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STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this sidewalk slip and fall case should have been denied. The evidence of a storm in progress was insufficient. The climatological analysis report submitted in the reply papers should not have been considered. There was no evidence when the sidewalk was last inspected prior to the fall:

… [T]he defendants submitted a copy of the transcript of the plaintiff’s deposition, at which she testified that light rain began to fall about 15 minutes prior to her accident, and that no precipitation fell the day before the accident. The defendants also submitted a copy of the transcript of the deposition of the office manager [the occupant of the abutting property], who testified that she had no recollection of the weather conditions on the day of the accident. The office manager also did not know when the sidewalk was last inspected or what it looked like within a reasonable time prior to the accident. The defendants also submitted video footage and screen shots from a security camera, but this evidence was not probative because it did not clearly depict the surface where the plaintiff slipped. Finally, the defendants submitted a climatological analysis report which was not signed and notarized, and therefore not admissible … .

The defendants submitted a signed and notarized climatological analysis report with their reply papers. However, the Supreme Court should not have considered that report, as it was improperly submitted for the first time with the reply papers … . Brandimarte v Liat Holding Corp., 2018 NY Slip Op 01042, Second Dept 2-14-18

NEGLIGENCE (SLIP AND FALL, STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (REPLY PAPERS, STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REPLY (CIVIL PROCEDURE, STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CIVIL PROCEDURE, REPLY PAPERS, STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the neglect finding:

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… [W]e agree with the mother that the court erred in determining that she neglected the child inasmuch as the AFC  [attorney for the child] failed to meet her burden of establishing by a preponderance of the evidence that the “child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” as a consequence of the mother’s failure to exercise a minimum degree of care … . It is well established that “any impairment to the child[ ] must be clearly attributable to the unwillingness or inability of the mother to exercise a minimum degree of care toward’ [the child] . . . , rather than what may be deemed undesirable parental behavior’ ” … . “Indeed, the statutory test is minimum degree of care — not maximum, not best, not ideal” … . Here, the court concluded that, “on one hand, [the mother] may simply be a mother determined to protect her child. On the other hand, she may be a woman determined to cause emotional harm to the father of their child. In either case, the consequence of this course of action may be emotional harm to [the child]” (emphasis added). While the record establishes that the mother’s conduct has been troubling at times, “there is no indication in the record that the child was . . . impaired or in imminent danger of impairment of her physical, mental, or emotional condition as a result of any acts committed by [the mother]” … . Matter of Ellie Jo L.H., 2018 NY Slip Op 00934, Fourth Dept 2-9-18

FAMILY LAW (NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/NEGLECT (NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/EVIDENCE (FAMILY LAW, NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))

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INSUFFICIENT EVIDENCE TO SUPPORT CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD, MOTHER TRANSPORTED DEAD BODY IN A CAR IN WHICH FOUR YEAR OLD DAUGHTER WAS RIDING, TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the evidence was not sufficient to support endangering the welfare of a child. The child’s mother was convicted of killing the victim and transporting the victim’s body in a car when her four-year-old daughter was in the car:

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We agree with defendant, however, that her conviction of endangering the welfare of a child is not based on legally sufficient evidence, and we therefore modify the judgment accordingly. The charge arose from defendant allegedly having her four-year-old child accompany her when she transported the victim’s body to her mother’s house. Viewing the evidence in support of that charge in the light most favorable to the People … , we conclude that the People failed to establish beyond a reasonable doubt that the child’s riding in the car with the victim’s body was likely to result in harm to the physical, mental, or moral welfare of the child … . Specifically, the People presented no evidence that the child was aware that the victim’s body was in the car or that the child was upset or bothered by any smells or sights in the car or later at his grandmother’s house … . People v Chase, 2018 NY Slip Op 00935, Fourth Dept 2-9-18

CRIMINAL LAW (INSUFFICIENT EVIDENCE TO SUPPORT CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD, MOTHER TRANSPORTED DEAD BODY IN A CAR IN WHICH FOUR YEAR OLD DAUGHTER WAS RIDING, TWO JUSTICE DISSENT (FOURTH DEPT))/ENDANGERING THE WELFARE OF A CHILD (EVIDENCE, INSUFFICIENT EVIDENCE TO SUPPORT CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD, MOTHER TRANSPORTED DEAD BODY IN A CAR IN WHICH FOUR YEAR OLD DAUGHTER WAS RIDING, TWO JUSTICE DISSENT (FOURTH DEPT))/EVIDENCE (ENDANGERING THE WELFARE OF A CHILD, INSUFFICIENT EVIDENCE TO SUPPORT CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD, MOTHER TRANSPORTED DEAD BODY IN A CAR IN WHICH FOUR YEAR OLD DAUGHTER WAS RIDING, TWO JUSTICE DISSENT (FOURTH DEPT))

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PLAINTIFF CORPORATION’S FAILURE TO MAKE A REASONABLE EFFORT TO PRODUCE A FORMER EMPLOYEE FOR DEPOSITION BY DEFENDANT WARRANTED PRECLUDING PLAINTIFF FROM PRESENTING TESTIMONY BY THE FORMER EMPLOYEE PURSUANT TO CPLR 3126, HOWEVER PRECLUSION OF SECONDARY AND HEARSAY EVIDENCE RELATING TO THE FORMER EMPLOYEE, WHICH WOULD PRECLUDE PLAINTIFF FROM ASSERTING ITS CLAIM, WAS AN ABUSE OF DISCRETION (FOURTH DEPT).

The Fourth Department determined Supreme Court properly found that plaintiff corporation did not make sufficient efforts to produce a former employer to be deposed by defendant in this breach of contract action, and therefore properly precluded plaintiff from presenting the former employee’s testimony. However, the Fourth Department held that Supreme Court abused its discretion when it precluded any secondary or hearsay evidence related to the former employee, which would preclude plaintiff from asserting its claim:

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Generally, where there is no evidence that a corporation exercises control over a former employee, that corporation cannot be held responsible for the former employee’s refusal to appear for a deposition … . Here, however, the firm representing plaintiff undertook the representation of that former employee, implicitly conceding control over the former employee … . When the court ordered plaintiff’s attorney to make every reasonable effort to secure the former employee’s appearance for a deposition, plaintiff’s attorney merely sent a letter notifying the former employee that the attorney was supposed to make additional efforts to secure her presence. There is no evidence that any actual efforts to secure her appearance were made. We thus agree with the court that plaintiff should be precluded from presenting testimony from the former employee.

We conclude, however, that the court abused its discretion in precluding plaintiff from relying on any secondary or hearsay evidence related to the former employee. There was no order compelling the production of such evidence that plaintiff was alleged to have violated, and the court did not find a willful failure to disclose such evidence. Hypercel Corp. v Stampede Presentation Prods., Inc., 2018 NY Slip Op 00936, Fourth Dept 2-9-18

CIVIL PROCEDURE (EVIDENCE, PLAINTIFF’S FAILURE TO MAKE A REASONABLE EFFORT TO PRODUCE A FORMER EMPLOYEE FOR DEPOSITION BY DEFENDANT WARRANTED PRECLUDING PLAINTIFF FROM PRESENTING TESTIMONY BY THE FORMER EMPLOYEE, HOWEVER PRECLUSION OF SECONDARY AND HEARSAY EVIDENCE RELATING TO THE FORMER EMPLOYEE, WHICH WOULD PRECLUDE PLAINTIFF FROM ASSERTING ITS CLAIM, WAS AN ABUSE OF DISCRETION (FOURTH DEPT))/EVIDENCE (CIVIL PROCEDURE,  PLAINTIFF’S FAILURE TO MAKE A REASONABLE EFFORT TO PRODUCE A FORMER EMPLOYEE FOR DEPOSITION BY DEFENDANT WARRANTED PRECLUDING PLAINTIFF FROM PRESENTING TESTIMONY BY THE FORMER EMPLOYEE, HOWEVER PRECLUSION OF SECONDARY AND HEARSAY EVIDENCE RELATING TO THE FORMER EMPLOYEE, WHICH WOULD PRECLUDE PLAINTIFF FROM ASSERTING ITS CLAIM, WAS AN ABUSE OF DISCRETION (FOURTH DEPT))/CPLR 3126 EVIDENCE, PLAINTIFF’S FAILURE TO MAKE A REASONABLE EFFORT TO PRODUCE A FORMER EMPLOYEE FOR DEPOSITION BY DEFENDANT WARRANTED PRECLUDING PLAINTIFF FROM PRESENTING TESTIMONY BY THE FORMER EMPLOYEE, HOWEVER PRECLUSION OF SECONDARY AND HEARSAY EVIDENCE RELATING TO THE FORMER EMPLOYEE, WHICH WOULD PRECLUDE PLAINTIFF FROM ASSERTING ITS CLAIM, WAS AN ABUSE OF DISCRETION (FOURTH DEPT))/CORPORATION LAW (CIVIL PROCEDURE, EVIDENCE, PLAINTIFF’S FAILURE TO MAKE A REASONABLE EFFORT TO PRODUCE A FORMER EMPLOYEE FOR DEPOSITION BY DEFENDANT WARRANTED PRECLUDING PLAINTIFF FROM PRESENTING TESTIMONY BY THE FORMER EMPLOYEE, HOWEVER PRECLUSION OF SECONDARY AND HEARSAY EVIDENCE RELATING TO THE FORMER EMPLOYEE, WHICH WOULD PRECLUDE PLAINTIFF FROM ASSERTING ITS CLAIM, WAS AN ABUSE OF DISCRETION (FOURTH DEPT))

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CODEFENDANT WAS SEEN ENTERING A CAR WITH A WEAPON WHICH WAS LATER FOUND ON THE SIDE OF THE ROAD, STATUTORY PRESUMPTION THAT THE WEAPON WAS POSSESSED BY ALL IN THE CAR DID NOT APPLY, DEFENDANT’S POSSESSION OF A WEAPON CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction for possession of a weapon, determined the evidence was legally insufficient to support the conviction. A co-defendant was seen (by the police) getting into a car with the weapon. Defendant also got into the car. The police followed. Before the police pulled the car over, when the car was out of sight, the weapon was thrown out of the car. A cell phone found near the weapon was tied to the defendant, but the weapon was not. The statutory presumption that a weapon in a vehicle is possessed by all in the vehicle did not apply because the weapon was in the possession of a codefendant when he got into the car:

We agree with defendant that the evidence is legally insufficient to support the conviction. There is no evidence that he owned or was operating the vehicle, nor is there evidence that he engaged in any other activity that would support a finding that he constructively possessed the weapon… Furthermore, the statutory presumption of possession set forth in Penal Law § 265.15 (3) also does not apply here. The statute provides that “[t]he presence in an automobile, other than a stolen one or a public omnibus, of any firearm . . . is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon . . . is found” … . The statute further provides, however, that the presumption does not apply, inter alia, “if such weapon . . . is found upon the person of one of the occupants therein” (§ 265.15 [3] [a]). Here, the weapon was not found in the vehicle, and the codefendant was holding it while he was observed entering the vehicle. Consequently, “the evidence is clearcut and leads to the sole conclusion that the weapon was . . . upon the person” of the codefendant … .

The People’s contention that defendant threw the weapon out the window, or assisted the codefendant in doing so, because it was found on the right side of the vehicle is based on speculation. Finally, the People introduced no evidence that would support a finding that defendant possessed the weapon as an accomplice. People v Willingham, 2018 NY Slip Op 00733, Fourth Dept 2-2-18

 

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NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION, THE TERM ‘PERSON’ IN THE ARSON SECOND STATUTE REFERS TO A LIVING PERSON, BECAUSE THE VICTIMS WERE NOT ALIVE WHEN THE FIRE WAS SET, THE CONVICTION WAS REDUCED TO ARSON THIRD (FOURTH DEPT).

The Fourth Department, in a comprehensive decision dealing with several substantive issues not summarized here, affirmed defendant’s first degree murder (four counts) and burglary convictions, and reduced the arson second degree conviction to arson third degree. The victims were not alive when the fire was set. The definition of “person” (in the Arson second statute) was interpreted to refer to a living person. In addition, the court held that the motion to suppress the cell site location information (CSLI), which the police obtained without a warrant, and which placed defendant in the town where the crime was committed at the time of the crime, was properly denied:

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As the Fifth Circuit Court of Appeals has written, “[w]e understand that cell phone users may reasonably want their location information to remain private, just as they may want their trash, placed curbside in opaque bags . . . or the view of their property from 400 feet above the ground . . . to remain so. But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy” (Application of U.S. for Historical Cell Site Data, 724 F3d at 615).

With respect to defendant’s state constitutional challenge, we conclude that “there is no sufficient reason’ to afford cell site location information at issue here greater protection under the state constitution than it is afforded under the federal constitution” … . People v Taylor, 2018 NY Slip Op 00709, Fourth Dept 2-2-18

CRIMINAL LAW (NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION, THE TERM ‘PERSON’ IN THE ARSON SECOND STATUTE REFERS TO A LIVING PERSON, BECAUSE THE VICTIMS WERE NOT ALIVE WHEN THE FIRE WAS SET, THE CONVICTION WAS REDUCED TO ARSON THIRD (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION, THE TERM ‘PERSON’ IN THE ARSON SECOND STATUTE REFERS TO A LIVING PERSON, BECAUSE THE VICTIMS WERE NOT ALIVE WHEN THE FIRE WAS SET, THE CONVICTION WAS REDUCED TO ARSON THIRD (FOURTH DEPT))/CELL SITE LOCATION INFORMATION (CSIL) (CRIMINAL LAW, NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION, THE TERM ‘PERSON’ IN THE ARSON SECOND STATUTE REFERS TO A LIVING PERSON, BECAUSE THE VICTIMS WERE NOT ALIVE WHEN THE FIRE WAS SET, THE CONVICTION WAS REDUCED TO ARSON THIRD (FOURTH DEPT))/SEARCH AND SEIZURE (CELL SITE LOCATION INFORMATION, NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION (FOURTH DEPT))/CELL PHONES (CRIMINAL LAW, CELL SITE LOCATION INFORMATION, NO WARRANT NEEDED FOR CELL SITE LOCATION INFORMATION (FOURTH DEPT))

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POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction for possession of a forged instrument (counterfeit check), determined two categories of hearsay evidence were improperly admitted without foundation:

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… [T]he court “erred in admitting in evidence a printout of electronic data that was displayed on a computer screen [after] defendant presented a check, the allegedly forged instrument, to a bank teller. The People failed to establish that the printout falls within the business records exception to the hearsay rule . . . [because they] presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business” … . …

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… [T]he court improperly admitted an investigator’s testimony about the results of a search he ran in a credit bureau’s commercial database for email addresses and a telephone number contained in a cover letter that enclosed the counterfeit check defendant tried to cash. The People failed to establish the requisite foundation for this testimony inasmuch as the investigator did not testify that he “is familiar with the practices of [the] company that produced the records at issue” and that he “generally relies upon such records” … . People v Jones, 2018 NY Slip Op 00710, Fourth Dept 2-2-18

CRIMINAL LAW (EVIDENCE, HEARSAY, POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, HEARSAY, POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT))/HEARSAY (CRIMINAL LAW, POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT))/BUSINESS RECORDS (HEARSAY,  POSSESSION OF A FORGED INSTRUMENT CONVICTION REVERSED, NO FOUNDATION FOR TWO CATEGORIES OF HEARSAY EVIDENCE (FOURTH DEPT))

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MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, over a two-justice dissent, determined the defendant’s murder conviction was against the weight of the evidence. The majority stated that the evidence demonstrated the defendant was probably guilty, but did not rise to proof beyond a reasonable doubt. The dissenters stated they “agreed” with the majority’s “implicit” determination that there was sufficient evidence to support the verdict, but they disagreed with the majority’s conclusion that the conviction was against the weight of the evidence. The decision describes the evidence in great detail which cannot be fairly summarized here. In a nutshell, there was evidence the defendant went into a motel room with the victim, where the victim was found dead. But the majority noted there was other evidence to suggest the victim had left the motel room at some point and someone other than the defendant was also in the room:

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The People’s case thus rested on three pillars of circumstantial evidence: (1) the fact that defendant entered the hotel with the victim at approximately 7:00 p.m., some 15 hours before his dead body was found in the hotel room; (2) the fact that defendant repeatedly lied to the police when he said that he did not know the victim and had never met him; and (3) the fact that the victim’s vehicle was found abandoned on a city street approximately six-tenths of a mile from defendant’s residence.

… [D]efendant’s presence in the room, although incriminating, is by no means conclusive considering that other people may have been in the room with the victim and that the Medical Examiner could not determine the time of death. As for defendant’s lies to the police, it appears that he may not have been living as an openly gay man—he had a girlfriend and children from different women— and he may have said that he did not know the victim so as not to reveal his sexual orientation. Finally, although the presence of the vehicle so close to defendant’s residence is suspicious, the victim was known to drive around the city looking for sexual partners … . * * *

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Although the police cannot be faulted for arresting defendant, nor the People for prosecuting him, the evidence at trial simply failed to prove defendant’s guilt beyond a reasonable doubt. There are too many unanswered questions for us to be comfortable that the right person is serving a life sentence for the victim’s murder.

From the dissent:  We agree with the implicit determination of our colleagues that there is sufficient evidence to support the jury’s verdict of murder in the second degree  … , but we respectfully disagree with their conclusion that the verdict is against the weight of the evidence. People v Carter, 2018 NY Slip Op 00711, Fourth Dept 2-2-18

CRIMINAL LAW (MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, (MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE/AGAINST THE WEIGHT OF THE EVIDENCE (CRIMINAL LAW, MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT))

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FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the arresting officer did not have cause to frisk the defendant, which revealed a weapon. The motion to suppress the weapon should have been granted. The officer had responded to a call about a shooting at a bar which described the suspect as a male Hispanic. The officer found a bullet fragment and some blood in a parking lot and he approached a group of people who were about 10 to 25 feet away. One person in the group appeared to the officer to be a male Hispanic. Someone in the group said they didn’t hear or see anything. The officer then frisked the defendant, who is black, not Hispanic:

… [T]he police had an objective, credible reason to approach the group of five people in the parking lot and to request information in light of the report of a shooting at or near that location at some unidentified earlier time. Thus, we conclude that the police encounter was lawful at its inception… . The People correctly concede, however, that the officer’s encounter with defendant constituted a level three forcible detention under the four-tiered De Bour framework …, and thus required “a reasonable suspicion that [defendant] was involved in a felony or misdemeanor” … .

We conclude that, “[b]ecause of the lack of correspondence between defendant’s appearance and the description of the suspected [shooter that was] transmitted to the officer[] . . . , the officer[] had no basis for concluding that the reported crime had been committed by defendant” … . “Nor can the [frisk of defendant] and seizure of the gun be justified as having been in the interests of the officer[‘s] safety, since there was no testimony that the officer[] believed defendant to be carrying a weapon” … ,and the People presented no other evidence establishing that the officer had reason to fear for his safety … . People v Roberts, 2018 NY Slip Op 00725, Fourth Dept 2-2-18

 

CRIMINAL LAW (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SEARCH AND SEIZURE  (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/STREET STOPS (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))

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PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, reinstated the jury’s damages award in this personal injury case. Plaintiffs moved to set aside the damages award unless the defendant stipulated to an increased amount and Supreme Court granted the motion. The Fourth Department explained that the jury was free to disregard expert opinion and the jury could have concluded that plaintiff had exaggerated her injuries or that the injuries were preexisting:

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“It is well settled that the amount of damages to be awarded for personal injuries is primarily a question for the jury . . . , the judgment of which is entitled to great deference based upon its evaluation of the evidence, including conflicting expert testimony” … .. Thus, “even in cases where there is evidence which could support a conclusion different from that of a jury, its verdict will still be accorded great deference and respect so long as there is credible evidence to support its interpretation” … . In addition, ” a jury is at liberty to reject an expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion’ “… . In short, “[w]here the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … . Mecca v Buffalo Niagara Convention Ctr. Mgt. Corp., 2018 NY Slip Op 00735, Fourth Dept 2-2-18

NEGLIGENCE (DAMAGES, PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/CIVIL PROCEDURE (PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/EVIDENCE (EXPERT OPINION, DAMAGES,  PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/EXPERT OPINION (DAMAGES, LAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/DAMAGES (PERSONAL INJURY,  PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/CPLR 4404 (PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))

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