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BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW.

The First Department, reversing the denial of defendant’s motion to suppress his statements, over a two justice dissent, determined the detective’s mention of a drug offense for which defendant was represented by counsel during questioning on a homicide required suppression of the interrogation:

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Although the reference to the drug charges on which defendant was represented was brief and flippant, it was not, in context, innocuous or discrete and fairly separable from the homicide investigation. The detective told defendant during the questioning that he knew defendant was involved in selling drugs at the location of the murder and that the killing was over a drug debt. The remarks regarding the pending drug case went to defendant’s alleged participation in the drug trade at the location of the homicide, the very activity out of which a motivation for killing the victim arose. Indeed, it succeeded in eliciting from defendant a response that may fairly be interpreted as incriminating himself in dealing drugs at the location, the alleged motivation and context out of which the homicide occurred. Accordingly, because questioning regarding the drug case on which defendant was represented by counsel was intertwined with questioning regarding the homicide, defendant’s statements should have been suppressed.

However, we find no other basis for suppression. As the dissent notes, the repeated comments made to defendant by the detective and his colleagues to the effect that defendant should “tell [his] side of the story” immediately because if he were to wait until trial, “[no] one is going to believe” him and he would be “charged with murder, not . . . manslaughter” did not vitiate the Miranda warnings defendant had received … . People v Silvagnoli, 2017 NY Slip Op 04392, 1st Dept 6-6-17

 

CRIMINAL LAW (SUPPRESSION OF STATEMENT, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/EVIDENCE (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/ATTORNEYS (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/RIGHT TO COUNSEL (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)

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POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two judge dissenting opinion authored by Judge Wilson, determined defendant was entitled to an adverse inference charge with respect to the loss of video of a shooting, but that the failure to so charge the jury was harmless error under the facts. The defendant allegedly fired shots from across the street toward the entrance of a club. The video would have shown the victim and witnesses near the club entrance, but not the shooter:

Once the police collected the video, the People had an obligation to preserve it … .

Under these circumstances — where defendant acted with due diligence by requesting the evidence in discovery and the lost evidence was video footage of the murder defendant was charged with committing — it cannot be said that the evidence was not “reasonably likely to be of material importance” (Handy, 20 NY3d at 665). According to the trial testimony, the camera captured the moment when the victim was shot and the location of the two eyewitnesses at the time of the shooting. There was also testimony that the video contained footage of people going in and out of the club throughout the course of the night, making it at least possible that the video captured the earlier incident involving defendant and the bouncer — a key issue in the sequence of events. Contrary to the determination of the Appellate Division, a video of the shooting and of the eyewitnesses at or around the time of the murder is certainly “relevant to the case” … and is sufficient to satisfy the standard set out in Handy. Moreover, as in Handy, testimony concerning what appeared on the video came in large part from a witness whose own actions “created the need to speculate about its contents” … . Accordingly, the trial court erred in failing to give an adverse inference instruction. People v Viruet, 2017 NY Slip Op 04386, CtApp 6-6-17

 

CRIMINAL LAW (POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR)/EVIDENCE (CRIMINAL LAW, POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR)/ADVERSE INFERENCE JURY INSTRUCTION (CRIMINAL LAW, POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR)

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REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT.

The First Department, over a two-justice dissent, determined the prosecutor’s mention of the details of a prior violent crime of which defendant was convicted, evidence the defendant had been in prison, ineffective redaction of references to the prior crime in the medical records, restrictions on the defense expert’s testimony concerning the expert’s reasons for doubting defendant committed the prior crime, and defense counsel’s mention of the prior crime in voir dire, did not warrant reversal. Defendant was convicted of robbing a women of $40 at knife point. Defendant claimed he was not responsible by reason of mental illness. There was evidence he suffered from schizophrenia and he claimed voices told him to commit robbery to get money to buy cigarettes:

The court properly exercised its discretion in admitting evidence that defendant had been released from prison a few months before the robbery, and denying counsel’s request to redact that information from defendant’s medical records. In support of the defense of lack of criminal responsibility by reason of mental disease or defect, the defense psychiatric expert testified that defendant had been stable throughout his years in custody, when he received proper treatment for his schizophrenia. However, after he was released, he no longer received treatment, he became unstable, he began hearing voices, and he committed the robbery a few months later. Evidence of defendant’s confinement in prison was “inextricably interwoven” with the expert’s testimony and conclusion … . The court minimized the possible prejudice by excluding evidence of defendant’s underlying conviction and only admitted references to his imprisonment.

The court properly rejected defendant’s suggested use of terms such as “institution” or “facility,” rather than “prison,” because such terms might have confused the jury, or led it to speculate on the circumstances surrounding his confinement. Moreover, the court instructed the jury that the evidence was admitted solely for the purpose of evaluating the expert’s opinion. Thus, the probative value of the evidence outweighed any prejudicial effect, which was avoided by the court’s thorough limiting instructions … .

The dissent claims that the trial court infringed on defendant’s ability to present a defense when the court prevented defendant’s expert from expanding on his answers provided during cross-examination about defendant’s prior violent act. Defendant did not preserve his claim regarding the alleged limitations on his expert’s testimony, and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. People v Sanabria, 2017 NY Slip Op 04359, 1st Dept 6-1-17

CRIMINAL LAW (EVIDENCE, PRIOR CRIMES, REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT)/EVIDENCE (CRIMINAL LAW, PRIOR CRIMES, REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT)/PRIOR CRIMES AND BAD ACTS (CRIMINAL LAW, EVIDENCE, REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT)

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PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT.

The Second Department determined plaintiffs had received title to real property free of any encumbrances. Plaintiffs had purchased the property from Edwin Ramsey. Ramsey and his wife. Bertha, had owned the property as tenants by the entirety. Upon the death of Bertha, Edwin owned the property free and clear. Defendant’s argument that the Ramsey’s had agreed to hold separate interests in the property was based upon hearsay, which, standing alone, will not defeat a summary judgment motion:

A disposition of real property to a husband and wife creates in them a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in common” (EPTL 6-2.2[b]…). “[A] surviving tenant in a tenancy by the entirety receives the fee interest in its entirety, free and clear of any debts, claims, liens or other encumbrances as against the deceased spouse” … . Here, the plaintiffs demonstrated, prima facie, that they were entitled to summary judgment. Their evidence, including Edwin and Bertha’s 1968 marriage certificate and the 1972 deed, showed that Edwin and Bertha had a tenancy by the entirety in the property, as they were married at the time of the 1972 deed conveying the property to them and the deed did not “expressly declare[ ] [there] to be a joint tenancy or a tenancy in common” (EPTL 6-2.2[b]). Thus, when Bertha died in 2012, Edwin, as the surviving spouse, “receive[d] the fee interest in its entirety, free and clear of any debts, claims, liens or other encumbrances as against” Bertha … . Edwin was thereafter free to convey the property to the plaintiffs, which he did. Cormack v Burks, 2017 NY Slip Op 04252, 2nd Dept 5-31-17

TRUSTS AND ESTATES (PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT)/REAL PROPERTY (TENANTS BY THE ENTIRETY, PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT)/TENANTS BY THE ENTIRETY (TRUSTS AND ESTATES, PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT)/CIVIL PROCEDURE (SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)/EVIDENCE (SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)/HEARSAY (SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)/EVIDENCE (HEARSAY, SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)

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SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER.

The Second Department determined defendant’s statement to a teacher that on the day he was fired from his school custodian job he would “Columbine this shit” was not legally sufficient evidence of a “terrorist threat” within the meaning of the Penal Law. The indictment was properly dismissed upon reading the grand jury minutes:

” In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'”… . “The reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference”… .

According to the grand jury minutes, the defendant, who was a custodian at a school for more than a decade, was eating a sandwich in the school’s faculty break room when a teacher entered the room and asked how he was doing after the first week of school. The defendant allegedly told the teacher that another teacher was on his “shit list,” and that “people better stay out of [his] way.” When the teacher told him, among other things, that he should “try to relax a little bit” and that “we all have to like work together here,” the defendant allegedly got out of his chair and told the teacher that she “better be absent the day they fire me because I am going to come in here and Columbine this shit.” He then mimed shooting a gun while imitating gun noises. Based upon his statements, the defendant was charged in an indictment with making a terroristic threat (Penal Law § 490.20), a class D felony.

Penal Law article 490 was enacted shortly after the attacks on September 11, 2001, to ensure that terrorists are prosecuted and punished in state courts with appropriate severity … . In construing the statute, courts must be cognizant that “the concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act” … . Penal Law § 490.20(1) provides, in pertinent part, that “[a] person is guilty of making a terroristic threat when with intent to intimidate . . . a civilian population . . . he or she threatens to commit or cause to be committed a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense.”

Contrary to the People’s contentions, the Supreme Court properly granted that branch of the defendant’s omnibus motion which was to dismiss the indictment since the People failed to present legally sufficient evidence that the defendant’s comment caused a reasonable expectation or fear of the imminent commission of a specified offense … . The teacher testified that she did not believe that the defendant’s threat of a school shooting was imminent and, therefore, she waited to report the defendant’s comment. Moreover, the defendant’s alleged threat was expressly conditioned by the phrase, “the day they fire me.” The People did not present any evidence that the defendant was about to be terminated from his job, or had any reason to believe that he was going to be terminated. People v Hulsen, 2017 NY Slip Op 04294, 2nd Dept 5-31-17

 

CRIMINAL LAW (TERRORISTIC THREAT, EVIDENCE, SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER)/EVIDENCE (CRIMINAL LAW, TERRORISTIC THREAT, SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER)/GRAND JURY (EVIDENCE, TERRORISTIC THREAT,  SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER)/TERRORISM (CRIMINAL LAW, TERRORISTIC THREAT, SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER)

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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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