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Plaintiff’s Deposition Testimony Stating that She Did Not Know the Cause of Her Fall Was Fatal to the Action—the Deposition Testimony Was Not Overcome by a “Feigned Issue” Subsequently Raised in an Affidavit or by Expert Opinion Evidence Alleging the Cause of the Fall

The Second Department determined that plaintiff’s deposition testimony that she did not look down and did not know the cause of her fall was fatal to the action.  The court determined that plaintiff’s affidavit in opposition to the summary judgment motion stated a “feigned issue” designed to avoid the consequences of her deposition testimony.  In addition, the expert affidavit alleging the cause of the fall was a depression could not overcome the plaintiff’s ignorance of the cause of the fall:

Here, the defendant established its entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, in which she admitted to not knowing what her foot had been caught on, or what caused her to fall. Notably, the plaintiff testified that, as she exited a pharmacy, she walked straight, looking forward, and did not look down … .

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit submitted in opposition to the motion merely raised a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony … . The deposition testimony of the plaintiff’s friend, who was present when the accident occurred, also failed to raise a triable issue of fact, as this witness was unable to identify what caused the plaintiff to fall. The plaintiff also submitted an affidavit of an expert who alleged that the proximate cause of the plaintiff’s injuries was a depression of the walkway pavers, which created a one-inch height difference between the pavers and the abutting concrete curb, thereby causing a tripping hazard. However, since the plaintiff did not know what caused her to fall, it would be speculative to assume that this alleged condition proximately caused her fall … . Rivera v J Nazzaro Partnership LP, 2014 NY Slip OP 08001, 2nd Dept 11-19-14

 

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Evidence of Defendant’s Silence at the Time of Arrest Should Not Have Been Allowed—New Trial Ordered

The Court of Appeals reversed defendant’s conviction and ordered a new trial because evidence of defendant’s silence at the time of arrest was erroneously allowed:

Absent “unusual circumstances,” evidence of a defendant’s silence at the time of arrest is generally inadmissible under common-law evidentiary principles … . And the use for impeachment purposes of a defendant’s silence after receiving Miranda warnings has been deemed impermissible as a matter of due process … . Under the circumstances presented, we conclude that defendant did not open the door to evidence of his post-Miranda silence and, therefore, Supreme Court erred in permitting its introduction at trial. Nor can the error be viewed as harmless in this case.  People v Hill, 2014 NY Slip OP 07925, CtApp 11-18-14

 

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Although “Zone of Danger” Damages Were Asserted in the Complaint, the Failure to Request a “Zone of Danger” Jury Instruction and the Failure to Object to the Verdict Sheet (Which Did Not Mention “Zone of Danger” Damages) Precluded the Trial Court from Setting Aside the Verdict and Ordering a New Damages Trial

The Court of Appeals determined the trial court should not have set aside the verdict because “zone of danger” damages to loved ones who witnessed the death of plaintiff’s decedent (apparently caused by a collapse of a roof) were not presented to the jury. Although asserted in the complaint, no jury instruction on “zone of danger” damages was requested and no mention of “zone of danger” damages appeared on the verdict sheet.  Plaintiffs did not object to the jury charge or verdict sheet:

The issue of whether plaintiffs Gary Motelson and Evan Motelson had suffered and/or would continue to suffer emotional distress, as a result of being placed in a zone of danger wherein they witnessed the death of Steven Motelson, while asserted in the complaint, was not argued to the jury at trial. Nor was this question addressed in Supreme Court’s charge or submitted to the jury on the verdict sheet. Significantly, the questions on the verdict sheet concerning the roof support system asked the jury about the causation of “Steven Motelson’s injuries and death,” and not about harms to any others. Plaintiffs did not object to the jury charge or verdict sheet. In these circumstances, Supreme Court erred when it set aside the jury verdict and ordered a new trial on damages. Motelson v Ford Motor Co, 2014 NY Slip Op 07926, CtApp 11-18-14

 

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Defendant’s Unsigned Deposition Transcript Admissible In Support of Defendant’s Summary Judgment Motion/Okay to Submit Deposition Excerpts As Long As They Are Not Misleading

The First Department noted that the fact that a deposition transcript submitted in support of a summary judgment motion was not signed did not render the transcript inadmissible and further noted that it is proper to submit excerpts from depositions provided they are not misleading.  The lawsuit alleged the defendant driver of a sanitation truck, Wygand, was negligent. Summary judgment was granted to the defendants:

There was no requirement that Wygand’s deposition transcript be signed by him in order to be admissible in support of the City defendants’ motion because Wygand accepted its accuracy by submitting it in support of his motion for summary judgment dismissing the complaint … . There was also nothing improper about submitting only excerpts of deposition transcripts in support of the motion, as long as they were not misleading. Castano v Wygand, 2014 NY Slip Op 07940, 1st Dept 11-18-14

 

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Exculpatory Evidence Provided by Co-Defendant Should Not Have Been Struck from the Record When Co-Defendant Asserted His Privilege Against Self-Incrimination

The Fourth Department reversed defendant’s conviction because the trial judge, sua sponte, struck all of his co-defendant’s testimony after the co-defendant invoked his privilege against self-incrimination.  The defendant was entitled to have the exculpatory evidence presented by the co-defendant considered by the jury:

County Court erred in sua sponte striking the entire testimony of his codefendant after the codefendant invoked his privilege against self-incrimination, and we therefore reverse the judgment and grant a new trial … . We conclude that the court erred in failing to “weigh the options” in a “threshold inquiry” to determine whether “less drastic alternatives” were available, other than striking the entire testimony of the codefendant … . Here, the codefendant provided testimony that, if allowed to remain in the record, would have supported defendant’s positions that defendant did not engage in any scheme to defraud, and that the codefendant had pleaded guilty with respect to similar charges brought against him in order to avoid harsher penalties, and not because the codefendant had engaged in any fraudulent conduct. We further conclude that defendant had the right to have such “relevant and exculpatory testimony considered by the jury” … . We also conclude that the court’s error in striking the codefendant’s testimony is not harmless inasmuch as “the proof against defendant [is] not overwhelming and there is a reasonable probability that defendant would have been acquitted but for the error” … . People v Chadick, 2014 NY Slip Op 07789, 4th Dept 11-14-14

 

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People Failed to Prove Low IQ Defendant Validly Waived His Miranda Rights and Gave Statements Voluntarily—Convictions Reversed, Some Charges Dismissed and New Trial Ordered

The Fourth Department, in a full-fledged opinion by Justice Peradotto, found that the defendant’s statements should have been suppressed because the People failed to prove the defendant intelligently waived his right to remain silent and because the People failed to prove his statements were made voluntarily.  The evidence indicated defendant has an IQ of 63 or 68.  There was a video of defendant’s interrogation. And the defense presented expert opinion evidence that the defendant was not capable of intelligently waiving his Miranda rights, and, because of the leading nature of the interrogation and defendant’s excessively compliant nature, the defendant did not make his statements voluntarily:

At the Huntley hearing, the People presented the expert testimony of a forensic psychiatrist who interviewed defendant in jail and reviewed the videotape of his confession. The People’s expert acknowledged that defendant was “intellectually handicapped,” with a full-scale IQ of 68, but concluded that defendant was “not that retarded” and could understand his Miranda rights. The defense expert testified that defendant’s IQ placed him in the “mentally retarded range of intellectual functioning.” Defendant’s verbal IQ was 63, which placed him in the first percentile, meaning that he performed worse than 99% of the test population. Based upon defendant’s “very poor” level of verbal functioning, the defense expert opined that, although defendant was “able to understand the words of the Miranda rights,” he was “not capable of intelligently waiving” those rights. He further opined that defendant was “a very suggestible and very compliant man as is not atypical of persons who are mentally retarded,” which placed him at risk of falsely confessing. * * *

Where a “person of subnormal intelligence” is involved, “close scrutiny must be made of the circumstances of the asserted waiver” … . “A defendant’s mental deficiency weighs against the admissibility of an elicited confession, so that any such confession must be measured by the degree of the defendant’s awareness of the nature of the rights being abandoned and the consequences of the decision to abandon them” … . A suspect of “subnormal intelligence” may effectively waive his or her Miranda rights “so long as it is established that he or she understood the immediate meaning of the warnings” …, i.e., “how the Miranda rights affected the custodial interrogation” (id. at 289). It must therefore be shown that the suspect “grasped that he or she did not have to speak to the interrogator; that any statement might be used to the subject’s disadvantage; and that an attorney’s assistance would be provided upon request, at any time, and before questioning is continued. What will suffice to meet this burden will vary from one case to the next” … . * * *

As the defense expert testified at trial, “[w]hat became very clear in the video . . . was that [defendant] changed his answers based on the kind of questioning that was done to him. In other words, he was asked the question, the same question over and over again. So it no doubt became clear to him that he was answering the wrong way. So he changed his answers to be what he believed the cop wanted to know.” Many, although not all, of defendant’s responses consisted of “mmm-hmm,” yes, and a parroting back of the detective’s statements. The detective also told defendant that he had spoken to the victim and her mother, that the victim was “not lying,” and that the medical examination was going to show that “something happened” between defendant and the victim. The defense expert testified that such tactics “would lead [defendant] to question his own memory of the situation which isn’t good to begin with. He’s got deficits in memory. So if presented with memory that would counteract what he believed to be true, he would change his answer.” People v Knapp, 2014 NY Slip Op 07801, 4th Dept 11-14-14

 

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Request for Missing-Witness Jury Instruction Should Have Been Granted—Prosecutor’s Statement that the Witness Would Exercise His Fifth Amendment Privilege Against Self-Incrimination Not Enough to Demonstrate Witness’ Unavailability

The Fourth Department granted defendant a new trial because the defense request for a missing witness jury instruction was denied.  The witness, who had testified before the grand jury,  was the only eyewitness to the relevant events.  The prosecutor argued the witness was unavailable because he would assert his Fifth Amendment privilege against self-incrimination.  The Fourth Department determined the witness’ unavailablity was not sufficiently established:

Contrary to the People’s contention, they failed to establish that the eyewitness was unavailable. Although the People correctly note that “a witness who on Fifth Amendment grounds refuses to testify will be considered unavailable’ although the witness’s presence is known and apparent” …, the People failed to establish that the eyewitness was unavailable on that ground. An uncharged accomplice may be considered unavailable in certain circumstances …, but the statements made by the prosecutor were not sufficient to establish that the eyewitness was an accomplice or that he faced any criminal liability for his actions … . The People’s further contention that the prosecutor could not call the eyewitness inasmuch “as his attorney will have him plead the Fifth Amendment” is not supported by evidence in the record before us. It is well settled that a trial court “should . . . be reasonably sure that the witness will in fact invoke the privilege, and where there is doubt the witness should be brought before the court and asked the relevant questions” … . Here, the prosecutor did not call the eyewitness and there was no communication from the eyewitness’s attorney; thus, “there was no verification that [the eyewitness] would plead the Fifth Amendment on the stand” … . The People’s “bare allegation that the witness in question apparently’ would assert [his] Fifth Amendment privilege, in light of the attendant circumstances, did not render that witness unavailable” … . People v Fuqua, 2014 NY Slip Op 07784, 4th Dept 11-14-14

 

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Inventory Search of Impounded Vehicle Proper

In upholding the validity of an inventory search of defendant’s vehicle, the Fourth Department explained the analytical criteria:

It is well settled that, “[w]hen the driver of a vehicle is arrested, the police may impound the car, and conduct an inventory search, where they act pursuant to reasonable police regulations relating to inventory procedures administered in good faith’ ” … . Thus, “[h]aving arrested the defendant [in] a public [parking lot], the officers were thereafter entitled to impound the vehicle” … . Furthermore, “[i]t is settled law that the police may search an impounded vehicle to inventory its contents” … . “Such searches, conducted as routine procedures, are permitted to protect an owner’s property while it remains in police custody, to protect the police against false claims for missing property and to protect the police from potential danger” … . Here, the police officers properly impounded the vehicle that defendant drove to the scene of the crime and performed an inventory search of that vehicle pursuant to a reasonable Cheektowaga Police Department procedure, during which they discovered the handgun. Consequently, the court properly refused to suppress the evidence seized during that inventory search. People v Tardi, 2014 NY Slip Op 07880, 4th Dept 11-14-14

 

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Abuse of Discretion to Entertain a Motion to Suppress Brought More than 45 Days After Arraignment (the Motion Had Been Granted and the People Appealed)

The Fourth Department determined defendant’s motion to suppress the results of a chemical blood test should not have been granted because the motion was made more than 45 days after arraignment:

The People appeal from an order granting defendant’s motion to suppress the results of a chemical test of defendant’s blood, which had been taken from defendant more than two hours after his arrest (see generally Vehicle and Traffic Law § 1194 [2] [a] [1]). The motion was made … more than 45 days after defendant’s arraignment …, and was therefore untimely as a matter of law (see CPL 255.20 [1]). We conclude that County Court abused its discretion in entertaining and granting the untimely motion because there was no good cause shown by defendant for an extension of time (see CPL 255.20 [3]…). People v Enright, 2014 NY Slip Op 07850, 4th Dept 11-14-14

 

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Late Motion to Amend Answer Should Not Have Been Granted/Violation of Vehicle and Traffic Law Established Negligence as a Matter of Law/Striking of Affirmative Defense Based on Brake Failure Proper Because Brakes Were Replaced (Spoliation of Evidence)/Fact that Defendant-Driver’s Negligence Was Sole Proximate Cause of the Accident As a Matter of Law Did Not Preclude Comparative Negligence Affirmative Defense

The defendant driver of a payloader struck a school bus and a personal injury action was brought by plaintiff, a school aide who was on the bus.  The Fourth Department determined defendants’ late motion to amend the answer should not have been granted, the striking of an affirmative defense based upon brake failure was properly struck because the original brakes had been replaced (spoliation), defendant-driver’s violation of Vehicle and Traffic Law 1143 established negligence as a matter of law, and the affirmative defense alleging comparative negligence on plaintiff’s part should not have been dismissed:

We agree with plaintiff that Supreme Court abused its discretion in granting defendants’ cross motion [to amend the answer], and we therefore modify the order accordingly. The motion was made seven months after plaintiff had filed the note of issue and more than two years after she commenced the action, yet defendants offered no excuse for their delay in making the motion … . We further conclude that preclusion of the affirmative defenses based on brake failure is warranted as a sanction for spoliation … . After the accident, Cerrone replaced the payloader’s allegedly defective brake calipers and discarded the old calipers. * * *

Vehicle and Traffic Law § 1143 provides that “[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” Here, plaintiff met her initial burden on the motion by establishing as a matter of law that ” the sole proximate cause of the accident was [Freeman]’s failure to yield the right of way’ ” to the school bus in violation of section 1143 … . At the time of the accident, the school bus was lawfully stopped on a public roadway, and the payloader collided with the school bus after entering the roadway from a parking lot … . In opposition to the motion, defendants failed to provide a nonnegligent explanation for the accident … . * * *

…T]he court erred in dismissing their affirmative defense of plaintiff’s culpable conduct, and we therefore further modify the order by reinstating that affirmative defense. CPLR 1411 provides that, “[i]n any action to recover damages for personal injury . . . , the culpable conduct attributable to the [plaintiff] . . . , including contributory negligence . . . , shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the [plaintiff] . . . bears to the culpable conduct which caused the damages.” The statute encompasses any culpable conduct that had a “substantial factor in causing the harm for which recovery is sought” … . Here, as the court found, there is no question that the sole proximate cause of the accident was defendants’ negligence. Defendants contend, however, that the injuries plaintiff allegedly sustained in the accident were caused, in whole or in part, by her position on the bus, i.e., the fact that she was kneeling or standing on the bus rather than sitting in a seat, and they submitted an expert affirmation to that effect … . Simoneit v Mark Cerrone Inc, 2014 NY Slip Op 07783, 4th Dept 11-14-14

 

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