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PHOTOS SUBMITTED AS A NOTICE TO ADMIT DID NOT SHOW THE METAL OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL; ALTHOUGH THE PHOTOS ARE DEEMED TO SHOW THE PROJECT SITE ON THE DAY OF THE FALL, THERE WAS NO EVIDENCE THE PHOTOS DEPICTED THE CONDITION OF THE SITE AT THE TIME OF THE FALL OR IMMEDIATELY PRIOR TO THE FALL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff alleged he tripped on metal debris and fell. Defendants submitted three photographs alleged to depict the project site on the day of the plaintiff’s fall as a notice to admit. The photos did not show any metal debris. Although plaintiff did not respond to the notice to admit, thereby deeming the allegations admitted, the photos did not establish the condition of the depicted area at the time of plaintiff’s trip and fall, or immediately prior to the fall:

According to plaintiff, his accident occurred as he was retrieving wooden planks for his coworker to install on the floor. Doing so required plaintiff to traverse over an uncovered beam pocket measuring three feet wide and three feet deep. His accident occurred when he tripped over metal debris on the floor and fell into the beam pocket. Plaintiff was wearing a harness with a yo-yo/at the time of his accident, but there was no place for him to tie off. * * *

… Defendants rely on a notice to admit that they served on plaintiff seeking his admissions that three photos annexed thereto … depicted the project site on the day of plaintiff’s accident. Plaintiff did not respond to the notice to admit, deeming the allegations admitted (CPLR 3123 [a]). However, these admissions do not establish that those photos fairly and accurately depict the location of plaintiff’s accident either at the time thereof or immediately prior thereto. Thus, the absence from those photos of the metal on which plaintiff claims to have tripped does not raise an issue of fact as to the manner in which plaintiff’s accident occurred. Guzman-Saquisili v Harlem Urban Dev. Corp., 2024 NY Slip Op 05420, First Dept 10-31-24

Practice Point: Photos which depict the condition of the area of plaintiff’s fall on the day of the fall, without more specificity about when the photos were taken, may not be deemed to depict the area at the time of the fall or immediately prior to the fall.

 

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AFTER SKIING ALL DAY AND RETURNING THE EQUIPMENT, CLAIMANT SLIPPED AND FELL ON ICE AND SNOW IN A PARKING LOT; THE ASSUMPTION OF THE RISK DOCTRINE DOES NOT APPLY; THE COURT NOTED THAT INADMISSIBLE HEARSAY, HERE AN INCIDENT REPORT, MAY BE CONSIDERED ON A SUMMARY JUDGMENT MOTION IF IT DUPLICATES NON-HEARSAY (THIRD DEPT). ​

The Third Department, reversing (modifying) the Court of Claims, determined that the assumption of the risk doctrine did not apply to claimant who had finished skiing for the day and was walking to his car in the parking lot when he sipped and fell on ice and snow. The court noted that inadmissible hearsay, here and incident report, may be considered on a summary judgment motion where it duplicates non-hearsay evidence:

… [I]t is undisputed that [claimant] fell at a time when he was finished skiing for the day, and he no longer had any ski equipment on or near his person. He was, instead, returning to his parked vehicle, intending to exit defendants’ property entirely. As a matter of law, [claimant] was not engaged in any facet of skiing at the time that he was injured, and the primary assumption of risk doctrine is therefore inapplicable … . * * *

To the extent that defendants argue that the incident report, as well as certain aspects of Weichsel’s testimony, is inadmissible hearsay and thus may not be relied upon by claimants, we first note that such evidence was proffered by defendants in support of their own motion. In any event, inadmissible hearsay may be considered at the summary judgment stage where it exists alongside admissible evidence in support of the same argument … . Weichsel v State of New York, 2024 NY Slip Op 05384, Third Dept 10-31-24

Practice Point: The assumption of the risk doctrine does not apply to a skier who, after skiing all day and returning the equipment, slips and falls in the parking lot.

Practice Point: Inadmissible hearsay, here an incident report, can be considered on a summary judgment motion it it duplicates non-hearsay.

 

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DEFENDANTS IN THIS REAR-END COLLISION CASE WERE ENTITLED TO SUMMARY JUDGMENT; DEFENDANTS’ STOPPED VEHICLE WAS HIT FROM BEHIND AND PUSHED INTO PLANTIFF’S VEHICLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Menegos defendants were entitled to summary judgment in this rear-end collision case. The Menegos defendants demonstrated their vehicle had come to a stop behind plaintiff’s vehicle before it was struck from behind and pushed into plaintiff’s vehicle:

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . “‘A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence'” … . “Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation for the collision” … . Thus, in a three-vehicle chain-collision accident, the defendant operator/owner of the middle vehicle “may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle” … . Beltre v Menegos, 2024 NY Slip Op 05322, Second Dept 10-30-24

Practice Point: In a rear-end collision case, if a stopped car is hit from behind and pushed into the car in front, the driver of the stopped car is not negligent.

 

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IN A MEDICAL MALPRACTICE ACTION, A SPECULATIVE AND CONCLUSORY EXPERT AFFIDAVIT WILL NOT SUPPORT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Andre) was not entitled to summary judgment dismissing the medical malpractice action because defendant’s expert’s affidavit was “speculative and conclusory:”

The affidavit and supplemental affidavit of Andes’s expert physician, Reed E. Phillips, were insufficient to establish the absence of any departure from good and accepted medical practice … . Phillips’s opinion that Andes did not depart from the standard of care by failing, inter alia, to obtain the decedent’s prior medical records, to order a CT scan, MRI, or other imaging, and to timely diagnose the decedent with liver cancer, as well as his opinion that the decedent’s cancer was incurable by the time the decedent first treated with Andes, was speculative and conclusory and otherwise insufficient to demonstrate that Andes comported with good and accepted standards of practice in his care and treatment of the decedent or that any alleged departure was not a proximate cause of the decedent’s injuries and ultimate death … . Miller-Albert v EmblemHealth, 2024 NY Slip Op 05340, Second Dept 10-30-24

Practice Point: In medical malpractice cases, at the summary judgment stage, the action survives or fails based upon the quality of the expert affidavits. Conclusory or speculative assertions in expert affidavits have no probative value.

 

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PLAINTIFF DID NOT DEMONSTRATE SANCTIONS FOR SPOLIATION OF EVIDENCE WERE WARRANTED; THE VIDEO FOOTAGE FOR THE DAY OF THE FALL HAD BEEN AUTOMATICALLY DELETED BEFORE THE PRESERVATION LETTER WAS RECEIVED; HOWEVER DEFENDANTS HAD PRESERVED 52 SECONDS OF VIDEO SHOWING JUST BEFORE THE FALL, THE FALL AND PLAINTIFF WALKING AWAY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the restrictions placed on defendants’ presentation of evidence of liability relevant to plaintiff’s slip and fall constituted an abuse of discretion. Plaintiff fell on March 24, 2018, and defendants received a letter requesting that 12 hours of video footage be preserved on April 9, 2018. By April 9 the video had been automatically deleted. Defendants had preserved 52 seconds of the video which included just before the fall, the fall, and plaintiff walking away:

The plaintiff did not establish that the defendants were placed on notice that the video evidence might be needed for future litigation before the surveillance footage was automatically deleted … . Further, the defendants’ preservation of only a portion of the surveillance footage did not indicate a culpable state of mind, as the defendants’ representative averred in an affidavit that, on the date of the accident, she saved a 52-second clip of the incident. The representative testified at her deposition that to locate this clip, she had entered the date and time that the alleged accident occurred, and she averred that, by the time she received the preservation letter, the surveillance footage had been automatically deleted … . In addition, the plaintiff did not establish that the absence of the additional surveillance footage deprived her of the ability to prove her case … . De Abreu v Syed Rests. Enters., Inc., 2024 NY Slip Op 05326, Second Dept 10-30-24

Practice Point: The criteria for spoliation of evidence were not met by the facts here. The video footage for the day of the fall was automatically deleted before the preservation letter was received. Defendants preserved video footage of just before the fall, the fall and plaintiff walking away.​

 

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ALTHOUGH THERE WAS EVIDENCE THE VICTIM’S JAW WAS FRACTURED, THERE WAS INSUFFICIENT PROOF THE VICTIM SUFFERED “SERIOUS PHYSICAL INJURY” WITHIN THE MEANING OF PENAL LAW SECTION 10 (10); DEFENDANT’S ASSAULT SECOND CONVICTION WAS REDUCED TO ASSAULT THIRD (THIRD DEPT).

The Third Department, finding that the proof the victim suffered “serious physical injury” in this assault case insufficient, reduced defendant’s conviction from assault second to assault third. There was evidence the victim suffered a fractured jaw which was wired shut for weeks. But the evidence did not establish a “protracted impairment of health or … function of any bodily organ:”

As to the victim’s injuries, an oral surgeon who examined the victim diagnosed him with a fracture to the left side of his mandible, consistent with facial trauma, and performed a surgical procedure to wire the victim’s jaw shut. The victim testified that his jaw was wired shut for several weeks and that he was unable to eat solid food for six weeks, causing him to lose approximately 25 pounds. At the trial, which was approximately 10 months after the incident, the victim continued to experience very occasional pain that he described as similar to arthritis. Although we do not minimize the trauma and pain suffered by the victim, the record is devoid of evidence about the injury’s effect on the victim’s daily living to support a finding that he sustained a “protracted impairment of health or . . . of the function of any bodily organ” (Penal Law § 10.00 [10] …). Consequently, we are constrained to find that the verdict convicting defendant of assault in the second degree is against the weight of the evidence, as the record does not establish that the victim suffered a “serious physical injury,” as that term is defined in Penal Law § 10.00 (10) … . People v Dillon, 2024 NY Slip Op 05246, Third Dept 10-24-24

Practice Point: Consult this decision to gain some insight into what “serious physical injury” means as an element of Assault 2nd.​

 

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ALTHOUGH THERE WAS PROOF DEFENDANT WAS AWARE THE CO-DEFENDANT POSSESSED A WEAPON, THERE WAS NO PROOF DEFENDANT ACTED AS AN ACCOMPLICE IN THE CO-DEFENDANT’S POSSESSION OF A WEAPON; DEFENDANT’S CONVICTION OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCOMPLICE THEORY WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment, determined that, although the proof demonstrated defendant’s awareness that the co-defendant possessed a firearm, that awareness alone did not give rise to accomplice liability for the co-defendant’s criminal possession of a weapon: Defendant was convicted after a four-day trial. The Third Department held the conviction was not supported by the weight of the evidence:

We agree with defendant that his conviction is against the weight of the evidence. … [T]he jury could rely on testimony by the People’s witnesses describing defendant’s conduct during the incident as evidence that defendant was aware the codefendant possessed the subject handgun before the codefendant displayed it to those witnesses … . Still, accessorial liability requires evidence directed at the equally important actus reus element, i.e., that ” ‘the accomplice must have intentionally aided the principal in bringing forth a result’ ” … . Here, even though “defendant’s conduct suggested that he may have known that [the codefendant] had a gun, there was no proof that . . . defendant solicited, requested, commanded, importuned, or intentionally aided him to possess the gun” … . What defendant did or said in furtherance of the codefendant’s possession of the subject handgun was left to the jurors’ imaginations … . Such speculation cannot be the basis for defendant’s guilt beyond a reasonable doubt … . People v Goodman, 2024 NY Slip Op 05249, Third Dept 10-24-24

Practice Point: To be convicted of a co-defendant’s criminal possession of a weapon under an accomplice theory, the proof must demonstrate the defendant solicited, requested, commanded, importuned or intentionally aided the co-defendant to possess the gun (in addition to the mens rea, the actus reus must be proven).

 

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DEFENDANTS RAISED QUESTIONS OF FACT SUPPORTING A “FRAUD IN THE INDUCEMENT” DEFENSE TO THE ACTION BASED UPON AN EXECUTED PROMISSORY NOTE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants raised a valid “fraud in the inducement” defense to the action seeking payment on an executed promissory note. Defendants executed the note to purchase protein powder from plaintiffs. Plaintiffs described the powder as having 23 to 25 grams of protein per 33/5 grams of powder. After the purchase defendants had the powder tested which revealed the powder contained a significantly lower percentage of protein:

“When an action is based upon an instrument for the payment of money only . . . , the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint” (CPLR 3213). Therefore, “[t]o prevail on [their] motion for summary judgment in lieu of complaint based on a promissory note, plaintiff[s] w[ere] required to present evidence that defendant[s] executed the note and defaulted thereon” … . Plaintiffs demonstrated their prima facie burden by supplying the note at issue, signed by [defendant], and evidence of defendant’s failure to pay; therefore, the burden shifted to defendants to establish the existence of a triable issue of fact as to a bona fide defense to liability … . …

Fraud in the inducement is a defense to the enforcement of a promissory note … , and, as such, defendants were required to “allege that (1) the plaintiff made a representation or a material omission of fact which was false and the plaintiff knew to be false, (2) the misrepresentation was made for the purpose of inducing the defendant to rely upon it, (3) there was justifiable reliance on the misrepresentation or material omission, and (4) injury” … . * * *

Generally, “what constitutes reasonable reliance is always [a] nettlesome” inquiry best left to the trier of fact … . Furthermore, “[s]ummary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact” … . Panessa v Lederfeind, 2024 NY Slip Op 05252, Third Dept 10-24-24

Practice Point: Fraud in the inducement is a valid defense to an action for summary judgment based upon an instrument for the payment of money only (CPLR 3213), here a promissory note.

 

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CLAIMANT-INMATE WAS SEXUALLY ASSAULTED IN HER CUBICLE IN A DORMITORY WITHOUT DOORS WHILE THE CORRECTION OFFICER (CO) GUARDING THE DORMITORY WAS ASLEEP; CLAIMANT PRESENTED ADEQUATE PROOF THE ASSAULT WAS FORESEEABLE (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined claimant-inmate in this negligent supervision action presented sufficient proof the sexual assault by another inmate was foreseeable. Claimant was in a dormitory with cubicles and no doors. A male inmate crawled into claimant’s cubicle when the correction officer (CO) guarding dormitory was asleep:

… [T]he question is not what the State actually knows, but what it should have known, i.e., whether defendant has constructive notice … . There was a preponderance of evidence that defendant was aware that this claimant was at risk of sexual assault because defendant’s own sexual victimization risk screening procedures, and placement in the 10-1 dorm’s PREA cube as a result of her complaints about harassment immediately before the sexual assault, identified her as being in a class of individuals vulnerable to the risk of sexual assault … . Moreover, placement in the PREA cube generally, and in this case specifically, is a tacit acknowledgement that individuals who are identified as vulnerable and live in a general population dormitory consisting of a communal sleeping area, must have more protection at night. A sleeping CO negates this added protection at this critical time. Thus, it was not necessary for defendant to have notice that COs generally, or this CO specifically, slept during shifts. It is not unreasonable to expect that COs are conscious, alert and attentive while on duty monitoring an open-floor-plan dormitory of incarcerated individuals in a maximum-security prison. R.S. v State of New York, 2024 NY Slip Op 05253, Third Dept 10-24-24

Practice Point: Here there was sufficient proof that the sexual assault by another inmate was foreseeable. Claimant was recognized as vulnerable to sexual assault, was placed in a dormitory cubicle with no door, and the correction officer assigned to guard the dormitory was asleep. The fact that the CO’s falling asleep may not have been foreseeable was not the determinative issue.​

 

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THE CRITERIA FOR A COURT-OF-APPEALS REVIEW OF AN APPELLATE DIVISION’S WEIGHT-OF-THE-EVIDENCE ANALYSIS IS EXPLAINED; HERE DEFENDANT’S MANSLAUGHTER CONVICTION, BASED ENTIRELY ON CIRCUMSTANTIAL EVIDENCE, WAS PROPERLY REVIEWED BY THE APPELLATE DIVISION, WHICH AFFIRMED THE CONVICTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over two concurring opinions and an extensive dissenting opinion by Judge Wilson, determined the Appellate Division properly conducted a weight-of-the-evidence review of an entirely circumstantial manslaughter prosecution (affirming the conviction):

Jorge Baque’s five-month-old daughter was found unresponsive in her crib at 6:30 a.m. on July 30, 2016. Despite efforts to resuscitate her, she was declared dead. An autopsy revealed that the victim had sustained injuries consistent with abusive head trauma and violent shaking. Baque was arrested and charged with manslaughter in the second degree and endangering the welfare of a child. * * *

The question before us is whether the Appellate Division erred as a matter of law in conducting its review of the weight of the evidence, in this purely circumstantial case. Weight of the evidence review is a “unique” power afforded to intermediate appellate courts, and one that they exercise regularly … . It requires the Appellate Division to “independently assess all the proof” and “to serve, in effect, as a second jury” … . * * *

This Court reviews a weight of the evidence determination to assess whether the “order and writings of the intermediate appellate court manifest a lack of application of [its] review power” … . “[W]e cannot review a weight of the evidence challenge unless the intermediate appellate court manifestly failed to consider the issue or did so using an incorrect legal principle” … . We have never required the Appellate Division to “manifest its weight of evidence review power by writing in all criminal cases” … . Indeed, the Appellate Division “could have summarily affirmed without explicitly addressing the merits of defendant’s challenge to the weight of the evidence” … . People v Baque, 2024 NY Slip Op 05244, CtApp 10-24-22

Practice Point: This decision is a rare Court-of-Appeals review of an appellate division’s weight-of-the-evidence affirmance of a conviction based entirely on circumstantial evidence. The unique criteria for review by the Court of Appeals is explained.

 

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