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EVIDENCE SUPPORTED THE FIRST DEGREE MURDER CONVICTION BASED UPON DEFENDANT’S HIRING THE KILLER (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the evidence supported the first degree murder charge, based upon defendant’s hiring the killer. The dissent argued the proof of the contract-killing was insufficient. The second degree murder count should have been dismissed:

We and our dissenting colleagues agree on many points. All of us agree that there was sufficient evidence that defendant was complicit in his wife’s murder. Further, all of us agree that there is evidence that the principal requested a payment of money from defendant only five days before the murder. Nevertheless, our dissenting colleagues characterize that request as “part of a string of otherwise innocent interactions” between defendant and the principal in the days leading up to the murder. The dissent even offers the possibility that the principal was “seeking a reward” from defendant—not for agreeing to murder defendant’s wife, but for unrelated virtuous conduct. We cannot agree. In our view, the jury could rationally have concluded that the principal’s request for a payment of money five days before the murder was not “innocent” at all, but in fact was part and parcel of the murder plot. People v Clayton, 2019 NY Slip Op 06284, Fourth Dept 8-22-19

 

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SORA RISK ASSESSMENT REDUCED TO LEVEL ONE, NO PROOF AGE OF CHILDREN DEPICTED IN PORNOGRAPHY WAS LESS THAN TEN (FOURTH DEPT

The Fourth Department reduced defendant’s risk level from two to one, finding there was no proof the children depicted in pornography were less than ten years old:

Defendant was convicted of possessing a sexual performance by a child (Penal Law § 263.16), which requires proof, inter alia, that defendant possessed a play, motion picture, or photograph depicting sexual conduct involving a child who is less than 16 years of age (see §§ 263.00 [1], [4]; 263.16). Consequently, defendant’s plea of guilty to that charge does not constitute clear and convincing evidence that 30 points should be assessed under risk factor 5 … . Additionally, the evidence submitted by the People, including the presentence report, did not constitute clear and convincing evidence that any of the victims was 10 years of age or less  … . The clear and convincing evidence, including the references to the children in the images possessed by defendant in the presentence report as preadolescent or prepubescent, coupled with the report’s definition of such children as being between 10 and 13 years of age, however, supports the imposition of 20 points under risk factor 5 … . People v Spratley, 2019 NY Slip Op 06283, Fourth Dept 8-22-19

 

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AN ADULT GUEST’S ACT OF POURING KEROSENE ONTO AN ACTIVE FIRE IN A FIRE PIT AT DEFENDANTS’ HOME WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S BURN INJURIES; THE DISSENTER ARGUED THERE WAS A QUESTION OF FACT WHETHER A DUTY TO CONTROL THE GUEST’S BEHAVIOR WAS BREACHED (FOURTH DEPT).

The Fourth Department, over a dissent, determined the sole proximate cause of plaintiff’s burn injuries was a guest’s (Gray’s) pouring kerosene onto an active fire in a fire pit at defendants’ home. All parties were adults. The mere presence of kerosene at the home did not constitute a dangerous condition. The dissenter argued defendant-parent did not demonstrate his daughter did not breach a duty to control the conduct of Gray:

Although plaintiff correctly contends that defendants owed him a duty of care as a guest on their property … , defendants’ submissions establish that they did not breach their duty to “act as . . . reasonable [persons] in maintaining [the] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . All attendees of the gathering at defendants’ property on the night of the incident were adults, and it was not unreasonable for defendants to allow the small group of adults to use the premises for an unsupervised gathering around a fire pit. Bavisotto v Doldan, 2019 NY Slip Op 06247, Fourth Dept 8-22-19

 

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NO QUESTION OF FACT WHETHER ICY CONDITION EXISTED BEFORE THE STORM, STORM IN PROGRESS RULE WARRANTED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined defendants demonstrated they were entitled to summary judgment under the storm in progress rule. The dissenters argued there was a question of fact whether the icy condition was there before the storm:

… [W]e conclude that defendants established as a matter of law “that a storm was in progress at the time of the accident and, thus, that [they] had no duty to remove the snow [or] ice until a reasonable time ha[d] elapsed after cessation of the storm’ ” … .

Where, as here, a defendant’s own submissions do not raise an issue of fact whether the icy condition existed before the storm, the burden shifts to the plaintiff “to raise a triable issue of fact whether the accident was caused by a slippery condition at the location where the plaintiff fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant had actual or constructive notice of the preexisting condition’ ” …

Contrary to plaintiff’s contentions, nothing in her deposition testimony, which was submitted by defendants in support of their respective motions, raised a triable issue of fact whether the ice she allegedly observed existed before the storm … , and the evidence that plaintiff submitted in opposition to the motions also did not raise a triable issue of fact. Battaglia v MDC Concourse Ctr., LLC, 2019 NY Slip Op 06310, Fourth Dept 8-22-19

 

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COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS, DEFENDANT PRESENTED EVIDENCE AN ALIBI WITNESS WAS NOT INTERVIEWED; A WITNESS’S RECANTATION WAS PROPERLY FOUND UNBELIEVABLE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined a hearing was required on defendant’s motion to vacate his conviction on ineffective assistance grounds. The motion alleged that defense counsel did not adequately investigate alibi witnesses. The Fourth Department also held that County Court properly found a witness’s recantation of trial testimony unbelievable:

In recognition of the fact that “[t]here is no form of proof so unreliable as recanting testimony” … , courts have set forth a list of factors to be considered where, as here, the newly discovered evidence is recantation evidence, i.e., “(1) the inherent believability of the substance of the recanting testimony; (2) the witness’s demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship between the witness and defendant as related to a motive to lie” … .  Another relevant factor is “whether the recantation refutes the eyewitness testimony of another witness” … . …

… [D]defendant’s CPL 440.10 motion was supported by notarized but unsworn statements of two previously unknown individuals who claimed that they would have corroborated the trial testimony of defendant and his mother that defendant was at a party at his mother’s home for the entire evening of the shooting. One of those witnesses specifically stated that she was at all times willing to “make [a] statement” but was never contacted by defense counsel. Two additional witnesses stated that they observed defendant at that party some time after the shooting. While those witnesses do not provide a technical alibi for defendant because they did not discuss defendant’s location at the time of the shooting … , they tend to support the alibi evidence that defendant could not have been the shooter because he was at a party at his mother’s house for the entire evening … . People v Howard, 2019 NY Slip Op 06309, Fourth Dept 8-22-19

 

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CRITERIA FOR A MOTION TO RENEW WERE NOT MET, DISSENTERS ARGUED THE COURT HAD THE DISCRETION TO CONSIDER THE MOTION AS A MOTION TO REARGUE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the motion to renew should not have been granted. The dissenters argued the motion could have been considered a motion to reargue in the exercise of discretion:

It is well settled that “[a] motion for leave to renew must be based upon new facts that were unavailable at the time of the original motion . . . and, inter alia, that would change the prior determination” (… see CPLR 2221 [e] [2]). Further, “[a]lthough a court has discretion to grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made’ . . . , it may not exercise that discretion unless the movant establishes a reasonable justification for the failure to present such facts on the prior motion’ ” ( …see CPLR 2221 [e] [3]). In particular, “[l]eave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion” … . …

We reject our dissenting colleagues’ conclusion that the court would have been “justified” in exercising discretion to treat the motion to renew as a motion to reargue, and that it effectively did so in granting Camelot’s motion. We disagree. There is no justification in this case to “deem” Camelot’s motion as one seeking reargument and we decline to do so because, in our view, Camelot actively foreclosed that avenue of relief. The Walton & Willet Stone Block, LLC v City of Oswego Community Dev. Off., 2019 NY Slip Op 06245, Fourth Dept 8-22-19

 

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EVIDENCE DID NOT SUPPORT A LEVEL THREE RISK ASSESSMENT, REDUCED TO LEVEL TWO; STANDARD OF PROOF IS PREPONDERANCE NOT CLEAR AND CONVINCING (FOURTH DEPT).

The Fourth Department determined there was insufficient evidence to justify a level three risk assessment. The assessment was reduced to level two. The court noted that County Court should have applied the preponderant evidence standard, not a clear and convincing standard:

… [T]he People did not establish by clear and convincing evidence that defendant had the requisite pattern of drug use, and there is no “indication in the record that drugs . . . played a role in the instant offense” … . * * *

… [T]he hearsay statement by defendant’s ex-wife that he is a “marijuana addict” is entitled to no weight. Not only is that statement conclusory and unsupported by any other evidence, nothing in the record suggests that defendant’s ex-wife is qualified to diagnose addiction. * * *

… [T]he court erred in assessing him 10 points under risk factor 12, for failure to accept responsibility, given that he “pleaded guilty, admitted his guilt, appeared remorseful when interviewed in connection with the preparation of a presentence report, and apologized” for his conduct  … . People v Kowal, 2019 NY Slip Op 06325, Fourth Dept 8-22-19

 

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DEFENDANTS DID NOT SUBMIT THEIR CERTIFICATE OF INCORPORATION AND THE PRINTOUT FROM THE DEPARTMENT OF STATE WAS NOT IN ADMISSIBLE FORM; DEFENDANTS’ MOTION TO CHANGE VENUE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to change venue was not supported by admissible evidence and should have been denied:

“To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff’s choice of venue is improper and that its choice of venue is proper” … . To succeed on their motion here, the defendants were obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in Kings County … . Only if the defendants made such a showing were the plaintiffs required to establish, in opposition, via documentary evidence, that the venue they selected was proper … .

Here, the defendants failed to submit their certificate of incorporation. Contrary to the defendants’ contention, the computer printout they submitted in support of their motion from the website of the New York State Department of State, Division of Corporations was inadmissible, since it was not certified or authenticated, and it was not supported by a factual foundation sufficient to demonstrate its admissibility as a business record … . Therefore, the defendants failed to meet their initial burden of demonstrating that their principal office was located in Nassau County and that the plaintiffs’ choice of venue in Kings County was improper … . O.K. v Y.M. & Y.W.H.A. of Williamsburg, Inc., 2019 NY Slip Op 06156, Second Dept 8-21-19

 

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PLAINTIFF WAS WALKING IN THE CROSSWALK WHEN SHE WAS STRUCK BY DEFENDANT’S BUS MAKING A RIGHT TURN; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAS NOT PREMATURE AND SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this pedestrian traffic accident case should have been granted. Plaintiff was in the crosswalk when she was struck by defendant’s bus making a right turn:

The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting her own affidavit and a certified copy of the police accident report, which demonstrated that she was walking within a crosswalk, with the pedestrian signal in her favor, when the defendants’ vehicle failed to yield the right-of-way and struck her … . In opposition, the defendants failed to raise a triable issue of fact as to as to whether there was a non-negligent explanation for striking the plaintiff.

Furthermore, the plaintiff’s motion was not premature, as the defendants failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff … . Rodriguez-Garcia v Bobby’s Bus Co., Inc., 2019 NY Slip Op 06221, Second Dept 8-21-19

 

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DEFENDANT DOCTOR’S MOTION TO CHANGE THE VENUE OF THE MEDICAL MALPRACTICE ACTION FROM BRONX TO WESTCHESTER COUNTY WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined defendant doctor’s (Goldstein’s) motion to change the venue of this medical malpractice action from Bronx to Westchester County should not have been granted. The majority held the burden was on Goldstein to demonstrate the need for a change of venue and that burden was not met:

Plaintiff commenced this medical malpractice action in Bronx County, alleging that defendants were negligent in rendering podiatric care and treatment to her between April and September 2016. Defendants moved and cross-moved to transfer venue to Westchester County. WestMed and Rye submitted an affidavit of their medical director averring that Dr. Goldstein was one of their employees in Westchester. Dr. Goldstein submitted an affidavit averring that he had offices in Bronx County and Westchester County. He indicated that Westchester County was where his principal place of business was located because that was where he spent the majority of his time. However, he also averred that he maintained privileges at St. Barnabas Hospital and supervised podiatric residents at two St. Barnabas Hospital clinics where approximately 150 patients per month were seen. He averred that in addition he saw approximately 20-25 patients per week at a Bronx Park Medical pavilion located at 2016 Bronxdale Avenue in the Bronx.

Plaintiff is suing not only Westmed Medical Group, P.C. and Rye Ambulatory Surgery Center, LLC, but Dr. Goldstein individually. Since Dr. Goldstein is a party to the lawsuit, venue is proper in the county where he may be said to reside. CPLR 503(a) provides that the place of trial “shall be in the county in which one of the parties resided when it was commenced,” and, insofar as relevant here, “[a] party resident in more than one county shall be deemed a resident of each such county” … . Dr. Goldstein may also be viewed as an individually-owned business, and thus a resident of any county in which he has a principal office (CPLR 503[d]). Thus, an individually-owned business, much as a partnership, may be deemed a resident of the county where it has its principal office, as well as any county in which the individual owner being sued resides … . Siegel notes that the “principal office” county is an alternative; venue may still be based on the residence of natural-born parties … .

Applying these principles, Dr. Goldstein’s affidavit, attesting to residency in Westchester County but devoid of supporting documentation of residency, was insufficient to prove that plaintiff’s designation of Bronx County as venue was improper … . Lividini v Goldstein, 2019 NY Slip Op 06150, Fourth Dept 8-20-19

 

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