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DEFENDANT RAISED SUBSTANTIVE FACTUAL DISPUTES ABOUT THE EFFICACY AND LEGALITY OF METHODS USED BY THE POLICE TO IDENTIFY HIS IP ADDRESS AND THE CONTENTS OF HIS COMPUTER, SUPPRESSION HEARING WAS REQUIRED.

The Second Department, in this child pornography case, determined Supreme Court should not have denied defendant's motion to suppress evidence seized from his computer without a hearing. The defense motion papers raised substantive factual disputes concerning the efficacy and legality of methods and software used by the police to identify defendant's IP address and the contents of defendant's computer, issues which can only be resolved by a hearing:

In determining a motion to suppress evidence, the court “is required to grant a hearing if the defendant raise[s] a factual dispute on a material point which must be resolved before the court can decide the legal issue' of whether evidence was obtained in a constitutionally permissible manner” … . “[T]he sufficiency of [a] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant's access to information” … .

In his omnibus motion, the defendant contended that the search warrant was not supported by probable cause. The defendant's motion included detailed factual allegations regarding the functioning of peer-to-peer networks and, based on these assertions, challenged the detective's contention in the warrant application that he was able to identify child pornography files that actually existed on the defendant's computer. In his separate suppression motion, the defendant raised a factual dispute, inter alia, as to whether the use of certain software or other activity by the investigating detective prior to securing the warrant constituted a search of his computer. People v Worrell, 2016 NY Slip Op 03206, 2nd Dept 4-27-16


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POLICE OFFICER’S GENERAL MUNICIPAL LAW 205-E CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, CRITERIA FOR SUMMARY JUDGMENT NOT MET BY POINTING TO GAPS IN OTHER PARTY’S PROOF.

The Second Department, reversing Supreme Court, determined the dismissal of plaintiff police officer's negligence cause of action did not mandate dismissal of the General Municipal Law 205-e cause of action. Plaintiff alleged his slip and fall injury resulted from defendant's failure to comply with specified regulations. In its motion for summary judgment, defendant did not affirmatively demonstrate the regulations were not breached. The court noted that simply pointing to gaps in plaintiff's proof is not enough in the summary judgment context:

…[T]he dismissal of the plaintiff's common-law negligence cause of action was not fatal, as a matter of law, to his General Municipal Law § 205-e cause of action. In order to recover under General Municipal Law § 205-e, the statute does not mandate that the plaintiff establish general negligence, but rather, negligence of any person in “failing to comply” with the requirements of, inter alia, a regulation … , or ” negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties'” … . Furthermore, while the plaintiff alleged in his consolidated complaint that the defendants violated certain identified regulations, the defendants failed to affirmatively demonstrate in their submissions to the Supreme Court that these regulations were not breached. A defendant's prima facie burden on a motion for summary judgment cannot be met by pointing to gaps in the plaintiff's case … . Vaughn v Veolia Transp., Inc., 2016 NY Slip Op 02985, 2nd Dept 4-20-16


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IF THE SORA COURT’S RELIANCE ON THE VICTIM’S GRAND JURY TESTIMONY, WHICH WAS NOT DISCLOSED TO THE DEFENDANT, WAS ERROR, UNDER THE FACTS, IT WAS HARMLESS ERROR.

The Second Department, over an extensive dissent, determined the SORA court's reliance on the victim's grand jury testimony, which was not provided to defense counsel, did not deprive defendant of due process of law. 20 points were assessed based upon the victim's helplessness. At the grand jury, the victim testified she was asleep (i.e., helpless) when the abuse began. Because evidence disclosed to the defendant amply notified defendant of the victim's claim to have been asleep, any error in relying on the undisclosed grand jury minutes was harmless:

The Court of Appeals was recently presented with the issue of whether a defendant's due process rights were violated when the hearing court relied, in part, upon grand jury minutes that were not disclosed to the defense in reaching the defendant's SORA risk level determination (see People v Baxin, 26 NY3d 6). The Court found that “[g]iven that [the] defendant is entitled to broad discovery of the evidence that is used against him in order to be able to defend himself . . . the failure to disclose the grand jury minutes was a due process violation” … . Significantly, the Court concluded that, given the overwhelming evidence which was disclosed to the defendant in support of the same risk factor, the error was harmless … . It further recognized that “[t]his is not to say that grand jury minutes must be disclosed to the defendant in every SORA proceeding as a matter of course. It remains within the hearing court's discretion to limit the release of such minutes” … .

Guided by these principles, even assuming that the defendant should have had disclosure of the subject grand jury minutes, as in Baxin, any error in failing to disclose them was harmless. There was overwhelming, unchallenged evidence, which provided the requisite clear and convincing evidence supporting the assessment of 20 points … . The record on appeal reveals that the defendant was amply notified through statements contained in the case summary, the presentence report, and other disclosed evidence of the victim's version of the facts and, specifically, her account that she was asleep when the abuse began. Indeed, defense counsel specifically challenged the assessment of points for physical helplessness based upon the victim's account of being asleep when the sexual abuse began. The portion of the victim's grand jury testimony relied upon by the SORA Court, namely, that the victim was asleep at the beginning of the incident, is the exact account contained in the case summary, which was fully disclosed to the defendant. Under these circumstances, the victim's grand jury testimony was cumulative to the disclosed evidence … . People v Wells, 2016 NY Slip Op 02978, 2nd Dept 4-20-16


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PEOPLE DID NOT MEET THEIR BURDEN OF DEMONSTRATING A LACK OF UNDUE SUGGESTIVENESS IN THE PHOTO ARRAY AND LINE UP IDENTIFICATION PROCEDURES.

The Second Department, over a substantial dissent, determined defendant's motion to suppress photo array and line up identification evidence should have been granted. The People did not meet their burden to demonstrate the lack of undue suggestiveness. The photo arrays were not preserved and certain detectives who participated in the photo array and line up identification were not called as witnesses at the Wade hearing:

At the suppression hearing, [detective] McDermott testified that he did not preserve the photo arrays viewed by [witness] Seeram because the computer that displayed those arrays was not attached to a printer. He stated that after Seeram identified the defendant from a photo array, McDermott used another computer to print out a single photograph of the defendant using the defendant's NYSID number, and then showed that photogaph to Seeram. It cannot be said that this testimony was sufficient to dispel any inference of suggestiveness. McDermott did not explain why he did not attach a printer to the computer Seeram was using, or why he did not attempt to reconstruct the photo array (see id.). Moreover, the single photograph was not signed by Seeram, and was dated January 9, 2006, the day following Seerem's photographic identification procedure.

Further, the People failed to produce the detective who conducted [witness] Clyne's photographic identification procedure, or the detective who conducted Seeram's lineup identification procedure. Contrary to our dissenting colleague's determination, McDermott did not conduct either of those procedures, and, therefore, could not provide competent evidence as to the circumstances thereof and what, if anything, transpired during those identification procedures… . People v McDonald, 2016 NY Slip Op 03017, 2nd Dept 4-20-16


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ADMISSION OF PREJUDICIAL EVIDENCE UNRELATED TO THE CHARGED OFFENSES WAS REVERSIBLE ERROR.

The First Department, in a full-fledged opinion by Justice Richter, determined photographs depicting defendants making gang signs and holding a weapon, as well as Facebook messages sent by a defendant boasting about firing weapons should not have been admitted in this weapons possession trial. Neither the pictures nor the messages related to the weapon defendants' were alleged to have possessed, which was found on the backseat of a car. The prejudicial effect of the evidence outweighed its probative value:

There was no evidence that the gun in the photographs had anything to do with the gun found in the car or with any other criminal activity. … The mere fact that defendants were in possession of a different gun in the past is not probative of whether they knowingly possessed the weapon they were charged with possessing. Nor are the photographs probative of defendants' intent to unlawfully use the weapon found in the car. They merely show defendants displaying a gun, and do not depict any unlawful use of the weapon. * * *

The People concede that [defendant] was not referring to the charged crime in [the Facebook] messages, but to an entirely different incident that occurred months later. Thus, these messages are far too attenuated to have any probative value as to [defendant's] knowledge of the gun found in the car or his intent to use that weapon on the day of the incident … . People v Singleton, 2016 NY Slip Op 02945, 1st Dept 4-19-16


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MOTION TO AMEND PLEADINGS BASED ON TRIAL EVIDENCE OF MUTUAL MISTAKE PROPERLY GRANTED, CRITERIA EXPLAINED.

The Third Department determined Supreme Court properly allowed the pleadings to be amended to conform to the evidence at trial. The trial evidence indicated the contract at issue was based upon mutual mistake rather than deliberate misrepresentation. The motion to amend the pleadings to allege mutual mistake was properly granted and the contract was properly rescinded on that ground:

 

The burden was upon defendant, as the party opposing plaintiff's motion, to establish that it was “hindered in the preparation of [its] case or . . . prevented from taking some measure in support of [its] position” … . That burden cannot be met when the difference between the original pleading and the evidence results from “proof admitted at the instance or with the acquiescence of [the opposing] party” .. . Here, the proof upon which plaintiff's motion was based was the testimony of defendant's president that she acted mistakenly in providing the wrong sales figures … . Given this testimony, defendant cannot have been surprised or unduly prejudiced by plaintiff's assertion of the theory of mutual mistake; thus, leave to conform the pleadings to the proof was properly granted … . Lakshmi Grocery & Gas, Inc. v GRJH, Inc., 2016 NY Slip Op 02891, 3rd Dept 4-14-16


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RADIOLOGIST WAS NOT QUALIFIED TO EXPRESS AN OPINION ON THE PROXIMATE CAUSE OF THE DEFORMITY WHICH WAS ALLEGED TO HAVE RESULTED FROM A FAILURE TO DIAGNOSE A FRACTURE. 

The Second Department, reversing Supreme Court, determined the defendants in a medical malpractice action were entitled to summary judgment dismissing the complaint as against them. The complaint alleged defendant radiologist failed to diagnose a fractured finger, which was the proximate cause of a deformity. In opposition to defendants' motion for summary judgment, the plaintiff offered an affidavit from a radiologist, Dr. Tantleff, who was qualified to evaluate the alleged failed diagnosis, but was not qualified to find the failed diagnosis was the proximate cause of the deformity (an orthopedic matter). Therefore the defendants were entitled to summary judgment:

Here, Dr. Tantleff's opinion as to proximate cause was related to the specialty of orthopedics, but Dr. Tantleff failed to state any basis on which he could be found competent to opine in that area. Therefore he was not qualified to render an opinion that Fong's failure to diagnose the plaintiff's nondisplaced fracture proximately caused the alleged orthopedic injuries … . Moreover, his assertion was speculative, as he cited to no record evidence to support his opinion that the plaintiff's alleged injuries were due to the undiagnosed fracture … . Martinez v Quintana, 2016 NY Slip Op 02782, 2nd Dept 4-13-16


EVIDENCE SUFFICIENT TO DEMONSTRATE BUS DRIVER SHOULD HAVE SEEN DECEDENT.

The First Department, over an extensive two-justice dissent, determined there was sufficient evidence to support the jury's conclusion the defendant bus driver was negligent. Plaintiff's decedent was crushed by the bus as the bus pulled out of a bus stop. The driver never saw the decedent. The majority held that the location of the body indicated the decedent should have been seen by the bus driver. The dissent argued the evidence of negligence on the driver's part was speculative and the complaint should have been dismissed. The majority wrote:

Decedent … was found dead under one of defendant Transit Authority's buses. While the bus driver had no explanation for how her body came to be there, plaintiffs' evidence, including DNA evidence matching samples recovered from the bus, was sufficient to support the jury's finding that the bus driver was negligent in operating the bus. The evidence showed facts and conditions from which negligence and causation could “be reasonably inferred” … . In particular, plaintiffs showed that decedent's body had been crushed by the bus at such an angle that the bus driver, pulling out of the bus stop, should have, with the proper use of his senses, seen decedent … . Oates v New York City Tr. Auth., 2016 NY Slip Op 02729, 1st Dept 4-12-16


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DESTRUCTION (SPOLIATION) OF EVIDENCE WARRANTED STRIKING THE PLEADINGS.

The First Department determined defendant's pleadings were properly struck because defendant destroyed emails relevant to plaintiff's defamation action:

Defendant undertook an affirmative course of action resulting in destruction of relevant emails, though she represented otherwise during sworn testimony. As the documents received from third-party recipients confirm, the files defendant destroyed are highly relevant and tend to substantiate plaintiffs' claims. Evidence of defendant's willful and prejudicial destruction of evidence warrants the sanction of striking her pleadings … . Where a party disposes of evidence without moving for a protective order, a negative inference may be drawn that the destruction was willful … . Willfulness may also be inferred from a party's repeated failure to comply with discovery directives … . It should also be noted that this Court has upheld the striking of pleadings where the destruction of critical evidence occurs through ordinary negligence … . Chan v Cheung, 2016 NY Slip Op 02731, 1st Dept 4-12-16


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MOVING PARTY CANNOT RELY ON GAPS IN OPPOSING PARTY’S PROOF IN MOTIONS AND CROSS-MOTIONS FOR SUMMARY JUDGMENT; WITNESS-CREDIBILITY SHOULD NOT BE TAKEN INTO ACCOUNT AT THE SUMMARY JUDGMENT STAGE.

The First Department, over a partial dissent, reversing (modifying) Supreme Court, determined neither plaintiff nor defendant was entitled to summary judgment in this contract dispute. Defendant, KLT, represented a concert artist, Akon, who cancelled a performance, allegedly due to illness. The question was whether, under the terms of the contract, plaintiff was entitled to its money back. KLT moved for summary judgment, arguing that the “force majeure” clause applied and plaintiff was not entitled to relief. Plaintiff cross-moved for summary judgment alleging breach of contract. The court found that KLT's proof of Akon's illness was insufficient and summary judgment was properly denied for that reason. The court went on to find Supreme Court should not have granted plaintiff's cross-motion because plaintiff did not demonstrate illness was not the reason for the cancellation of the concert. The decision presents another example of how appellate courts analyze summary judgment motions. Plaintiff could not rely on the gaps in KLT's proof of illness. Rather plaintiff was required to affirmatively prove illness was not the reason for the cancellation. The court further noted that witness-credibility cannot be taken into account at the summary judgment stage (the dissent argued Akon's testimony about illness was not to be believed):

… [P]laintiff, in its cross motion for summary judgment, was required to establish that Akon was able to perform at the concert and was not unable to do so due to sickness. Instead, plaintiff merely pointed to gaps in KLT's evidence — the missing medical records that would have proven Akon was ill, and thus its cross motion was improperly granted … .

The dissent merely points to additional gaps in KLT's evidence, such as proof of travel arrangements to demonstrate Akon intended to travel to Brussels [to perform the concert], and notes the limited value of the affidavit of Akon's surgeon. However, these gaps do not equate to plaintiff meeting its burden to establish an absence of a genuine issue of fact as to whether Akon was ill. Plaintiff acknowledges that it lacks any documentary evidence refuting that Akon was unable to perform, and has no evidence that he was physically capable of performing. The dissent, like the Supreme Court, appears to completely dismiss the value of Akon's deposition testimony, yet it is “not the court's function on a motion for summary judgment to assess credibility” … . Belgium v Mateo Prods., Inc., 2016 NY Slip Op 02730, 1st Dept, 4-12-16


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