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DAMAGES IN THIS TRAFFIC ACCIDENT CASE FOR A TORN MENISCUS AND IRREPARABLE DAMAGE TO PLAINTIFF’S DOMINANT HAND ($25,000 FOR PAST PAIN AND SUFFERING AND $0 FOR FUTURE PAIN AND SUFFERING) WERE INADEQUATE; PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT PURSUANT TO CPLR 4404(a) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to set aside the verdict as inadequate in this traffic accident case should have been granted. Plaintiff sustained a torn meniscus in his right knee and irreparable damage to his thumb on his dominant hand. The jury awarded $25,000 for pat pain and suffering and $0 for future pain and suffering. The Second Department held that the past pain and suffering amount should be $100,000 and the future pain and suffering amount should be $50,000:

“While the amount of damages to be awarded for personal injuries is a question for the jury, and the jury’s determination is entitled to great deference, it may be set aside if the award deviates materially from what would be reasonable compensation” … . Prior damage awards in cases involving similar injuries are not binding upon the courts, but serve to guide and enlighten them in determining whether a verdict in a given case constitutes reasonable compensation … . However, consideration should also be given to other factors, including the nature and extent of the injuries … .

Under the circumstances of this case, the jury’s award for past pain and suffering was inadequate to the extent indicated herein (see CPLR 5501[c] …). Furthermore, the jury’s failure to award any damages for future pain and suffering was not based upon a fair interpretation of the evidence … , and was inadequate to the extent indicated herein … . Cullen v Thumser, 2019 NY Slip Op 08988, Second Dept 12-18-19

 

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PROOF OF MULTIPLE INSTANCES OF SEXUAL CONTACT INSUFFICIENT; RISK ASSESSMENT REDUCED TO LEVEL ONE (SECOND DEPT).

The Second Department, reducing defendant’s risk assessment to level one, determined the proof of multiple instances of sexual contact was insufficient:

… [T]he People failed to meet their burden of proof with respect to risk factor 4. Although the People submitted evidence, in the form of the defendant’s statements, that he engaged in sexual contact with the victim on three or four occasions, they failed to submit any evidence as to when these instances of sexual contact occurred relative to one another, so as to demonstrate that such instances were separated in time by at least 24 hours, as the People claimed … . Accordingly, the Supreme Court should not have assessed 20 points under risk factor 4. People v Jarama, 2019 NY Slip Op 09044, Second Dept 12-18-19

 

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PROOF OF GENERAL INSPECTION PRACTICES DOES NOT DEMONSTRATE THE ABSENCE OF CONSTRUCTIVE NOTICE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ICE-ON-SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property-owner’s (Colonial’s) motion for summary judgment should not have been granted in this ice-on-sidewalk slip and fall case:

“To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . Here, Colonial failed to establish, prima facie, that it did not have constructive notice of the alleged patch of ice. The deposition testimony of the president of its board of managers merely referred to general inspection practices, and provided no evidence regarding any specific inspection of the subject area prior to the plaintiff’s fall … . Carro v Colonial Woods Condominiums, 2019 NY Slip Op 08986, Second Dept 12-18-19

 

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IRRELEVANT PHOTOGRAPHS WERE ADMITTED SOLELY TO AROUSE THE EMOTIONS OF THE JURY; THE PROSECUTOR’S REMARKS IN SUMMATION WERE SIMILARLY IMPROPER; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the photographs of the complainant’s genitals and anus were irrelevant and should not have been admitted in this sex-offense case. In addition, the court criticized the prosecutor’s remarks in summation (unpreserved errors):

“Photographic evidence should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant” … . Here, the complainant’s pediatrician, who was called as a witness by the prosecutor, testified that there were no injuries to the complainant’s genitals or anus, and that she did not expect to see any injury based upon the complainant’s report. Nevertheless, the prosecutor then asked the pediatrician to approach the jurors and display the photographs to them. Under the circumstances of this case, the photographs were irrelevant, and served no purpose other than to inflame the emotions of the jury and to introduce into the trial an impermissible sympathy factor … . The error was then compounded when the prosecutor argued in summation that the complainant had to “get on a table and open up her legs and have her genitals photographed to be shown to 15 strangers . . . What did she gain out of this? Nothing.” The improper admission of the photographs cannot be deemed harmless under the circumstances of this case … .

Since there must be a new trial, we note that, although the issue is unpreserved for appellate review, the prosecutor engaged in multiple instances of improper conduct during summation … . For instance, the prosecutor attempted to arouse the sympathies of the jurors … . Additionally, while discussing the character of the defendant, who was a church pastor at the time of trial, the prosecutor referenced the sexual abuse scandals involving the Catholic Church and Orthodox Jewish communities. The prosecutor also pointed out that during jury selection, a prospective juror expressed that she did not feel comfortable sitting on this case because of all the priests who have gotten away with child abuse, and that another prospective juror stated that a family member was raped by a member of the clergy. “[I]n summing up to the jury, counsel must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … . People v Lewis, 2019 NY Slip Op 09023, Second Dept 12-18-19

 

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MATTER REMITTED FOR A REOPENED SUPPRESSION HEARING BASED UPON NEW EVIDENCE THAT THE VEHICLE STOP MAY HAVE BEEN BASED UPON INFORMATION FROM AN ANONYMOUS BYSTANDER (SECOND DEPT).

The Second Department, remitting the matter for a reopened suppression hearing, determined the hearing was warranted by new information that the stop of defendant’s vehicle may have been based on information from an anonymous source. The defendant had already been convicted of attempted robbery twice after a reversal:

We agree with the defendant that the Supreme Court should have granted his motion to reopen the suppression hearing on those branches of his omnibus motion which were to suppress physical evidence recovered as a result of the stop of the livery car and the identification evidence that followed the stop pursuant to CPL 710.40(4). CPL 710.40(4) permits a court to reopen a suppression hearing if additional pertinent facts have been discovered which the defendant could not have discovered with reasonable diligence before the determination of the original suppression motion … . The additional facts discovered need not necessarily be “outcome-determinative or essential'”; instead, they must be “pertinent” in that they “would materially affect or have affected” the earlier suppression ruling … . Here, the revelation that the livery car description may have come from an anonymous bystander who interjected while translating between the complainant and the sergeant at the scene was previously unknown, and because the sergeant did not previously testify in the case, could not have been discovered with due diligence by the defendant. The information that the livery car description came from an unidentified and anonymous bystander would have affected the earlier suppression determination by placing squarely before the court questions regarding the identity and reliability of the person who described the livery car … . People v Dunbar, 2019 NY Slip Op 09018, Second Dept 12-18-19

 

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THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S DECEDENT, WHO WAS IN A VEGETATIVE STATE, EXPERIENCED PAIN; THE DEFENDANT HOSPITALS’ MOTION TO DISMISS THE CONSCIOUS PAIN AND SUFFERING CLAIM SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the hospital’s motion to dismiss the conscious pain and suffering claim should not have been granted. Plaintiff’s decedent was in a vegetative state, but there was evidence she was aware of pain:

… [A]lthough she was in a vegetative state, the decedent was generally responsive to pain, and sometimes followed commands or responded to verbal stimuli … . Although defendants’ experts opined that reflex responses to pain, such as grimacing or withdrawing, are not signs of conscious awareness, at least some of the behaviors recorded in the medical records transcend such reflex responses.

The medical records also reflect that the decedent was administered pain medication in at least one of defendant facilities. Although not dispositive, this fact suggests that the decedent’s doctors believed that she might be able to experience pain.

In addition, plaintiff testified that, while at defendants’ facilities, the decedent made expressions of pain or emotion, such as moaning, crying, or smiling, and communicated with her by blinking … . Plaintiff’s belief that the decedent blinked in response to questions was reflected in the medical records, although the phenomenon was not itself observed by others. …

Plaintiff’s expert also opined that the decedent “had a sufficient level of awareness to enable her to feel pain,” as evidenced by the fact that she “made facial expressions, smiled, … grimaced, moaned, blinked, responded to simple questions, responded to verbal and tactile stimuli, and retracted to pain,” all of which were “indicators of some level of awareness and conscious pain. Estreich v Jewish Home Lifecare, 2019 NY Slip Op 08970, First Dept 12-17-19

 

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ELEVATOR MAINTENANCE COMPANY DID NOT DISPLACE THE BUILDING OWNER’S AND MANAGER’S DUTY TO KEEP THE ELEVATORS SAFE AND DID NOT LAUNCH AN INSTRUMENT OF HARM; IT’S MOTION FOR SUMMARY JUDGMENT IN THIS ELEVATOR ACCIDENT CASE SHOULD HAVE BEEN GRANTED; A VIOLATION OF THE NYC BUILDING CODE IS NOT NEGLIGENCE PER SE (FIRST DEPT). ​

The First Department, modifying Supreme Court in this elevator accident case, noted that violation of the NYC Building Code is some evidence of negligence but not negligence per se, and held that Dunwell’s (the elevator maintenance company’s) motion for summary judgment should have been granted. Dunwell had demonstrated two Espinal factors did not apply (it did not displace the building defendants’ obligation to keep the elevators safe and it did not launch an instrument of harm, i.e., it did not exacerbate or create the defects in the elevator):

Dunwell’s motion for summary judgment dismissing all claims against it should be granted. Dunwell cannot be held liable to plaintiff, because it did not owe the decedent any duty. There is no evidence in the record that Dunwell created or exacerbated any of the alleged elevator defects, including the missing door rollers and link arms, even if it were found to have wrongfully failed to diagnose or correct them (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140, 142-143 [2002] … ). Moreover, Dunwell in fact did recommend that these parts be replaced, but its proposal was not accepted by the Building Defendants, and the governing maintenance agreement did not allow Dunwell to replace them without authorization … . The maintenance agreement was not comprehensive and exclusive and therefore did not displace the Building Defendants’ obligations to maintain the elevators in a safe condition … . Plaintiff does not argue that the decedent detrimentally relied on Dunwell’s continued performance of its duties … . Baez v 1749 Grand Concourse LLC, 2019 NY Slip Op 08948, First Dept 12-12-19

 

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ELEVATOR MAINTENANCE COMPANY DID NOT DISPLACE THE BUILDING OWNER’S AND MANAGER’S DUTY TO KEEP THE ELEVATORS SAFE AND DID NOT LAUNCH AN INSTRUMENT OF HARM; IT’S MOTION FOR SUMMARY JUDGMENT IN THIS ELEVATOR ACCIDENT CASE SHOULD HAVE BEEN GRANTED; A VIOLATION OF THE NYC BUILDING CODE IS NOT NEGLIGENCE PER SE (FIRST DEPT).

The First Department, modifying Supreme Court in this elevator accident case, noted that violation of the NYC Building Code is some evidence of negligence but not negligence per se, and held that Dunwell’s (the elevator maintenance company’s) motion for summary judgment should have been granted. Dunwell had demonstrated two Espinal factors did not apply (it did not displace the building defendants’ obligation to keep the elevators safe and it did not launch an instrument of harm, i.e., it did not exacerbate or create the defects in the elevator):

Dunwell’s motion for summary judgment dismissing all claims against it should be granted. Dunwell cannot be held liable to plaintiff, because it did not owe the decedent any duty. There is no evidence in the record that Dunwell created or exacerbated any of the alleged elevator defects, including the missing door rollers and link arms, even if it were found to have wrongfully failed to diagnose or correct them (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140, 142-143 [2002] … ). Moreover, Dunwell in fact did recommend that these parts be replaced, but its proposal was not accepted by the Building Defendants, and the governing maintenance agreement did not allow Dunwell to replace them without authorization … . The maintenance agreement was not comprehensive and exclusive and therefore did not displace the Building Defendants’ obligations to maintain the elevators in a safe condition … . Plaintiff does not argue that the decedent detrimentally relied on Dunwell’s continued performance of its duties … . Baez v 1749 Grand Concourse LLC, 2019 NY Slip Op 08948, First Dept 12-12-19

 

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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE ON THE LESSER INCLUDED OFFENSE OF PETIT LARCENY; THE VALUE OF THE STOLEN CELL PHONES SHOULD NOT HAVE BEEN ADDED TOGETHER BECAUSE THERE WAS NO PROOF THE CELL PHONES WERE OWNED BY THE SAME OWNER (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined: (1) defense counsel was ineffective for failing to request the jury be charged with the lesser included offense of petit larceny in this robbery case involving the theft of cell phones: and (2), the value of the cell phones should not have been added together because there was no proof the phones were owned by the same owner:

Defendant was charged with thefts of cell phones from four wireless phone stores. As to one incident, it was alleged defendant forcibly stole a cell phone in that his showing of a knife to the store employee constituted a threat of force and was perceived by the employee as a threat. While the defense conceded that defendant stole a cell phone, it denied any force was used. Nevertheless, at the charge conference prior to jury deliberations, defense counsel failed to ask for submission of the charge of petit larceny. Since the existing record clearly establishes that this was a mistake, rather than a strategic decision, no CPL 440.10 motion is necessary. When counsel asked for submission of the lesser included offense in the midst of jury deliberations, he expressly admitted that he had been “remiss” in not making a timely request. In any event, counsel could not have been employing an all-or-nothing strategy as to the robbery as argued by the People. This strategy would have made no sense, because the defense was conceding that defendant was guilty of petit larceny as to the other incidents and was already inviting convictions of several misdemeanors. …

Defendant is also entitled to dismissal of the grand larceny charge, which was based upon the improper aggregation of the value of phones taken from two separate AT & T stores on two different days. The People failed to prove that the stores, and the phones located therein, had the same “owner” for the purpose of aggregating multiple thefts … . There was no evidence that these stores were owned by the same corporation, as opposed to, for example, dealerships separately owned and authorized to sell AT & T wireless products and services ,,, , People v Camacho, 2019 NY Slip Op 08944, First Dept 12-12-19

 

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TESTIMONY OF A DEFENSE WITNESS WHO IDENTIFIED PLAINTIFF AS THE PERSON FLEEING THE SCENE OF A CRIME SHOULD NOT HAVE BEEN PRECLUDED IN THIS FALSE ARREST AND MALICIOUS PROSECUTION ACTION; THE JURY WAS NOT INSTRUCTED ON THE CRITERIA FOR A TERRY STOP; PLAINTIFF’S JUDGMENT VACATED AND NEW TRIAL ORDERED (FIRST DEPT).

The First Department, vacating the plaintiff’s judgment and ordering a new trial in this false arrest and malicious prosecution action, determined that the testimony of the defense witness who identified plaintiff as fleeing the scene of a crime should not have been precluded. The name and address of the witness had been provided to plaintiff four years before the trial and the fact that she had since moved and did not want to disclose her new address to any party was not something the defense could control. In addition, the jury was given no guidance on the criteria for an alleged wrongful stop of the plaintiff by police (reasonable suspicion, not probable cause), despite the questions concerning the stop on the special verdict sheet:

The trial court improvidently exercised its discretion in precluding testimony from the witness who identified plaintiff to the police as an individual she had seen fleeing the scene of a crime. Defendants satisfied their discovery obligation by providing the witness’s last known address and telephone number during discovery, more than four years before trial. Thus, there could have been no surprise or prejudice warranting the preclusion … . While the witness subsequently moved, she declined to disclose her new address to any parties to the suit, a factor defendants could not control … . As defendants did not know her new address, they had no obligation under CPLR 3101(h). Nor should defendants have been sanctioned for the fact that the wtness did not wish to discuss the case with plaintiff’s counsel when counsel called her. Notably, plaintiff’s counsel did not attempt to contact the witness until two months before trial and did not attempt to obtain a nonparty deposition of the witness during discovery. Defendant offered to have the witness further confirm these facts, under oath and outside the presence of the jury. Under these circumstances, the trial court improvidently exercised its discretion in ordering a hearing at which defendants’ trial attorney would be subject to questioning by plaintiff’s trial attorney, and precluding the witness’s testimony when defense counsel declined to participate in such a hearing. Given that the witness would have offered highly relevant and non-cumulative trial testimony, the error was not harmless … .

It was error to include on the special verdict sheet a questions as to a wrongful stop (Terry v Ohio, 392 US 1 [1968]), because there was no charge given instructing the jury on the legal standard that must be applied in resolving those claims. The jury was never told that a stop is improper if the detaining officer does not have “reasonable suspicion” that the detainee committed a crime, which is less demanding than the “probable cause” standard applicable to the malicious prosecution claims … . That the jury sent a note requesting clarification on the question indicated its awareness of the lack of guidance …. .  Onilude v City of New York, 2019 NY Slip Op 08925, First Dept 12-12-19

 

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