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THE EVIDENCE DEFENDANT SHARED A COMMUNITY OF PURPOSE WITH THE SHOOTER WAS LEGALLY INSUFFICIENT; ASSAULT AND FIREARMS CONVICTIONS REVERSED AND INDICTMENT DISMISSED (THIRD DEPT). ​

The Third Department, reversing defendant’s assault and related use and possession of a firearm convictions, determined there was insufficient evidence that defendant shared the intent to shoot the victim. The victim was shot. Defendant drove a car which followed the wounded victim who was then robbed by an occupant of the car:

The trial evidence is insufficient to demonstrate that defendant shared a community of purpose with the unidentified shooter to cause serious physical injury to the victim or that he aided the shooter in doing so … . To begin with, there was no evidence that defendant formed a plan with anyone to assault the victim or had any advance knowledge that the victim was going to be attacked … . Further, although there is proof that defendant was present, he cannot be observed on the surveillance video striking the victim or participating in any way in the altercation that preceded the shooting. In fact, the victim testified that, during the brief struggle, he did not know if defendant was there to help him or harm him and that it was defendant’s friends with whom he was actually fighting. Additionally, as noted above, there was no indication during this brief and seemingly chaotic interaction that defendant was aware that [anyone] had a gun …. This situation is also not akin to cases where an accomplice’s community of purpose with a fellow assailant can be inferred from his or her continued participation in an attack after the other produces a weapon … . … [T]here is evidence that, following the shooting, defendant drove a vehicle in the direction of the victim and stopped it [an assailant’s] command, at which time [the assailant] got out and robbed the victim. However, that alone is insufficient to establish that defendant shared a community of purpose to commit the earlier assault or provided assistance thereto. People v Walker, 2024 NY Slip Op 02346, Third Dept 5-2-24

Practice Point: Defendant’s presence with the assailants when the victim was shot, and defendant’s driving a car following the wounded victim victim and stopping the car to allow an assailant to get out and rob the victim, did not demonstrate defendant shared a community of purpose with the shooter at the time of the shooting.

 

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EVEN THOUGH PLAINTIFF BICYCLIST ADMITTED ROLLING THROUGH A BIKE-PATH STOP SIGN BEFORE ENTERING THE INTERSECTION, THERE REMAINED QUESTIONS OF FACT ABOUT WHETHER DEFENDANT DRIVER FAILED TO SEE WHAT WAS TO BE SEEN (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant-driver’s motion for summary judgment in this intersection bicycle-car collision case should not have been granted. Although plaintiff-bicyclist acknowledged he did not completely stop at the bike-path stop sign before entering the intersection, there were questions of fact whether defendant driver (Butler) failed to see what was to be seen:

… [P]laintiff’s admission that he came to a “rolling stop” at the stop sign, which amounts to a violation of Vehicle and Traffic Law § 1172 (a) and establishes some degree of fault on his part. Nevertheless, that fact is not dispositive as to whether he was the sole proximate cause of the accident … . To this point, Butler’s testimony suggests that no other vehicles were at the intersection prior to her turning left and that her visibility down the bike path was limited to approximately 20 feet, due in part to a building, trees and bushes obstructing her view. However, our review of the photographs of the intersection contained in the record casts doubt on that account, as a lengthy portion of the bike trail both preceding and after the stop sign located on said trail appears visible from Butler’s vantage point both at the light and after she commenced the left turn. Whether plaintiff should have been visible to Butler is further unresolved by the time frames relative to Butler commencing the turn and the time to impact as well as the varying accounts from plaintiff, Butler and the police report specific as to how far Butler had traveled into the intersection before the collision took place … . Ruberti v Butler, 2024 NY Slip Op 02358, Third Dept 5-2-24

Practice Point: In this intersection bicycle-car collision case, plaintiff-bicyclist’s failure to come to a complete stop at the bike-path stop sign did not establish he was the sole proximate cause of the accident.. There were questions of fact about whether defendant driver failed to see what was there to be seen.

 

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DEFENDANT’S ALLEGATION PLAINTIFF CAME TO A SUDDEN STOP IN THIS REAR-END COLLISION CASE DID NOT RAISE A QUESTION OF FACT ABOUT DEFENDANT’S LIABILITY; HOWEVER A QUESTION OF FACT REMAINED CONCERNING DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this rear-end collision case should have been awarded summary judgment on liability, but defendant’s comparative negligence affirmative defense properly survived dismissal. Defendant alleged that plaintiff made a sudden stop, which was not enough to raise a question of fact on defendant’s liability:

… [P]laintiff established her entitlement to judgment as a matter of law on the issue of liability through her own affidavit, which demonstrated, prima facie, that the defendant’s vehicle struck the plaintiff’s vehicle in the rear while the plaintiff’s vehicle was stopped on the LIE due to traffic conditions … . In opposition, the defendant failed to raise a triable issue of fact. The defendant’s averments in his affidavit that the plaintiff’s vehicle made a sudden stop and that the plaintiff had told the defendant after the accident that she had stopped her vehicle to allow another car merge into the lane ahead of her, do not provide a nonnegligent explanation for striking the plaintiff’s vehicle …

However, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law dismissing the defendant’s affirmative defense alleging comparative negligence on the ground that the defendant’s negligence was the sole proximate cause of the accident. The plaintiff’s affidavit failed to provide sufficient details to demonstrate, prima facie, that she was not comparatively at fault in causing the accident … . Fischetti v Simonovsky, 2024 NY Slip Op 02302, Second Dept 5-1-24

Practice Point: A defendant in a rear-end collision case will not escape summary judgment on liability by alleging plaintiff came to a sudden stop.

 

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THE NEARLY $10 MILLION VERDICT IN THIS MEDICAL MALPRACTICE ACTION WAS SUPPORTED BY SUFFICIENT EVIDENCE OF PROXIMATE CAUSE; IT WAS ALLEGED DEFENDANT DOCTOR SHOULD HAVE SENT PLAINTIFF’S DECEDENT TO THE EMERGENCY ROOM AND THE FAILURE TO DO SO PLAYED A ROLE IN PLAINTIFF’S DECEDENT’S SUICIDE THE NEXT DAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nearly $10 million verdict should not have been set aside on the ground the evidence of proximate cause was insufficient. Plaintiff alleged defendant doctor (Strange) should have sent plaintiff’s decedent to the emergency room the day before plaintiff’s decedent committed suicide. The matter was remitted for consideration of other grounds for setting aside verdict:

… Supreme Court erred in granting that branch of Strange’s motion which was to set aside the verdict on the issue of proximate cause and for judgment as a matter of law dismissing the complaint insofar as asserted against him, since the jury reasonably concluded, based on the evidence presented at trial, that Strange’s alleged departures were a proximate cause of the decedent’s death. The plaintiff’s expert witness testified that the decedent’s suicide was preventable and that a referral to the emergency room would have allowed the decedent to be admitted to the hospital. Such testimony was sufficient to allow a reasonable person to conclude that it was more probable than not that Strange’s conduct, under these circumstances, diminished the decedent’s chance of a better outcome … . Shouldis v Strange, 2024 NY Slip Op 02340, Second Dept 5-2-24

Practice Point: Proximate cause in a medical malpractice case is demonstrated if the doctor’s conduct “diminished the … chance of a better outcome.”

 

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AFTER PLAINTIFF’S POST-NOTE DEPOSITION SUBPOENA FOR THE NONPARTY WITNESS WAS QUASHED, PLAINTIFF OBTAINED A VOLUNTARY STATEMENT FROM THE NONPARTY WITNESS; OBTAINING THE STATEMENT WAS A PROPER METHOD OF “INFORMAL DISCOVERY” (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff properly conducted “informal discovery” by obtaining a voluntary statement from a nonparty witness after plaintiff’s post-note deposition subpoena for the witness was quashed:

Supreme Court granted defendant’s motion to quash the untimely, post-note deposition subpoena plaintiff served on nonparty witness Harris-Aikens, and to preclude plaintiff from “examining or otherwise taking any sworn testimony from” Harris-Aikens (the December Order), and suspended disclosure pursuant to CPLR 3103(b). …

… [T]he Harris-Aikens witness statement did not constitute “disclosure of the particular matter in dispute” prohibited by CPLR 3103(b). The statement was not an examination or other sworn testimony explicitly prohibited by the December Order, and was not otherwise an enumerated “disclosure device” under CPLR 3102(a) … . Rather, obtaining the witness statement was plaintiff’s proper exercise of ex parte, informal discovery, which the Court of Appeals has long recognized as a permissible and invaluable avenue by which litigants prepare for trial … . Everett v Equinox Holdings, Inc., 2024 NY Slip Op 02276, First Dept 4-30-24

Practice Point: Obtaining a voluntary statement from a nonparty witness here did not violate the court order quashing a deposition subpoena for the same witness. The voluntary statement was a proper form of “informal discovery.”

 

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HERE THE COURT OF APPEALS CLARIFIED ITS DEFINITION OF “TESTIMONIAL” EVIDENCE; A FORM DOCUMENT USED TO COLLECT PEDIGREE INFORMATION FROM EVERY NYC ARRESTEE IS NOT “AN OUT-OF-COURT SUBSTITUTE FOR TRIAL TESTIMONY,” I.E., THE FORM DOCUMENT IS NOT “TESTIMONIAL” AND CAN BE INTRODUCED AT TRIAL AS A BUSINESS RECORD WITHOUT THE TESTIMONY OF THE CREATOR OF THE DOCUMENT; HERE THE DOCUMENT INDICATED DEFENDANT LIVED IN THE BASEMENT AND WAS USED AT TRIAL TO PROVE HE CONSTRUCTIVELY POSSESSED A WEAPON FOUND IN THE BASEMENT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over an extensive dissenting opinion, determined a document created by the Criminal Justice Agency (CJA), which provides pretrial services in NYC, was not “testimonial” in nature and therefore could be introduced in evidence as a business record without affording the defendant the opportunity to confront the creator of the document. The document was created during an interview of the defendant. The defendant was charged with possession of a weapon found in the basement. The CJA document indicated defendant lived in the basement and was introduced at trial to prove his constructive possession of the weapon:

… CJA interviews “nearly all individuals arrested” in New York City “to make a pretrial release recommendation to the court” … . In interviewing arrestees to determine their suitability for pretrial release, CJA employees ask them questions regarding community ties and warrant history, including an arrestee’s address, how long they have lived there, their employment status, whether they expect anyone at their arraignment, their education, and other relevant queries. The CJA employee records the answers to these questions on a standardized form titled “Interview Report.” The employee also verifies the information provided by the arrestee with a third person, whose contact information the CJA employee obtains from the arrestee, and records that verification in a separate section of the form. The CJA employee then gives the completed form, including a recommendation on whether the arrestee is suitable for release, to the arraignment judge, the prosecutor, and defense counsel. * * *

We now clarify that in ascertaining whether out-of-court statements are testimonial, courts should inquire, as the U.S. Supreme Court has instructed, “whether in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony’ ” … . When that standard is met, the statement should be deemed testimonial for purpose of the Confrontation Clause. * * *

We find it significant that a CJA interview report is routinely prepared for all arrestees in New York City. The information collected is the same in every case, regardless of the particular facts or the elements of the relevant crime: the interviewer collects a predetermined set of pedigree information from the defendant and makes a recommendation to the court as to the defendant’s suitability for pretrial release … . People v Franklin, 2024 NY Slip Op 02227 CtApp 4-25-24

Practice Point: The Court of Appeals clarified and brought up-to-date its definition of “testimonial” evidence. A document is testimonial if its primary purpose is to create an out-of-court substitute for trial testimony. Here a form document filled out during an intake interview of every NYC arrestee which collects pedigree information was not testimonial, i.e., it was not created as a substitute for trial testimony.  Therefore the document could be admitted at trial as a business record without the need for testimony by the creator of the document.

 

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A GAP IN THE CHAIN OF CUSTODY OF THE DRUGS SEIZED FROM DEFENDANT AND A DISCREPANCY IN THE DESCRIPTIONS OF THE BAG CONTAINING THE DRUGS DID NOT RENDER THE DRUGS INADMISSIBLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined a gap in the chain of custody and a discrepancy in the descriptions of the evidence did not render the evidence (white powder in plastic bags) inadmissible. Officer Lin, who seized the evidence, noted a rip in the larger plastic bag. But Osorio, the criminologist who analyzed the white powder, did not notice a rip in the larger bag:

… [T]he record indicates that the gap spanned, at most, only a few hours overnight and “[a]t all times, the drugs apparently remained safely under police control” in an identifiable location at a precinct station … . Officer Lin testified that she placed the evidence inside an envelope used to voucher drugs, and that the only other person in the office at the time was an administrative officer who was tasked with safeguarding such evidence. In leaving the evidence at the station to resume her patrol, Officer Lin followed a procedure intended to reduce opportunities for error and misconduct … . When Officer Lewis arrived to voucher the evidence, “the drugs were found precisely where they were supposed to be” … . * * *

Defendant also focuses on Osorio’s testimony that she did not “see” or write in her worksheet that there were rips in the plastic bags recovered from defendant, which he characterizes as irreconcilable with Officer Lin’s testimony about the torn condition of the larger bag. Defendant ignores that the bags were admitted into evidence at trial and the factfinder was expressly encouraged to examine them to confirm Officer Lin’s testimony. If the larger bag was torn in some way, Osorio’s mere failure to notice that defect would not support an inference of tampering. Because the bag is not part of the record on appeal, it is impossible to discern the existence or extent of any discrepancy, let alone conclude that it rendered the drugs inadmissible…. . People v Baez, 2024 NY Slip Op 02225, CtApp 4-25-24

Practice Point: Here the drugs seized from the defendant were left overnight in a room at the precinct before a voucher was created, and the officer who seized the drugs noticed a rip in the larger plastic bag but the criminologist who analyzed the drugs did not notice such a rip. Despite these issues, the chain of custody was sufficiently proven to render the drugs admissible in evidence.

 

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ALLOWING EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS UNDER MOLINEUX, AND ALLOWING DEFENDANT HARVEY WEINSTEIN TO BE CROSS-EXAMINED ABOUT THOSE UNCHARGED ALLEGATIONS UNDER SANDOVAL, DEPRIVED HIM OF A FAIR TRIAL; CRIMINAL SEXUAL ACT AND RAPE CONVICTIONS REVERSED AND NEW TRIAL ORDERED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over two three-judge dissenting opinions, reversing defendant’s criminal-sexual-act and rape convictions and ordering a new trial, determined the admission of evidence of uncharged crimes and bad acts under Molineux and the Sandoval ruling allowing the defendant to be cross-examined about the uncharged allegations, deprived defendant of a fair trial:

Before trial, the court granted the prosecution’s application to admit certain testimony of uncharged crimes and miscellaneous bad acts as an exception to the Molineux rule, prohibiting such evidence, to establish defendant’s intent and his understanding of the complainants’ lack of consent. Thus, Complainant B could testify about defendant’s uncharged sexual assaults against her before and after the charged rape and her awareness of defendant’s abusive and threatening behavior, and three other women (the “Molineux Witnesses”) could testify regarding defendant’s sexual misconduct towards them years before and after the charged offenses involving Complainants A and B.

The court also granted … the prosecution’s Sandoval application to cross-examine defendant on a broad range of uncharged bad acts should he testify. … [T]he prosecution was permitted to ask about, for example, whether defendant: directed a witness to lie to defendant’s wife; filed an application for a passport using a friend’s social security number; told a woman he “could harm her professionally” but could also offer her a book publishing opportunity; used his entertainment company’s budget for personal costs; withdrew from a business deal and asked others to cease its funding; hid a woman’s clothes; insisted that members of his staff falsify a photo for a movie poster by photoshopping a female actor’s head on another woman’s nude body; told a private intelligence firm to manipulate or lie to people; scheduled a business meeting in 2012 with a woman under false pretenses; induced executives to lie on his behalf; made threats and committed acts of violence against people who worked for him; abandoned a colleague by the side of the road in a foreign country; physically attacked his brother; threatened to cut off a colleague’s genitals with gardening shears; screamed and cursed at hotel restaurant staff after they told him the kitchen was closed; and threw a table of food. The court also permitted the prosecution to cross-examine defendant about the details of the sexual assault allegations described by the Molineux Witnesses during the prosecution’s case-in-chief. People v Weinstein, 2024 NY Slip Op 02222, CtApp 4-25-24

Practice Point: Molineux and Sandoval are still alive and kicking.

 

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DEFENDANT CARPET AND FLOORING SUBCONTRACTOR’S REQUEST TO INSPECT THE AREA OF THE FLOOR WHERE PLAINTIFF ALLEGEDLY STEPPED INTO AN UNGUARDED VENT HOLE SHOULD HAVE BEEN GRANTED; ALTHOUGH THE VENT COVER HAD BEEN REPLACED, IT CAN NOT BE SAID THE INSPECTION WOULD BE FRUITLESS, OR THAT THE INSPECTION WOULD CAUSE UNREASONABLE ANNOYANCE, EXPENSE, EMBARRASSMENT OR OTHER PREJUDICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant carpet and flooring subcontractor’s (S&’s) request to inspect the area of the building where plaintiff stepped into a vent hole from which a cover had been dislodged should not have been denied. Although the vent cover had been replaced, it could not be said for certain that an inspection would be fruitless:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” The Court of Appeals has directed that the phrase “material and necessary” in this statute should be “interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” … . Under this standard, S&F is entitled to inspect the site of the incident giving rise to plaintiff’s allegedly serious injuries.

While the replacement of the … cover might reduce the likelihood that a site inspection will produce evidence useful to S&S’s defense, it does not make it certain that an inspection will be useless. … It is for S&F, not its adversary, to determine whether the inspection of the site of the accident is sufficiently likely to produce relevant information to be worth S&F’s time and effort. … . …

… [A] court’s power to limit otherwise proper use of a disclosure device should be exercised only for the purpose of avoiding “unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice.”

We fail to see how an inspection of the site of the accident giving rise to this lawsuit would impose on plaintiff, or on anyone else, any of the burdens enumerated by CPLR 3103(a) to an “unreasonable” extent. Balsamello v Structure Tone, Inc., 2024 NY Slip Op 02251, First Dept 4-25-24

Practice Point: An inspection by defendant of the area where plaintiff was injured should be allowed absent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice.

 

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PLAINTIFF WAS INJURED WHEN A PIECE OF WIRE STRUCK HIS EYE WHEN HE WAS USING A NAIL GUN; PLAINTIFF DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER THE WORK HE WAS DOING REQUIRED EYE PROTECTION WITHIN THE MEANING OF THE RELEVANT INDUSTRIAL CODE PROVISION; THEREFORE PLAINTIFF SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate defendant was required to provided eye protection for the work plaintiff was engaged in at the time his eye was injured:

The plaintiff allegedly was injured while operating a nail gun to attach wood plates to a building roof when debris from a metal wire to which nails were secured, such that they could be loaded into the nail gun, flew off and hit his right eye. * * *

Labor Law § 241(6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers without regard to direction and control … . “In order to establish liability under Labor Law § 241(6), a plaintiff must ‘establish the violation of an Industrial Code provision which sets forth specific safety standards,’ and which ‘is applicable [to the facts] of the case'” … . Industrial Code (12 NYCRR) § 23-1.8(a) requires the furnishing of eye protection equipment to employees who, inter alia, are “engaged in any . . . operation which may endanger the eyes.”

Here, the plaintiff’s submissions failed to eliminate a triable issue of fact as to whether, at the time of his accident, the plaintiff was engaged in work that “may endanger the eyes” so as to require the use of eye protection pursuant to Industrial Code (12 NYCRR) § 23-1.8(a) … . Chuqui v Cong. Ahavas Tzookah V’Chesed, Inc., 2024 NY Slip Op 02166, Second Dept 4-24-24

Practice Point: Although plaintiff was struck in the eye by a piece of wire when using a nail gun, he did not eliminate questions of fact about whether the work he was doing triggered the eye-protection requirement in the Industrial Code. Therefore plaintiff was not entitled to summary judgment on his Labor Law 241(6) cause of action.

 

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