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POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT).

The Fourth Department determined the ruling by the US Supreme Court in Riley v California (124 S Ct 2473) did not provide grounds for defendant’s second and untimely motion to suppress evidence seized from a search of his cell phone pursuant to a warrant. Before applying for the warrant, at the time of arrest, a police officer sent a text to a phone number used in communications between the victim and defendant and noted that a text message arrived on defendant’s phone shortly thereafter. The Fourth Department held that sending the text and observing the arrival of a text did not violate Riley:

The Riley Court determined that “officers must generally secure a warrant before conducting [a search of data stored in a cell phone]” … . Here, the search warrant application for defendant’s phone indicates, among other things, that, after defendant’s arrest and the recovery of a cell phone from him during a search incident to the arrest, the applicant officer sent a text message to the phone number that had been used during earlier communications between the victim and defendant, and the officer noted that the phone recovered from defendant upon his arrest signaled the arrival of a new text message moments later. Contrary to defendant’s contention, however, nothing in the warrant application supports the inference that the police opened or manipulated the phone to get inside to retrieve data prior to obtaining the search warrant. Although Riley prohibits warrantless searches of cell phones incident to a defendant’s arrest, Riley does not prohibit officers from sending text messages to a defendant, making observations of a defendant’s cell phone, or even manipulating the phone to some extent upon a defendant’s arrest …  Indeed, Riley provides that the search incident to arrest exception to the warrant requirement entitles law enforcement officers to “examine the physical aspects of the phone” after it has been seized … . Inasmuch as the information included in the warrant application is not suggestive of a warrantless search of the phone, we conclude that the Supreme Court’s decision in Riley did not provide good cause for defendant’s untimely second suppression motion. Thus, the motion was properly denied … .

Moreover, even if the officer’s actions in sending a confirmatory text message to defendant’s phone did constitute an unlawful search under Riley, we nevertheless conclude that the validity of the warrant to search defendant’s phone was not vitiated. The police did not use the alleged illegal search ” to assure themselves that there [was] cause to obtain a warrant’ in the first instance” … , and the remaining factual allegations in the warrant application provided probable cause to search the cell phone that was recovered from defendant at the time of his arrest. People v Hackett, 2018 NY Slip Op 07557, Fourth Dept 11-9-18

CRIMINAL LAW (POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/SUPPRESSION (CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/SEARCH AND SEIZURE (CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/CELL PHONES (CRIMINAL LAW, SEARCH AND SEIZURE, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))

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EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department determined evidence of routine maintenance of the parking lot, essentially evidence habit, was properly admitted in this slip and fall case which resulted in a defense verdict:

… [P]laintiff appeals from an order that, inter alia, denied that part of his pretrial motion seeking to preclude habit evidence. …

” Proof of a deliberate repetitive practice by one in complete control of the circumstances’ is admissible provided that the party presenting such proof demonstrates a sufficient number of instances of the conduct in question’ ” … . Here, the testimony of the maintenance staff concerning their daily routine in maintaining the subject parking lot was properly admitted as evidence of their conduct prior to the incident at issue. Rozier v BTNH, Inc., 2018 NY Slip Op 07575, Fourth Dept 11-9-18

NEGLIGENCE (EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/SLIP AND FALL (EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/HABIT (SLIP AND FALL, EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))

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AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined the vehicle stop could not be justified on the ground that the stop was made by a peace officer, and also could not be justified on the ground the stop was a citizen’s arrest. Therefore the motion to suppress the firearm found in the car was properly granted. The vehicle stop was made by an agent with the US Customs and Border Protection Air and Marine Operations after the agent became concerned about the driver’s dangerous operation. The agent called the Buffalo Police Department and pulled the car over using his truck’s emergency lights. A police officer arrived and the officer and the agent approached the car together:

In concluding that the agent unlawfully stopped the vehicle, the [motion] court determined that the agent had the powers of a peace officer, but that the traffic stop could not be justified on that basis because the agent was not acting pursuant to his special duties or within his geographical area of employment. The court also determined that the traffic stop could not be justified as a valid citizen’s arrest because the agent, who had the powers of a peace officer, activated the emergency lights and approached the stopped vehicle with the BPD officer and therefore acted under color of law and with the accouterments of official authority rather than as a private citizen. …

A private person, however, is not authorized to display such emergency lights from his or her private vehicle… . Moreover, a private person may not falsely express by words or actions that he or she is acting with approval or authority of a public agency or department with the intent to induce another to submit to such pretended official authority or to otherwise cause another to act in reliance upon that pretense … . Thus, the agent was not lawfully acting merely as a private person effectuating a citizen’s arrest when he activated emergency lights that were affixed to his truck by virtue of his position in law enforcement. …

Even if a violation of the citizen’s arrest statute is not necessarily a violation of a constitutional right, we conclude that adherence to the requirements of the statute implicates the constitutional right to be free from unreasonable searches and seizures … by precluding a person who “act[ed] under color of law and with all the accouterments of official authority” from justifying an unlawful search or seizure as a citizen’s arrest … , and that suppression is warranted where, as here, the purported private person is cloaked with official authority and acts with the participation and knowledge of the police in furtherance of a law enforcement objective … . People v Page, 2018 NY Slip Op 07552, Fourth Dept 11-9-18

CRIMINAL LAW (SUPPRESSION, PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/PEACE OFFICER (VEHICLE STOP, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/CITIZEN’S ARREST (VEHICLE STOP, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/VEHICLE STOPS (PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/TRAFFIC STOPS (PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/STREET STOPS (PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))

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FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT).

The Second Department determined Family Court properly found Dennis T was a person legally responsible for the child Steven L. The court agreed with Family Court’s finding of abuse against three persons using the Family Court Act evidence rule analogous to res ipsa loquitur:

“A person is a proper respondent in an article 10 proceeding as an other person legally responsible for the child’s care’ if that person acts as the functional equivalent of a parent in a familial or household setting”… . “Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case” … . “Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent(s) are some of the variables which should be considered and weighed by a court in determining whether a respondent fits within the catch-all category of section 1012 (g)” … . * * *

Section 1046(a)(ii) of the Family Court Act “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” … . “The statute also permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred” … . “In such cases, the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together” … . “[Once] the petitioner establishes a prima facie case of abuse the burden of going forward shifts to respondents to rebut the evidence of . . . culpability, although the burden of proof always remains with the petitioner” … . Matter of Unity T. (Dennis T.), 2018 NY Slip Op 07437, Second Dept 11-7-18

FAMILY LAW (ABUSE, FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))/ABUSE (FAMILY LAW, EVIDENCE,  FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))/EVIDENCE (FAMILY LAW, ABUSE, FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))/PERSON LEGALLY RESPONSIBLE (FAMILY LAW, ABUSE, FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))

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QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should not have been granted. Plaintiff submitted defendant’s deposition in which defendant testified plaintiff stopped abruptly for no apparent reason:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . “A nonnegligent explanation includes, but is not limited to, sudden or unavoidable circumstances'” … .

The Supreme Court should have denied the plaintiff’s motion for summary judgment on the issue of liability. The plaintiff’s deposition testimony, submitted in support of the motion, demonstrated that her vehicle was struck in the rear while stopped on the exit ramp due to traffic conditions, thus raising an inference of the defendant driver’s negligence. However, the plaintiff’s submissions also included a transcript of the defendant driver’s deposition testimony, wherein he testified that the plaintiff’s vehicle came to an abrupt stop when there was no vehicular traffic in front of it on the exit ramp, and the two vehicles collided. Under these circumstances, the plaintiff’s motion papers presented a triable issue of fact as to whether the defendant driver was negligent in the happening of the subject accident … . Richter v Delutri, 2018 NY Slip Op 07475, Second Dept 11-7-18

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR END COLLISION, QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, REAR END COLLISION, QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (REAR END COLLISION, QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAR END COLLISIONS ( QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the absence of a handrail on a stairway, a violation of the Building Code, was a proximate cause of plaintiff’s slip and fall. Therefore defendants motion for summary judgment should not have been granted:

… [P]laintiff argued … that the absence of a second handrail proximately caused her injuries. She submitted the affidavit of an engineering expert, who averred that the condition of the staircase violated various provisions of the 1984 New York State Fire Prevention and Building Code (hereinafter the Building Code). The plaintiff raised a triable issue of fact regarding the absence of a second handrail. There is no dispute that the staircase required a second handrail (see 9 NYCRR former 765.4[a][11]). Given the plaintiff’s deposition testimony that there was nothing to grasp when she reached for the partial wall to her left, coupled with conflicting evidence as to whether the partial wall complied with section 765.4(a)(11) of the Building Code, triable issues of fact exist as to whether the Building Code was violated and whether a violation of that section of the Building Code, if any, was a proximate cause of the plaintiff’s injuries … . Rakovsky v Rob-Lee Corp., 2018 NY Slip Op 07471, Second Dept 11-7-18

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL, QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/HANDRAILS (SLIP AND FALL, QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/HANDRAILS (STAIRWAYS, SLIP AND FALL, QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG RELATED INFORMATION, MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the disciplinary determination, found that the misbehavior determination was not supported by substantial evidence. Petitioner was charged with attempting to mail gang related information. But there was no evidence connecting petitioner to the relevant documents:

… [T]he documentary evidence attached to the misbehavior report and submitted to this Court for in camera review consisted solely of three typewritten pages, which did not have any features or content that could identify petitioner as the author or sender, and did not include the envelope in which the pages were allegedly discovered … . The testimony given by the investigating correction officer, together with the statements that he made in the misbehavior report, established only that the three typewritten pages were forwarded to him from the mail room as mail that petitioner had attempted to send. The investigating correction officer did not testify to having any personal knowledge that petitioner was the sender of those pages. A mail room supervisor testified that, although she was aware that petitioner was the subject of a mail watch at one time, she could not recall the actual incident, and she did not offer any testimony that linked petitioner to the pages at issue… . Further, petitioner did not admit ownership of the documents or otherwise connect himself to them … . To the contrary, petitioner maintained his innocence throughout the administrative proceeding and asserted that he was being retaliated against for having lodged grievances against the mail room staff. In the absence of evidence connecting petitioner to the three typewritten pages, the underlying determination of guilt is not supported by substantial evidence … . Matter of Telesford v Annucci, 2018 NY Slip Op 07397, Third Dept 11-1-18

DISCIPLINARY HEARINGS (INMATES) (INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG RELATED INFORMATION, MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT))/EVIDENCE (DISCIPLINARY HEARINGS (INMATES), INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG RELATED INFORMATION, MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT))

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DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this intersection traffic accident case. Defendant Lucia Wager made a left turn into plaintiff’s path in violation of Vehicle and Traffic Law 1141. The unsourced statement in the medical record concerning plaintiff’s speed was not related to his diagnosis or treatment and should not have been admitted:

… [T]he plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating that Lucia Wager violated Vehicle and Traffic Law § 1141 when she made a left turn directly into the path of the injured plaintiff’s motorcycle. Lucia Wager was negligent in failing to see what was there to be seen, and in attempting to make a left turn when it was hazardous to do so … . Regardless of who entered the intersection first, the injured plaintiff, as the driver with the right-of-way, was entitled to anticipate that Lucia Wager would obey traffic laws which required her to yield … . In opposition, the defendants failed to submit evidence sufficient to raise a triable issue of fact as to whether Lucia Wager had a nonnegligent explanation for colliding with the injured plaintiff’s motorcycle  … . Contrary to the defendants’ contention, the statement contained in the injured plaintiff’s medical record as to how fast his motorcycle was traveling at the time of the collision was not admissible as an admission, since the source of the information was not identified and it did not contain information that was germane to his diagnosis or treatment … . Ming-Fai Jon v Wager, 2018 NY Slip Op 07304, Second Dept 10-31-18

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/TRAFFIC ACCIDENTS ( DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (INTERSECTION ACCIDENT, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/EVIDENCE (MEDICAL RECORDS, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/MEDICAL RECORDS (NEGLIGENCE, STATEMENTS , DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/ADMISSIONS (NEGLIGENCE, MEDICAL RECORDS, TRAFFIC ACCIDENTS, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))

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DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant town did not demonstrate the hump over which plaintiff allegedly tripped and fell was open and obvious. Therefore the town’s motion for summary judgment should not have been granted:

The Town had installed a drain to keep water off this particular ballfield and covered the drain with asphalt, creating a hump. This hump extended to the area between the players’ benches and the entrance to the ballfield on the third base side. The injured plaintiff was attempting to move through the entrance on the third base side when he tripped and fell over the hump. …

A landowner has a duty to maintain its premises in a reasonably safe condition … . There is, however, no duty to protect or warn against conditions that are open and obvious and not inherently dangerous … . Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury … . “A condition that is ordinarily apparent to a person making reasonable use of [his or her] senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … .

Here, the Town failed to establish, prima facie, that the condition of the hump was open and obvious and not inherently dangerous given the surrounding circumstances at the time of the accident … . In support of the motion, the Town submitted, inter alia, transcripts of the testimony of the injured plaintiff at his hearing pursuant to General Municipal Law § 50-h and at his deposition. The injured plaintiff testified that at the time of the accident, the hump was completely covered with dirt and sand and players were standing around it, thus obscuring his view of the hump. Since the Town failed to meet its initial burden as the movant, the burden never shifted to the plaintiffs to submit evidence sufficient to raise triable issues of fact … . Dillon v Town of Smithtown, 2018 NY Slip Op 07289, Second Dept 10-31-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL, DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT).

The Second Department determined plaintiff did not submit sufficient proof of damages stemming from the alleged breach of a home improvement contract, and the restitution and punitive damages awards were improper. The statutory General Business Law awards, including attorney’s fees, were applicable:

… [T]he plaintiff failed to meet her burden of proving damages for breach of contract. The appropriate measure of damages for breach of a home improvement contract by the contractor for defective construction is the cost to repair the defects … , as of the date the cause of action accrued … . Here, the plaintiff did not proffer competent evidence to establish her costs to repair the defendants’ defective work as of the date the cause of action accrued … . Accordingly, the damages award in the sum of $9,358.96 for breach of contract must be set aside.

We also agree with the defendants that the jury improperly awarded the sum of $17,730 as restitution damages pursuant to General Business Law § 772, representing the total sum paid by the plaintiff under the home improvement contract before the defendants abandoned the project, since restitution damages are not provided for under that statute … .

Further, we agree with the defendants that the plaintiff is not entitled to recover punitive damages. Although the jury found that the defendants were liable for breach of contract, the plaintiff failed to establish that the defendants’ conduct was egregious, directed toward the plaintiff, and part of a pattern directed at the public … . Moreover, to the extent that the plaintiff’s case rested on allegations of fraud, she failed to establish that the defendants’ conduct was so gross, wanton, or willful, or of such high moral culpability, as to justify an award of punitive damages … . Crippen v Adamao2018 NY Slip Op 07287, Second Dept 10-31-18

CONTRACT LAW (DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/EVIDENCE (BREACH OF CONTRACT, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/DAMAGES (BREACH OF CONTRACT, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/FRAUD (HOME IMPROVEMENT CONTRACT, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/HOME IMPROVEMENT CONTRACT DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/GENERAL BUSINESS LAW (HOME IMPROVEMENT CONTRACTS, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/LICENSES (HOME IMPROVEMENT CONTRACTORS, (DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))/PUNITIVE DAMAGES (BREACH OF CONTRACT, FRAUD, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT))

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