane operated remotely by plaintiff’s decedent. Defendants’ experts attributed the accident to plaintiff’s decedent’s acts of leaning into the path of the crane and bending over with the remote attached to his hip, causing the crane to be activated inadvertently. Both leaning into the path of the crane and bending over with the remote attached were known to be dangerous and plaintiff’s decedent had trained others accordingly. Although plaintiff’s expert averred that a dead man’s switch would have prevented the accident, he did not present any supporting evidence:

“An expert’s [Darby’s] affidavit — offered as the only evidence to defeat summary judgment — must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation, and would, if offered alone at trial, support a verdict in the proponent’s favor” … . Initially, although Derby alleged that he inspected the remote, his affidavit was not supported by facts of his own independent testing of the device; rather, he relied on deposition testimony of other witnesses to explain the functions of the remote … . Furthermore, although Derby averred that the remote could be made safer by adding a dead man’s switch or by implementing joysticks, he offered no proposed designs that could feasibly be installed … , and, moreover, he pointed to no industry standards or data to support his conclusion that the absence of a dead man’s switch rendered the remote unsafe … . After all, “[a] factual issue regarding design defect is not established merely by pointing to efforts within the industry to make a safer product, without providing some detail as to how the current product is not reasonably safe and how a feasible alternative would be safer” … . Given Derby’s failure to elaborate, and mindful of the testimony of multiple witnesses for defendants who averred that they were not aware of any remote controls in the industry that use a dead man’s switch for crane operations, plaintiff’s proof was insufficient to raise a triable issue regarding design defect … . Darrow v Hetronic Deutschland GMBH, 2020 NY Slip Op 01543, Third Dept 3-5-20

 

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ICE ON SIDEWALK MAY HAVE PRE-EXISTED RECENT SNOW; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the ice on which plaintiff slipped and fell pre-existed the recent snow fall. Plaintiff slipped and fell at around 7:30 am and, pursuant to the New York City Administrative Code, defendant had until 11 am to clear the recent snow (storm in progress rule):

Because it snowed overnight, defendant had until 11 a.m. to clear any fresh snow and ice … . However, an issue of fact exists regarding whether the ice on which plaintiff slipped was preexisting. Plaintiff testified and submitted witness affidavits to the effect that the ice was dirty and trod upon, and had been present for days … .

Moreover, while defendant submitted certified climatological records from Central Park in reply and in opposition to plaintiff’s cross motion, defendant cannot remedy a fundamental deficiency in its moving papers with evidence submitted in reply … , although they may be considered in opposition to plaintiff’s cross motion. In any event, the records show that the temperatures remained below or only slightly above freezing during much of the six days after defendant asserts that the last snow fall occurred, and defendant offers only speculation that such temperatures would have melted previous accumulations of snow and ice. Ruland v 130 FG, LLC, 2020 NY Slip Op 01558, First Dept 3-5-20

 

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A WORN MARBLE STEP IS NOT AN ACTIONABLE DEFECT; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s slip and fall action should have been dismissed. The cause of the fall was alleged to be a worn marble step, which is not actionable:

Defendants established their entitlement to judgment as a matter of law in this action where plaintiff was injured when, while descending interior stairs in defendants’ building, she slipped and fell on a marble step that had a worn tread. A worn marble tread, without more, is not an actionable defect …

In opposition, plaintiff failed to raise a triable issue of fact. Having abandoned her claim that defendants were negligent in keeping the stairs free of moisture, plaintiff cannot now argue that the existence of moisture on the stairs would be an actionable condition. Nor did plaintiff’s experts establish that in addition to the worn marble stair treads, they lacked adequate slip resistance, as the coefficient of friction value that the experts used as a standard value was not shown to be an accepted industry standard … . Nor did the experts’ affidavits raise a triable issue of fact, since the opinions concerning the cause of plaintiff’s slip were speculative … . DeCarbo v Omonia Realty Corp., 2020 NY Slip Op 01555, First Dept 3-5-20

 

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LINEUP IDENTIFICATION WAS UNDULY SUGGESTIVE, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the lineup identification procedure was unduly suggestive:

… [W]e agree with the defendant’s contention that the hearing court erred in finding that the pretrial identification procedure, a lineup, was not unduly suggestive. The defendant was the only person in the lineup with dreadlocks, and dreadlocks featured prominently in the description of one of the assailants that the complainant gave to the police. In addition, the dreadlocks were distinctive and visible despite the fact that the defendant and the fillers all wore hats … . Accordingly, the lineup identification should have been suppressed. The error was not harmless as it cannot be said that there is no reasonable possibility that the error might have contributed to the defendant’s conviction … . Therefore, we reverse the judgment of conviction and order a new trial. People v Colsen, 2020 NY Slip Op 01514, Second Dept 3-4-20

 

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PLAINTIFF’S SOLE REMEDY FOR HIS ON THE JOB INJURY IS WORKERS’ COMPENSATION; PLAINTIFF WAS NOT GRAVELY INJURED AND THERE WAS NO AGREEMENT WITH HIS EMPLOYER TO CONTRIBUTE, INDEMNIFY OR INSURE; THE EMPLOYER’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-employer’s motion for summary judgment should have been granted. Plaintiff was injured while acting within the scope of his employment. Workers’ Compensation, therefore, was his exclusive remedy unless he was gravely injured or there was agreement with the employer:

Workers’ Compensation Law § 11 prohibits third-party claims for contribution or indemnification against an employer unless the employee has sustained a “grave injury” or there is a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the third-party claimant … .

Here, in support of its motion, A.B.C. Tank established, prima facie, that there was no written agreement between the parties that required it to contribute, indemnify, or procure insurance … . Further, A.B.C. Tank established, prima facie, that the plaintiff was injured in the course of his employment and that the plaintiff’s injuries did not constitute a “grave injury” within the meaning of Workers’ Compensation Law § 11 … . McIntosh v Ronit Realty, LLC, 2020 NY Slip Op 01485, Second Dept 3-4-20

 

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PLAINTIFF APPARENTLY SLIPPED AND FELL BECAUSE OF LEAVES ON THE STAIRWAY; THE CONDITION WAS NOT BOTH “OPEN AND OBVIOUS” AND “NOT INHERENTLY DANGEROUS” AS A MATTER OF LAW; PLAINTIFF’S NEGLIGENCE IN DESCENDING THE STAIRWAY FURNISHED THE OCCASION FOR THE ACCIDENT, BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT (SECOND DEPT).

The Second Department determined the verdict in this slip and fall case was not contrary to the weight of the evidence. Plaintiff descended a stairway which had leaves on it:

The plaintiff’s testimony sufficiently identified the condition that caused her to fall … . The evidence at trial failed to establish, as a matter of law, that the condition at issue was both open and obvious and not inherently dangerous … . …

A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . Here, the jury could have reasonably concluded that the plaintiff was negligent in choosing to descend the stairway despite the presence of leaves, but that her negligence merely furnished the occasion for the accident … . Accordingly, the jury’s determination that the plaintiff’s conduct was not a substantial factor in causing the accident was not contrary to the weight of the evidence. Brennan v Gormley, 2020 NY Slip Op 01473, Second Dept 3-4-20

 

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