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THE POLICE HAD TO “MANIPULATE” THE CHECKS TO DETERMINE THEY WERE FORGED; THEREFORE THE “PLAIN VIEW” EXCEPTION TO THE SEARCH WARRANT REQUIREMENT WAS NOT APPLICABLE; INDICTMENT DISMISSED (FOURTH DEPT). ​

The Fourth Department, suppressing evidence seized under the “plain view” exception to the warrant requirement, held the police had to “manipulate” the checks which were in plain view to determine they were forged. Because the nature of the checks was not apparent until they were “manipulated,” the “plain view” exception was not applicable:

… [W]e conclude that the People did not meet their burden of establishing the third element of the plain view exception—i.e., that the incriminating nature of the seized items was immediately apparent. In making such a determination, we must consider whether “the facts available to the [police] officer would warrant a [person] of reasonable caution in the belief . . . that [the] items may be contraband or stolen property or useful as evidence of a crime” … . This is a probable cause standard—i.e., there need not be “certainty or near certainty” about the incriminating nature of the seized items … . That element is not satisfied, however, “where the object [to be seized] must be moved or manipulated before its illegality can be determined” … . Indeed, “[s]uch a search or seizure may not be upheld without proof that the [police] officer who moved or manipulated the object had probable cause to believe that the object was evidence or contraband at the time that it was moved or manipulated” … . Still, “[a] truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a search” … . People v Howard, 2024 NY Slip Op 05733, Fourth Dept 11-15-24

Practice Point: Here the fact the checks were forged was not apparent until the police “manipulated” them. Therefore the “plain view” exception to the search-warrant requirement was not applicable and the checks should have been suppressed.

 

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MOTHER SHOULD NOT HAVE BEEN DEEMED COLLATERALLY ESTOPPED FROM PRESENTING EVIDENCE OF HER MENTAL HEALTH IN THIS TERMINATION-OF-PARENTAL-RIGHTS ACTION; THE PRIOR MENTAL-HEALTH-BASED RULING WAS BASED ON THREE-TO-EIGHT-YEAR-OLD EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother should not have been prevented from presenting evidence of her mental health in this termination-of-parental-rights proceeding under the collateral estoppel doctrine. Although mother had previously been adjudicated unable to provide proper and adequate care of the children in 2018, there was no evidence of mother’s current mental health:

Neither the relied-upon 2018 order of disposition nor its supporting decision … contains a finding of fact or conclusion of law that the mother’s mental illness or intellectual disability permanently impaired the mother’s ability to provide adequate care for a child … . Instead, the prior judicial determination that the mother was “presently and for the foreseeable future” unable to provide adequate care was premised upon evaluations of the mother conducted in 2012 and 2017. Further, that determination was issued a year prior to the birth of the subject child in the present proceeding and, although the subject child was ordered into petitioner’s care almost immediately following her birth, the instant petition was nonetheless not filed for yet another two years. Thus, the 2018 judicial determination, premised on three- to eight-year-old evidence, is insufficient to establish by clear and convincing evidence, as a matter of law, that the mother was, at the time of this proceeding, “presently and for the foreseeable future unable, by reason of mental illness or intellectual disability, to provide proper and adequate care for [the subject] child” (Social Services Law § 384-b [4] [c] …). Matter of Juliet W. (Amy W.), 2024 NY Slip Op 05690, Fourth Dept 11-15-24

Practice Point: Here there was a prior ruling based on three-to-eight-year-old evidence that mother’s mental health prevented her from adequately caring for her children. The collateral estoppel doctrine should not have been applied to prevent her from presenting evidence of her current mental health.

 

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DEFENDANT’S BIPOLAR DIAGNOSIS AND A STATEMENT INDICATING HIS FAILURE TO TAKE RESPONSIBILITY FOR THE OFFENSE DID NOT JUSTIFY AN UPWARD DEPARTURE FROM SORA RISK-LEVEL TWO TO THREE; TWO JUSTICE DISSENT (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined the People did not demonstrate that an upward departure from SORA risk-level two to three was warranted:

… [W]e conclude that the People failed to prove by clear and convincing evidence that defendant is more likely to reoffend based on his bipolar diagnosis. The only evidence offered by the People at the SORA hearing was the report prepared by defendant’s expert, who opined that “impaired judgment is a common disability in Bipolar Disorder, as is impulsiveness.” The expert further opined that defendant’s “judgment was impaired by his disorder” when he committed the crimes, and that he “acted impulsively because of his then undiagnosed (and inadequately treated) illness.” The fact that defendant’s bipolar condition may have impaired his judgment and decreased his ability to control impulsive sexual behavior when he committed the qualifying offenses does not mean, ipso facto, that he is at a greater risk of reoffending in the future as a result of his bipolar condition. Defendant’s mental illness was undiagnosed and untreated when he committed the qualifying offenses, and there is no evidence in the record indicating a reluctance or inability on defendant’s part to follow treatment recommendations and take prescribed medications now that he has been properly diagnosed.

We further conclude that an upward departure was not warranted based on defendant’s post-offense statement to one of the victims. Although the statement in question may show, as the People asserted, that defendant failed to accept responsibility for his crimes, an offender’s failure to accept responsibility is taken into account under risk factor 12 on the risk assessment instrument. Thus, an upward departure cannot be granted based on defendant’s statement … . People v Cohen, 2024 NY Slip Op 05658, Fourth Dept 11-15-24

Practice Point: Here defendant’s bipolar diagnosis and a statement to the victim indicating his failure to take responsibility for the offense did not justify an upward department from SORA risk-level two to three. The evidence did not demonstrate the bipolar disorder increased the risk of reoffending and the statement was already taken into account under risk factor 12.

 

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THE NEW YORK STATUTE DESIGNATING DEFENDANT A SEXUALLY VIOLENT OFFENDER WOULD BE UNCONSTITUTIONAL AS APPLIED IF THE CALIFORNIA OFFENSE UPON WHICH THE DESIGNATION IS BASED WAS NON-VIOLENT; MATTER REMITTED FOR A RULING WHETHER THE CALIFORNIA OFFENSE WAS VIOLENT OR NON-VIOLENT (FOURTH DEPT).

The Fourth Department, remitting the matter to County Court, over a five-justice concurrence, determined County Court must rule on whether defendant’s California conviction involved a violent or a non-violent sexual offense. If the facts of the case indicate the California offense was non-violent, the New York statute which requires designation of the defendant as a sexually violent offender would be unconstitutional as applied:

Defendant appeals from an order insofar as it designated him a sexually violent offender under the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). Due to the designation, which is based on a felony conviction in California requiring defendant to register as a sex offender in that state, defendant is subject to lifetime registration as a sex offender in New York even though County Court determined that he is only a level one risk. The designation was made pursuant to Correction Law § 168-a (3) (b) insofar as it defines a sexually violent offense as including a “conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred.” Although defendant concedes that he qualifies as a sexually violent offender under the foreign registration clause of § 168-a (3) (b), he contends that the provision is unconstitutional on its face and as applied to him under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution (US Const, 14th Amend, § 1), inasmuch as his out-of-state felony conviction was for a nonviolent offense. Defendant further contends that the foreign registration clause violates the Privileges and Immunities Clause of the Federal Constitution … . * * *

If the felony of conviction, by virtue of its statutory elements … , involved sexually violent conduct, then the foreign registration clause of Correction Law § 168-a (3) (b) is not unconstitutional as applied to defendant inasmuch as he committed a violent sex offense even if it does not include all of the essential elements of one of the sexually violent offenses in New York enumerated in Correction Law § 168-a (3) (a). If, however, defendant was convicted of an out-of-state felony that is nonviolent in nature, we would conclude that the statute is unconstitutional as applied to defendant … . People v Grzegorzewski, 2024 NY Slip Op 05657, Fourth Dept 11-15-24

Practice Point: The statute which requires defendant be designated a sexually violent offender based upon an out-of-state conviction is unconstitutional as applied if the out-of-state offense was non-violent.

 

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PLAINTIFF SLIPPED AND FELL ON TRACKED-IN-RAIN DURING AN ONGOING STORM; DEFENDANT HAD PLACED MATS NEAR THE DOOR AND ELSEWHERE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the defendant (Open Kitchen) in this tracked-in-rain slip and fall case was entitled to summary judgment. Open Kitchen demonstrated plaintiff slipped and fell during an ongoing rain storm and it had placed mats near the door and elsewhere:

… [T]here is no evidence that Open Kitchen either created the wet condition in the entryway or had notice of a hazard that could have been prevented by the exercise of reasonable care … . Open Kitchen satisfied its duty by employing reasonable remedial measures to address the ongoing rainstorm by laying mats in front of the entrance doors and elsewhere throughout the premises … . There was no active notice in the form of prior complaints received … . Nor did the undisputed fact that it was raining at the time of plaintiff’s accident, causing water to be tracked into the premises, constitute constructive notice of a dangerous situation requiring Open Kitchen to cover the entire floor with mats or continuously mop the floor … . Moreover, plaintiff testified that that he only noticed water on the floor after his fall, and thus it cannot be inferred that Open Kitchen had constructive notice of “a hazard sufficiently visible as to permit discovery and remedy” … . Betancourt v ARC NYC123 William, LLC, 2024 NY Slip Op 05628, Third Dept 11-14-24

Practice Point: Here a slip and fall on tracked-in-rain during an ongoing storm was not actionable. Defendant had placed mats near the door and elsewhere and was deemed not have had constructive notice of a dangerous condition.​

 

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DEFENDANT SCHOOL DISTRICT DID NOT MAKE OUT A PRIMA FACIE CASE DEMONSTRATING IT LACKED CONSTRUCTIVE NOTICE OF THE TEACHER’S ALLEGED PROPENSITY TO SEXUALLY ABUSE CHILDREN; THEREFORE ITS MOTION FOR SUMMARY JUDGMENT IN THIS CHILD VICTIMS ACT CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school district was not entitled to summary judgment in this case alleging sexual abuse by a teacher in 2013 – 2014. A question of fact had been raised about whether the school district knew or should have known of the teacher’s alleged propensity to abuse children:

“Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer’s business, the employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee” … . “‘[A] necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury'” … .

“A school ‘has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision'” … . “‘The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information'” … . “‘The adequacy of a school’s supervision of its students is generally a question left to the trier of fact to resolve, as is the question of whether inadequate supervision was the proximate cause of the plaintiff’s injury'” … . “Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” … . “‘Actual or constructive notice to the school of prior similar conduct generally is required'” … .

Here, the defendants failed to establish, prima facie, that they lacked constructive notice of the teacher’s alleged abusive propensities and conduct … . In particular, the defendants submitted a transcript of the plaintiff’s deposition testimony, in which the plaintiff testified that the principal and other teachers were aware of the teacher’s inappropriate behavior, which occurred multiple times throughout the school year in a classroom on the defendants’ premises during school hours … . J.J. v Mineola Sch. Dist., 2024 NY Slip Op 05580, Second Dept 11-13-24

Practice Point: Here the plaintiff’s testimony that the principal and other teachers were aware of the teacher’s inappropriate behavior which occurred multiple times in a classroom was enough to prevent the school from making out a prima facie case that it did not have constructive notice of the teacher’s alleged propensity.

 

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THE FAILURE TO GRANT PLAINTIFF’S REQUEST THAT THE JURY BE GIVEN AN INTERROGATORY ON THE THEORY THE SURGEON IMPROPERLY PERFORMED A PROCEDURE WAS REVERSIBLE ERROR ( SECOND DEPT).

The Second Department, ordering a new trial on one of the theories of negligence, determined plaintiff’s request that the jury be given an interrogatory should have been granted:

… [T]he Supreme Court erred in denying the plaintiff’s request that the jury be given an interrogatory asking whether [defendant] Lazzaro departed from good and accepted standards of medical practice by “the improper performance of a surgical procedure,” and therefore a new trial is required on this theory of negligence. “‘Jury interrogatories must be based on claims supported by the evidence'” … . “‘The trial court has broad discretion in deciding whether to submit interrogatories to the jury'” … . “However, where there is sufficient evidence to support a plaintiff’s cause of action pursuant to a particular theory of negligence, it is error to deny a request by the plaintiff to submit an interrogatory to the jury regarding that theory” … .

Here, the plaintiff introduced sufficient evidence at trial to support her theory that Lazzaro departed from good and accepted standards of medical practice by the manner in which he performed the surgery … . Lawrence v New York Methodist Hosp., 2024 NY Slip Op 05571, Second Dept 11-13-24

Practice Point: In this medical malpractice case, there was sufficient proof a defendant improperly performed a surgical procedure to warrant granting plaintiff’s request to give the jury an interrogatory on the issue. The denial of the request was deemed reversible error.

 

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FAILURE TO PROVE COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE PROVISIONS OF RPAPL 1304 REQUIRED REVERSAL OF SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s failure to prove compliance with the notice requirements in RPAPL 1304 required reversal in this foreclosure action:

… [T]he plaintiff failed to demonstrate, prima facie, its strict compliance with RPAPL 1304. To that end, the plaintiff submitted an affidavit of Sarah L. Stonehocker, a vice president of loan documentation employed by the plaintiff’s loan servicer, Wells Fargo Bank, N.A. (hereinafter Wells Fargo), with attachments, which were insufficient to establish compliance with RPAPL 1304. While Stonehocker averred that she had personal knowledge of Wells Fargo’s business records and that, according to the business records she reviewed, 90-day notices were served via certified and first-class mail at the subject property, Stonehocker did not attest that she was familiar with the standard office mailing procedures of LenderLive, LLC (hereinafter LenderLive), the third-party vendor that apparently sent the RPAPL 1304 notices on behalf of the plaintiff. Thus, Stonehocker’s “affidavit did not establish proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed” … .

Moreover, Stonehocker’s affidavit failed to address the nature of Wells Fargo’s relationship with LenderLive and whether LenderLive’s records were incorporated into Wells Fargo’s own records or routinely relied upon in its business… . Thus, Stonerhocker’s affidavit failed to lay a foundation for the admission of a transaction report generated by LenderLive (see CPLR 4518[a] …). “Finally, the tracking numbers on the copies of the 90-day notices submitted by the plaintiff, standing alone, did not suffice to establish, prima facie, proper mailing under RPAPL 1304” … . U.S. Bank N.A. v Nahum, 2024 NY Slip Op 05581, Second Dept 11-13-24

Practice Point: Reversal of summary judgment because the bank failed to prove the RPAPL 1304 notice of foreclosure was properly mailed to defendant(s) is becoming less frequent, but there have been hundreds of reversals on this same ground over at least the last ten years.

 

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PROOF THAT PLAINTIFF WIFE ASSUMED FULL RESPONSIBILITY FOR HOUSEHOLD CHORES, COOKING, TRANSPORTIING THE CHILDREN, AND CARED FOR THE INJURED PLAINTIFF, WARRANTED A $40,000 AWARD FOR LOSS OF SERVICES; THE JURY HAD AWARDED $0 DAMAGES (FIRST DEPT).

The First Department, remanding for a new trial unless the parties stipulate to a damages award of $40,000 for loss of services, determined the jury’s award of $0 damages constituted a material deviation from reasonable compensation:

Plaintiff wife testified that after the injured plaintiff’s accident, she assumed full responsibility for household chores, cooking, and transportation for plaintiffs’ children, and also had to care for the injured plaintiff. This testimony is sufficient to support an award for past loss of services … . Lind v Tishman Constr. Corp. of N.Y., 2024 NY Slip Op 05540, First Dept 11-12-24

Practice Point: Consult this decision for some insight into the value of “loss of services” in a personal injury case.

 

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THERE WAS NO PROOF THE ORDER TO SHOW CAUSE WAS ACTUALLY DELIVERED TO THE INCARCERATED DEFENDANT; DEFAULT JUDGMENT VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the order to show cause was not properly served on the incarcerated defendant, requiring vacation of the default judgment:

“The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with” … . “The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void” … .

The order granting plaintiff summary judgment on his claims without opposition submitted by defendant and the related Special Referee order awarding damages are vacated. Defendant affirmed that he did not know of, or have access to, the summary judgment motion hand-delivered and served by plaintiff’s process server on a receptionist at the prison where defendant is incarcerated until after the order granting summary judgment was entered. Plaintiff’s service on the prison employee who assured that the motion would be given to plaintiff did not satisfy the court’s order to show cause approving alternative means of service that were applicable to the service of legal papers on the incarcerated defendant, and which required plaintiff to obtain at least some evidence from the prison that the served documents had, in fact, been delivered to the prisoner. The presumption of effective service arising from a valid affidavit of a process server does not apply here. The court approved an alternative means of service on the defendant incarcerated in a foreign prison, and plaintiff failed to comply. Therefore, defendant’s unrebutted claim that he did not receive the motion is not conclusory and requires vacatur of the default. Bacon v Nygard, 2024 NY Slip Op 05478, First Dept 11-7-24

Practice Point: Here service of an order to show cause upon the incarcerated defendant was not supported by any evidence the order to show cause was actually delivered to the defendant after it was given to a prison employee, Therefore the default judgment was vacated.

 

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