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THE WARRANTLESS SEARCH OF DEFENDANT’S VEHICLE WAS NOT JUSTIFIED UNDER THE AUTOMOBILE EXCEPTION OR AS A LIMITED SAFETY SEARCH, MOTION TO SUPPRESS PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined defendant’s motion to suppress a handgun found in his vehicle and a post-seizure statement was properly granted:

… [O]fficers responded to the complainant’s home after receiving a call that he had been threatened by defendant. The complainant told an officer that defendant threatened to shoot him and that he believed the threat was serious because defendant had been in possession of a black handgun prior to the instant incident. Defendant, who was seated in his truck, which was parked in front of the complainant’s home, acknowledged that he had previously said he would shoot the complainant if the complainant entered defendant’s property. Based on that information and defendant’s admissions that he owned a rifle, which was at his home, and that he had a Virginia pistol permit but no New York pistol permit, the officers searched defendant’s person but recovered no weapons. The officers then searched the area near the driver’s seat of defendant’s truck, from which they recovered a loaded handgun. …

The automobile exception to the warrant requirement permits a police officer to ” search a vehicle without a warrant when [the officer has] probable cause to believe that evidence or contraband will be found there’ ” … . [T]he police did not have probable cause to search defendant’s vehicle after they searched him and determined that there was no immediate threat to their safety … , inasmuch as defendant was not alleged to have brandished a gun at the scene, there was inconclusive evidence that he actually threatened the complainant at the scene, defendant did not engage in any suspicious or furtive movements, and the officers did not observe any weapons or related contraband in the vehicle or on defendant’s person … . …

… [T]he officers’ search of defendant’s vehicle was not justifiable as a limited safety search. Probable cause is not required for a limited search of a vehicle ” where, following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officers’ safety sufficient to justify a further intrusion’ ” … . However, the Court of Appeals has “emphasized . . . that a reasonable suspicion alone will not suffice” and that “the likelihood of a weapon in the [vehicle] must be substantial and the danger to the officer’s safety actual and specific” … . People v Pastore, 2019 NY Slip Op 06930, Fourth Dept 9-27-19

 

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THERE WAS SUFFICIENT EVIDENCE DEFENDANT INTENTIONALLY AIDED THE PRINCIPALS IN THE KIDNAPPING; THE EVIDENCE THAT DEFENDANT CONSTRUCTIVELY POSSESSED A WEAPON, HOWEVER, WAS LEGALLY INSUFFICIENT (FOURTH DEPT).

The Fourth Department affirmed defendant’s kidnapping conviction but reversed the weapons-related counts because the evidence she constructively possessed a weapon found in the house was legally insufficient:

… [T]he evidence is legally sufficient to support [defendant’s] conviction of kidnapping in the second degree. Viewing the evidence in the light most favorable to the People … , we conclude that there is a valid line of reasoning and permissible inferences to support the conclusion that defendant had “a shared intent, or community of purpose’ with the principal[s]” … . Defendant was present in a house when the police raided it and rescued two victims who were being held captive there, and the identification of one of the victims was found in a backpack that defendant was wearing when the police entered the house. It could be readily inferred from the evidence that defendant was aware that the victims were being held there and that she intentionally aided the principals by providing them and the victims with food … . …

[The weapons-related] counts were based on her possession of a rifle that was found in the house after the police entered. To establish constructive possession of the weapon, the People had to establish that defendant “exercised dominion or control over [the weapon] by a sufficient level of control over the area in which [it was] found” … . Here, the evidence established that, prior to the arrival of the police, defendant was sitting in the living room of the house, the rifle was on a table in the living room, and one of the other perpetrators in the kidnapping put on a mask, grabbed the rifle, went to the room where the victims were being held, then came back to the living room and put the rifle back on the table. Contrary to the People’s contention, that evidence is insufficient to establish that defendant had constructive possession of the weapon. A defendant’s mere presence in the house where the weapon is found is insufficient to establish constructive possession … , and there was no evidence establishing that defendant exercised dominion or control over the weapon … . People v Rolldan, 2019 NY Slip Op 06913, Fourth Dept 9-27-19

 

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ALTHOUGH PLAINTIFF HERSELF MAY NOT HAVE BEEN ABLE TO IDENTIFY THE CAUSE OF HER SLIP AND FALL, HER DAUGHTER, WHO WITNESSED THE FALL, PROVIDED SUFFICIENT EVIDENCE TO WARRANT DENIAL OF DEFENDANT’S SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (New York City Housing Authority’s, NYCHA’s) motion for summary judgment in this slip and fall case should not have been granted. Plaintiff’s daughter, who witnessed the fall, provided sufficient evidence of the sidewalk defect:

“If a plaintiff is unable to identify the cause of a fall, any finding of negligence would be based upon speculation”  … . “That does not mean that a plaintiff must have personal knowledge of the cause of his or her fall” … . “It only means that a plaintiff’s inability to establish the cause of his or her fall — whether by personal knowledge or by other admissible proof — is fatal to a cause of action based on negligence” … . …

In support of its motion, NYCHA submitted a transcript of the deposition testimony of the plaintiff’s daughter, Galina Moiseyeva (hereinafter Galina), who testified that she saw the plaintiff fall because of a “crack” or “gap” in the sidewalk, which made the sidewalk a “different level.” Further, Galina, who lived with the plaintiff in the premises abutting the sidewalk, testified that she walked along the sidewalk while traveling to and from work, and was previously aware of the alleged crack in the sidewalk. Contrary to NYCHA’s contentions, the alleged failure of the plaintiff and Galina to identify the exact location of the plaintiff’s alleged fall on a photograph shown at their depositions and hearings pursuant to General Municipal Law § 50-h, which photograph was taken the day after the alleged accident occurred and after NYCHA had allegedly covered the subject part of the sidewalk with plywood, did not establish, prima facie, that the plaintiff is unable to identify the cause of her fall. Under the circumstances, NYCHA failed to eliminate triable issues of fact as to whether the plaintiff fell due to the alleged defective condition of the sidewalk … . Moiseyeva v New York City Hous. Auth., 2019 NY Slip Op 06766, Second Dept 9-25-19

 

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BANK’S EVIDENCE OF DEFAULT WAS INADMISSIBLE HEARSAY; INSUFFICIENT PROOF THE NOTE WAS ENDORSED IN BLANK; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. There was insufficient evidence the note was endorsed in blank and there was insufficient evident of defendant’s default:

… [I]t is undisputed that a copy of the underlying note was annexed to the complaint. However, notwithstanding the plaintiff’s assertion in its appellate brief that “[t]he note, as attached to the complaint, was indorsed in blank on the reverse side of the signature page (and not a separate allonge),” it cannot be ascertained from the copy of the note annexed to the complaint whether the separate page that bears the endorsement in blank was stamped on the back of the note, as alleged by the plaintiff, or on an allonge, in which case the plaintiff would have to prove that the endorsement was “so firmly affixed thereto as to become a part thereof,” as required under UCC 3-202(2).

… [W]hile Panganiban’s [plaintiff bank’s vice president’s] affidavit was sufficient to establish a proper foundation for the admission of a business record pursuant to CPLR 4518(a) … , the plaintiff failed to submit copies of the business records themselves. “[T]he business record exception to the hearsay rule applies to a writing or record’ (CPLR 4518[a]) . . . [and] it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . “While a witness may read into the record from the contents of a document which has been admitted into evidence , … a witness’s description of a document not admitted into evidence is hearsay” … . JPMorgan Chase Bank, N.A. v Grennan, 2019 NY Slip Op 06761, Second Dept 9-25-19

 

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BANK’S EVIDENCE OF DEFENDANT’S DEFAULT WAS INADMISSIBLE HEARSAY, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the bank’s proof that defendant (Bazigos) defaulted on the loan was inadmissible hearsay:

“In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default” … . “A plaintiff may establish a payment default by an admission made in response to a notice to admit (see CPLR 3212[b]; 3123), by an affidavit from a person having [personal] knowledge of the facts’ (CPLR 3212[b]), or by other evidence in admissible form'” … .

Here, Bluford (a bank vice-president), whose knowledge was based on business records, did not actually attach or otherwise incorporate into her affidavit any business records showing that Bazigos had defaulted on the note. Thus, her affidavit constituted inadmissible hearsay and lacked probative value on the issue of Bazigos’s default … . HSBC Bank USA, N.A. v Bazigos, 2019 NY Slip Op 06757, Second Dept 9-25-19

 

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THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-VEHICLE ACCIDENT CASE CAN BE CONSIDERED BECAUSE PLAINTIFF ARGUED HE WAS NOT COMPARATIVELY NEGLIGENT IN HIS MOTION FOR SUMMARY JUDGMENT; PLAINTIFF DID NOT ELIMINATE ALL QUESTIONS OF FACT ABOUT WHETHER HE WAS COMPARATIVELY NEGLIGENT; PLAINTIFF RAN INTO THE DOOR OF DEFENDANT’S CAR AS IT WAS BEING OPENED (SECOND DEPT).

The Second Department determined, because plaintiff in this bicycle-vehicle traffic accident case affirmatively argued he was not comparatively negligent, the issue of comparative negligence was properly considered on plaintiff’s summary judgment motion. Plaintiff ran into the door of defendant’s car as it was being opened. The plaintiff did not eliminate all triable issue of fact concerning his comparative negligence:

“Although a plaintiff need not demonstrate the absence of his or her own comparative negligence to be entitled to partial summary judgment as to a defendant’s liability”… , the issue of a plaintiff’s comparative negligence may be decided where, as here, “the plaintiff specifically argued the absence of comparative fault in support of his [or her] motion” … .

Here, the plaintiff failed to establish, prima facie, that he was not comparatively at fault in the happening of the accident … . “A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position” … . In support of his motion, the plaintiff submitted, inter alia, the deposition testimony of the parties, which failed to eliminate all triable issues of fact as to whether the plaintiff exercised reasonable care while riding his bicycle. Further, although the plaintiff was not required to demonstrate his freedom from comparative fault to establish his entitlement to summary judgment on the issue of liability … , the plaintiff failed to eliminate triable issues of fact as to whether the defendant was negligent and, if so, whether any such negligence caused or contributed to the accident … . Flores v Rubenstein, 2019 NY Slip Op 06747, Second Dept 9-25-19

 

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THE DEFENDANT IN THIS SLIP AND FALL CASE, WHOSE ANSWER HAD BEEN STRUCK, SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE ON DAMAGES (FIRST DEPT).

The Second Department, reversing Supreme Court, determined that, although defendant’s answer in this slip and fall case had been struck, the defendant should not have been precluded from presenting evidence on damages:

… Supreme Court … struck the answer and scheduled an inquest on the issue of damages. At the inquest, following direct testimony by the plaintiff, the court denied defense counsel’s request to cross-examine the plaintiff, since the defendant’s answer had been stricken. The court awarded the plaintiff damages in the principal sum of $267,221.77. …

“[A] defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages” … . “Accordingly, where a judgment against a defaulting defendant is sought by motion to the court, the defendant is entitled, at an inquest to determine damages, to cross-examine witnesses, give testimony, and offer proof in mitigation of damages” … . Here, since the Supreme Court did not provide such an opportunity to the defendant, we remit the matter to the Supreme Court, Queens County, for a new inquest on the issue of damages … . Dejesus v H.E. Broadway, Inc., 2019 NY Slip Op 06743, Second Dept 9-25-19

 

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DEFENDANT REQUESTED AN ATTORNEY IN NEVADA AND DID NOT WAIVE HIS RIGHT TO COUNSEL BEFORE HE WAS QUESTIONED IN NEW YORK, HIS STATEMENTS SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant had requested an attorney in Nevada and, upon being returned to New York, was questioned without waiving his right to counsel in the presence of counsel. Therefore the statements should have been suppressed:

Defendant’s motion to suppress his incriminating written and videotaped statements should have been granted. Several days before defendant made the contested statements, he was taken into custody by the Las Vegas Police Department. While in custody, defendant requested to speak with the detective from the Regional Fugitive Task Force who had located defendant in Las Vegas and was about to bring him back to New York. The detective met defendant in a conference room and asked him if he wanted to talk. Defendant responded, “I would like to tell you what happened, but I think I want to talk to an attorney.” The detective, who responded by saying “okay,” and did not ask defendant any questions about the homicide, testified that he understood that defendant “wanted an attorney.”

Upon returning to New York, defendant met with the investigating detective and made incriminating written and video statements. Defendant moved to suppress his statements, which was denied, and the statements were admitted at trial.

“When a defendant in custody unequivocally requests the assistance of counsel, any purported waiver of that right obtained in the absence of counsel is ineffective … . People v Roman, 2019 NY Slip Op 06719, First Dept 9-24-19

 

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PETITIONER’S REQUEST FOR TWO WITNESSES SHOULD NOT HAVE BEEN DENIED, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering new hearing, determined petitioner’s request to call witnesses should not have been denied:

… [T]he Hearing Officer improperly denied petitioner’s request to call as witnesses the two inmates who were housed on each side of his cell, as their potential testimony was highly relevant to petitioner’s defense that he was in his cell during the time of the underlying incident … . However, inasmuch as the Hearing Officer acted in good faith in denying the request on the ground of relevancy, petitioner’s regulatory right to call witnesses was violated and a new hearing on these charges, rather than expungement, is the appropriate remedy … . Matter of Parker v Annucci, 2019 NY Slip Op 06658, Third Dept 9-19-19

 

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THE EXISTENCE OF A VIDEOTAPE OF THE ALLEGED MISBEHAVIOR-INCIDENT, REQUESTED BY THE PETITIONER, SHOULD HAVE BEEN INVESTIGATED BY THE HEARING OFFICER, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering a new hearing, determined the petitioner’s request for a videotape of the alleged misbehavior-incident should have been looked into by the hearing officer. The hearing officer asserted no videotape existed, but a document indicated a videotape had been preserved:

Petitioner requested the videotape from his employee assistant and at the hearing. Although the Hearing Officer informed petitioner that no videotape existed, the record contains a facility Video Preservation Form indicating that a videotape, taken in the area of the incident on the date in question, was preserved. Inasmuch as the record does not indicate that the Hearing Officer undertook any measures to ascertain whether the videotape existed, we find that petitioner’s request was improperly denied … . Matter of Espinal v Annucci, 2019 NY Slip Op 06670, Third Dept 9-19-19

 

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