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PLAINTIFF’S AFFIDAVIT DID NOT STATE IT WAS BASED ON FIRST-HAND KNOWLEDGE AND THE UNCERTIFIED POLICE REPORT WAS INADMISSIBLE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS PROPERTY-DAMAGE CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded plaintiff in this property-damage case. Plaintiff alleged defendant’s vehicle struck a brick wall and fence on plaintiff’s property. Plaintiff’s affidavit did not state it was based on first-hand knowledge and the uncertified police report was inadmissible:

“A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries” … . “‘A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent’s prima facie burden’ on a motion for summary judgment” … .

Here, the plaintiff’s conclusory affidavit, which failed to set forth whether he had firsthand knowledge of the event, was insufficient to establish, prima facie, that a vehicle operated by the defendant struck a brick wall and fence located on the plaintiff’s property … . The uncertified police accident report submitted in support of the plaintiff’s motion was not admissible … . Felle v Maxaner, 2024 NY Slip Op 05959, Second Dept 11-27-24

Practice Point: Affidavits which do mot make clear the allegations are based on first-hand knowledge will not support summary judgment.

Practice Point: Uncertified police reports are not admissible.

 

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THE CRITERIA FOR ALLOWING EXPERT TESTIMONY ON WITNESS-IDENTIFICATION OF A DEFENDANT CLARIFIED; WHETHER TO ALLOW SUCH EVIDENCE DOES NOT TURN ON THE EXISTENCE OR THE STRENGTH OF CORROBORATING EVIDENCE; HERE EXPERT TESTIMONY ON CROSS-RACIAL IDENTIFICATION WAS PROPERLY ALLOWED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissent, affirming defendant’s conviction, clarified the criteria for admitting expert testimony on witness identification of a defendant. Here limited expert testimony was allowed on cross-racial identification:

Questions of the admissibility and scope of expert testimony concerning the factors that affect the reliability of eyewitness identifications in a particular case are addressed to the trial court’s sound discretion … . Courts deciding those questions apply traditional evidentiary principles … , which require the courts to weigh the testimony’s probative value against its prospect of causing undue prejudice to the opposing party, confusing the issues, misleading the jury, or unduly delaying trial … .

On an application to admit expert testimony of this sort, the trial court may need to determine whether the expert testimony is beyond the ken of the average juror or generally accepted in the scientific community … . Indeed, in Abney, we reversed and ordered a new trial where the trial court abused its discretion in denying an application to present expert testimony on several factors, concluding that the court should have held a Frye hearing to resolve the issue of general acceptance … . While general acceptance may be established at a Frye hearing, a hearing is not necessary in all cases … . General acceptance may be established through legal precedent … . Where the defendant fails to demonstrate that a topic of the proffered expert testimony is generally accepted in the relevant scientific community, the trial court should exclude or limit the testimony as appropriate … .

Courts must not decide whether evidence is admissible based solely on the existence or strength of corroborating evidence … . Nor should courts require adequate corroborating evidence as a prerequisite to weighing other considerations pertinent to admissibility … . Rather, courts should be guided by “whether the proffered expert testimony ‘would aid a lay jury in reaching a verdict’ ” … . People v Vaughn, 2024 NY Slip Op 05874, CtApp 111-26-24

Practice Point: Whether to allow expert testimony on witness-identification of a defendant does not turn on the existence or strength of corroborating evidence.

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PETITIONER NOT ENTITLED TO COUNSEL IN A STATEWIDE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT (SCR) PROCEEDING; THE STATUTE REQURING EXPUNGEMENT OF AN SCR CHILD MALTREATMENT REPORT IF THE RELATED FAMILY COURT CASE IS DISMISSED DOES NOT APPLY RETROACTIVELY; THE MALTREATMENT REPORT WAS SUPPORTED BY THE EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined (1) petitioner was not entitled to counsel at the Statewide Central Register of Child Abuse and Maltreatment (SCR) administrative hearing, (2) the amendment to the Social Services Law [Social Services Law § 422 [8] [a] [ii]] requiring expungement of a child maltreatment report after a related dismissal in Family Court did not apply retroactively, and (3) the report was supported by the evidence:

ACS [New York City Administration for Children’s Services] commenced a Family Court article 10 neglect proceeding against petitioner and her husband, who had custody of T. and her younger sisters. Family Court authorized an adjournment in contemplation of dismissal (ACD), which allows the court to adjourn the proceedings for a period not exceeding one year “with a view to ultimate dismissal of the petition in furtherance of justice” (Family Court Act § 1039 [b]). In February of 2020, Family Court dismissed the article 10 proceeding upon the expiration of the adjournment period based on petitioner’s satisfactory compliance with Family Court’s conditions, including completion of parenting and anger management classes.

Meanwhile, the police officer who interviewed T. made a report to the Statewide Central Register of Child Abuse and Maltreatment (SCR). One of the SCR’s primary purposes is to inform child care providers and agencies that a person has a substantiated report of child abuse or maltreatment “for the purpose of regulating their future employment or licensure” … . In July of 2019, ACS determined that the report against petitioner was indicated … and petitioner challenged that determination … . After an internal administrative review, the New York State Office of Children and Family Services (OCFS) concluded that a fair preponderance of the evidence supported a determination that petitioner had maltreated T. and that the maltreatment was relevant and reasonably related to employment, licensure, or certification in the child care field … . Matter of Jeter v Poole, 2024 NY Slip Op 05868, CtApp 11-25-24

Practice Point: Petitioner was not entitled to counsel in a SCR child maltreatment proceeding.

Practice Point: The Social Services Law statute which requires expungement of a maltreatment report if the related Family Court proceeding is dismissed does not apply retroactively.

 

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THE PARTY SEEKING TO ENFORCE A VENUE CONTRACT PROVISION HAS THE BURDEN OF DEMONSTRATING THE AUTHENTICITY OF THE SIGNATURE IN THE FACE OF AN ALLEGATION OF FORGERY; HERE DEFENDANT DEMONSTRATED THE SIGNATURE WAS AUTHENTIC AND PLAINTIFF FAILED TO RAISE A QUESTION OF FACT RE: THE FORGERY ALLEGATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined the defendant demonstrated the contract which included a venue provision was signed by the decedent and the plaintiff failed to raise a triable question of fact about whether the signature was forged. The court noted that contractual choice of venue provisions are generally enforceable and provided some insight into how a forgery question-of-fact can be raised:

Forum selection clauses may designate a jurisdiction, such as the federal or state court system, or the clause may designate a venue within the State, as was done here by specifying Nassau County as the proper venue … .* * *

… [T]he party moving for a change of venue under CPLR 501 is in effect seeking to enforce a contractual provision. For that reason, … the proponent of the motion bears the initial burden to establish the authenticity of the writing for purposes of a motion to enforce a contractual venue provision … . This may be done through any of the recognized methods of authentication, including, but not limited to, the testimony of a witness who was present at the time of the signing, an admission of authenticity, proof of handwriting, and, as particularly relevant here, through circumstantial evidence … . * * *

Although an expert opinion is not required to raise an issue of fact as to forgery , the movant must nevertheless offer “[s]omething more than a bald assertion,” and in this regard conclusory or self-serving affidavits are inadequate … . Plaintiff offered only an affidavit in which he claimed to be “familiar” with decedent’s handwriting. Based on a summary of certain perceived inconsistencies in the signatures and initials on the agreements, plaintiff asserted that “whoever the person or people who signed and initialed these pages may have been, it was not my mother.” Attached to the affirmation is an undated “exemplar” of what is purportedly decedent’s signature, but no effort is made to establish that the exemplar represents decedent’s signature at the relevant time. Furthermore, the exemplar is purportedly decedent’s handwritten signature, and … electronic signatures may naturally differ from handwritten one … . Knight v New York & Presbyt. Hosp, 2024 NY Slip Op 05870, CtApp 

Practice Point: Contractual provisions designating venue are enforceable.

Practice Point: To enforce a contractual venue provision, in the face of a forgery allegation, the moving party must demonstrate the signature is authentic.

Practice Point: Bald assertions of forgery unsupported by any evidence will not raise a triable question of fact on the forgery issue.

 

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THE CASEWORKER WAS PART OF THE CRIMINAL INVESTIGATION IN THIS “COURSE OF SEXUAL CONDUCT WITH A CHILD” PROSECUTION; THE PEOPLE WERE THEREFORE DEEMED TO HAVE HAD CONTROL OVER OR TO HAVE BEEN IN POSSESSION OF THE CASWORKER’S NOTES; THE NOTES INCLUDED BRADY MATERIAL WHICH SHOULD HAVE BEEN TURNED OVER TO THE DEFENSE BEFORE TRIAL; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s “course of sexual conduct with a child” conviction and ordering a new trial, determined that the caseworker’s notes taken during an interview of the child constituted Brady material which should have been turned over to the defendant before trial. The caseworker was part of the criminal investigation. Therefore the notes were deemed to have been under the People’s control or in the People’s possession. There was a notation by the caseworker to the effect the victim “was acting normal and as if nothing happened…”.:

“[W]hether knowledge of a government official or employee may be imputed to the People . . . turn[s] on whether participation in the criminal probe was an ancillary law enforcement task” and, thus, “while social workers are generally not agents of the police, in situations where they engage in a joint venture with police agencies to collaborate on child abuse or sexual abuse investigations, share information and a common purpose, and have a cooperative working arrangement with police, an agency relationship may exist such that the social workers’ knowledge is imputed to the People” … . * * *

The People’s provision of this material after the close of all proof deprived defendant of “a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his case” … . People v Baez, 2024 NY Slip Op 05844, Third Dept 11-21-24

Practice Point: When a caseworker is part of a criminal investigation, the caseworker’s notes taken when interviewing a child victim are deemed to be under the control of or possessed by the People, such that any Brady material in the notes must be turned over to the defense prior to trial.

 

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THERE WAS NO EVIDENCE TO CORROBORATE THE OLDER CHILD’S OUT-OF-COURT ALLEGATIONS OF ABUSE BY FATHER; THE ABUSE AND DERIVATIVE ABUSE PETITION WAS DISMISSED (THIRD DEPT).

The Third Department, reversing Family Court, determined there was no evidence to corroborate the older child’s out-of-court statements. Therefore, the petition alleging abuse of the older child and derivative abuse of the younger siblings was dismissed:

At the hearing, petitioner offered the testimony of the children’s mother, two caseworkers, and the video recording of the oldest child’s interview with the Orange County Department of Social Services caseworker and a State Police investigator. The mother testified that when the oldest child was 17 years of age, she first disclosed the allegations of sexual contact to her. Thereafter, each caseworker testified that the oldest child told them that her father had sexual contact with her from approximately two years of age until she was eight. The caseworkers further testified that the oldest child explained that her memory of the abuse was triggered when she overheard her youngest sister make reference to a secret that she held with her father. The record also reveals that there was no additional evidence of any kind presented by petitioner that corroborated the oldest child’s out-of-court statements. For example, there was no medical evidence of any sort, nor did the mother or anyone else point to any change in the oldest child’s behavior, or indications of inappropriate sexual knowledge or behavior, nor was there any expert testimony to validate the oldest child’s account of sexual abuse, or to explain the nine-year gap between the cessation of the sexual contact and the allegations of same. While there was some testimony by the mother that the child has had nightmares since she was very young and has been diagnosed with anxiety, there was no testimony, expert or otherwise, linking the nightmares or diagnosis to the alleged sexual contact. While Family Court correctly noted that a child’s out-of-court allegations of sexual abuse — as testified to by the caseworkers — can be sufficiently corroborated by the child’s detailed in-court testimony … , petitioner did not present the oldest child as a sworn witness. Finally, there was no cross-corroboration of the oldest child’s statements by her siblings as the two younger children did not disclose any sexual abuse to their mother or during the initial interview. The younger two children did not give sworn testimony at the fact-finding hearing nor were the video recordings of their interviews with the caseworker admitted into evidence. Matter of Gabriella X. (Erick Y.), 2024 NY Slip Op 05856, Third Dept 11-21-24

Practice Point: Although out-of-court allegations of sexual abuse (made to caseworkers and police investigators) may support an abuse finding, the out-of-court statements must be corroborated.

 

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ALTHOUGH THE JUVENILE DELINQUENCY PETITION WAS PROPERLY DISMISSED BECAUSE THERE WAS NO NONHEARSAY EVIDENCE OF THE IDENTITY OF THE ASSAILANT, IT WAS AN ABUSE OF DISCRETION TO DISMISS THE PETITION WITH PREJUDICE (THIRD DEPT). ​

The Third Department, reversing (modifying) Family Court, agreed the hearsay evidence identifying respondent as the assailant was not sufficient to support the juvenile delinquency petition, the petition should not have been dismissed with prejudice:

… Family Court abused its discretion in dismissing the petition with prejudice. “Where a petition is dismissed as jurisdictionally defective, dismissal is generally without prejudice, and the presentment agency’s proper recourse is to refile the petition” … . The court indicated that the error here was “egregious” because there were no nonhearsay allegations identifying respondent as the individual who committed the charged crime, and that this error could not be remedied by allowing for petitioner to refile. Although this error could not have been remedied by amendment of the petition (see Family Ct Act § 311.5 [2] [b]), it could have been remedied by refiling. Specifically, upon refiling there could be clarification from the deputy as to the specifics of the investigation including, as is relevant here, how the video of the incident was acquired and what that video depicted, based upon the deputy’s personal knowledge after review of the video. This is not a case where the presenting agency will necessarily be unable to establish respondent’s identity … and, therefore, the petition should have been dismissed without prejudice to allow for refiling … . Matter of Savannah F., 2024 NY Slip Op 05860, Third Dept 11-21-24

Practice Point: There was no nonhearsay proof the respondent was the assailant in this juvenile delinquency proceeding. But the petition should not have been dismissed with prejudice because the presenting agency may be able to provide sufficient proof of the identity of the assailant upon refiling.

 

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PLAINTIFF WAS STRUCK BY A FALLING BEAM WHICH SHOULD HAVE BEEN SECURED; PLAINTIFF WAS NOT OTHERWISE PROTECTED FROM FALLING OBJECTS; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was struck by a falling beam which should have been secured. The fact that plaintiff did not know where the beam came from did not preclude summary judgment:

Plaintiff’s proof showed that the support beam was a load that required securing for the purposes of the undertaking … .Further, the elevated platform was not guarded by a safety device such as netting or enclosure that would have prevented the beam from falling on plaintiff … .

While plaintiff and his coworker did not actually witness where the beam came from, plaintiff “is not required to show the exact circumstances under which the object fell,” provided he can demonstrate that the lack of a protective device called for under Labor Law § 240(1) proximately caused his injuries …  A plaintiff’s prima facie case is “not dependent on whether he had observed what had hit him, or whether the object in question was dropped or fell in some other manner ” … .  Fromel v W2005/Hines W. Fifty-Third Realty, LLC, 2024 NY Slip Op 05828, First Dept 11-21-24

Practice Point: Being struck by an unsecured falling object, and the failure to provide protection from falling objects, may warrant summary judgment on a Labor law 240(1) cause of action.

 

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DEFENDANT’S STATEMENT WAS SUPPRESSED ON APPEAL, BUT THE FOURTH DEPARTMENT HELD THE ERROR WAS HARMLESS; THE COURT OF APPEALS DETERMINED THE FOURTH DEPARTMENT’S HARMLESS-ERROR FINDING WAS NOT SUPPORTED BY THE RECORD (CT APP).

The Court of Appeals, reversing the Fourth Department, in a full-fledged opinion by Judge Garcia, determined the Fourth Department should not have concluded the failure to suppress defendant’s statement was harmless error. Defendant pled guilty with the intention of appealing the denial of his suppression motion:

… [T]he Appellate Division held that defendant’s statement should have been suppressed, but that, because the gun would still have been admissible at trial, the error was harmless as there was no reasonable possibility that it contributed to defendant’s decision to plead guilty. On this record, however, we cannot say with certainty that the erroneous ruling played no part in that decision, and therefore we reverse. * * *

The record here is ambiguous at best as to defendant’s motivation in pleading guilty. Although defendant asserted during the plea colloquy that he was “pleading guilty because it’s a good deal,” he may only have believed that “in the face of all the evidence” admissible at the time, including his highly incriminating post-arrest statement “you saw what I had on me” … . Moreover, when entering his plea, defendant affirmatively sought assurances from the court that he could appeal the suppression determination, indicating the importance he placed on that adverse ruling …. . The People’s argument that defendant may only have been concerned with the court’s suppression of the physical evidence is speculative and insufficient to overcome the high bar for establishing defendant’s independent motivation for the plea. On this record, we cannot say that defendant’s decision to plead guilty was unaffected by the court’s erroneous suppression ruling, and therefore his guilty plea must be vacated. People v Robles, 2024 NY Slip Op 05819, CtApp 11-21-24

Practice Point: Consult this opinion for insight into the difficulty in applying a harmless-error analysis to a guilty plea.

 

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THE TRIAL JUDGE ERRED IN FAILING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE TO THE MURDER CHARGE; THAT FAILURE ALSO MAY HAVE TAINTED THE CRIMINAL-POSSESSION-OF-A-WEAPON CONVICTION, WHICH REQUIRES THE INTENT TO USE THE WEAPON UNLAWFULLY (CT APP). ​

The Court of Appeals, reversing defendant’s murder and criminal possession of a weapon convictions, in a full-fledged opinion by Judge Garcia, determined the judge erred by failing to instruct the jury on the justification defense. The victim threatened defendant with a razor just before shooting. The Court of Appeals noted that if the shooting was justified the “intent to use the weapon unlawfully” element of criminal possession of a weapon may not have been proven:

Defendant was charged with criminal possession of a weapon in the second degree, requiring the People to prove that he possessed the gun with the intent to use it unlawfully against another person … . The model Criminal Jury Instruction provides that “a person acts with intent to use a loaded firearm unlawfully . . . when his . . . conscious . . . purpose is to use that loaded firearm unlawfully against another, and that intent need only exist at the very moment that a person engages in an unlawful use of the firearm against another” … . But if the jury in this case was properly instructed on justification, it might have concluded that defendant acted lawfully when he shot and killed the victim in self-defense. If so, then the jury might have also concluded that defendant lacked the requisite intent (to use unlawfully) for the possession charge … . In other words, it is possible the jury here relied solely on evidence of the potentially justified shooting in finding defendant guilty of possession of the weapon with the intent to use it unlawfully.

To be clear, a jury finding of justification as to the use of a firearm does not preclude that jury from finding that the defendant nevertheless possessed the weapon with intent to use it unlawfully … . But with respect to the possessory offense, the jury must be instructed that, while justification is not a defense to that crime, in the event the jury finds that the shooting was justified, that lawful use of the weapon cannot be considered as proof of the unlawful intent element of the possession charge. For example, the jury’s intent determination may rest on defendant’s conduct “during the continuum of time that he possessed it prior to the shooting” … . People v Castillo, 2024 NY Slip Op 05817, CtApp 11-21-24

Practice Point: If a defendant is charged with murder and criminal possession of a weapon and is entitled to a jury instruction on the the justification defense, the jury should be instructed that it cannot find the defendant possessed the weapon with the intent to use it unlawfully solely on the basis of the shooting, if the shooting is deemed justified.

 

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