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PLAINTIFF DID NOT DEMONSTRATE DEFENDANTS’ JANITORIAL SCHEDULE WAS MANIFESTLY UNREASONABLE IN THIS SLIP AND FALL CASE, WHICH PRECLUDES DEFENDANTS’ LIABILITY; PLAINTIFF’S TESTIMONY DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE ALLEGED WET CONDITION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment should have been granted in this slip and fall case. Defendants’ presented evidence of the janitorial schedule for a particular day which was deemed sufficient to preclude liability because plaintiff did not demonstrate the schedule was manifestly unreasonable.  And plaintiff’s testimony the defendants did not have actual or constructive notice of the alleged wet condition on the stairs:

Defendants’ superintendent offered testimony as to the janitorial schedule to be followed on a particular day. An established reasonable cleaning routine precludes the imposition of liability … . Where, as here, the incident occurs outside of the scheduled cleaning routine, plaintiff’s failure to raise a factual issue that such routine was manifestly unreasonable so as to require altering it warrants dismissal of the complaint … .

Furthermore, plaintiff testified that there was no wet condition on the stairs when he left the building, that upon his return a short while later he observed an alleged wet condition on the stairs, that he did not notify anyone of such condition, and that as a result of this condition he slipped and fell on the stairs as he was leaving the building a second time. Plaintiff’s testimony demonstrates that defendants did not have actual notice of the purported wet condition, or constructive notice given that the condition did not exist for a sufficient length of time prior to the accident to permit defendants’ employees to discover and remedy it … . Thomas v Sere Hous. Dev. Fund Corp., 2019 NY Slip Op 06443, First Dept 9-3-19

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THERE ARE QUESTIONS OF FACT WHETHER DEFENDANTS WERE NOTIFIED THAT THE ELEVATOR DOORS CLOSED TOO FAST AND WHETHER REPAIRS TO THE DOOR COULD BE RELATED TO THE CLOSING VELOCITY; PLAINTIFF ALLEGED HIS THUMB WAS CAUGHT IN THE CLOSING DOOR; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined summary judgment should not have been granted to the defendant’s in this elevator accident case. Plaintiff alleged the elevator door closed too fast and his thumb was caught in the closing door. Plaintiff alleged he had complained to the building superintendent, a building maintenance employee and the management company about the door closing too fast. Both parties submitted affidavits from experts:

The superintendent-in-training on the date of the accident testified that he did not receive any complaints regarding problems with the elevator door. The field mechanic for [the elevator service company] testified that he did not complete any repair work with respect to the door opening and closing too quickly. He did, however, replace the elevator shoe which is a necessary component for the elevator door to be able to close … .

Plaintiff … testified that prior to his accident he had complained to the then superintendent, another building maintenance employee, and the management company numerous times regarding the velocity with which the elevator door closed. Plaintiff testified further that during one of his conversations with the management company regarding the elevator door, he was told that management would send a service company out to address the issue. Additionally, plaintiff testified that approximately two months before his accident, he witnessed a friend get hit in the shoulder by the fast closing elevator door, and that plaintiff and his mother reported this incident to the then superintendent and the management company.

The parties also presented conflicting expert affidavits regarding the potential causes of the alleged elevator door malfunction, including the purpose of the elevator shoe, and the relevance of the velocity with which the door closed as it pertained to the cause of plaintiff’s injury, which only further precludes a grant of summary judgment … . Mable v 384 E. Assoc., LLC, 2019 NY Slip Op 06442, First Dept 9-3-19

 

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NO REASONABLE VIEW OF THE EVIDENCE SUPPORTED ANYTHING LESS THAN SERIOUS PHYSICAL INJURY, REQUEST FOR A JURY CHARGE ON ASSAULT THIRD WAS PROPERLY DENIED (CT APP). ​

The Court of Appeals, affirming the assault second conviction, determined defendant’s request for a jury charge on assault third as a lesser-included offense was properly denied because of the severity of the victim’s injuries:

Both live and photographic evidence at trial, ten months after the attack, demonstrated that the victim’s face was disfigured with scars above one eyebrow, under the other eye, on her lip and across her neck, and that apart from the scars, her facial structure and appearance had changed significantly. Testimony from her treating physician established that she suffered at least five displaced fractures around her eye sockets and nose, which were left to heal as displaced. Viewed in a light most favorable to defendant … , we agree that no reasonable view of the evidence could support a finding that the victim sustained anything less than a serious physical injury … . People v Sipp, 2019 NY Slip Op 06432, CtApp 8-29-19

 

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE THE INTOXICATION DEFENSE IN THIS MURDER CASE; THE MANSLAUGHTER CHARGE MUST BE DISMISSED AS AN INCLUSORY CONCURRENT COUNT OF MURDER (SECOND DEPT).

The Second Department determined defendant received effective assistance of counsel but the manslaughter first charge, as a lesser inclusory concurrent count of murder second, must be dismissed. Defendant argued defense counsel was ineffective for failing to raise the intoxication defense in this stabbing case:

Assuming, without deciding, that the evidence at trial was sufficient to warrant an intoxication charge … , defense counsel was not ineffective for failing to request that charge in this case. Defense counsel prudently pursued arguments which sought to present this incident as a perfect storm of unnecessary escalation by the victim, followed by actions taken by the defendant to protect himself and his friends, all resulting in the wholly accidental death of the victim. Defense counsel could have strategically determined that requesting an intoxication charge would have undermined, or distracted from, the narrative the defense had pursued that the defendant was forced to make a decision when faced with the angry victim to protect himself and his friends. Accordingly, the defendant has not demonstrated the absence of strategic or other legitimate explanations for defense counsel’s failure to request the intoxication charge … . People v Moreira, 2019 NY Slip Op 06414, Second Dept 8-28-19

 

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WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK WAS NOT A VALID SEARCH INCIDENT TO ARREST, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing defendant criminal possession of a weapon conviction and dismissing that count, determined the arresting officers should have conducted the warrantless search of a backpack in which the seized weapon was found. The criteria for a search incident to arrest were not met:

On April 30, 2015, at approximately 2:30 p.m., police officers went to the defendant’s home in response, in part, to information they had received from an informant that the defendant was selling drugs out of his home and kept a firearm concealed inside of a distinctive backpack. When the officers arrived, they observed the defendant smoking a marijuana cigarette on the porch of the home. Upon approaching the defendant and identifying themselves, the officers observed the defendant grab a distinctive backpack matching the description given by the informant, curse out loud, and run inside of the house. The officers pursued the defendant, who dropped the backpack inside the front doorway and proceeded up the stairs toward the second floor of the house. The defendant was apprehended and handcuffed on the stairs. After the defendant was secured, one of the officers at the scene opened the defendant’s backpack, inside of which he found a firearm and a quantity of marijuana. …

The protections embodied in article I, § 12 of the New York State Constitution serve to shield citizens from warrantless intrusions on their privacy interests, including their personal effects'” … . “[E]ven a bag within the immediate control or grabbable area’ of a suspect at the time of his [or her] arrest may not be subjected to a warrantless search incident to the arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag” … . The proof adduced at the suppression hearing failed to establish the presence of such circumstances … . People v Grimes, 2019 NY Slip Op 06411, Second Dept 8-28-19

 

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UNDER THE CIRCUMSTANCES OF THIS CASE, PRE-MIRANDA QUESTIONING OF THE DEFENDANT ABOUT HIS EMPLOYMENT CONSTITUTED CUSTODIAL INTERROGATION; ALL OF DEFENDANT’S STATEMENTS, PRE- AND POST-MIRANDA, MUST BE SUPPRESSED; JURY SHOULD HAVE BEEN TOLD OUT-OF-COURT STATEMENTS ADMITTED FOR A NONHEARSAY PURPOSE SHOULD NOT BE CONSIDERED FOR THEIR TRUTH (SECOND DEPT).

The Second Department, reversing defendant’s conviction, suppressing defendant’s statements and ordering a new trial, determined the initial questioning of the defendant, which was not preceded by the Miranda warnings, constituted interrogation. Therefore, those statements and the entire post-Miranda videotaped interrogation, should have been suppressed. The court further noted that statements made by an accomplice in a controlled phone call were admitted for a nonhearsay purpose. Therefore the jury should have been instructed not to rely on those statements for their truth:

… [T]he pre-Miranda questioning was not mere “small talk,” but, rather, interrogation … . In particular, the detective was aware, when he questioned the defendant about his employment, that Espinal [an accomplice] claimed to know the defendant from previously working with him at a bar. Indeed, when the questioning resumed after administration of Miranda warnings, it concerned the defendant’s work history at bars at or around the time of the incident. Notably, the People assert that they are not claiming that the pedigree exception to the Miranda rule is applicable, and, in any event, the detective admitted at the suppression hearing that, at the time of the interview, he had already recorded the defendant’s pedigree information and that such information does not include an individual’s employment … . Under these circumstances, the defendant was improperly subjected to custodial interrogation without being advised of his Miranda rights, requiring suppression of those statements … . People v Dorvil, 2019 NY Slip Op 06409, Second Dept 8-28-19

 

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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO SUPPRESS TANGIBLE EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT WHICH WAS ISSUED BASED UPON UNWARNED STATEMENTS MADE BY DEFENDANT, STATEMENTS WHICH HAD BEEN SUPPRESSED BY THE TRIAL COURT (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering new suppression motions and a new trial, determined defense counsel was ineffective for failing to move to suppress tangible evidence seized pursuant to a search warrant which was issued based upon unwarned statements made by the defendant, statements which had been suppressed by the trial court:

Here, defense counsel’s assertion of an inappropriate argument in support of the belated suppression motion, and counsel’s complete failure to challenge the admissibility of physical evidence seized from the defendant’s home based on the Miranda violation … , prejudiced the defendant and rendered counsel’s representation ineffective … . People v Corchado, 2019 NY Slip Op 06408, Second Dept 8-28-19

 

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NO EVIDENCE THE FATAL ACCIDENT WAS CAUSED BY DRIVING TOO FAST FOR THE CONDITIONS; PETITIONER WAS TRAVELLING BELOW THE SPEED LIMIT WHEN HIS CAR STRUCK A POTHOLE, CAUSING A MECHANICAL FAILURE (SECOND DEPT).

The Second Department, reversing the NYS Department of Motor Vehicles Administrative Appeals Board, annulled the finding that petitioner was speeding and the suspension of his driver’s license. Petitioner was traveling below the speed limit when his car struck a pothole causing a mechanical failure which resulted in a fatal accident. The Administrative Law Judge had determined petition was driving too fast for the conditions, meaning too fast for a road with potholes:

“To annul an administrative determination made after a hearing directed by law at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination” … . Here, the determination that the petitioner violated Vehicle and Traffic Law § 1180(a) is not supported by substantial evidence. There is no evidence to support the determination that the petitioner operated his vehicle at a speed greater than reasonable and prudent under the circumstances. There was no evidence to show that the petitioner’s speed contributed to the accident or that the vehicle would not have been damaged by the pothole had the petitioner been traveling at a lesser rate of speed … . Matter of Pepe v New York State Dept. of Motor Vehicles, 2019 NY Slip Op 06397, Second Dept 8-28-19

 

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FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO DETERMINE PARENTAL ACCESS TO THE PARTIES AND SHOULD NOT HAVE MADE FINDINGS IN THE ABSENCE OF A HEARING (SECOND DEPT).

The Second Department, reversing and remitting the matter to Family Court, determined the court should not have delegated its authority to determine parental access to the parties and should not have made findings without a hearing:

A court may not delegate its authority to determine parental access to either a parent or a child … . While a child’s views are to be considered in determining custody or parental access, they are not determinative … . An access provision which is conditioned on the desires of the children tends to defeat the right of parental access  … . Here, the Family Court determined that it would not compel either child to visit with the mother. Because the order appealed from effectively conditions the mother’s parental access on the children’s wishes and leaves the determination as to whether there should be access at all to the children, it must be set aside … . The Family Court made its determination based only upon its review of the papers, the in camera interviews, and the colloquy with the unrepresented parties, which occurred in the absence of the attorney for the children. The court did not conduct a hearing, did not direct a forensic examination, and did not seek information from the clinicians involved in the lapsed therapeutic visits. Although there are indications in the record that the mother’s parenting skills may be less than ideal, and she may bear at least some responsibility for her estrangement from the children, the record before us is inadequate to support the Family Court’s refusal to order, at the least, the resumption of therapeutic visits. Furthermore, the court’s finding that the father had done all that he could to encourage the children to visit with the mother was based solely upon the in camera interviews and was not based on any sworn testimony, and the mother was not afforded the opportunity to challenge, either by her own evidence or through cross-examination, the father’s assertions. Matter of Mondschein v Mondschein, 2019 NY Slip Op 06395, Second Dept 8-28-19

 

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IN DENYING A SUPPRESSION MOTION THE JUDGE CAN CONSIDER EVIDENCE SUBMITTED BY THE PEOPLE, EVEN IF THAT EVIDENCE WAS NOT EXPRESSLY RELIED UPON BY THE PEOPLE; OBSERVATION OF WHAT APPEARED TO BE A DRUG TRANSACTION PROVIDED PROBABLE CAUSE; THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT APPLIED; THE INVENTORY SEARCH WAS VALID (FOURTH DEPT).

The Fourth Department determined defendant’s motion to suppress tangible evidence was properly denied, finding (1) the suppression court could properly consider all the evidence presented by the People, even if the evidence was not expressly relied upon by the People; (2) although the vehicle occupants were seized at the time the police approached, the officers’ prior observation of what appeared to be a drug transaction provided probable cause; (3) the search of the vehicle was justified by the automobile exception; and (4) the inventory search was lawful:

… [W]e conclude that the court was entitled to consider legal justifications that were supported by the evidence, even if they were not raised explicitly by the People (see CPL 710.60 [6] …). “By presenting evidence sufficient to support the court’s findings, the People met their burden of going forward . . . and the court may rely on any legal justification for police conduct for which there is factual support in the record” … . …

… .[B]efore defendant’s seizure, an officer observed defendant conduct what, based on his training and experience, appeared to be a hand-to-hand drug transaction, even though he “couldn’t tell” what “items” he had seen during the exchange other than money. Additionally, that officer was in the area conducting surveillance on an unrelated narcotics investigation, raising the inference that the transaction occurred in a drug-prone area. Furthermore, once two other officers approached the vehicle based on the above observations, one officer saw packaging material of the kind used to store narcotics, and the other officer observed that the driver of the vehicle engaged in “furtive” behavior. Based on the totality of those factors, we conclude that the police had probable cause to believe that defendant engaged in a narcotics offense justifying the stop of the vehicle and his arrest … . …

“The [automobile] exception requires both probable cause to search the automobile generally and a nexus between the probable cause to search and the crime for which the arrest is being made’ ” … . Based on the foregoing, at the time of the search, the police had probable cause to believe that narcotics or packaging materials used in the sale and possession of narcotics were present in the vehicle … . Thus, inasmuch as there was a nexus between the probable cause to search the vehicle and the crime for which defendant was being arrested, we conclude that the police were not required to obtain a warrant … . People v Nichols, 2019 NY Slip Op 06361, Fourth Dept 8-22-19

 

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