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WITNESS TESTIMONY DEMONSTRATED CLAIMANT LOST CONTROL OF HIS MOTORCYCLE AFTER GETTING CAUGHT IN A RUT IN THE ROAD; THE STATE HAD TAKEN PICTURES A FEW MONTHS BEFORE WHICH DEPICTED THE ROAD DEFECT; DEFENSE VERDICT REVERSED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the state had actual or constructive notice of the road defect which caused claimant to lose control of his motorcycle. Photographs of the area, taken by the State a few months before claimant’s accident in connection with the clean-up of a fuel-truck-accident, depicted the road defect:

Anthony Monzillo testified that he was riding his own motorcycle approximately 15 to 20 feet behind the claimant, and he observed the front wheel of the claimant’s motorcycle go into a “rutted area” and “get caught and begin to wobble side to side” and saw the motorcycle fall over. * * *

Quadri [a State engineer] oversaw the clean-up and remedial work of the roadway in April and May 2017, following the truck accident, and photographs taken in April 2017 of the clean-up and remediation work depicted the defect in the roadway. Quadri testified that he was at the truck accident site at least six times during April and May 2017. While Quadri acknowledged during his testimony that he could see “a separation in the pavement” in a photograph taken in April or May 2017, he further testified that he could not remember seeing the separation in the pavement when he was at the site in April 2017. Quadri also testified that DOT maintenance crews would patrol Route 293 at least once a week looking for areas that require maintenance or repairs and would repair “potholes in the travel lanes . . . right away.” … . …

Based upon our review of the record, including the photographs and the witnesses’ testimony, we conclude that the claimant met his burden of proving by a preponderance of the evidence the existence of a dangerous condition of which the defendant was actually or constructively aware and which it failed to take reasonable measures to correct and that such failure was a proximate cause of the claimant’s accident … . Paci v State of New York, 2024 NY Slip Op 06569, Second Dept 12-24-24

Practice Point: A witness demonstrated the road defect caused claimant’s accident. Photographs demonstrated the State had constructive notice of the road defect. The defense verdict was not supported.

 

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DEFENDANT’S MOTION TO VACATE HIS ATTEMPTED MURDER CONVICTIONS ON INEFFECTIVE-ASSISTANCE-OF-COUNSEL GROUNDS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, reversing Supreme Court’s grant of defendant’s motion to vacate his attempted murder convictions, determined defendant’s counsel (Lee) was not ineffective for failure to raise a medical-condition defense. Defendant argued he was incapable of running because of a gunshot wound. Several witnesses to the shooting testified the shooter ran after the victims:

It is unclear from the record as to whether Lee was informed of the existence of such a defense and that he ignored it without investigation. The record is devoid of any evidence, including an affidavit from counsel Brown [defendant’s prior attorney], as to whether Brown followed up on securing the medical records or whether he informed Lee of their existence and possible significance. While Lee testified that he had no recollection of the specifics of the case and therefore of being told of such a defense, he testified that it was his custom and practice to discuss and investigate possible defenses with his clients. Defendant also testified that he discussed various defenses with Lee, which Lee followed up on.

… [I]t is of note that defendant did not assert the defense of medical impossibility, and Lee’s alleged ineffectiveness in not presenting it, in defendant’s appeal of his conviction on October 16, 2001, his pro se CPL 440 motion dated October 6, 2004, or his habeas corpus petition dated February 22, 2006. While Supreme Court acknowledged that it was “troubling that the issue was not raised in the habeas corpus application,” it nevertheless dismissed the People’s argument … . The significance of defendant’s failure to raise the issue for over 19 years is two-fold. First, had defendant raised the issue earlier, Lee’s recollections as to what he did and did not do would certainly have been clearer. More importantly, Lee’s case files would be available for review and scrutiny. Despite Supreme Court’s recognition that “the loss of Lee’s file makes it impossible to prove that” Lee was in possession of the medical records or was aware of the records, it nevertheless improvidently concluded that Lee “conducted no investigation” and “did not look for an expert or for the treating doctor to consult about the injury and its consequences.”

Assuming Lee was informed of the existence of such a defense, defendant failed to overcome a “presumption” that the challenged action “might be considered sound trial strategy,” and demonstrate the “absence of strategic or other legitimate explanations” for the alleged shortcomings … . People v Brown, 2024 NY Slip Op 06550, First Dept 12-24-24

Practice Point: Although fact-specific, this opinion provides in-depth analysis of several issues raised in defendant’s motion to vacate his convictions, including ineffective assistance for failure to raise a defense, newly discovered evidence and actual innocence.

 

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DEFENDANT SNOW-REMOVAL CONTRACTOR WAS ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE; NO “ESPINAL” EXCEPTIONS WERE ALLEGED IN THE COMPLAINT OR DEMONSTRATED IN RESPONSE TO THE SUMMARY JUDGMENT MOTION; THE CONTRACT WITH THE PROPERTY OWNER DID NOT MAKE THE SNOW-REMOVAL CONTRACTOR COMPLETELY RESPONSIBLE FOR MAINTENANCE OF THE PARKING LOT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant snow-removal contractor was entitled to summary judgment in this parking-lot slip and fall case. The defendant demonstrated plaintiff was not a party to the snow-removal contract with the owner of the parking lot, a nursing home. The plaintiff had not alleged in the complaint that any “Espinal” exception applied and was unable to raise a question of fact on the “Espinal” issue in response to defendant’s summary judgment motion:

“‘As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties'” … . However, the Court of Appeals has recognized three exceptions to the general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” …  * * *

… [T]he defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence that the plaintiff was not a party to the snow removal contract … . Since the plaintiff did not allege facts in the pleadings that would establish the possible applicability of any of the Espinal exceptions, the defendants were not required to affirmatively demonstrate that these exceptions did not apply to establish their prima facie entitlement to judgment as a matter of law … .

… [T]he plaintiff failed to raise a triable issue of fact based on any of the Espinal exceptions. The plaintiff failed to raise a triable issue of fact as to whether the defendants launched a force or instrument of harm. The affidavit of a former coworker that the plaintiff relied upon was insufficient because it only addressed the general conditions of the parking lot and not the cause of the specific ice on which the plaintiff allegedly was injured … . The plaintiff also failed to raise a triable issue of fact as to whether the defendants entirely displaced the nursing home’s duty to maintain the parking lots. The affidavit of the former assistant to the head administrator of the nursing home that the plaintiff submitted failed to address the language in the snow removal contract that provided that the nursing home retained some duties and responsibilities to maintain the parking lots … . Brito-Hernandez v Superior Contr., 2024 NY Slip Op 06619, Second Dept 12-24-24

Practice Point: Consult this decision for a discussion of all the issues relevant to suing a snow-removal contractor for a slip and fall. Are any “Espinal” exceptions raised or applicable? Did the snow-removal contract make the contractor completely responsible for maintenance of the parking lot, or did the property-owner retain some responsibility?

 

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PLAINTIFF WAS REPAIRING THE FLASHING ON THE ROOF, NOT DOING ROUTINE MAINTENANCE, AT THE TIME HE WAS INJURED ENTITLING HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was performing repairs, not routine maintenance, when he was injured, entitling him to summary judgment on the Labor Law 240(1) cause of action:

“Delineating between routine maintenance and repairs is frequently a close, fact-driven issue . . . , and that distinction depends upon whether the item being worked on was inoperable or malfunctioning prior to the commencement of the work . . . , and whether the work involved the replacement of components damaged by normal wear and tear” … . Here, the testimony submitted by plaintiffs established, and the court found, that the rubber flashing was malfunctioning and inoperable prior to replacement and that the work being performed by plaintiff at the time of the accident was necessary to restore the proper functioning of the roof. To the extent that defendant asserts that the flashing plaintiff was repairing at the time of his fall was not actively leaking, such a contention is immaterial to whether plaintiff was performing a protected activity, inasmuch as it would be “[in]consistent with the spirit of the [Labor Law] to isolate the moment of injury and ignore the general context of the work” … .

Further, contrary to the court’s determination, we agree with plaintiffs that the rubber flashing was not merely a “component” of a ventilation system and instead was an integral part of a proper functioning roof. Here, plaintiff was performing roofing repair to ensure that the roof of the concession stand was no longer leaking—precisely the type of work that we have long held to be protected by Labor Law § 240 (1) … . Verhoef v Dean, 2024 NY Slip Op 06465, Fourth Dept 12-20-24

Practice Point: Here plaintiff was repairing the roof when he was injured. He was not performing routine maintenance. He was therefore entitled to summary judgment on the Labor Law 240(1) cause of action.

 

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THE POLICE WERE AWARE THAT NO ONE ELSE WAS IN THE RESIDENCE AT THE TIME DEFENDANT LEFT THE RESIDENCE AND WAS ARRESTED; THERE WERE NO EXIGENT CIRCUMSTANCES JUSTIFYING THE WARRANTLESS SEARCH OF THE HOUSE AFTER DEFENDANT’S ARREST; THE WEAPONS SEIZED SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT

The Fourth Department, reversing County Court, determined defendant’s motion to suppress the weapons seized when the police did a “protective sweep” of defendant’s residence should have been granted. Defendant’s wife and daughter had left the residence and told the police, who were outside the residence, only the defendant was inside. Defendant eventually left the residence and was arrested. Only then did the police enter for the “protective sweep:”

… [W]e conclude that there were no emergency or exigent circumstances justifying the warrantless search of the residence. Once defendant’s daughter exited the dwelling, the officers knew from defendant’s wife that no one else was in the dwelling except defendant. None of the officers at the scene witnessed anything that would lead them to suspect that there was another person in the residence. The “mere possibility” that a person could be inside the premises did not justify the search … . We also note that there was no indication that defendant had shot or injured anyone prior to the officers’ arrival at his residence, and at no time had defendant threatened the police or anyone else at the residence. Under the circumstances, there was no legitimate reason for the police not to apply for a search warrant before entering the house. People v Swank, 2024 NY Slip Op 06449, Fourth Dept 12-20-24

Practice Point: A “protective sweep” of a residence that the police know to be vacant amounts to a warrantless search in the absence of exigent circumstances.

 

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SMI, A SOLID WASTE TREATMENT FACILITY, RAISED A SEQRA CHALLENGE TO A LOCAL LAW ALLOWING THE CONSTRUCTION OF A SOLID WASTE TREATMENT FACILITY IN THE TOWN OF SENECA FALLS; ALTHOUGH SMI ALLEGED THE NEW FACILITY WOULD CAUSE IT ECONOMIC LOSS, SMI DID NOT ALLEGE IT WOULD SUFFER ENVIRONMENTAL INJURY; THEREFORE SMI DID NOT HAVE STANDING TO CHALLENGE THE LOCAL LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined SMI, the owner of a solid waste management facility, did not have standing to challenge, pursuant to the State Environmental Quality Review Act (SEQRA), a local law allowing the construction of a solid waste management facility in the Town of Seneca Falls. SMI’s claim it would suffer economic loss if the new facility is constructed was not enough to confer standing:

Those seeking to raise a SEQRA challenge must establish both “an environmental injury that is in some way different from that of the public at large, and . . . that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … .

… Although “[a] property owner in nearby proximity to premises that are the subject of [an agency] determination may have standing to seek judicial review without pleading and proving special damages, because adverse effect or aggrievement can be inferred from the proximity” … , the “status of neighbor does not . . . automatically provide the entitlement . . . to judicial review in every instance” … . The petitioner must also establish “that the interest asserted is arguably within the zone of interest to be protected by the statute” … .

Here, SMI failed to establish, or even allege, that it had suffered or would suffer an environmental injury. SMI submitted, inter alia, the affidavit of its managing director, who averred only that SMI would suffer economic injuries if the local law was not annulled. Although SMI, as the owner of a solid waste management facility, is entitled to a presumption that it would, in fact, suffer such economic harm, it failed to establish that it has standing to raise a SEQRA challenge because economic injury does not fall within the zone of interest SEQRA seeks to protect … . Matter of Seneca Meadows, Inc. v Town of Seneca Falls, 2024 NY Slip Op 06435, Fourth Dept 12-20-24

Practice Point: To demonstrate standing, a party bringing a SEQRA challenge must demonstrate an environmental injury which is in some way different from that of the public at large. Here no environmental injury was alleged. Therefore standing was not demonstrated.

 

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A HANDGUN USED AS BLUDGEON IS A “DANGEROUS INSTRUMENT” WHICH WILL SUPPORT A BURGLARY FIRST DEGREE COUNT; COUNTY COURT SHOULD NOT HAVE REDUCED THE CHARGE TO BURGLARY SECOND (FOURTH DEPT).

The Fourth Department, reversing County Court and reinstating the reduced count, determined the handgun with which the victim was allegedly struck was a “dangerous instrument” despite the fact it had not been fired. County Court had reduced the charge from Burglary first to Burglary second on the ground the handgun had not been shown to be a “dangerous instrument:”

The People were required to present competent evidence to the grand jury demonstrating that defendant or another participant in the crime used, or threatened the immediate use of, a dangerous instrument (see Penal Law § 140.30 [3]). A dangerous instrument is defined as “any instrument, article or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury” (§ 10.00 [13]).

At the grand jury hearing, the victim testified that three men entered her apartment and the first man who walked in had a gun. She further testified that, at one point, “the guy with the gun” became “more upset” and hit her “upside the head” with the gun.

It is well established that “a ‘gun [that is] used as a bludgeon’ is a dangerous instrument” … because it ” ‘is readily capable of causing death or other serious physical injury’ ” … . Here, County Court ruled that the evidence before the grand jury was legally insufficient to establish that the item used by defendant or another participant in the crime was a dangerous instrument because it was not discharged during the incident and there was no evidence that the item was recovered or tested. That was error. We agree with the People that they were not required to submit evidence that the item described by the victim as a gun was an operable or loaded firearm in order to meet the dangerous instrument element of the crime … . We further agree with the People that they were not required to prove that the victim suffered an injury but, rather, needed only to establish that “under the circumstances in which [the instrument, article, or substance was] used . . . or threatened to be used, [it was] readily capable of causing death or other serious physical injury” (Penal Law § 10.00 [13] …). It is reasonable for a grand jury to infer that hitting the victim on the side of the victim’s head with a gun could cause serious physical injury. Thus, the evidence was sufficient to permit the inference that defendant or another participant in the crime used a dangerous instrument … . People v Delee, 2024 NY Slip Op 06491, Fourth Dept 12-20-24

Practice Point: A handgun used as a bludgeon is a “dangerous instrument” within the meaning of the Penal Law and the Burglary First Degree statute. The People need not show the handgun was operable or that the victim suffered a serious injury.

 

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ON THE PEOPLE’S APPEAL, THE TRIAL COURT’S VACATION OF THE JUDGMENT OF CONVICTION BASED ON NEW EVIDENCE WAS REVERSED; THE NEW EVIDENCE INDICATED THAT, ALTHOUGH DEFENDANT WAS NOT THE SHOOTER, DEFENDANT WAS AN ACCOMPLICE TO THE SHOOTER; AN INTERMEDIATE APPELLATE COURT CAN ONLY CONSIDER THE TRIAL COURT’S GROUNDS FOR ITS RULINGS, OR RULINGS ADVERSE TO THE APPELLANT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and denying the motion to vacate the criminal possession of a weapon conviction, determined new evidence which indicated defendant was not the shooter but had provided the machine gun to the shooter (Scott)  would not have resulted in a more favorable verdict. Defendant would have been convicted as an accomplice. In rejecting an argument on appeal that was not part of the ruling below, the Fourth Department explained that its appellate jurisdiction is limited to grounds relied on by the trial court which were adverse to the appellant:

… [W]e conclude that the evidence in question is not “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10 [1] [g] …). Scott’s deposition testimony establishes that defendant possessed the loaded machine gun, provided it to Scott, transported Scott to the vicinity of the crime, and had a motive to harm the victims because his family had “beef” with theirs, thus providing sufficient evidence to support a verdict of guilty as an accomplice to the weapons possession of which he was convicted … . ” ‘[W]hether one is the actual perpetrator of the offense or an accomplice is, with respect to criminal liability for the offense, irrelevant’ ” … .

Defendant requests that we affirm on the ground, which he asserted in the court below, that consideration of the new evidence in light of a theory of accessorial liability requires an impermissible amendment to the indictment. We agree with the People that we have no authority to affirm on that basis … .

Under CPL 470.15 (1), “[u]pon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.” * * * The Appellate Division engages in “the type of appellate overreaching prohibited by CPL 470.15 (1)” when it “renders a decision on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in [the appellant’s] favor” … .

Here, the court determined that “the accessorial liability theory, if presented at a new trial, would not constitute an impermissible amendment to the indictment in violation of the defendant’s constitutional rights,” clearly resolving that issue in the People’s favor.  People v Dixon, 2024 NY Slip Op 06473, Fourth Dept 12-20-24

Practice Point: New evidence indicated defendant was not the shooter but had provided the weapon to the shooter with the requisite intent. Because the new evidence would not have resulted in a more favorable verdict on the criminal possession of a weapon charge, defendant’s motion to vacate the judgment of conviction should have been denied.

Practice Point: An intermediate appellate court can only consider grounds for rulings relied on by the trial court or rulings adverse to the appellant.

 

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THE DENIAL OF DEFENDANT’S MOTION TO SEVER THE CHARGES RELATING TO TWO SEPARATE MURDERS, COMMITTED NEARLY TWO YEARS APART, WAS NOT AN ABUSE OF DISCRETION; DEFENDANT DID NOT DEMONSTRATE THE JURY WOULD HAVE HAD DIFFICULTY CONSIDERING SEPARATELY THE PROOF FOR EACH OFFENSE (CT APP).

The Court of Appeals, affirming defendant’s murder convictions, in a full-fledged opinion by Judge Halligan, over two comprehensive dissenting opinions, determined the denial of defendant’s motion to sever the charges relating to two separate murders, committed nearly two years apart, was not error:

The first victim was the defendant’s roommate, who was found dead in their shared apartment in 2013 after a fire that occurred under circumstances that later raised questions about her cause of death. The second victim was a woman whom defendant had hired to go on a date with him in December 2014; her body was found in a shallow grave in May 2015. The defendant was arrested in 2017 … . * * *

Where counts have been joined under CPL 200.20 (2) (c), the CPL provides that the trial court has discretion to sever them if doing so would be “in the interest of justice and for good cause shown” (id. 200.20 [3]). This provision has its origins in a 1936 amendment to the Code of Criminal Procedure that allowed joinder of “two or more acts or transactions constituting crimes of the same or a similar character which are neither connected together nor parts of a common scheme or plan” … .

The statute specifies two situations that establish good cause: first, where there is “[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense”; and second, where there is “[a] convincing showing that a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying on the other, which satisfies the court that the risk of prejudice is substantial” … . The statute expressly notes that good cause is not limited to these grounds … , and we have explained that “a defendant’s fundamental right to a fair trial free of undue prejudice” must be protected when offenses are joined for trial … . …

… The defendant asserts that “the jury was incapable of considering the proof separately with respect to each offense” because the proof of each crime was “markedly different” and “dissimilar.” … [But] the key question is whether it would be difficult for the jury to consider separately the proof for each offense … . People v Mero, 2024 NY Slip Op 06385, CtApp 12-19-24

Practice Point: Consult this opinion, especially the extensive dissents, for a comprehensive discussion of the issues raised by trying a defendant for two unrelated murders, separated by years, in a single trial.

 

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DEFENDANT’S CROSSING THE FOG LINE ON THE RIGHT SIDE OF THE HIGHWAY THREE TIMES IN SECONDS CONSTITUTED PROBABLE CAUSE FOR THE TRAFFIC STOP (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined there was probable cause for the traffic stop which resulted in a DWI conviction. Defendant’s car crossed the fog line on the right side of the roadway three times within seconds:

When a driver swerves over the fog line repeatedly, in quick succession, they have failed to “drive[ ] as nearly as practicable entirely within a single lane” in violation of VTL § 1128 (a) (see e.g. Schoonmaker v New York State Dept. of Motor Vehicles, 33 NY3d 926, 928 [2019] [testimony that vehicle “ma(de) an erratic movement off the right side of the road, crossing the fog line and moving off the shoulder with the vehicle’s right front tire” provided substantial evidence that stop was lawful under VTL § 1128 (a)]; People v Tandle, 71 AD3d 1176, 1177, 1178 [2d Dept 2010]; People v Parris, 26 AD3d 393, 394 [2d Dept 2006]; cf. People v Davis, 58 AD3d 896, 898 [3d Dept 2009] [police officer’s testimony that driver had made “brief contacts with the fog line,” but not that driver was, for example, “weaving, driving erratically or even that he drove onto the shoulder” was insufficient to support traffic stop under VTL § 1128 (a)]). On these facts, the troopers’ observations, which were credited by the suppression court, established probable cause for the traffic stop. Therefore, the court properly denied the motion to suppress. People v Rufus, 2024 NY Slip Op 06384, CtApp 12-19-24

Practice Point: Here defendant’s crossing the fog line on the right side of the highway three times in seconds violated the Vehicle and Traffic Law and constituted probable cause for the traffic stop.

 

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