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PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPT DECIDED NOT TO FOLLOW THE 2ND DEPT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over an extensive two-justice dissenting opinion, determined that the plaintiff in this traffic accident case did not place her prior knee injuries in controversy and the defendants’ demand for the related medical authorizations should not have been granted. The First Department held plaintiff had not waived her patient-physician privilege regarding the knee injuries. Plaintiff had alleged injury to her back, neck and shoulder, but had also alleged a loss of enjoyment of life, including her inability to wear heels. Defendants argued that her prior knee injury and surgery were relevant to those same issues. The First Department decided not to follow the 2nd Department’s contrary holding:

Contrary to defendants’ argument, neither plaintiff’s bill of particulars nor her deposition testimony places her prior knee injuries in controversy. In paragraph 10 of her bill of particulars, plaintiff limits the injuries she sustained in the 2014 accident to her cervical spine, lumbar spine, and left shoulder. Accordingly, the specified bodily injuries that are affirmatively placed in controversy are the spinal and shoulder injuries. The claims for lost earnings and loss of enjoyment of life alleged in the bill of particulars are limited to these specified injuries. Plaintiff does not mention her prior knee treatments. Nor does she claim that the injuries to her knees were exacerbated or aggravated as a result of the 2014 automobile accident. * * *

Defendants cite to [2nd] Department precedent in support of their argument that the condition of plaintiff’s knees is material and necessary to their defense. The [2nd] Department has held that a party places his or her entire medical condition in controversy through “broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries” … .

We are not persuaded by the reasoning of the [2nd] Department. In our view, the [2nd] Department’s precedent cannot be reconciled with the Court of Appeals’ rulings that the physician-patient privilege is waived only for injuries affirmatively placed in controversy. Brito v Gomez, 2018 NY Slip Op 08105, First Dept 11-27-18

NEGLIGENCE (PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/TRAFFIC ACCIDENTS  (PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/EVIDENCE (NEGLIGENCE, PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/PRIVILEGE (NEGLIGENCE, TRAFFIC ACCIDENTS, PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/PATIENT-PHYSICIAN PRIVILEGE (NEGLIGENCE, TRAFFIC ACCIDENTS, PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))

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A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a metal protrusion of an inch or less in a parking lot constituted a trivial defect which was not actionable in this slip and fall case:

In determining whether a defect is trivial, courts “must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . “[T]here is no minimal dimension test’ or per se rule that a defect must be a certain minimum height or depth in order to be actionable” … . However, a defendant “may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection” … .

The defendants presented evidence that the alleged defect was an inch or less in size, that the incident occurred in the daytime hours under clear conditions, and that the area immediately surrounding the alleged defect was clear of debris and not dangerous or trap-like. Easley v U Haul, 2018 NY Slip Op 08008, Second Dept 11-21-18

NEGLIGENCE (SLIP AND FALL, A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT))/SLIP AND FALL (A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, TRIVIAL DEFECT, A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT))/TRIVIAL DEFECT (SLIP AND FALL, A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT))

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WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ motion to set aside the verdict in this stairway slip and fall case should not have been granted, and the plaintiff’s motion for sanctions (attorney’s fees) for frivolous conduct (bringing the motion to set aside) should have been granted. The dissenting justice agreed the verdict should not have been set aside, but disagreed with the imposition of sanctions on defense counsel. The plaintiff alleged she fell (19 inches) because there was no handrail on one side to the stairs. The Second Department explained that even if the jury found the absence of a handrail to be open and obvious, the jury still could have found the absence of the handrail acted as a trap for the unwary:

“Proof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition”… . “While such proof is relevant to the issue of a plaintiff’s comparative negligence, a hazard that is open and obvious may be rendered a trap for the unwary where the condition is obscured or the plaintiff distracted” … . “The determination of . . . whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts  … . …

… [T}he Supreme Court should have granted the plaintiff’s cross motion for an award of costs in the form of reimbursement of reasonable attorneys’ fees pursuant to 22 NYCRR 130-1.1 based on the frivolous conduct of the defendants in moving to set aside the verdict pursuant to CPLR 4404(a) to the extent that the motion was predicated upon the ground that the plaintiff failed to establish at trial that they owned the subject property. * * *

… [T]he record shows that the defendants’ ownership of the property was never genuinely disputed. Cram v Keller, 2018 NY Slip Op 08007, Second Dept 11-21-18

NEGLIGENCE (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL ( OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/OPEN AND OBVIOUS  (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (FRIVOLOUS CONDUCT, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SET ASIDE VERDICT, MOTION TO (FRIVOLOUS CONDUCT, ATTORNEYS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/FRIVOLOUS CONDUCT (MOTION TO SET ASIDE THE VERDICT, ATTORNEYS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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NEITHER THE LEVEL OF PLAYGROUND SUPERVISION NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school district’s motion for summary judgment in this playground student injury case should have been granted. Defendants demonstrated there was an adequate number of monitors supervising the children, infant plaintiff was using the equipment properly, and the equipment was in good working order. There was no showing that plaintiffs’ expert had any expertise re: playground equipment. Infant plaintiff slipped off a bar and fell because his hands were wet:

The defendants submitted evidence demonstrating, prima facie, that the level of supervision afforded to the infant plaintiff and the other students at the time of the accident was adequate… , and, in any event, that any alleged lack of supervision was not the proximate cause of the infant plaintiff’s injuries … . Furthermore, the defendants submitted a report and affidavit from their expert, which established that the playground equipment was appropriate for the infant plaintiff’s age group, and was not defective … .

In opposition, the plaintiffs failed to raise a triable issue of fact. Although the plaintiffs submitted an affidavit from their purported expert, there was no showing that the purported expert had any specialized knowledge, experience, training, or education regarding playground equipment so as to qualify him to render an opinion in this area … . Ponzini v Sag Harbor Union Free Sch. Dist., 2018 NY Slip Op 08046, Second Dept 11-21-18

NEGLIGENCE (NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (EXPERT OPINION, EDUCATION-SCHOOL LAW, NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EXPERT OPINION (NEGLIGENCE,  EDUCATION-SCHOOL LAW, NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT).

The Third Department determined Supreme Court should have held a hearing on defendant’s motion to vacate his conviction alleging ineffective assistance counsel. i.e., the failure to move to dismiss the indictment based on a speedy trial violation. Although the People raised a question of fact about whether defendant’s counsel consented to certain adjournments, the issue was not conclusively demonstrated, requiring a hearing:

Defendant argued that he was deprived of effective assistance because his counsel failed to move to dismiss the indictment based on a violation of his statutory speedy trial rights. Failure to make a meritorious speedy trial motion, which would result in dismissal of the indictment, is sufficiently egregious to amount to ineffective assistance… . There is ordinarily no strategic reason for counsel to fail to make a dispositive motion that would result in dismissal of the charges with prejudice, so long as it is shown that the motion would have been successful … . …

The Court of Appeals has clarified that ” [a]djournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel’s failure to object to the adjournment or failure to appear does not constitute consent” … A court may not deny a motion to dismiss for a statutory speedy trial violation “without a hearing unless ‘[a]n allegation of fact essential to support the motion is conclusively refuted by unquestionable proof'” … . ” Of course, only those periods for which the People have not provided ‘unquestionable documentary proof’ — for example, a transcript or letter evidencing defendant’s consent — need be addressed at any hearing” … . At least one court has held that calendar and file jacket notations” do not constitute unquestionable proof to meet the People’s “burden of demonstrating sufficient excludable time” … . People v Matteson, 2018 NY Slip Op 07976, Third Dept 11-21-18

CRIMINAL LAW (VACATE CONVICTION, THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/EVIDENCE (VACATE CONVICTION, THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/ATTORNEYS (INEFFECTIVE ASSISTANCE, (VACATE CONVICTION, THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/VACATE CONVICTION, MOTION TO ( THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/INEFFECTIVE ASSISTANCE (THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/SPEEDY TRIAL (VACATE CONVICTION,  THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))

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THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the denial of defendant’s request to present an alibi witness was reversible error, despite the fact that a notice of alibi had not been served. The People had opened the door at trial, creating the need to call the alibi witness:

Pursuant to CPL 250.20 (3), “[i]f at the trial the defendant calls such an alibi witness without having served the demanded notice of alibi, . . . the court may exclude any testimony of such witness relating to the alibi defense.” Precluding a criminal defendant from proffering evidence in support of his or her own case implicates the Compulsory Process Clause of the Sixth Amendment… , and, although CPL 250.20 (3) explicitly states that the trial court’s decision to permit a late notice of alibi is discretionary, preclusion is only an appropriate penalty “in the most egregious circumstances”… . When a defendant’s “omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude the witness'[s] testimony”… .

… [A]lthough defendant did not serve an alibi notice in response to the People’s demand for same, defendant did not intend to call an alibi witness except that the People — knowing that defendant had testified to having an alibi during the grand jury but that he had not presented that defense at trial — directly elicited testimony … about what defendant was doing on the night of the shooting. In response to follow-up questions by the People, [the witness] provided the alibi witness’s first name and generally discussed that defendant was friends with this person. The People’s question regarding what defendant was doing the night of the shooting was the first reference to defendant’s alibi during the trial, and defendant thereafter sought permission to call his friend … as a witness for the first time. The People, despite raising and pursuing this line of questioning, objected because defendant had not served an alibi notice. Defendant argued that the People opened the door and created the issue and, as a result, defendant should not be precluded from calling Steward. We agree. People v Perkins, 2018 NY Slip Op 07972, Third Dept 11-21-18

CRIMINAL LAW (THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, ALIBI WITNESS, (THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, COMPULSORY PROCESS CLAUSE, THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))/COMPULSORY PROCESS CLAUSE (CRIMINAL LAW, ALIBI WITNESS, THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))/ALIBI WITNESS (THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))

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TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT).

The Second Department, reversing defendant’s manslaughter conviction under a weight of the evidence analysis, determined that the testimony of the sole eyewitness, Geroulakis, was incredible and unreliable:

On cross-examination, Geroulakis’s testimony was incredible and unreliable. Geroulakis denied that, at the first trial, he had identified the defendant as the shorter man at the souvlaki stand. When Geroulakis was confronted with his testimony from the first trial, he responded, “I remember they told me who is who, who stabbed me and who stabbed Jimmy.” Significantly, investigating detective Robert W. Henning testified that Geroulakis told him that he had argued with the shorter man, that they pushed and shoved each other, that the man “pulled out a knife” and stabbed Geroulakis “in the right thigh area” and then walked over to the car, reached in, and “stabbed [Zisimopoulos] in the abdomen.” After reading his interview notes, Henning confirmed that Geroulakis stated that the same person stabbed both Geroulakis and Zisimopoulos. Furthermore, on cross-examination, Geroulakis testified that he did not remember what the man whom he identified as the defendant was wearing and denied previously describing the man as wearing a long-sleeved black shirt. Geroulakis recalled telling a detective only that “some were wearing black and one was wearing long sleeves.” Geroulakis acknowledged that, in 2009, he had testified that the taller man wore a black shirt with long sleeves. A video-still from one of the clubs that the defendant visited in the early morning of the day of the incident revealed that the defendant was wearing a light-colored shirt with horizontal stripes and sleeves to the elbows. In addition, Detective Constantine Papadopoulos testified that the defendant had the same tattoo on his right arm at the time of trial that he had at the lineup, and Detective David Beutel testified that the defendant had tattoos on both of his arms. Geroulakis, however, testified that the arms of the two men who allegedly stabbed Zisimopoulos were bare and that he did not observe any tattoos.

Moreover, Geroulakis’s motive to identify the defendant as one of the people who stabbed Zisimopoulos is apparent from his exaggerated testimony at the second trial. It was only at second trial, nine years after the incident, that Geroulakis testified that he had observed the defendant, the taller of the two men, twice: once at the souvlaki stand and once by the car at the time of the stabbings. On cross-examination, however, Geroulakis admitted that, at the first trial, he stated that he recognized only the shorter man from the souvlaki stand, not the defendant. Despite this admission, Geroulakis continued to insist at the second trial that both the defendant and the shorter man were at the souvlaki stand.

Based on the weight of the credible evidence, we find that the jury was not justified in finding the defendant guilty of manslaughter in the first degree beyond a reasonable doubt … . People v Andujar, 2018 NY Slip Op 08028, Second Dept 11-21-18

CRIMINAL LAW (TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, APPEALS, TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/APPEALS (CRIMINAL LAW, TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/WEIGHT OF THE EVIDENCE (APPEALS, CRIMINAL LAW, TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))

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REAL ESTATE PURCHASE CONTRACT, ALTHOUGH MISSING SOME TERMS, SATISFIED THE STATUTE OF FRAUDS, SUMMARY JUDGMENT ON THE SPECIFIC PERFORMANCE ACTION, HOWEVER, SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF FAILED TO DEMONSTRATE THE FINANCIAL ABILITY TO CLOSE ON THE LAW DATE (SECOND DEPT).

The Second Department agreed with Supreme Court that the real estate purchase contract, although some terms were missing, satisfied the statute of frauds, Therefore the motion to dismiss the action for specific performance was properly denied. However, Supreme Court should not have granted summary judgment because plaintiff failed to demonstrate he had the financial ability to purchase the property on the law date:

“Only reasonable certainty, not absolute certainty, as to the terms of the agreement is required” … . Here, the essential terms of the contract were explicitly contained in the agreement, thus satisfying the requirements of the statute of frauds. The agreement is subscribed by the parties to be charged, identifies the parties to the transaction, describes the property to be sold with sufficient particularity, and states the purchase price, the down payment received, and how the purchase price was to be paid … . Additionally, while some terms, such as the closing date, the quality of title to be conveyed, and the risk of loss between the contract and the closing, are not included within the agreement, the remaining terms are clear and enforceable and, thus, the law will serve to fill in those missing provisions … . …

… [T]he plaintiff’s submissions failed to demonstrate that he had the financial ability to consummate the sale of the property on January 25, 2016, the date which he had set for the closing in his time-is-of-the-essence letter to the defendant. The plaintiff’s submissions highlighted, rather than eliminated, triable issues of fact as to whether he possessed the funds necessary to consummate the sale. In light of the foregoing, the plaintiff did not meet his prima facie burden on his motion, and thus, the motion should have been denied without regard to the sufficiency of the opposition papers … . O’Hanlon v Renwick, 2018 NY Slip Op 08027, Second Dept 11-21-18

REAL ESTATE (REAL ESTATE PURCHASE CONTRACT, ALTHOUGH MISSING SOME TERMS, SATISFIED THE STATUTE OF FRAUDS, SUMMARY JUDGMENT ON THE SPECIFIC PERFORMANCE ACTION, HOWEVER, SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF FAILED TO DEMONSTRATE THE FINANCIAL ABILITY TO CLOSE ON THE LAW DATE (SECOND DEPT))/CONTRACT LAW (REAL ESTATE PURCHASE CONTRACT, ALTHOUGH MISSING SOME TERMS, SATISFIED THE STATUTE OF FRAUDS, SUMMARY JUDGMENT ON THE SPECIFIC PERFORMANCE ACTION, HOWEVER, SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF FAILED TO DEMONSTRATE THE FINANCIAL ABILITY TO CLOSE ON THE LAW DATE (SECOND DEPT))/SPECIFIC PERFORMANCE (REAL ESTATE PURCHASE CONTRACT, ALTHOUGH MISSING SOME TERMS, SATISFIED THE STATUTE OF FRAUDS, SUMMARY JUDGMENT ON THE SPECIFIC PERFORMANCE ACTION, HOWEVER, SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF FAILED TO DEMONSTRATE THE FINANCIAL ABILITY TO CLOSE ON THE LAW DATE (SECOND DEPT))/EVIDENCE (REAL ESTATE PURCHASE CONTRACT, ALTHOUGH MISSING SOME TERMS, SATISFIED THE STATUTE OF FRAUDS, SUMMARY JUDGMENT ON THE SPECIFIC PERFORMANCE ACTION, HOWEVER, SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF FAILED TO DEMONSTRATE THE FINANCIAL ABILITY TO CLOSE ON THE LAW DATE (SECOND DEPT))

, , ,

PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT).

The Second Department, reversing the Commissioner of the New York State Office of Temporary and Disability Assistance, determined the Nassau County Department of Social Services’ notice to petitioner of the termination of her public assistance benefits was defective and violated her right to due process. The notice did not include any specific instance of a refusal to cooperate with the employment training program, and the subsequent hearing considered evidence not mentioned in the notice:

A local agency may not discontinue a recipient’s public assistance benefits unless the recipient’s failure to comply with one of the department’s work rules is found to be willful and without good cause” (,,,see Social Services Law § 341[1]). A social services agency is required to provide an individual whose public assistance benefits are being discontinued with written notice that includes “the specific instance or instances of willful refusal or failure to comply without good cause” with employment requirements (Social Services Law § 341[1][b]). “A notice specifying the wrong charge as the basis for a reduction in benefits does not comply with the regulatory standard, nor with the constitutional standards of due process”… .

Here, the petitioner correctly contends that the agency’s notice was defective because it did not include any specific instances of her willful refusal without good cause to cooperate with the employment training program … . Additionally, at the fair hearing, the agency offered evidence that the petitioner submitted a falsified timesheet indicating that she continued to attend training after her participation in the program was terminated, a charge not included in the notice. Accordingly, because the notice lacked specificity and failed to adequately advise the petitioner of the issues which were the subject of the hearing, the notice violated the petitioner’s right to due process of law … . Matter of Pearl v Imhof, 2018 NY Slip Op 08024, Second Dept 11-21-18

SOCIAL SERVICES LAW (PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT))/MUNICIPAL LAW (SOCIAL SERVICES LAW, PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT))/CONSTITUTIONAL LAW  (SOCIAL SERVICES LAW, PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT))/EVIDENCE (SOCIAL SERVICES LAW, PUBLIC ASSISTANCE BENEFITS, NOTICE, HEARING, PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT))

, ,

RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s resisting arrest conviction, determined that the trial evidence rendered the resisting arrest count of the indictment duplicitous. At trial evidence of two separate circumstance where defendant was alleged to have resisted arrest, involving different police officers, was presented. Although the error was not preserved, the court considered the issue under its interest of justice jurisdiction:

“Even if a count facially charges one criminal act, that count is duplicitous if the evidence makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … . The indictment charged defendant with one count of resisting arrest. According to the record evidence, however, the jury was presented with two instances where defendant resisted an officer’s arrest — one involving the victim that turned violent and the other involving the officers who discovered him in the dumpster. We also note that, during deliberation, the jury asked whether it could consider the incident at the dumpster with respect to the resisting arrest charge or solely defendant’s encounter with the victim. In our view, Supreme Court’s response in rereading count 5 of the indictment failed to dispel any confusion by the jury… . Although this argument is unpreserved for review, we take corrective action in the interest of justice by dismissing count 5 of the indictment with leave to the People to re-present any appropriate charges to a new grand jury … . People v Hilton. 2018 NY Slip Op 07981, Third Dept 11-21-18

CRIMINAL LAW (RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT))/APPEAL (CRIMINAL LAW, RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT))/INDICTMENTS (RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT))/DUPLICITOUS (CRIMINAL LAW, RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT))

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