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WHETHER THE POLICE RECEIVED VOLUNTARY CONSENT TO ENTER AN APARTMENT IS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS WILL NOT REVIEW, TWO CONCURRING OPINIONS DEALT WITH AN ISSUE WHICH WAS NOT RAISED, WHETHER THE POLICE WENT TO THE APARTMENT INTENDING TO MAKE A WARRANTLESS ARREST (CT APP).

The Court of Appeals, over two concurring opinions, determined that it could not review whether the police received voluntary consent to enter an apartment because it is a mixed question of law and fact and there is support in the record for the motion court's ruling. The concurring opinions dealt with an issue which was not raised below or on appeal—whether the police went to the apartment with the intent to make a warrantless arrest:

The determination as to whether police received voluntary consent to enter the apartment is a mixed question of law and fact … . “Although the voluntariness of the consent is open to dispute, our power to review affirmed findings of fact is limited. Since the finding of the trial court is supported by the record, we are precluded from upsetting it”… . As our concurring colleagues acknowledge, defendant did not contend below and does not contend on this appeal that his arrest was unlawful because the police went to his home with the intent of making a warrantless arrest. People v Xochimitl, 2018 NY Slip Op 06053, CtApp 9-13-18

CRIMINAL LAW (WHETHER THE POLICE RECEIVED VOLUNTARY CONSENT TO ENTER AN APARTMENT IS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS WILL NOT REVIEW, TWO CONCURRING OPINIONS DEALT WITH AN ISSUE WHICH WAS NOT RAISED, WHETHER THE POLICE WENT TO THE APARTMENT INTENDING TO MAKE A WARRANTLESS ARREST (CT APP))/EVIDENCE (CRIMINAL LAW, APPEALS, WHETHER THE POLICE RECEIVED VOLUNTARY CONSENT TO ENTER AN APARTMENT IS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS WILL NOT REVIEW, TWO CONCURRING OPINIONS DEALT WITH AN ISSUE WHICH WAS NOT RAISED, WHETHER THE POLICE WENT TO THE APARTMENT INTENDING TO MAKE A WARRANTLESS ARREST (CT APP))/APPEALS (CRIMINAL LAW, WHETHER THE POLICE RECEIVED VOLUNTARY CONSENT TO ENTER AN APARTMENT IS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS WILL NOT REVIEW, TWO CONCURRING OPINIONS DEALT WITH AN ISSUE WHICH WAS NOT RAISED, WHETHER THE POLICE WENT TO THE APARTMENT INTENDING TO MAKE A WARRANTLESS ARREST (CT APP))/MIXED QUESTION OF LAW AND FACT (APPEALS, CRIMINAL LAW, WHETHER THE POLICE RECEIVED VOLUNTARY CONSENT TO ENTER AN APARTMENT IS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS WILL NOT REVIEW, TWO CONCURRING OPINIONS DEALT WITH AN ISSUE WHICH WAS NOT RAISED, WHETHER THE POLICE WENT TO THE APARTMENT INTENDING TO MAKE A WARRANTLESS ARREST (CT APP))

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APPELLATE DIVISION APPLIED THE CORRECT CRITERIA IN ITS WEIGHT OF THE EVIDENCE ANALYSIS, DESPITE CITING SEVERAL DECISIONS THAT SHOULD NO LONGER BE FOLLOWED (CT APP).

The Court of Appeals, over a two-judge dissent, determined that the Appellate Division applied the correct analysis to its weight of the evidence review, despite the Appellate Division's citing of several decisions which should no longer be followed:

The Appellate Division stated the correct standard of review when it concluded that, “viewing the evidence presented at trial in a neutral light . . . , and weighing the relative probative force of the conflicting testimony and evidence, as well as the relative strength of the conflicting inferences to be drawn therefrom, and according deference to the jury's opportunity to view the witnesses, hear their testimony and observe their demeanor, the jury was justified in finding that the People sustained their burden of disproving defendant's justification defense beyond a reasonable doubt” (157 AD3d 107, 116, 118 [1st Dept 2017]; see People v Romero, 7 NY3d 633, 643-644 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). To the extent the Appellate Division cited to certain prior decisions (see 157 AD3d at 109, citing People v Castillo, 223 AD2d 481, 481 [1st Dept 1996]; People v Bartley, 219 AD2d 566, 567 [1st Dept 1995], lv denied 87 NY2d 898 [1st Dept 1995]; People v Corporan, 169 AD2d 643, 643 [1st Dept 1991], lv denied 77 NY2d 959 [1st Dept 1991]) containing language that is inconsistent with our more recent guidance regarding weight of the evidence (see People v Delamota, 18 NY3d 107, 116-117 [2011]), those decisions should not be followed.

… .[T]he Appellate Division applied the correct standard from Romero and Bleakley, which involves a “two-step approach” wherein the court must (1) “determine whether, based on all the credible evidence, an acquittal would not have been unreasonable[;]” and (2) “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” … . People v Sanchez, 2018 NY Slip Op 06052, CtApp 9-13-18

CRIMINAL LAW (APPELLATE DIVISION APPLIED THE CORRECT CRITERIA IN ITS WEIGHT OF THE EVIDENCE ANALYSIS, DESPITE CITING SEVERAL DECISIONS THAT SHOULD NO LONGER BE FOLLOWED (CT APP))/APPEALS (CRIMINAL LAW, APPELLATE DIVISION APPLIED THE CORRECT CRITERIA IN ITS WEIGHT OF THE EVIDENCE ANALYSIS, DESPITE CITING SEVERAL DECISIONS THAT SHOULD NO LONGER BE FOLLOWED (CT APP))/EVIDENCE (CRIMINAL LAW, APPEALS, APPELLATE DIVISION APPLIED THE CORRECT CRITERIA IN ITS WEIGHT OF THE EVIDENCE ANALYSIS, DESPITE CITING SEVERAL DECISIONS THAT SHOULD NO LONGER BE FOLLOWED (CT APP))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, APPELLATE DIVISION APPLIED THE CORRECT CRITERIA IN ITS WEIGHT OF THE EVIDENCE ANALYSIS, DESPITE CITING SEVERAL DECISIONS THAT SHOULD NO LONGER BE FOLLOWED (CT APP))

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SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT). ​

The Third Department, over a two-justice partial dissent, determined that Surrogate's Court properly granted summary judgment dismissing the objection that the decedent lacked testamentary capacity.

… [E]vidence of decedent's diagnosis of dementia and declining cognitive abilities “does not, without more, create a question of fact on the issue of testamentary capacity, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will was signed” … .

From the dissent:

… “[S]ummary judgment is rare in a contested probate proceeding and where, as here, there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence, summary judgment is inappropriate” … . Although a diagnosis of dementia, standing alone, is insufficient to create a triable issue of fact regarding mental capacity … , where, as here, there is proof of a progressively worsening mental condition, evidence of specific facts that occur close in time to execution is probative of testamentary capacity at the relevant time and is sufficient to establish a triable issue of fact … . Matter of Giaquinto, 2018 NY Slip Op 06065, Third Dept 9-12-18

TRUSTS AND ESTATES (SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT))/EVIDENCE (TRUSTS AND ESTATES, SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT))/TESTAMENTARY CAPACITY  (SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT))/SUMMARY JUDGMENT (TRUSTS AND ESTATES, TESTAMENTARY CAPACITY, SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT))

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MOTION TO VACATE DEFENDANT’S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT).

The Second Department reversed the vacation of defendant's conviction by the motion court, finding that the evidence which defendant alleged had not been turned over to the defense was not Brady material:

The defendant was charged with murder in the second degree, among other crimes, in connection with the shooting death of Tracey Thomas on October 22, 1993. Thomas was shot and killed as he sat in his car outside a game room operated by the defendant, who was known as “Pike.”

The evidence at trial, which was conducted in 1998, included the testimony of two eyewitnesses who identified the defendant as the shooter. One eyewitness to the shooting, Marilyn Connor, testified that she heard a gunshot and saw a spark coming from the defendant, who was standing in front of Thomas. Connor stated that she had seen the defendant “[o]nce or twice” before. The other eyewitness, Shawn Newton, testified that the defendant exited the game room, approached Thomas's car, and shot Thomas in the chest. Newton stated that he had known the defendant “all [his] life.” * * *

The nondisclosure of the DOCCS record reflecting Newton's apparent suicide attempt did not constitute a Brady violation, inasmuch as the information contained in that record was not favorable to the defense. As set forth in the DOCCS record, Newton, who was observed in the process of tying a bed sheet around a radiator pipe, reported that he was “stressed and [did] not want to go to court in fear of [the] safety of himself and family,” and that he “fears [the defendant].” The DOCCS record further indicated that Newton was “[a]ssured that this [would] be noted and that there should be no contact between him and enemy as well as enemy's family.” Thus, the DOCCS record attributed the apparent suicide attempt to Newton's fear of the defendant and was therefore not favorable to the defense. …

Furthermore, that the prosecutor had obtained a material witness order to secure Connor's testimony did not constitute Brady material because that information was not exculpatory … . To the contrary, the record indicates that Connor's absence was due to her fear of testifying against the defendant. …

We next turn to the nondisclosure of the Damiani orders, which are orders of the Supreme Court, Kings County, pursuant to which custody of an inmate, with the inmate's consent, is delivered to the police department to be interviewed by the District Attorney's Office ,,, [C]ontrary to the Supreme Court's determination, the orders did not satisfy the materiality standard. People v Spruill, 2018 NY Slip Op 06041, Second Dept 9-12-18

CRIMINAL LAW (BRADY MATERIAL, MOTION TO VACATE DEFENDANT'S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, BRADY MATERIAL,  MOTION TO VACATE DEFENDANT'S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT))/BRADY MATERIAL (CRIMINAL LAW, MOTION TO VACATE DEFENDANT'S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT))

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ALTHOUGH THE DNA EVIDENCE PRESENTED BY A CRIMINALIST WAS IN PART TESTIMONIAL, THE DEFENDANT’S RIGHT TO CONFRONTATION WAS NOT VIOLATED AND THE EVIDENCE WAS PROPERLY ADMITTED (SECOND DEPT).

The Second Department determined that, although the DNA evidence presented by a criminalist was in part testimonial, it was properly admitted:

At trial, the Supreme Court admitted DNA profiles and reports, as well as the testimony of an expert in DNA analysis, pertaining to the five victims and the defendant. The expert, Craig O'Connor, testified that he had a Ph.D. in genetics and laboratory sciences, and he was a criminalist level III at the Office of the Chief Medical Examiner. O'Connor testified that he was not the original criminalist on all of the individual cases. The other two analysts who worked on the cases “resigned in previous years to pursue other endeavors.” With regard to the case files that he took over from the analysts who resigned, O'Connor testified that he became the custodian of the case files and, in doing so, he “was required to review them all and look at all the paperwork and the reports and everything.” Moreover, O'Connor testified that he would “take all of the results and do the analysis and interpretations,” and he “review[ed] all the facts and all the data contained in all of the files.” When the prosecutor asked O'Connor if he had “review[ed] th[e] data and draw[n] [his] own independent conclusions,” O'Connor responded, “Yes, I reviewed the results that were obtained and also the reports, yes.” * * *

Here, the DNA evidence is, at least in part, testimonial … . However, O'Connor's testimony regarding his review and analysis of all of the case files indicated that he independently analyzed the raw data, as opposed to functioning as ” a conduit for the conclusions of others'” … . Moreover, unlike in other cases, the record here demonstrates that, to the extent that O'Connor was not the original criminalist assigned to any of the individual cases, the original criminalists had resigned and, thus, were unavailable … . Accordingly, the Supreme Court properly admitted the DNA profiles and reports and O'Connor's testimony. People v Pascall, 2018 NY Slip Op 06037, Second Dept 9-12-18

CRIMINAL LAW (ALTHOUGH THE DNA EVIDENCE PRESENTED BY A CRIMINALIST WAS IN PART TESTIMONIAL, THE DEFENDANT'S RIGHT TO CONFRONTATION WAS NOT VIOLATED AND THE EVIDENCE WAS PROPERLY ADMITTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, EVIDENCE, ALTHOUGH THE DNA EVIDENCE PRESENTED BY A CRIMINALIST WAS IN PART TESTIMONIAL, THE DEFENDANT'S RIGHT TO CONFRONTATION WAS NOT VIOLATED AND THE EVIDENCE WAS PROPERLY ADMITTED (SECOND DEPT))/TESTIMONIAL HEARSAY (ALTHOUGH THE DNA EVIDENCE PRESENTED BY A CRIMINALIST WAS IN PART TESTIMONIAL, THE DEFENDANT'S RIGHT TO CONFRONTATION WAS NOT VIOLATED AND THE EVIDENCE WAS PROPERLY ADMITTED (SECOND DEPT))/CONFRONTATION, RIGHT TO  (ALTHOUGH THE DNA EVIDENCE PRESENTED BY A CRIMINALIST WAS IN PART TESTIMONIAL, THE DEFENDANT'S RIGHT TO CONFRONTATION WAS NOT VIOLATED AND THE EVIDENCE WAS PROPERLY ADMITTED (SECOND DEPT))

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IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION. PLAINTIFF’S AFFIDAVITS SHOULD HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff lessee's complaint in this slip and fall case against the landlord should not have been dismissed. Although defendant, an out-of-possession landlord, demonstrated it was solely plaintiff lessee's responsibility to remove ice and snow, plaintiff raised a question of fact about whether defendant was responsible for an inadequate drainage system which caused ice and snow to accumulate. The Second Department noted that Supreme Court should have considered the expert affidavit and plaintiff's and his ex-wife's affidavits stating that the ice and snow condition could not be dealt with by normal methods (due to the drainage issue):

Here, there was no statute imposing a duty on the defendants to maintain the premises in a reasonably safe condition. The defendants also demonstrated that the parties agreed that the plaintiff would be responsible for snow and ice removal and that the plaintiff actually undertook to conduct snow and ice removal. …

Even in the absence of a duty to repair an allegedly defective condition, liability may attach to an out-of-possession landlord who has affirmatively created a dangerous condition or defect … . The defendants did not dispute that they installed the drainage system.

Moreover, the defendants failed to establish that they did not have a duty to repair a defective condition in the drainage system.

… [P]laintiff raised triable issues of fact as to whether the drainage system was defective and, if so, whether such defect contributed to his accident … . The court should have considered the affidavits of the plaintiff and his former wife, in which they averred that the icy condition on the driveway could not be ameliorated by snowplowing and their daily efforts at salting, sanding, and ashing the driveway, as those averments were consistent with the plaintiff's deposition testimony… . The court also should have considered the affidavit of the plaintiff's expert, in which he stated that defective conditions in the property's drainage system made the driveway area near the entrance prone to the pooling and freezing of water from the roof and surrounding lawn areas. Contrary to the court's determination, there is no requirement that a plaintiff establish the violation of a specific statutory provision where the duty to repair a defective condition is assumed by the landlord by contract or course of conduct … . Bartels v Eack, 2018 NY Slip Op 05995, Second Dept 9-12-18

NEGLIGENCE (IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION (SECOND DEPT))/LANDLORD-TENANT (SLIP AND FALL, NEGLIGENCE, IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION (SECOND DEPT))/OUT OF POSSESSION LANDLORD (SLIP AND FALL, NEGLIGENCE, IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT, IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION, PLAINTIFF'S AFFIDAVITS SHOULD HAVE BEEN CONSIDERED  (SECOND DEPT))

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DENIAL OF A REPORTER’S MOTION TO QUASH A SUBPOENA FOR EVIDENCE OF HER JAILHOUSE INTERVIEW OF THE DEFENDANT IN A CRIMINAL PROCEEDING IS NOT APPEALABLE (CT APP).

The First Department, upon remittitur from the Ct. of Appeals, held that the denial of a reporter’s motion to quash a subpoena for evidence of her jailhouse interview of the defendant is not appealable:

“[N]o appeal lies from an order arising out of a criminal proceeding absent specific statutory authorization” (Matter of People v Juarez , _NY3d_, 2018 NY Slip Op 04684 [2018]), quoting People v Santos , 64 NY2d 702, 704 [1984]). As pertinent to the issue in this case, “an order determining a motion to quash a subpoena . . . issued in the course of prosecution of a criminal action, arises out of a criminal proceeding for which no direct appellate review is authorized” (id.; see CPL art 450). People v Juarez, 2018 NY Slip Op 05969, First Dept 9-6-18

CRIMINAL LAW (DENIAL OF A REPORTER’S MOTION TO QUASH A SUBPOENA FOR EVIDENCE OF HER JAILHOUSE INTERVIEW OF THE DEFENDANT IN A CRIMINAL PROCEEDING IS NOT APPEALABLE (CT APP))/CIVIL PROCEDURE (DENIAL OF A REPORTER’S MOTION TO QUASH A SUBPOENA FOR EVIDENCE OF HER JAILHOUSE INTERVIEW OF THE DEFENDANT IN A CRIMINAL PROCEEDING IS NOT APPEALABLE (CT APP))/APPEALS (CRIMINAL LAW, DENIAL OF A REPORTER’S MOTION TO QUASH A SUBPOENA FOR EVIDENCE OF HER JAILHOUSE INTERVIEW OF THE DEFENDANT IN A CRIMINAL PROCEEDING IS NOT APPEALABLE (CT APP))/CONSTITUTIONAL LAW (DENIAL OF A REPORTER’S MOTION TO QUASH A SUBPOENA FOR EVIDENCE OF HER JAILHOUSE INTERVIEW OF THE DEFENDANT IN A CRIMINAL PROCEEDING IS NOT APPEALABLE (CT APP))/EVIDENCE (CRIMINAL LAW, DENIAL OF A REPORTER’S MOTION TO QUASH A SUBPOENA FOR EVIDENCE OF HER JAILHOUSE INTERVIEW OF THE DEFENDANT IN A CRIMINAL PROCEEDING IS NOT APPEALABLE (CT APP))

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SUPREME COURT ABUSED ITS DISCRETION IN PRECLUDING PLAINTIFF FROM PRESENTING EVIDENCE OF ITEMS ALLEGEDLY SOLD OR DAMAGED BY DEFENDANTS (OWNERS-OPERATORS OF A STORAGE UNIT) AS A SANCTION FOR PLAINTIFF’S ALLEGED SPOLIATION OF ITEMS IN THE STORAGE UNIT (SECOND DEPT).

In this Lien Law action, the Second Department determined Supreme Court improperly precluded the plaintiff from offering evidence of the value and condition of items allegedly sold or damaged by defendants, the owners/operators of a storage unit plaintiff had rented. Defendants allegedly mistakenly believed plaintiff had failed to pay the rental fees and held an auction. After plaintiff regained control of the unit, plaintiff disposed of most of the contents, despite defendants' requests to inspect the items:

Although the defendants demonstrated that the plaintiff disposed of the majority of the items remaining in the storage unit after he regained control and possession of the unit, the defendants failed to demonstrate that the plaintiff's conduct rose to the level of being intentional or willful … . …

Under the circumstances of this case, the appropriate sanction is to preclude evidence of the items disposed by the plaintiff that were not available for inspection by the defendants … . Heins v Public Stor., 2018 NY Slip Op 05919, Second Dept 8-29-18

CIVIL PROCEDURE (SPOLIATION, SUPREME COURT ABUSED ITS DISCRETION IN PRECLUDING PLAINTIFF FROM PRESENTING EVIDENCE OF ITEMS ALLEGEDLY SOLD OR DAMAGED BY DEFENDANTS (OWNERS-OPERATORS OF A STORAGE UNIT) AS A SANCTION FOR PLAINTIFF'S ALLEGED SPOLIATION OF ITEMS IN THE STORAGE UNIT (SECOND DEPT))/EVIDENCE (SPOLIATION, SUPREME COURT ABUSED ITS DISCRETION IN PRECLUDING PLAINTIFF FROM PRESENTING EVIDENCE OF ITEMS ALLEGEDLY SOLD OR DAMAGED BY DEFENDANTS (OWNERS-OPERATORS OF A STORAGE UNIT) AS A SANCTION FOR PLAINTIFF'S ALLEGED SPOLIATION OF ITEMS IN THE STORAGE UNIT (SECOND DEPT))/SPOLIATION (SUPREME COURT ABUSED ITS DISCRETION IN PRECLUDING PLAINTIFF FROM PRESENTING EVIDENCE OF ITEMS ALLEGEDLY SOLD OR DAMAGED BY DEFENDANTS (OWNERS-OPERATORS OF A STORAGE UNIT) AS A SANCTION FOR PLAINTIFF'S ALLEGED SPOLIATION OF ITEMS IN THE STORAGE UNIT (SECOND DEPT))/LIEN LAW (SPOLIATION, SUPREME COURT ABUSED ITS DISCRETION IN PRECLUDING PLAINTIFF FROM PRESENTING EVIDENCE OF ITEMS ALLEGEDLY SOLD OR DAMAGED BY DEFENDANTS (OWNERS-OPERATORS OF A STORAGE UNIT) AS A SANCTION FOR PLAINTIFF'S ALLEGED SPOLIATION OF ITEMS IN THE STORAGE UNIT (SECOND DEPT))

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MOTION TO STRIKE SCHOOL’S ANSWER FOR SPOLIATION OF EVIDENCE PROPERLY DENIED, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, PLAINTIFF WAS INJURED BY ANOTHER STUDENT (SECOND DEPT).

The Second Department determined Supreme Court properly granted defendant board of education's motion for summary judgment in this student-on-student assault case. In addition, Supreme Court properly denied plaintiff's motion to strike the answer based upon spoliation of evidence (a video):

The complaint alleges that L.F., an infant, sustained injuries when he was picked up and dropped on his head by a fellow student at Mount Vernon High School. The plaintiff, suing individually and as the parent and natural guardian of L.F., commenced this action against the defendant, Mount Vernon Board of Education, to recover damages for personal injuries, alleging that it failed to provide adequate supervision. * * *

… [A] video recording which captured the incident from a distance could not be located after it had been viewed by the plaintiff, the police, and school administrators. According to the Principal of Mount Vernon High School, he did not know when the video disappeared but he asserted that its disappearance was accidental and a search had been conducted to locate it. Under these circumstances, where the defendant lost the video recording after having provided it for viewing to the plaintiff and others, the plaintiff would still be able to establish her case at trial despite the absence of the video. * * *

The defendant submitted evidence that L.F. and the other student had no previous interaction and that the other student's prior disciplinary record did not include any violent act, thereby establishing that the defendant had no specific knowledge or notice of any prior conduct such that L.F.'s alleged assault … could reasonably have been anticipated … . Francis v Mount Vernon Bd. of Educ., 2018 NY Slip Op 05916, Second Dept 8-29-18

NEGLIGENCE (MOTION TO STRIKE SCHOOL'S ANSWER FOR SPOLIATION OF EVIDENCE PROPERLY DENIED, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, PLAINTIFF WAS INJURED BY ANOTHER STUDENT (SECOND DEPT))/EVIDENCE (NEGLIGENCE, SPOLIATION, MOTION TO STRIKE SCHOOL'S ANSWER FOR SPOLIATION OF EVIDENCE PROPERLY DENIED, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, PLAINTIFF WAS INJURED BY ANOTHER STUDENT (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, MOTION TO STRIKE SCHOOL'S ANSWER FOR SPOLIATION OF EVIDENCE PROPERLY DENIED, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, PLAINTIFF WAS INJURED BY ANOTHER STUDENT (SECOND DEPT))/ASSAULT, LIABILITY IN NEGLIGENCE (EDUCATION-SCHOOL LAW, MOTION TO STRIKE SCHOOL'S ANSWER FOR SPOLIATION OF EVIDENCE PROPERLY DENIED, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, PLAINTIFF WAS INJURED BY ANOTHER STUDENT (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, MOTION TO STRIKE SCHOOL'S ANSWER FOR SPOLIATION OF EVIDENCE PROPERLY DENIED, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, PLAINTIFF WAS INJURED BY ANOTHER STUDENT (SECOND DEPT))

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EMAILS SUBMITTED WITH REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined emails submitted in reply papers should not have been considered:

The purpose of a reply affidavit or affirmation is to respond to arguments made in opposition to the movant's motion and not to introduce new arguments or grounds in support of the relief sought … . There are exceptions to this rule, including when evidence is submitted in response to allegations made for the first time in opposition, or when the other party is given an opportunity to respond to the reply papers … . Neither of those exceptions applies here. The time for the defendant to produce the letters allegedly from the plaintiff transferring his interest in the shares would have been in support of her cross motion, inter alia, for summary judgment declaring that she is the sole owner of the shares. There was no new allegation in the plaintiff's opposition to the cross motion that would have warranted the defendant's submission of the letters in reply. Further, the plaintiff was not given an opportunity to respond by way of surreply or oral argument. An unrecorded, in-chambers discussion of the cross motion cannot be deemed an opportunity to respond, especially in light of the plaintiff's claim on appeal that the letters are forgeries. Moreover, the defendant did not plead a demand for a declaratory judgment in a counterclaim … . The defendant also did not assert a claim to sole ownership of the shares in her pleading. Gelaj v Gelaj, 2018 NY Slip Op 05917, Second Dept 8-29-18

CIVIL PROCEDURE (REPLY, EMAILS SUBMITTED WITH REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REPLY (EMAILS SUBMITTED WITH REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE  (REPLY, EMAILS SUBMITTED WITH REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUMMARY JUDGMENT (REPLY, EVIDENCE, MAILS SUBMITTED WITH REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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