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DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC LIGHTS, RESULTING IN AN INTERSECTION COLLISION WHICH KILLED THE OTHER DRIVER, SUPPORTED THE DEPRAVED INDIFFERENCE MURDER CONVICTION.

The Second Department, over a partial dissent, determined the evidence supported defendant’s conviction for depraved indifference murder in this driving-while-intoxicated/vehicular-homicide case. Defendant, who was intoxicated and high on marijuana, drove at high speeds through residential neighborhoods, ignoring traffic lights at intersections. A collision an an intersection split the victim’s (Whether’s) car in two and killed him instantly. The dissent argued the high evidence-threshold for depraved indifference murder was not met:

A person is guilty of depraved indifference murder when, “[u]nder circumstances evincing a depraved indifference to human life, [such person] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25[2]). Depraved indifference is a culpable mental state which “is best understood [*3]as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” … . Thus, “a depraved and utterly indifferent actor is someone who does not care if another is injured or killed” … . “The mens rea of depraved indifference to human life can, like any other mens rea, be proved by circumstantial evidence” … .

Here, the evidence proved beyond a reasonable doubt that the defendant recklessly engaged in conduct which created a grave risk of death to another person. First, the defendant was knowingly driving with a revoked driver license. Second, the defendant was driving while intoxicated with a BAC of approximately 0.25%, and high on marijuana. Third, the defendant engaged in a high-speed chase with the police for approximately two miles. Fourth, during this chase, the defendant sped through narrow streets of a residential neighborhood, traveling at speeds of more than double the legal limit. The defendant also ran through numerous stop signs and red traffic lights, without slowing down.

The evidence further demonstrated that prior to the crash, the defendant sped eastbound down Pine Street, a residential street with stop signs and traffic lights, reaching a speed of over 80 miles per hour. Perhaps most significantly, the compelling circumstantial evidence demonstrated that as the defendant approached a red traffic light at the intersection of Guy Lombardo Avenue, he narrowly missed another vehicle that crossed the intersection, and seconds later, without slowing down, he ran the red light and crashed into Whethers’ vehicle with such force that he split the vehicle in two, instantly killing Whethers. The direct and circumstantial evidence proved that the defendant deliberately drove his vehicle into this intersection with an utter disregard for the value of human life, and thus was legally sufficient to support the determination that the defendant acted with depraved indifference … . People v Williams, 2017 NY Slip Op 04302, 2nd Dept 5-31-17

 

CRIMINAL LAW (EVIDENCE, DEPRAVED INDIFFERENCE MURDER, DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC LIGHTS, RESULTING IN AN INTERSECTION COLLISION WHICH KILLED THE OTHER DRIVER, SUPPORTED THE DEPRAVED INDIFFERENCE MURDER CONVICTION)/EVIDENCE (CRIMINAL LAW, DEPRAVED INDIFFERENCE MURDER, DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC LIGHTS, RESULTING IN AN INTERSECTION COLLISION WHICH KILLED THE OTHER DRIVER, SUPPORTED THE DEPRAVED INDIFFERENCE MURDER CONVICTION)/DEPRAVED INDIFFERENCE MURDER  DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC LIGHTS, RESULTING IN AN INTERSECTION COLLISION WHICH KILLED THE OTHER DRIVER, SUPPORTED THE DEPRAVED INDIFFERENCE MURDER CONVICTION)

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PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

The Second Department determined Supreme Court properly granted the petition for pre-action disclosure of the identity of the person or persons who widely distributed an intimate photo of a portion of a high school student’s (the potential plaintiff’s) body and identified the student depicted in the photo. The purpose of the disclosure was to identify potential defendants. The facts were sufficient to support an action for intentional infliction of emotional distress:

“Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order” (CPLR 3102[c]…). “[D]isclosure to aid in bringing an action’ (CPLR 3102 [c]) authorizes discovery to allow a plaintiff to frame a complaint and to obtain the identity of the prospective defendants”… .. However, pre-action disclosure “may not be used to determine whether the plaintiff has a cause of action” … . This limitation is “designed to prevent the initiation of troublesome and expensive procedures, based upon a mere suspicion, which may annoy and intrude upon an innocent party” … . “Where, however, the facts alleged state a cause of action, the protection of a party’s affairs is no longer the primary consideration and an examination to determine the identities of the parties and what form or forms the action should take is appropriate” … .  Accordingly, “[a] petition for pre-action discovery limited to obtaining the identity of prospective defendants should be granted where the petitioner has alleged facts fairly indicating that he or she has some cause of action” … . * * *

Under New York law, a cause of action alleging intentional infliction of emotional distress “has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress”… . . In support of its argument that the petition failed to allege facts that would constitute a cognizable cause of action against the unidentified individual, the school contends that the petition failed to adequately allege extreme and outrageous conduct.

The element of outrageous conduct “serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff’s claim of severe emotional distress is genuine” … . ” Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'” … .  Indeed, “where severe mental pain or anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation, a remedy is available in the form of an action for the intentional infliction of emotional distress” … . Here, assuming the truth of the facts alleged in the petition, the acts complained of could be found by a trier of fact to amount to extreme and outrageous conduct which cannot be tolerated in a civilized community … . Matter of Leff v Our Lady of Mercy Academy, 2017 NY Slip Op 04280, 2nd Dept 5-31-17

 

CIVIL PROCEDURE (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/EDUCATION-SCHOOL LAW (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/INTENTIONAL TORTS (INFLICTION OF EMOTIONAL DISTRESS, CIVIL PROCEDURE, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/EVIDENCE (CIVIL PROCEDURE, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/OUTRAGEOUS CONDUCT (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, CIVIL PROCEDURE, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/PHOTOGRAPHS (INTIMATE, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/DISCLOSURE (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/PRE-ACTION DISCLOSURE (IDENTIFY DEFENDANTS, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)

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INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS.

The Third Department, annulling the determination below, found that petitioner-police officer’s application for accidental and performance of duty retirement benefits should not have been denied. Although the comptroller can accept the opinion of one expert over another, in this case the inconsistencies in the retirement system’s expert’s (Hughes’) testimony did not provide substantial evidence for the finding against the petitioner:

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On cross-examination, however, Hughes acknowledged that petitioner complained of a number of post-concussion symptoms during his examination and he believed that petitioner was being truthful. When asked if these symptoms would preclude petitioner from performing the specific duties of a police officer, Hughes initially explained that he confined his opinion to “whether [petitioner’s] neck injury and post-concussion syndrome caused by the accident of 3/19/09 resulted in a permanent disability.” Nonetheless, he subsequently confirmed that petitioner’s symptoms could impede his ability to use a firearm, carry out complicated directions and perform other police-related tasks. Ultimately, Hughes agreed that petitioner suffered “an exacerbation or recurrence” of his post-concussion symptoms in July 2010, that would disable him from performing the duties of a police officer.

In our view, Hughes’ inconsistent testimony on the issue of permanent incapacity and failure to account for the July 2010 incident in rendering his opinion does not constitute a rational and fact-based opinion necessary to support the finding that petitioner was not permanently incapacitated from performing his duties as a police officer. To the contrary, the record contains ample medical evidence and documentation, most significantly Ward’s testimony, establishing that petitioner was permanently incapacitated by injuries sustained as a result of the March 19, 2009 incident that were later exacerbated in July 2010. Accordingly, inasmuch as we find that the Comptroller’s determination is not supported by substantial evidence, it must be annulled and the matter remitted for further proceedings … . Matter of Rawson v DiNapoli, 2017 NY Slip Op 04189, 3rd Dept 5-25-17

EMPLOYMENT LAW (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/EVIDENCE,  (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/POLICE OFFICERS (ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/RETIREMENT BENEFITS (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)

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DICTA IN A COURT ORDER WAS NOT A FINDING ON THE MERITS AND THEREFORE COULD NOT BE THE BASIS FOR A DISMISSAL FOUNDED UPON DOCUMENTARY EVIDENCE.

The Second Department, reversing Supreme Court, determined that a court order precluding evidence because of a failure to comply with discovery demands was not documentary evidence which utterly refuted the allegations of legal malpractice in the complaint. Therefore, defendants’ motion to dismiss should not have been granted. Although the order opined that the evidence, had it been produced would not have demonstrated legal malpractice, that portion of the order was dicta:

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… [T]he complaint alleges that the defendants, Anthony P. Gallo, P.C., and Anthony P. Gallo (hereinafter together Gallo), who represented the plaintiff in a prior legal malpractice action against the plaintiff’s former attorneys, Demartin & Rizzo, P.C., and Joseph N. Rizzo, Jr. (hereinafter together Rizzo), negligently failed to respond to certain discovery demands by Rizzo, which resulted in the Supreme Court … precluding the introduction of evidence in the plaintiff’s legal malpractice action against Rizzo (… hereinafter the Rizzo order). The complaint further alleges that, as a result of this evidence being precluded, the court which issued the Rizzo order found that the plaintiff had failed to meet its burden of proof as to the element of damages sustained as a result of Rizzo’s malpractice. * * *

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… [T]he Rizzo order does not utterly refute the allegations in the complaint, nor does it establish a defense as a matter of law. The order concludes, in part, that there was no proof of actual damages presented by the plaintiff, due to the plaintiff’s failure to respond to at least two of Rizzo’s discovery demands, which resulted in the preclusion of the damages evidence. The Rizzo order then states, referring to the precluded evidence, “[m]oreover, even if, arguendo the [c]ourt were to overlook that deficiency, its probative value is highly suspect” … . Contrary to the Supreme Court’s conclusion, this alternate holding, which constitutes dicta, was not a finding on the merits and did not utterly refute the allegations in the complaint against Gallo … . 4777 Food Servs. Corp. v Anthony P. Gallo, P.C., 2017 NY Slip Op 04086, 2nd Dept 5-24-17

 

CIVIL PROCEDURE (DICTA IN A COURT ORDER WAS NOT A FINDING ON THE MERITS AND THEREFORE COULD NOT BE THE BASIS FOR A DISMISSAL FOUNDED UPON DOCUMENTARY EVIDENCE)/EVIDENCE (CIVIL PROCEDURE, DICTA IN A COURT ORDER WAS NOT A FINDING ON THE MERITS AND THEREFORE COULD NOT BE THE BASIS FOR A DISMISSAL FOUNDED UPON DOCUMENTARY EVIDENCE)/DISMISS, MOTION TO (CIVIL PROCEDURE, (DICTA IN A COURT ORDER WAS NOT A FINDING ON THE MERITS AND THEREFORE COULD NOT BE THE BASIS FOR A DISMISSAL FOUNDED UPON DOCUMENTARY EVIDENCE)/DOCUMENTARY EVIDENCE (CIVIL PROCEDURE, MOTION TO DISMISS, DICTA IN A COURT ORDER WAS NOT A FINDING ON THE MERITS AND THEREFORE COULD NOT BE THE BASIS FOR A DISMISSAL FOUNDED UPON DOCUMENTARY EVIDENCE)

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MISLEVELED ELEVATOR TRIGGERS RES IPSA LOQUITUR DOCTRINE.

The First Department determined the doctrine of res ipsa loquitur required the submission of this elevator-misleveling case to a jury. Plaintiff alleged she was injured removing a cart from the elevator:

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The misleveling of an elevator does not ordinarily occur in the absence of negligence, and the misleveling of the elevator in this case was caused by an instrumentality or agency within the defendants’ exclusive control and was not due to any voluntary action on plaintiff’s part. Accordingly, the evidence is sufficient to warrant submission of the case against the defendants to a jury on a theory of res ipsa loquitur … . Rojas v New York El. & Elec. Corp., 2017 NY Slip Op 04043, 1st Dept 5-18-17

NEGLIGENCE (MISLEVELED ELEVATOR TRIGGERS RES IPSA LOQUITUR DOCTRINE)/EVIDENCE (RES IPSA LOQUTUR, MISLEVELED ELEVATOR TRIGGERS RES IPSA LOQUITUR DOCTRINE)/RES IPSA LOQUITUR (MISLEVELED ELEVATOR TRIGGERS RES IPSA LOQUITUR DOCTRINE)/ELEVATORS (NEGLIGENCE, MISLEVELED ELEVATOR TRIGGERS RES IPSA LOQUITUR DOCTRINE)

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ALTHOUGH THE EVIDENCE WAS FOUND AS A RESULT OF A SUPPRESSED STATEMENT, THE EVIDENCE WAS ADMISSIBLE UNDER THE INEVITABLE DISCOVERY DOCTRINE.

The First Department determined evidence discovered as a result of defendant’s suppressed statement was admissible under the inevitable discovery doctrine:

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The court properly denied the motion to suppress drugs recovered from defendant’s person. While the record demonstrates that they were discovered as the result of a statement that was suppressed, they were nevertheless admissible pursuant to the doctrine of inevitable discovery. Because defendant would have been subjected to several thorough searches following his arrest, there was a “very high degree of probability” that “normal police procedures” would inevitably have led to the discovery of the drugs, even without the statement … . In light of this determination …  “we find it unnecessary to reach the issue of whether, given United States Supreme Court authority to the contrary (see United States v Patane, 542 US 630 [2004]), physical evidence may be suppressed as fruit of a Miranda violation.” People v Jaquez, 2017 NY Slip Op 04050, 1st Dept 5-18-17

CRIMINAL LAW (ALTHOUGH THE EVIDENCE WAS FOUND AS A RESULT OF A SUPPRESSED STATEMENT, THE EVIDENCE WAS ADMISSIBLE UNDER THE INEVITABLE DISCOVERY DOCTRINE)/EVIDENCE (CRIMINAL LAW, ALTHOUGH THE EVIDENCE WAS FOUND AS A RESULT OF A SUPPRESSED STATEMENT, THE EVIDENCE WAS ADMISSIBLE UNDER THE INEVITABLE DISCOVERY DOCTRINE)/INEVITABLE DISCOVERY DOCTRINE (ALTHOUGH THE EVIDENCE WAS FOUND AS A RESULT OF A SUPPRESSED STATEMENT, THE EVIDENCE WAS ADMISSIBLE UNDER THE INEVITABLE DISCOVERY DOCTRINE)

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TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL.

The First Department, over a concurrence, determined defendant was entitled to a new trial for two reasons: (1) the defendant should have been provided with Rosario material which tended to show the police may have confused defendant with another person arrested at the same time; and (2) the trial judge committed a mode of proceedings error by communicating with the jury off the record and outside the presence of defendant and counsel. The concurrence argued the judge did not commit a mode of proceedings error:

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Supreme Court improperly limited both defense counsel’s discovery of Rosario material and his ability to cross-examine the police witnesses at trial. The Rosario material in question consisted of police documentation of the arrest of a third party. Supreme Court denied defendant’s discovery request, rejecting his trial counsel’s argument that defendant and the third party, both Hispanic males, had been contemporaneously arrested and separately charged with selling drugs to the same undercover officer at approximately the same time and location. In the absence of Supreme Court’s discovery limitations, defense counsel might have reasonably established a motive to fabricate the evidence due to police confusion between defendant and the third party … . Furthermore, as we have stated, where there is evidence raising the possibility of a “police motive to fabricate,” cross-examination of police witnesses is “highly relevant” … . Thus, Supreme Court’s errors deprived defendant of his right to present a defense … . As there was “a reasonable possibility that the non-disclosure materially contributed to the result of the trial” … , Supreme Court’s errors were not “harmless beyond a reasonable doubt” … .

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Were we not reversing on the basis of error regarding the Rosario material and the related cross-examination, we would reverse on another ground — namely, Supreme Court’s communication with the jury off the record and outside the presence of defendant and his counsel.After the jurors had been deliberating for four days, they sent a note to the court stating they were deadlocked on the third count of the indictment and asking for guidance. The court discharged the jury for the day in contemplation of taking further actions, possibly including the delivery of an Allen charge, in the morning. The next morning, in defendant’s and his counsel’s absence, the court instructed the jury, off the record, to resume deliberations. The same afternoon, the court informed defendant and his counsel of this instruction, and counsel did not object. People v Farez, 2017 NY Slip Op 04041, 1st Dept 5-18-17

 

CRIMINAL LAW (TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/EVIDENCE (CRIMINAL LAW, ROSARIO MATERIAL, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/ROSARIO MATERIAL (CRIMINAL LAW, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/JURIES (CRIMINAL LAW, ROSARIO MATERIAL, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/MODE OF PROCEEDINGS ERROR (CRIMINAL LAW, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)

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MOTION TO RENEW PROPERLY USED TO CORRECT DEFECT IN INITIAL PAPERS (DEPOSITION TRANSCRIPTS UNSIGNED), PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT BAR SERVED DRIVER WHEN HE WAS VISIBLY INTOXICATED (DRAM SHOP ACT).

The Second Department, reversing Supreme Court, determined a question of fact had been raised whether defendant bar (Danu) served the driver of the car in which plaintiff was injured when the driver was visibly intoxicated (Dram Shop Act). The court noted that defendant’s motion to renew its motion for summary judgment to correct a defect in the initial motion papers (the deposition transcripts were unsigned) was proper:

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“CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form” … . Here, Danu’s failure to provide signed copies of the deposition transcripts with the original summary judgment motion was tantamount to law office failure, which constituted a reasonable justification… . Thus, the Supreme Court properly granted that branch of Danu’s motion which was for leave to renew. * * *

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… [T]he plaintiff raised a triable issue of fact as to whether Danu’s bartenders, who were not presented for deposition, served alcohol to the driver while he was visibly intoxicated. Proof of a high blood alcohol content does not, in and of itself, “provide a sound basis for drawing inferences about a person’s appearance or demeanor” … . Nonetheless, “[p]roof of visible intoxication can be established by circumstantial evidence, including expert and eyewitness testimony”… .

The plaintiff submitted a transcript of the driver’s plea of guilty to aggravated driving while intoxicated and related crimes, which established that the driver recalled drinking “a few” mixed drinks prior to the accident and that his blood alcohol content was over .18%. The plaintiff also relies on a police report indicating that, after the accident, the driver was “observed to be intoxicated and placed under arrest.” Although Danu now argues that the police report is inadmissible, it submitted the report with its reply papers on the original motion. Thus, Danu waived any objection to its admissibility, and on appeal the plaintiff may rely upon the report in opposition to Danu’s summary judgment motion … . Trigoso v Correa, 2017 NY Slip Op 03983, 2nd Dept 5-17-17

 

NEGLIGENCE (PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT BAR SERVED DRIVER WHEN HE WAS VISIBLY INTOXICATED (DRAM SHOP ACT))/CIVIL PROCEDURE (MOTION TO RENEW PROPERLY USED TO CORRECT DEFECT IN INITIAL PAPERS (DEPOSITION TRANSCRIPTS UNSIGNED))/DRAM SHOP ACT (PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT BAR SERVED DRIVER WHEN HE WAS VISIBLY INTOXICATED (DRAM SHOP ACT))/EVIDENCE (PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT BAR SERVED DRIVER WHEN HE WAS VISIBLY INTOXICATED (DRAM SHOP ACT))/RENEW, MOTION TO (MOTION TO RENEW PROPERLY USED TO CORRECT DEFECT IN INITIAL PAPERS (DEPOSITION TRANSCRIPTS UNSIGNED))

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PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED.

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion to set aside the verdict as against the weight of the evidence should have been granted in this car-bus collision case. Plaintiff testified he had a green light. The bus driver (Puntarich) testified he had a green turn arrow. The jury found the bus driver negligent but his negligence was not the proximate cause of the accident. The Second Department noted that, because of the conflicting factual allegations, a motion to set aside the verdict as a matter of law could not be granted:

“A jury finding that a party was negligent but that the negligence was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause'” … . Under the circumstances of this case, the Supreme Court should have granted that branch of the plaintiff’s motion which was to set aside the verdict as contrary to the weight of the evidence, as the finding that Puntarich’s negligence was not a proximate cause of the accident did not rest upon a fair interpretation of the credible evidence … . However, that branch of the plaintiff’s motion which was to set aside the verdict and for judgment as a matter of law was properly denied, as issues of fact exist as to whether the plaintiff also was at fault in causing the accident … .  Mancini v Metropolitan Suburban Bus Auth., 2017 NY Slip Op 03939, 2nd Dept 5-17-17

NEGLIGENCE (PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (MOTION TO SET ASIDE THE VERDICT, NEGLIGENCE, PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED)/VERDICT, MOTION TO SET ASIDE (NEGLIGENCE, PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED)/EVIDENCE (MOTION TO SET ASIDE THE VERDICT, NEGLIGENCE, PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED)

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NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW NOT DEMONSTRATED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department determined the proof of notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 was insufficient and the bank’s motion for summary judgment in this foreclosure proceeding should not have been granted:

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Here, the plaintiff failed to demonstrate, prima facie, its strict compliance with RPAPL 1304 … . In support of its motion, the plaintiff submitted the affidavit of Monica I. Montalvo Rivas, its vice president of loan documentation, stating that she had “reviewed the 90 day pre-foreclosure notice sent to Borrower on October 31, 2013 to the last known address of Borrower, which is the residence that is [the] subject of the Mortgage, by first class mail and certified mail.” Annexed to Rivas’s affidavit was a copy of the notice, along with a copy of a “Certified Mail Receipt” containing the defendant’s address and a “Certified Mail Number.” The receipt contained no language indicating that it was issued by the United States Postal Service. “While mailing may be proved by documents meeting the requirements of the business exception records exception to the rule against hearsay,” here, Rivas did not aver that she was familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . In any event, the plaintiff failed to submit any proof substantiating Rivas’s assertion that the notice was mailed to the defendant by first class mail. Wells Fargo Bank, N.A. v Trupia, 2017 NY Slip Op 03986, 2nd Dept 5-17-17

FORECLOSURE (NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW NOT DEMONSTRATED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED)/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW NOT DEMONSTRATED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (FORECLOSURE, NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW NOT DEMONSTRATED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED)

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