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RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, over a dissent, reversed defendant's convictions for reckless endangerment and reckless assault. Defendant had picked up a gun that his friend (Morales) had brought to his house. In handling the gun it went off injuring his friend's leg. His friend was asleep when the gun fired. Defendant immediately said he was sorry, put the gun in a garbage can and accompanied his friend to the hospital. The Second Department determined the convictions were against the weight of the evidence because there was insufficient proof that defendant acted recklessly:

… [T]he People failed to prove beyond a reasonable doubt that the defendant was aware of and consciously disregarded a substantial risk that his conduct would cause physical injury to another person. The People did not introduce evidence that the defendant was familiar with weapons, or the particular gun. Indeed, the gun was brought to the defendant's home by Morales, and it is undisputed that the gun discharged as the defendant handled it out of curiosity. There was no evidence from which it could be inferred that the defendant knew the gun was loaded with live ammunition, or even knew how the particular gun operated. There was no evidence introduced that the defendant was aware of and consciously disregarded the risk that the gun might misfire … . Indeed, Morales testified that the defendant appeared “scared” when the gun discharged and that the defendant immediately stated that he was “sorry.” The defendant attempted to dispose of the gun and helped the victim get medical care. Contrary to the People's contention, there was no testimony that the defendant was pointing the gun at Morales when it discharged, and there was no evidence introduced establishing that the only way the pellets could have struck Morales's leg was by pointing the gun directly at Morales. People v Marin, 2018 NY Slip Op 05942, Second Dept 8-29-18

CRIMINAL LAW (RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/APPEALS (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/RECKLESSNESS (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))

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POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined defendant's motion to suppress a handgun and statements should not have been granted in this street stop case. The Second Department found that the officer who stopped the defendant properly responded to an escalating situation which culminated in the defendant's flight and abandonment of a backpack containing the handgun:

There is no dispute that upon receiving a radio transmission of an anonymous tip that a man of a specific description wearing a black backpack and possessing a gun was traveling on the B6 bus toward Canarsie, the responding police officer had a common-law right of inquiry upon encountering the defendant exiting that bus and matching the description … . The responding officer testified at the suppression hearing that he approached the defendant and asked something to the effect of, “Hey, what's up, man, you know, you got a second for the police?” The defendant's eyes widened, he appeared visibly nervous, and he started to back up. The defendant then thrust his right hand in his right pants pocket and refused to comply with the officer's command to remove it. These actions by the defendant escalated the encounter to justify the officer drawing his weapon, placing it across his own chest in a “depressed position,” and attempting to forcibly remove the defendant's hand from his pocket as a self-protective measure … . Further, the defendant's subsequent flight, coupled with all of the other indicia of criminality, justified the police pursuit …  and, ultimately, the recovery of a semi-automatic handgun from the defendant's backpack, which he abandoned in a nearby bodega … . People v King, 2018 NY Slip Op 05941, Second Dept 8-29-18

CRIMINAL LAW (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STREET STOPS (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUPPRESS, MOTION TO (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SEARCH AND SEIZURE  (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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POSSESSION OF SEXUAL PERFORMANCE OF A CHILD CONVICTIONS REVERSED, PHOTOGRAPHS DID NOT MEET STATUTORY CRITERIA, ALTHOUGH THE MAJORITY AFFIRMED DEFENDANT’S CONVICTION IN THIS RAPE, CRIMINAL SEXUAL ACT, AND POSSESSION OF SEXUAL PERFORMANCE BY A CHILD PROSECUTION, THE DISSENT WOULD HAVE REVERSED BECAUSE THE PHOTOGRAPHIC EXHIBITS UPON WHICH THE PROSECUTION RELIED WERE NOT PROPERLY AUTHENTICATED (THIRD DEPT).

The Third Department, over a dissent, affirmed defendant's conviction and long prison sentence for rape, criminal sexual act, possessing a sexual performance by a child and criminal solicitation. Three of the four possession of a sexual performance by a child were reversed because the “the lewd exhibition of the genitals” element was not present, only the victim's bare chest was depicted. The dissenting justice argued that the photographic exhibits were not supported by a proper foundation and should not have been admitted. With the photographs deemed inadmissible, the dissent would have reversed defendant's convictions:

From the dissent: The People's foundational questioning here, generously described by the majority as “brief,” was wholly lacking in substance. Although the People asked appropriate witnesses, including the victim, to identify the subject matter of the photographs to which they had knowledge, little or no additional information was elicited. Fatally, the People did not elicit any testimony that could establish that any of the photographs fairly and accurately depict the subject matter identified therein … . …

Specifically, with respect to the 16 photographic exhibits depicting the victim in various stages of undress, the People simply asked the victim whether each photograph “look[ed] familiar.” Contrary to the assertions of the majority, the victim's general testimony identifying herself as the person depicted in those photographs was insufficient to properly authenticate them. Even if the victim's testimony demonstrated that the photographs admitted into evidence were a fair representation of the photographs that she took or were taken of her, as the majority contends, no one testified that the admitted photographs had not been altered or that they were true and accurate representations of the photographs actually recovered from defendant's cell phone and computer … . There was simply no sworn testimony to refute the possibility that the photographs had been manipulated.

Although not discussed by the majority in detail, the remaining 10 photographic exhibits allegedly depict a motel room, different areas in the victim's bedroom and defendant's home computers, vehicle and residence. These photographs were offered into evidence to corroborate the victim's testimony, to provide background information and/or to allow the jury to assess whether the photographs of the victim were taken in either the motel room or the victim's bedroom. As with the photographs of the victim, the People did not elicit any testimony whatsoever to establish that these photographs fairly and accurately represented the subject matter depicted therein, as required … . People v Pendell, 2018 NY Slip Op 05899, Third Dept 8-23-18

CRIMINAL LAW (EVIDENCE, PHOTOGRAPHS, ALTHOUGH THE MAJORITY AFFIRMED DEFENDANT'S CONVICTION IN THIS RAPE, CRIMINAL SEXUAL ACT, AND POSSESSION OF SEXUAL PERFORMANCE BY A CHILD PROSECUTION, THE DISSENT WOULD HAVE REVERSED BECAUSE THE PHOTOGRAPHIC EXHIBITS UPON WHICH THE PROSECUTION RELIED WERE NOT PROPERLY AUTHENTICATED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, PHOTOGRAPHS, ALTHOUGH THE MAJORITY AFFIRMED DEFENDANT'S CONVICTION IN THIS RAPE, CRIMINAL SEXUAL ACT, AND POSSESSION OF SEXUAL PERFORMANCE BY A CHILD PROSECUTION, THE DISSENT WOULD HAVE REVERSED BECAUSE THE PHOTOGRAPHIC EXHIBITS UPON WHICH THE PROSECUTION RELIED WERE NOT PROPERLY AUTHENTICATED (THIRD DEPT))/PHOTOGRAPHS (CRIMINAL LAW, EVIDENCE, ALTHOUGH THE MAJORITY AFFIRMED DEFENDANT'S CONVICTION IN THIS RAPE, CRIMINAL SEXUAL ACT, AND POSSESSION OF SEXUAL PERFORMANCE BY A CHILD PROSECUTION, THE DISSENT WOULD HAVE REVERSED BECAUSE THE PHOTOGRAPHIC EXHIBITS UPON WHICH THE PROSECUTION RELIED WERE NOT PROPERLY AUTHENTICATED (THIRD DEPT))

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AFFIDAVIT FROM AN EYEWITNESS TO THE ACCIDENT SUBMITTED WITH THE REPLY PAPERS WAS PROPERLY CONSIDERED AS IT DID NOT CONFLICT THE WITNESS’S OTHER AFFIDAVIT OR THE WITNESS’S PRIOR UNSWORN STATEMENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT).

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff alleged his thumb was crushed when attempting to lift a roof cutting machine over a parapet at the edge of the roof in order to drop the machine to insulation material ten feet below. Three affidavits from an eyewitness (Vera) were submitted, including an affidavit submitted with the reply. The defendant argued conflicts in the affidavits created a question of fact. But the court saw no conflicts:

The motion court properly accepted Veras’s second, clarifying affidavit in plaintiff’s submission on reply. The second affidavit merely amplified the factual recitation set forth in Veras’s initial affidavit, which had been procured and drafted by the defense and omitted the pertinent detail that the workers were actually in the process of lowering the machine from the roof, and not engaged in pushing it across the flat roof, when the accident occurred. Veras’s second affidavit was a proper response to defendant’s submission, and did not contradict the statement in his first affidavit …  Nor could Veras’s second affidavit be rejected as raising a feigned issue of fact … , especially since it comported with all of the other eyewitness testimony in the case, as well as with Veras’s own early unsworn statement, and explained the ambiguity arising from the omission of additional details in his first affidavit.

We have recognized the distinction in Labor Law § 240(1) cases between contradictory evidence and evidence that is subject to explanation in granting partial summary judgment on liability to a plaintiff… .

Here, Veras’s three statements, when taken together and along with those of the three other eyewitnesses and that of plaintiff, provided a detailed and consistent recounting of the accident as having occurred during the lowering of the machine. Cuevas v Baruti Constr. Corp., 2018 NY Slip Op 05905, First Dept 8-23-18

LABOR LAW-CONSTRUCTION LAW (AFFIDAVIT FROM AN EYEWITNESS TO THE ACCIDENT SUBMITTED WITH THE REPLY PAPERS WAS PROPERLY CONSIDERED AS IT DID NOT CONFLICT THE WITNESS’S OTHER AFFIDAVIT OR THE WITNESS’S PRIOR UNSWORN STATEMENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, CIVIL PROCEDURE, AFFIDAVIT FROM AN EYEWITNESS TO THE ACCIDENT SUBMITTED WITH THE REPLY PAPERS WAS PROPERLY CONSIDERED AS IT DID NOT CONFLICT THE WITNESS’S OTHER AFFIDAVIT OR THE WITNESS’S PRIOR UNSWORN STATEMENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, SUMMARY JUDGMENT, AFFIDAVIT FROM AN EYEWITNESS TO THE ACCIDENT SUBMITTED WITH THE REPLY PAPERS WAS PROPERLY CONSIDERED AS IT DID NOT CONFLICT THE WITNESS’S OTHER AFFIDAVIT OR THE WITNESS’S PRIOR UNSWORN STATEMENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT))/CIVIL PROCEDURE (REPLY, AFFIDAVIT FROM AN EYEWITNESS TO THE ACCIDENT SUBMITTED WITH THE REPLY PAPERS WAS PROPERLY CONSIDERED AS IT DID NOT CONFLICT THE WITNESS’S OTHER AFFIDAVIT OR THE WITNESS’S PRIOR UNSWORN STATEMENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT))/REPLY (AFFIDAVIT FROM AN EYEWITNESS TO THE ACCIDENT SUBMITTED WITH THE REPLY PAPERS WAS PROPERLY CONSIDERED AS IT DID NOT CONFLICT THE WITNESS’S OTHER AFFIDAVIT OR THE WITNESS’S PRIOR UNSWORN STATEMENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT))

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ANONYMOUS PHONE CALL DESCRIBING ‘A MAN WITH A GUN’ AND DESCRIBING THE MAN’S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant's criminal possession of a weapon convictions, determined that defendant's motion to suppress the weapon, identification and statements should have been granted. The police stopped the defendant's car and approached with guns drawn on the basis of an anonymous phone call which described “a man with a gun” and described the car the man was driving, including the license plate number. The Second Department determined the anonymous call did not provide the officers with reasonable suspicion sufficient to justify stopping and frisking a suspect:

“It is fundamental that in order to stop a vehicle the police must have a reasonable suspicion, based on objective evidence, that the occupants were involved in a felony or misdemeanor” … . “Reasonable suspicion has been defined as that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand'”… .. “[W]here an anonymous phone tip giving a general description and location of a man with a gun' is the sole predicate, it will generate only a belief that criminal activity is afoot,” and “will not of itself constitute reasonable suspicion thereby warranting a stop and frisk of anyone who happens to fit that description”… . “Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her [or his] allegations turn out to be fabricated, an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity'” … . However, “there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop'” … . Further, reasonable suspicion “requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person” … .

Here, while the individual who reported a man with a gun ultimately disclosed his identity to Officer Travitt, his identity was unknown at the time the police stopped the vehicle and ordered the defendant out of the car at gunpoint … . The police lacked reasonable suspicion to stop the vehicle based only on an anonymous tip of “a man with a gun,” since the tip came from an individual ” who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the defendant],'” and the report ” [did] not show that the tipster ha[d] knowledge of concealed criminal activity'” … . People v Bailey, 2018 NY Slip Op 05856, Second Dept 8-22-18

CRIMINAL LAW (ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))/STREET STOPS (ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))/EVIDENCE (SUPPRESSION, ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))/SUPPRESS, MOTION TO  (ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))/REASONABLE SUSPICION (CRIMINAL LAW, ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))

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A SHOWING THAT MOTHER WAS ABUSED AND THE CHILD WITNESSED THE ABUSE IS NOT LEGALLY SUFFICIENT EVIDENCE THAT MOTHER NEGLECTED THE CHILD (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the Department of Children and Family Services (DCFS) did not present legally sufficient evidence of mother's neglect. The basis of the neglect allegation was mother's allowing the children to be exposed to domestic violence at the hands of her paramour:

In order to establish a prima facie case of neglect, DCFS was required, insofar as relevant here, to establish by a preponderance of the evidence that the subject children's “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [their] parent or other person legally responsible for [their] care to exercise a minimum degree of care” … . In the petition, DCFS alleged that the mother neglected the subject children by exposing them to domestic violence, i.e., by allowing her paramour into her house on several occasions in the presence of the subject children despite his history of violent actions toward her, during which she was again subjected to domestic violence. It is well settled that, in certain situations, “[t]he exposure of the child to domestic violence between the parents may form the basis for a finding of neglect”… . To establish neglect, however, “there must be proof of actual (or imminent danger of) physical, emotional or mental impairment to the child' . . . In order for danger to be imminent,' it must be near or impending, not merely possible' . . . Further, there must be a causal connection between the basis for the neglect petition and the circumstances that allegedly produce the . . . imminent danger of impairment' ” … . Thus, “[a] neglect determination may not be premised solely on a finding of domestic violence without any evidence that the physical, mental or emotional condition of the child was impaired or was in imminent danger of becoming impaired”… . “When the sole allegation' is that the mother has been abused and the child has witnessed the abuse, such a showing has not been made” … . Matter of Nevin H. (Stephanie H.), 2018 NY Slip Op 05891, Fourth Dept 8-22-18

FAMILY LAW (A SHOWING THAT MOTHER WAS ABUSED AND THE CHILD WITNESSED THE ABUSE IS NOT LEGALLY SUFFICIENT EVIDENCE THAT MOTHER NEGLECTED THE CHILD (FOURTH DEPT))/NEGLECT (FAMILY LAW, A SHOWING THAT MOTHER WAS ABUSED AND THE CHILD WITNESSED THE ABUSE IS NOT LEGALLY SUFFICIENT EVIDENCE THAT MOTHER NEGLECTED THE CHILD (FOURTH DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, A SHOWING THAT MOTHER WAS ABUSED AND THE CHILD WITNESSED THE ABUSE IS NOT LEGALLY SUFFICIENT EVIDENCE THAT MOTHER NEGLECTED THE CHILD (FOURTH DEPT))

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EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant attorneys were not entitled to dismissal of the legal malpractice action based on documentary evidence:

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” … . “In order for evidence to qualify as documentary,' it must be unambiguous, authentic, and undeniable” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” … . “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” … .

Here, the emails and letters submitted in support of the defendant's motion were not documentary evidence within the meaning of CPLR 3211(a)(1). To the extent that the other evidence submitted was documentary, that evidence did not conclusively establish the absence of an attorney-client relationship between the plaintiffs and the defendant with respect to the liens and their extensions. First Choice Plumbing Corp. v Miller Law Offs., PLLC, 2018 NY Slip Op 05825, Second Dept 8-22-18

CIVIL PROCEDURE (EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3211 (EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CIVIL PROCEDURE, EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LEGAL MALPRACTICE  (EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (LEGAL MALPRACTICE, CIVIL PROCEDURE, EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined Supreme Court properly considered an expert's affidavit as part of defendants' timely motion for summary judgment, and properly determined the defect which allegedly caused plaintiff's fall was trivial as a matter of law:

“[A] party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment” … . Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in considering the expert affidavit submitted by the defendants on their motion for summary judgment, since there was no evidence that the failure to disclose the identity of their expert witness pursuant to CPLR 3101(d)(1)(I) was intentional or willful, and there was no showing of prejudice to the plaintiff … . …

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increases the risks it poses” … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” … .

Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting, inter alia, an expert affidavit, photographs acknowledged by the plaintiff as accurately reflecting the condition of the alleged defect as it existed at the time of the accident, and the plaintiff's deposition testimony describing the time, place, and circumstances of the injury. … Cobham v 330 W. 34th SPE, LLC, 2018 NY Slip Op 05748, Second Dept 8-15-18

NEGLIGENCE (DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT))/SLIP AND FALL  (DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT))/TRIVIAL DEFECT (SLIP AND FALL, DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT))/CIVIL PROCEDURE (EXPERTS, DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT))/EXPERTS (CIVIL PROCEDURE, DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT)}/CPLR 3101 (EXPERTS, DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT))/EVIDENCE (EXPERT OPINION, DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT))

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DEFENDANT DEMONSTRATED THE ABSENCE OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE ALLEGEDLY SLIPPERY CONDITION IN THIS SLIP AND FALL CASE (FIRST DEPT).

The Second Department determined defendant demonstrated the absence of actual or constructive notice of the allegedly slippery condition on the staircase in this slip and fall case:

Defendant established its entitlement to judgment as a matter of law by establishing that it did not have actual or constructive notice of the urine on the staircase that allegedly caused plaintiff to fall. Defendant submitted, inter alia, the affidavit of its caretaker, who averred that it was his practice to inspect the staircase at issue twice each day, in the morning and at around 3:30 p.m., and to mop up any urine or other wet or slippery condition that he observed. He also stated that it was his practice to complete a checklist with regard to his morning inspection, and he attached and identified a copy of the checklist that he had completed as to the morning inspection on July 2, 2012, the day before plaintiff’s fall. In addition, he specifically stated that no one had complained to him about urine in a stairwell between his afternoon inspection on July 2 and the time his shift ended… .

Plaintiff’s opposition failed to raise a triable issue of fact. The evidence she submitted failed to demonstrate a recurring dangerous condition routinely left unaddressed by defendant, as opposed to a mere general awareness of such a condition, for which defendant is not liable … . Canteen v New York City Hous. Auth., 2018 NY Slip Op 05733, First Dept 8-9-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT DEMONSTRATED THE ABSENCE OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE ALLEGEDLY SLIPPERY CONDITION IN THIS SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (NOTICE, DEFENDANT DEMONSTRATED THE ABSENCE OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE ALLEGEDLY SLIPPERY CONDITION IN THIS SLIP AND FALL CASE (FIRST DEPT))

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DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department determined defense counsel was ineffective in failing to request a Frye hearing concerning a computer program, the TrueAllele Caaswork system, used to interpret mixed DNA samples. The appeal was held in abeyance and the matter remitted for the hearing:

​Defendant asserts that his trial counsel should have challenged, by way of a Frye hearing, the reliability of the TrueAllele Casework system, the proprietary “computer program that use[d] mathematics and statistics to interpret” the electronic data generated from the DNA mixtures taken from the lavender gloves and determine the statistical probability of a match between defendant’s DNA and that found on the inside of the gloves. A Frye hearing ascertains the reliability of “novel scientific evidence” by determining “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally”… . At the time of defendant’s pretrial proceedings in 2014, there were no reported trial court or appellate court decisions in this state establishing that the reliability of the TrueAllele Casework system had been assessed through a Frye hearing or that any court in the state had otherwise accepted expert testimony regarding that proprietary computer program… . Given these circumstances, we do not find that it would have been futile for defense counsel to have requested a Frye hearing to challenge the reliability of the TrueAllele Casework system or that such an application would have had little or no likelihood of success … . People v Wilson, 2018 NY Slip Op 05715, Third Dept 8-9-18

CRIMINAL LAW (DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/APPEALS (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/DNA (CRIMINAL LAW, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/FRYE HEARING (CRIMINAL LAW, DNA, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/TRUEALLELE CASEWORK SYSTEM (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/INEFFECTIVE ASSISTANCE (DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/APPEALS (CRIMINAL LAW, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))

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