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PLAINTIFF WAS INJURED ATTEMPTING TO ENTER A BUILDING FROM A SCAFFOLD THROUGH A WINDOW CUT-OUT; THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS AWARE THAT METHOD OF ENTERING THE BUILDING WAS PROHIBITED BY DEFENDANTS; THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (CT APP).

The Court of Appeals, reversing (modifying) the Appellate Division, over a three-judge dissent, determined defendants’ motion for summary judgment should not have been granted in this Labor Law 240(1) action. Plaintiff was injured when he fell attempting to enter a building from a scaffold through a window cut-out. Although there was evidence of a standing order prohibiting use of that method for entering the building, other workers used that method:

A defendant has no liability under Labor Law § 240 (1) when plaintiffs: (1) “had adequate safety devices available,” (2) “knew both that” the safety devices “were available and that [they were] expected to use them,” (3) “chose for no good reason not to do so,” and (4) would not have been injured had they “not made that choice” … . Here, a triable issue of fact exists as to whether plaintiff knew he was expected to use the safety devices provided to him, despite the apparent accepted practice of entering the building through the window cut-outs from the scaffolding. Indeed, as the Appellate Division dissent concluded, the Appellate Division majority (and the dissent here) “ignore[] the evidence in the record that workers on this job site used the scaffold to go through window cut-outs to enter the interior of the building and that the scaffold was clearly inadequate for that purpose” … .

Given defendants’ purported acquiescence to this alleged practice, the general contractor’s standing order directing workers not to enter the building through the cut-outs is insufficient to entitle defendants to summary judgment … . Further, the accepted practice could have negated the normal and logical inclination to use the scaffold, stairs, or hoist instead of the cut-outs … . Finally, in context and given the other conflicting evidence in the record, a factfinder should determine whether plaintiff’s statement that he “wasn’t supposed to pass through there” unambiguously establishes that he knew he was expected to use the safety devices. Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 2020 NY Slip Op 01116, CtApp 2-18-20

 

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‘RELIABLE HEARSAY’ IN A PRESENTENCE INVESTIGATION (PSI) REPORT IS A SUFFICIENT BASIS FOR A FINDING DEFENDANT USED VIOLENCE IN THE COMMISSION OF A SEX OFFENSE; LEVEL TWO RISK ASSESSMENT UPHELD (CT APP).

The Court of Appeals, over an extensive two-judge dissent, determined documentary evidence of “reliable hearsay” was sufficient for a finding defendant used violence to coerce the child victim in this “course of sexual conduct against a child” case, Therefore defendant was properly adjudicated a level two risk of reoffense:

At a SORA hearing conducted as defendant was nearing completion of his prison sentence, he was adjudicated a level two risk of reoffense due, in part, to the assessment of ten points under risk factor one, use of violence. That finding was based on information in the Presentence Investigation (PSI) report prepared in connection with the offense stating that “[o]n one or more occasions, he used physical force to coerce the victim into cooperation,” information also included in the case summary prepared by the Board of Examiners of Sex Offenders. Defendant argues that this evidence was insufficient to supply evidence of use of violence because it constituted hearsay and did not more specifically describe his conduct. …

SORA adjudications, by design, are typically based on documentary evidence under the statute’s “reliable hearsay” standard. Case summaries and PSI reports meet that standard … , meaning they can provide sufficient evidence to support the imposition of points. PSI reports are prepared by probation officers who investigate the circumstances surrounding the commission of the offense, defendant’s record of delinquency or criminality, family situation and social, employment, economic, educational and personal history, analyzing that data to provide a sentencing recommendation (see CPL 390.30[1]). Their primary function is to assist a criminal court in determining the appropriate sentence for the particular defendant based on the specific offense. Defendants have a right to review the report prior to sentencing (see CPL 390.50[2][a]) and may challenge the accuracy of any facts contained therein at that time (see CPL 400.10). * * *

Because there is record support for the imposition of points under risk factor one, there is no basis to disturb the Appellate Division order. People v Diaz, 2020 NY Slip Op 01114, CtApp 2-18-20

 

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NEW YORK DOES NOT RECOGNIZE SPOLIATION OF EVIDENCE AS AN INDEPENDENT TORT, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s complaint should have been dismissed for failure to state a cause of action. Plaintiff was injured falling off a forklift platform. Plaintiff alleged defendants negligently destroyed or failed to preserve the forklift platform, thereby making it impossible to sue the manufacturer. The Second Department held that there is no such tort:

Here, the plaintiff’s sole purported cause of action seeks to recover for the negligent impairment of an employee’s right to sue, which is, in effect, an allegation of spoliation … , and New York does not recognize spoliation of evidence as an independent tort. Lopez-Lobo v U.S. Nonwovens Corp., 2020 NY Slip Op 01053, Second Dept 2-13-20

 

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ALTHOUGH DOCUMENTARY EVIDENCE IS ADMISSIBLE NOTWITHSTANDING THE DEAD MAN’S STATUTE, HERE THE DECEDENT’S SIGNATURE ON THE GUARANTY WAS NOT AUTHENTICATED BY SOMEONE OTHER THAN AN INTERESTED WITNESS; THEREFORE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE GUARANTY SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the personal guaranty signed by decedent was not authenticated. Therefore plaintiff was not entitled to summary judgment on the guaranty:

We modify, however, with respect to the cause of action under the personal guaranty purportedly signed by the decedent, because although documentary evidence is admissible notwithstanding the dead man’s statute, it must be “authenticated by a source other than an interested witness’s testimony” … . Having failed to authenticate the guaranty through “a source other than an interested witness’s testimony,” plaintiff was not entitled to summary judgment on the guaranty. Galpern v Air Chefs, L.L.C., 2020 NY Slip Op 01021, First Dept 2-13-20

 

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DESPITE THE BRAKE-FAILURE ALLEGATION IN THIS REAR-END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED; DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE TO RAISE A QUESTION OF FACT ABOUT BRAKE FAILURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff’s motion for summary judgment in this rear-end traffic accident case should have been granted. Defendant did not raise a question of fact about the brake-failure allegation:

” … [D]efendants’ contention that their vehicle’s brake failure was the cause of the accident was insufficient to raise a triable issue of fact as to liability. Defendants failed to satisfy the two-pronged showing that the accident was caused by an unanticipated problem with the vehicle’s brakes, and that they exercised reasonable care to keep the brakes in good working order … .

Summary judgment in plaintiff’s favor is not premature. Both plaintiff and defendant driver had firsthand knowledge of the accident, and submitted affidavits. However, defendants did not submit any evidence concerning maintenance of their vehicle. Defendants only speculate that there may be facts supporting their opposition to plaintiff’s motion which exist but cannot yet be stated … . Quiros v Hawkins, 2020 NY Slip Op 01020, First Dept 2-13-20

 

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PROSECUTORIAL MISCONDUCT AND IRRELEVANT MOLINEUX EVIDENCE REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that prosecutorial misconduct and the admission of irrelevant evidence of another crime required reversal:

“[O]n summation, a prosecutor may not improperly encourage[ ] inferences of guilt based on facts not in evidence'” …  As we determined in People v Ramirez (150 AD3d at 899-900), the prosecutor here improperly suggested that the jury should disregard the grand jury testimony of one of the People’s main witnesses, and invited the jury to speculate that a missing witness would have given supporting testimony if he had been called to testify. …

“The rule of Molineux is familiar: Evidence of uncharged crimes is inadmissible where its only purpose is to show bad character or propensity towards crime” … . However, “evidence of other crimes may be admitted to show motive, intent, the absence of mistake or accident, a common scheme or plan or the identity of the guilty party” … . “In addition, evidence of uncharged crimes may be admitted as necessary background material when relevant to a contested issue in the case, or to complete the narrative of the events if such evidence is inextricably interwoven with the crime charged” … . “Still, even if technically relevant for one of these or some other legitimate purpose, Molineux evidence will not be admitted if it is actually of slight value when compared to the possible prejudice to the accused'” … .

The fact that the defendant allegedly resisted arrest six months after the incident in question after violating an order of protection against him held by one of the complainants was not relevant in this matter. The defendant was not resisting arrest for the crimes charged at trial, and resisting arrest in this instance was too far removed from the underlying incident to be deemed admissible as evidence of consciousness of guilt … . People v Ramirez, 2020 NY Slip Op 01087, Second Dept 2-13-20

 

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EVIDENCE OF VOYEURISTIC DISORDER SHOULD NOT HAVE BEEN CONSIDERED IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING; THE HARE PSYCHOPATHY CHECKLIST-REVISED (PCL-R) WAS PROPERLY RELIED UPON (SECOND DEPT).

The Second Department, affirming the finding that appellant sex offender required civil management, found that the expert’s (Charder’s) testimony about appellant’s voyeuristic-disorder diagnosis should not have been credited. The Second Department further held the Frye hearing demonstrated that the Hare Psychopathy Checklist-Revised (PCL-R) is widely accepted and used in the psychological and psychiatric communities:

… [W]e agree with the appellant that Charder’s testimony regarding her diagnosis of a voyeuristic disorder should not have been credited. Charder admitted that her diagnosis of a voyeuristic disorder was inconsistent with the diagnostic criteria contained in section 302.82 of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Although her decision to apply an alternative definition of voyeuristic disorder does not necessarily render this diagnosis insufficient to establish a mental abnormality … , Charder failed to clearly set forth the diagnostic criteria that she utilized in diagnosing the appellant under this alternative definition of voyeuristic disorder … , and she otherwise failed to explain the basis of her opinion that certain conduct attributed to the appellant was “voyeuristic,” thus rendering such testimony conclusory … . * * *

… [T]he evidence adduced at the Frye hearing demonstrated that the PCL-R has enjoyed long and widespread use within the psychological and psychiatric communities as a tool to measure psychopathy. Even the expert witness called by the appellant to testify at the Frye hearing acknowledged that the PCL-R is generally accepted for this purpose. Although there was evidence adduced at the hearing indicating that the PCL-R has been criticized for a lack of “inter-rater reliability” and having an “allegiance effect,” the evidence adduced at the hearing showed that such problems could be effectively mitigated through proper training. Similarly, although there was evidence indicating that the PCL-R was not designed to function as a direct and stand-alone test of whether an individual has a mental abnormality within the meaning of the statute, expert testimony established that it could nevertheless “contribute to an assessment of the presence of mental abnormality.” Matter of State of New York v Marcello A., 2020 NY Slip Op 01067, Second Dept 2-13-20

 

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CHILD WAS ASLEEP DURING THE INCIDENT INVOLVING FATHER, NEGLECT FINDING REVERSED (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence did not support finding father had neglected the child. The child was asleep during the incident:

The Family Court’s finding that the father neglected the subject child lacks a sound and substantial basis in the record because a preponderance of the evidence does not demonstrate that the child’s physical, mental or emotional condition was impaired or in danger of becoming impaired, or that the actual or threatened harm to the child was a consequence of the father’s failure to exercise a minimal degree of care in providing her with proper supervision or guardianship during the February 14, 2016 incident …  Although the mother’s and the father’s fact-finding testimony established that the child was in the home when the incident occurred, petitioner failed to establish a prima facie case of neglect because their testimony also established that the child was sleeping in another room in the apartment and was unaware of what occurred, which testimony was supported by the testimony of the responding police officer … . Matter of K. S. (Dyllin S.), 2020 NY Slip Op 00979, First Dept 2-11-20

 

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SUPREME COURT PROPERLY FOUND THAT THE OFFICER DID NOT HAVE SUFFICIENT GROUNDS TO STOP DEFENDANT ON THE STREET, DETAIN HIM, SEARCH HIS BAG AND TRANSPORT HIM TO THE BURGLARY SCENE FOR A SHOWUP IDENTIFICATION (FOURTH DEPT).

The Fourth Department affirmed Supreme Court’s ruling that the officer did not have a sufficient basis for detaining the defendant on the street, searching defendant’s bag and transporting defendant to the burglary scene:

The evidence at the suppression hearing established that the officer who initiated the encounter with defendant was responding to a radio dispatch of a burglary in progress. Because other officers were already at the scene of the burglary when he arrived, the officer canvassed the nearby area in his patrol car. Shortly thereafter, the officer noticed defendant three blocks from the burglary scene, walking alone and carrying a bag and a cell phone. The officer approached defendant, exited his vehicle, and asked defendant what he was doing, and defendant stated that he was looking through garbage cans. The officer then searched defendant’s bag in order to check for weapons and informed defendant that he was going to drive defendant back to the scene of the burglary in order to determine whether defendant was a suspect. The officer placed defendant in the back of the patrol car and drove him to the scene of the crime, where a showup identification was conducted and defendant was identified as the burglar and arrested. The evidence also established that, prior to beginning his shift on the day of the encounter, the officer received a “be on the lookout” (BOLO) photograph depicting defendant and reflecting that defendant may have been involved in a prior burglary.

Contrary to the People’s contention, we perceive no basis in the record for disturbing the court’s finding that the officer did not recognize defendant as the individual depicted in the BOLO until after he drove defendant to the scene of the burglary for the showup identification … .

Although the officer justified the search of defendant’s bag as a check for weapons, the record does not reflect that, at any time during the encounter, the officer “reasonably suspected that defendant was armed and posed a threat to [his] safety” … . Further, all the officer could definitively recall of the initial radio dispatch reporting the burglary in progress was that it described the suspect as a male, although the officer also testified that the dispatch might have identified the suspect as Hispanic and wearing a dark hooded sweatshirt. The vague description of the suspect provided by the radio dispatch, as recounted by the officer at the suppression hearing, did not provide the officer with the requisite reasonable suspicion to effect what was at least a forcible detention of defendant and to transport him to take part in a showup identification … . People v Nazario, 2020 NY Slip Op 00955, Fourth Dept 2-7-20

 

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STATEMENT MADE IN PRIOR APPELLATE DECISION IN THE SAME MATTER TO THE EFFECT NO ONE QUESTIONED THE NUMBER OF HOURS PUT IN BY THE ATTORNEY FOR THE CHILD WAS DICTA AND THEREFORE SHOULD NOT HAVE BEEN CONSIDERED THE LAW OF THE CASE ON REMITTAL; THE FOURTH DEPARTMENT REDUCED THE NUMBER OF BILLABLE HOURS (FOURTH DEPT).

The Fourth Department, reducing the amount of attorney’s fees awarded by Supreme Court, noted that a statement made by the Fourth Department in a prior appeal in the same matter was dicta and therefore should not have been treated as the law of the case by Supreme Court. In the prior decision the Fourth Department stated that no one had questioned the number of hours the attorney (Reedy) had worked on the case as the attorney for the child. Supreme Court took that statement to mean the number of hours could not be reduced by the court on remittal:

Our prior order unequivocally directed the court to calculate the amount of Reedy’s fees. An award of attorney’s fees must be “calculated on the basis of the . . . hours actually and reasonably spent on the matter by . . . counsel, multiplied by counsel’s reasonable hourly rate” … . In assessing the reasonableness of the hours spent by counsel, the issue “is not whether hindsight vindicates an attorney’s time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in the same time expenditures” …  . Thus, upon remittal the court was, inter alia, to determine an award of attorney’s fees that adequately reflected both the time spent and whether such time “was reasonably related to the issues litigated” … . Here, especially in light of Reedy’s prior concession that the amount sought was excessive, we conclude that the court abused its discretion in fixing the amount of fees without determining the reasonableness of the number of hours included in Reedy’s fee request … .

Contrary to respondent’s contention, the court’s statement in its earlier decision that “[n]o one has questioned the number of hours [Reedy] has claimed” did not become law of the case. The doctrine of law of the case “applies only to legal determinations that were necessarily resolved on the merits in a prior decision” … . Consequently, the doctrine does not apply where, as here, the court makes statements that are “mere dicta” … . Inasmuch as the court’s ultimate ruling in its earlier decision was that Reedy was not entitled to compensation as a private pay AFC, the court’s statement about the number of hours that he worked was dictum. Stefaniak v Zulkharnain, 2020 NY Slip Op 00961, Fourth Dept 2-7-20

 

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