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A NEGATIVE INFERENCE SHOULD NOT HAVE BEEN DRAWN BASED UPON MOTHER’S FAILURE TO TESTIFY, SHE HAD NO FIRST-HAND KNOWLEDGE OF THE FACTS UNDERLYING FATHER’S PETITION TO MODIFY VISITATION, FATHER DID NOT DEMONSTRATE A CHANGE IN CIRCUMSTANCES AND DID NOT DEMONSTRATE MODIFICATION WOULD BE IN THE BEST INTERESTS OF THE CHILDREN, JUDGE DID NOT MAKE THE REQUIRED FACTUAL FINDINGS, FATHER’S PETITION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father did not demonstrate a change in circumstances that warranted visitation in his home, supervised by his new wife. The modified visitation was not demonstrated to be in the best interests of the children. The existing visitation arrangement, supervised by grandmother, was long-standing and was working well. In addition, the Fourth Department held that the fact that mother did not testify should not have been the basis of a negative inference. Mother had no knowledge of the circumstances underlying father’s petition:

Family Court erred in drawing a negative inference against [mother] based on her failure to testify at the hearing. The mother had no relevant testimony to offer inasmuch as she had no personal knowledge of the allegations in the modification petition … . Thus, we conclude that a negative inference against the mother was unwarranted because she did not “withhold[] evidence in [her] possession or control that would be likely to support [her] version of the case” … . …

Although the court correctly identified in its decision the applicable standard for modification of an existing custody and visitation order and referenced several circumstances that generally may support a court’s finding of a sufficient change in circumstances, the court failed to make express findings relative to the change in circumstances alleged by the father in his petition. Notwithstanding that failure, “we have the authority to review the record to ascertain whether the requisite change in circumstances existed’ ” … . …

Although the father’s marriage, new home, and diagnosis with sleep apnea are changes that have occurred since the time of the stipulation, those changes to the father’s personal circumstances do not ” reflect[] a real need for change to ensure the best interest[s] of the child[ren]’ ” … . …

… [T]there is no sound and substantial basis in the record to support the court’s determination that the children’s best interests warranted replacing the visitation supervisor, their grandmother, with the father’s new wife and permitting the father to select any location for his visits with the children … . Matter of William F.G. v Lisa M.B., 2019 NY Slip Op 00774, Fourth Dept 2-1-19

 

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TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the trial judge properly refused to instruct the jury on the lesser included offense of assault third degree. The dissenters disagreed:

… [T]he court did not err in refusing to charge the jury on the lesser included offense of assault in the third degree (Penal Law § 120.00 [2]). Based on the number and sizes of the scars to her face, there is no reasonable view of the evidence that would support a finding that the victim sustained only a physical injury as opposed to a serious physical injury … . People v Sipp, 2019 NY Slip Op 00771, Fourth Dept 2-1-19

 

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FOUNDATION FOR OPINION EVIDENCE OUTSIDE PLAINTIFF’S EXPERT’S FIELD WAS NOT LAID, DEFENDANT SURGEON’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s decedent died from a pulmonary embolism five days after knee replacement surgery. Plaintiff contended decedent was not given the proper dosage of a medication designed to prevent deep vein thrombosis (DVT). The Second Department noted that the plaintiff’s expert was a forensic pathologist and a proper foundation for expert opinion outside the expert’s field was not laid:

“While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable”… . “Thus, where a physician provides an opinion beyond his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered”… . Here, the plaintiff’s expert, who specialized in forensic pathology, did not indicate that he had any specific training or expertise in orthopaedic surgery, or prophylactic anticoagulation treatment to prevent DVT, and failed to “set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice” … . Noble v Kingsbrook Jewish Med. Ctr., 2019 NY Slip Op 00608, Second Dept 1-30-19

 

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PLAINTIFF, AFTER FAILING TO ARGUE THAT DEFENDANTS WAIVED THE LACK OF STANDING DEFENSE BEFORE SUPREME COURT, COULD NOT RAISE DEFENDANTS’ WAIVER OF THE DEFENSE FOR THE FIRST TIME ON APPEAL, PLAINTIFF DID NOT DEMONSTRATE STANDING TO COMMENCE THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff did not demonstrate standing to bring the foreclosure action, and, further, could not raise defendant’s waiver of the lack-of-standing defense for the first time on appeal:

The defense of lack of standing in an action to foreclose a mortgage is waived if the defendant does not raise it in a pre-answer motion to dismiss or as an affirmative defense (see CPLR 3018[b]…). Here, in opposition to the plaintiff’s motion for summary judgment and in support of their cross motion to dismiss, the defendants argued that the plaintiff lacked standing to commence this action. The plaintiff, in its “reply . . . in further support of plaintiff’s motion for summary judgment, and in opposition to defendant’s [sic] cross-motion to dismiss,” entirely disregarded the defendants’ waiver of the standing defense. Instead, the plaintiff sought to establish that it had standing to commence the action. Now, having litigated the standing defense on the merits in the Supreme Court—both on the original motion and in opposition to reargument—the plaintiff argues on appeal that the issue of standing was waived. Having neglected to raise that dispositive issue in the Supreme Court, the plaintiff may not raise it for the first time on this appeal … .

The plaintiff also failed, on the merits, to establish prima facie that it had standing to commence the action. The loan servicer’s affidavit, which asserted that the named plaintiff “was in possession of the Note at the time of commencement of this action,” provided no specifics as to the date of delivery or the date of commencement. The plaintiff’s conclusory assertion as to possession on the date of commencement is insufficient to establish standing … . BAC Home Loans Servicing, LP v Alvarado, 2019 NY Slip Op 00584, Second Dept 1-30-19

 

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PLAINTIFF BANK DID NOT DEMONSTRATE NOTICE BY PROOF WHICH MET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, THEREFORE 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 did not demonstrate compliance with Real Property Actions and Proceedings Law (RPAPL) 1304 and, therefore, the bank’s motion for summary judgment should not have been granted:

… [T]he plaintiff failed to submit an affidavit of service or proof of mailing by the post office evincing that it properly served the defendant pursuant to RPAPL 1304. Contrary to the plaintiff’s contention, its submission of an affidavit of the employee of its servicer was not sufficient to establish that the notices were sent to the defendant in the manner required by RPAPL 1304. While mailing may be proved by documents meeting the requirements of the business records exception to the hearsay rule under CPLR 4518 … , here, the affiant did not aver that he was familiar with the servicer’s mailing practices and procedures and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . The affiant’s unsubstantiated and conclusory statements were insufficient to establish that the RPAPL 1304 notice was mailed to the defendant by first-class and certified mail … . Wells Fargo Bank, N.A. v Moran, 2019 NY Slip Op 00637, Second Dept 1-30-19

Similar issue and result in Fifth Third Mtge. Co. v Seminario, 2019 NY Slip Op 00589, Second Dept 1-30-19

 

 

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EVIDENCE THAT DEFENDANT USED HIS FAMILIAL RELATIONSHIP WITH THE WITNESS (DEFENDANT’S COUSIN) TO INDUCE THE WITNESS’S REFUSAL TO TESTIFY WAS SUFFICIENT TO WARRANT INTRODUCTION OF THE WITNESS’S PRIOR STATEMENTS AT TRIAL (SECOND DEPT).

The Second Department determined the evidence presented at the Sirois hearing was sufficient to warrant the conclusion that a witness, defendant’s cousin, refused to testify because of the actions of the defendant. Therefore statements made by the defendant’s cousin were properly admitted at trial:

The People presented phone records evidencing the dates and the content of certain calls made by the cousin to other individuals while the cousin was incarcerated at Riker’s Island, and calls by the defendant to other individuals believed to be family members. The People contended these calls demonstrated that the defendant and other family members secured the cousin’s agreement not to testify against the defendant. The People also represented to the Supreme Court that they planned to offer the testimony of an inmate who knew the defendant and his family, who claimed, among other things, that the defendant had told him that the defendant had “put the wolves out” on the cousin to keep him from testifying, and that the defendant was confident that he would beat the charges as a result. According to the People, the inmate subsequently refused to testify at the hearing out of fear. An Assistant District Attorney testified at the hearing as to the substance of her interview of the inmate, which had taken place the day before. …

… [T]the People “demonstrate[d] by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused [the] witness’s unavailability” … . Misconduct is not limited to threats or intimidation; it can also include situations where, as here, the People established by clear and convincing evidence that the defendant used his close personal relationship with his cousin and/or threats to pressure him not to testify … . People v Walton, 2019 NY Slip Op 00623, Second Dept 1-30-19

 

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MOTION TO COMPEL ACCESS TO PLAINTIFF’S DEVICES, EMAIL ACCOUNTS AND SOCIAL MEDIA ACCOUNTS TO OBTAIN EVIDENCE OF PLAINTIFF’S PHYSICAL ACTIVITIES SINCE THE TRAFFIC ACCIDENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the motion to compel “access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities” should have been granted:

Private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims” … . Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury. That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff’s accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities … . Vasquez-Santos v Mathew, 2019 NY Slip Op 00541, First Dept 1-24-19

 

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ALTHOUGH THE FREIGHT ELEVATOR WAS IN COMPLIANCE WITH ALL RULES, REGULATIONS AND CODES, THERE WAS A QUESTION OF FACT WHETHER THE ABSENCE OF A GATE CREATED A DANGEROUS CONDITION OF WHICH THE BUILDING OWNERS WERE AWARE, THE OWNERS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the building owners’ motion for summary judgment in this elevator accident case should not have been granted. Although the freight elevator was in compliance with all applicable rules, regulations and codes, there was a question of fact whether the absence of a gate constituted a dangerous condition of which the defendants were aware:

… [T]he plaintiff raised a triable issue of fact as to whether the … defendants were negligent. The plaintiff submitted evidence demonstrating that prior to the accident, the Waterfront defendants were on notice of the dangerous condition of the elevator when they were provided with proposals from their own elevator service company, which proposals stated that because there was no gate on the inside of the elevator platform, an extremely dangerous condition existed … . Romero v Waterfront N.Y., 2019 NY Slip Op 00486, Second Dept 1-23-19

 

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UNWARNED STATEMENTS MADE DURING CUSTODIAL INTERROGATION AND STATEMENTS MADE IN THE ABSENCE OF COUNSEL SHOULD HAVE BEEN SUPPRESSED, DEFENSE COUNSEL’S FAILURE TO OBJECT CONSTITUTED INEFFECTIVE ASSISTANCE, SOME UNPRESERVED APPELLATE ISSUES CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, over a partial dissent, reversed defendant’s bribery and falsely reporting an incident convictions, in the interest of justice, and ordered a new trial. The facts are too complex to fairly summarize here. Defendant was accused of assault by her husband. The police called her to the station where she was interviewed. After she was told she would be placed under arrest she allegedly offered sex and money to the interviewing officer (Officer Persaud) to make the charges go away. The officer wore a wire to record further conversations about the bribery. After defendant was arraigned and represented by counsel, defendant was again interviewed in the back of a police car (by Sargeant Klein and her partner) concerning the alleged bribery. That conversation was also recorded. Statements made during custodial interrogation that were not preceded by Miranda warnings and statements made to police officers in the absence of counsel should not have been admitted. Defense counsel was ineffective for failing to object:

Officer Persaud should have known that in telling the defendant that she needed to come to the precinct station house in connection with his investigation into the allegations her husband had made against her, allegations about which she had already been told she would be arrested, placing her in an interview room, and then confronting her with the allegations and the evidence against her, including the existence of the order of protection, he was reasonably likely to elicit from the defendant an incriminating response … . * * *

… [T]the defendant’s alleged bribery of Officer Persaud and her allegedly false reporting of his sexual misconduct during that same encounter were “so inextricably interwoven in terms of both their temporal proximity and factual interrelationship” as to render unavoidable the conclusion that any interrogation concerning the allegedly false report would inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel… . Furthermore, the police were aware that the defendant was actually represented by an attorney and the interrogation actually entailed an infringement of her constitutional right to counsel by impermissible questioning on the represented crimes … . * * *

… [T]he defendant demonstrated the absence of “a reasonable and legitimate strategy under the circumstances and evidence presented” … for defense counsel’s stipulation to admission of a recording of the entire interview between the defendant and Sergeant Klein and her partner, and his failure to object to Sergeant Klein’s testimony recounting the same interview, or Officer Persaud’s testimony in which he recounted numerous statements made by the defendant, of which the People failed to provide notice as required by CPL 710.30(1)(a). People v Stephans, 2019 NY Slip Op 00473, Second Dept 1-23-19

INEFFECTIVE ASSISTANCE, RIGHT TO COUNSEL

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BASED ON THE SUBMITTED EVIDENCE OF THIRD PARTY CULPABILITY IN THIS RAPE AND MURDER CASE, DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT).

The Second Department determined defendant was entitled to a hearing on his motion to vacate his murder conviction. The defendant and his codefendant, DiPippo, were convicted of the 1995 rape and murder of a 12-year-old girl. At DiPippo’s third trial DiPippo was allowed to present evidence of third culpability. The third party, Gombert, had allegedly confessed to a fellow inmate. After DiPippo’s acquittal, defendant moved to vacate his conviction based upon the newly discovered evidence of third party culpability. The motion was denied without a hearing. The matter was remitted for a hearing:

The court which entered a judgment of conviction may, on motion of the defendant, vacate the judgment on the ground that “[n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence”… .

“Once the parties have filed papers and all documentary evidence or information has been submitted, the court is obligated to consider the submitted material for the purpose of ascertaining whether the motion is determinable without a hearing to resolve questions of fact'”… . “[W]hether a defendant is entitled to a hearing on a CPL 440.10 motion is a discretionary determination” … .

Under the circumstances of this case, the County Court improvidently exercised its discretion in denying, without conducting an evidentiary hearing, the defendant’s motion pursuant to CPL 440.10 to vacate his judgment of conviction. In view of the parties’ submissions, particularly the third-party culpability evidence relating to Gombert, a hearing is necessary to promote justice … . Following a full evidentiary hearing, the court will be in a position to “make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial” … . People v Krivak, 2019 NY Slip Op 00464, Second Dept 1-23-19

 

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