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A PRIOR RULING IN A PRIOR ACTION FINDING THAT THE WITHHELD DOCUMENTS WERE PROTECTED FROM DISCLOSURE DID NOT INDICATE THE SPECIFIC PRIVILEGE WHICH APPLIED TO EACH DOCUMENT; THEREFORE THE PRIOR RULING DID NOT TRIGGER THE COLLATERAL ESTOPPEL DOCTRINE AND THE DISCLOSURE OF DOCUMENTS MUST BE DETERMINED ANEW IN THE INSTANT ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a prior ruling in a prior action finding that withheld documents were protected from disclosure did not trigger the collateral estoppel doctrine in the instant action because the prior ruling did not indicate the specific privilege invoked for each document:

… [T]he court abused its discretion in summarily denying the motion on the basis that it had previously ruled that the withheld documents were protected from disclosure in a prior action involving the parties. Collateral estoppel bars relitigation of an issue when “the identical issue necessarily [was] decided in the prior action and [is] decisive of the present action, and . . . the party to be precluded from relitigating the issue [had] a full and fair opportunity to contest the prior determination” … . Preclusion of an issue occurs only if that issue was ” ‘actually litigated, squarely addressed and specifically decided’ ” in the prior action … . While in the prior action the court denied a motion to compel the identical documents contained in the privilege log, the court did not specifically address whether the withheld documents were protected and which protection, such as attorney-client privilege, applied to each document. Thus, there is no evidence that the identical issue, decisive in this action, was necessarily decided in the prior action … . Wiltberger v Allen, 2024 NY Slip Op 01635, Fourth Dept 3-22-24

Practice Point: Collateral estoppel applies only when the issues are identical. Here, even though the documents at issue were found to be privileged in the prior action, the precise privilege applied to each document was not described in the prior order. Therefore it is not clear the issues are identical in the instant proceeding, so the application of collateral estoppel to preclude disclosure is not available.

 

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​THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) RELIED SOLELY ON PRIOR NEGLECT FINDINGS FROM 2007 AND 2009 TO PROVE DERIVATIVE NEGLECT; NEGLECT FINDING REVERSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Administration for Children’s Services (ACS) did not demonstrate mother had derivatively neglected the child. ACS had brought a motion for summary judgment which the court granted. The Second Department noted that motions for summary judgment pursuant to CPLR 3212 can be appropriate in a Family Court proceeding:

While proof of the abuse or neglect of one child is admissible evidence on the issue of the abuse or neglect of any other child of the parent (see Family Ct Act § 1046[b]), “there is no per se rule that a finding of neglect of one sibling requires a finding of derivative neglect with respect to the other siblings. The focus of the inquiry . . . is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood” … . In determining whether a child born after the underlying acts of abuse or neglect should be adjudicated derivatively neglected, the “determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists” … .

Here, ACS failed to establish, prima facie, that the mother derivatively neglected the children based upon her alleged failure to address certain mental health issues underlying the 2007 and 2009 findings of neglect … . In support of its motion, ACS relied solely on the prior neglect findings and failed to include an affidavit from anyone with personal knowledge of the events alleged in the neglect petitions or any other evidentiary material (see CPLR 3212[b]). The prior neglect findings were not so proximate in time to establish, as a matter of law, that the conditions that formed the basis therefor continued to exist … . Matter of Kiarah V.R. (Virginia V.), 2024 NY Slip Op 01552, Second Dept 3-20-24

Practice Point: Here reliance on 2007 and 2009 neglect findings to demonstrate derivative neglect was deemed insufficient.

Practice Point: The court noted that summary judgment motions pursuant to CPLR 3212 can be brought in Family Court.

 

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ALTHOUGH THE COURT HAD, IN 2018, GRANTED MOTHER’S APPLICATION TO RELOCATE WITH THE CHILD TO CONNECTICUT, THE COURT SHOULD NOT HAVE DECIDED IT DID NOT HAVE JURISDICTION TO DETERMINE FATHER’S PETITION TO MODIFY THE CUSTODY ORDER WITHOUT HOLDING A HEARING ABOUT THE CHILD’S CONNECTIONS TO NEW YORK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have determined New York courts no longer had jurisdiction over this modification of custody case without holding a hearing:

In November 2018, the Supreme Court granted the mother’s application to relocate with the child from New York to Connecticut. In an order dated May 31, 2022, the court awarded sole custody of the child to the mother and suspended the father’s parental access upon the father’s default in appearing at a scheduled court appearance. The father subsequently filed a petition to modify the order dated May 31, 2022, so as to award him sole physical custody of the child. At a court appearance on December 5, 2022, the court stated, inter alia, that the mother had “relocated to Connecticut years ago” and that “[t]he [c]ourt no longer has jurisdiction.” …

The Supreme Court should not have summarily determined, without a hearing, that it lacked jurisdiction on the ground that the child had been residing in Connecticut. The court made previous custody determinations in relation to the child in conformity with the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act and, therefore, would ordinarily retain exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a … . In order to determine whether it lacked exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a(1)(a), the court should have afforded the parties an opportunity to present evidence as to whether the child had maintained a significant connection with New York and whether substantial evidence was available in New York concerning the child’s “care, protection, training, and personal relationships” … . Matter of Holley v Mills, 2024 NY Slip Op 01542, Second Dept 3-20-24

Practice Point: Although the court in 2018 granted mother’s application to relocate to Connecticut with the child, it may have continuing jurisdiction. Therefore the court should not have decided it did not have jurisdiction over father’s petition to modify the custody order without holding a hearing about the child’s connections to New York.

Similar jurisdiction issue in a child support modification proceeding (governed by Family Court Act 580-205(a)) in Matter of Sherman v Killian, 2024 NY Slip Op 01550, Second Dept 3-20-24

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THE REAR-DRIVER IN A REAR-END COLLISION IS NOT ALWAYS NEGLIGENT; HERE THERE IS A QUESTION OF FACT WHETHER THE FRONT DRIVER STOPPED SUDDENLY FOR NO APPARENT REASON (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether the rear driver in this rear-end collision case was negligent. The rear-driver alleged plaintiff’s vehicle stopped for no apparent reason when no cars were in front of it:

“‘A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle'” (… see Vehicle and Traffic Law § 1129[a]). “‘There can be more than one proximate cause of an accident, and 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'” …. “‘[N]ot every rear-end collision is the exclusive fault of the rearmost driver. The frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision'” … . Laureano v EAN Holdings, LLC, 2024 NY Slip Op 01538, Second Dept 3-20-24

Practice Point: The rear driver in a rear-end collision case is not always negligent. Here there was a question of fact whether the front driver stopped suddenly for no apparent reason.

 

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A DEFECT IN THE TOP STEP OF A STAIRWAY WAS ALLEGED TO HAVE CAUSED THE TRIP AND FALL; THERE WERE QUESTIONS OF FACT WHETHER THE DEFECT WAS OPEN AND OBVIOUS AND WHETHER THE DEFECT WAS A DANGEROUS CONDITION; THE COURT NOTED THAT AN OPEN AND OBVIOUS CONDITION MAY STILL BE DANGEROUS AND THE QUESTION IS USUALLY FOR A JURY TO DECIDE (SECOND DEPT).

The Second Department,, reversing Supreme Court, determined defendant’s motion for summary judgment in this stairway trip and fall case should not have been granted. The court noted that a condition which is open and obvious may still be dangerous. Here it was alleged a defect on the edge of the top step caused the fall:

While there is “no duty to protect or warn against conditions that are open and obvious and not inherently dangerous” … , when a dangerous condition exists on the premises, proof that the dangerous condition is open and obvious “does not preclude a finding of liability against an owner for failure to maintain property in a safe condition” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . “The issue of whether a condition is open and obvious and not inherently dangerous is case-specific, and usually a question of fact for a jury” … .

Here, the defendants’ submissions, including photographs of the alleged defect, failed to eliminate all triable issues of fact as to whether the allegedly defective condition was open and obvious … . While the plaintiff testified at her deposition that she had previously used the stairway and observed the allegedly defective condition, she also testified that she did not inspect the condition each time that she had used the stairway and that she had not noticed that the condition had worsened since she last observed it. Johnson v 1451 Assoc., L.P., 2024 NY Slip Op 01537, Second Dept 3-20-24

Practice Point: An open and obvious condition can still be a dangerous condition. Whether a condition is open and obvious and whether it is inherently dangerous are usually fact-specific questions for a jury.

 

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ALTHOUGH THE REAR DRIVER IN A REAR-END COLLISION IS NOT ALWAYS NEGLIGENT, THE ALLEGATION THE FRONT DRIVER SUDDENLY STOPPED FOR A YELLOW LIGHT WAS NOT ENOUGH TO AVOID SUMMARY JUDGMENT IN FAVOR OF THE FRONT DRIVER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should have been awarded summary judgment in this rear-end collision case. The defendant rear driver alleged plaintiff stopped for a yellow light, which did not raise a question of fact about plaintiff’s negligence:

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, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . “A sudden stop of the lead vehicle may constitute a nonnegligent explanation for a rear-end collision” … . “But ‘vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows'” … .

Here, in support of his motion, the plaintiff submitted his own affidavit that established, prima facie, that the defendant driver was negligent when he struck the rear of the plaintiff’s stopped vehicle, and that the defendant driver’s negligence was the sole proximate cause of the accident … . In opposition, the defendants failed to raise a triable issue of fact. The defendant driver’s explanation for striking the plaintiff’s vehicle in the rear, set forth in his affidavit in opposition to the plaintiff’s motion, that the plaintiff’s vehicle stopped abruptly at a yellow light in front of the intersection’s thick white stop line, was insufficient to raise a triable issue of fact as to the defendant driver’s negligence or whether the plaintiff’s actions contributed to the happening of the accident … . Yawagyentsang v Safeway Constr. Enters., LLC, 2024 NY Slip Op 01580, Second Dept 3-20-24

Practice Point: There are more appellate decisions of late finding questions of fact about whether the rear-driver is negligent in a rear-end collision based upon the allegation the front-driver stopped suddenly for no apparent reason. Here the rear driver alleged the front driver stopped suddenly for a yellow light. That was not enough to raise a question of fact.

 

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EVIDENCE THE DEFENDANT ACTED OUT OF ANGER WAS NOT INCOMPATIBLE WITH THE FINDNG THAT DEFENDANT “RELISHED” THE INFLICTION OF EXTREME PAIN WITHIN THE MEANING OF THE FIRST DEGREE MURDER STATUTE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirming defendant’s first degree murder conviction, determined the evidence demonstrated defendant “relished” the infliction of extreme pain within the meaning of the first degree murder statute. The defendant argued the evidence demonstrated he acted out of anger, and did not demonstrate he relished or enjoyed inflicting pain. But the Court of Appeals found proof of both anger and enjoyment, noting that the two emotions are not mutually exclusive:

We reject defendant’s argument that he acted only out of anger or a desire to get information from the victim. … [W]here the requisite motivation is at least a “substantial factor” in the murder, the statute is satisfied, even if the defendant “may have had mixed motives” … . Certainly, the goal of extracting information is not incompatible with relishing the infliction of extreme pain, and proof that a defendant acted out of anger in harming the victim does not preclude the jury from finding that defendant took pleasure in doing so. Here, defendant is heard on the recording continuing to attack the victim even after stating that her response was “good enough.” On this record, there was sufficient evidence for the jury to find that while defendant may have also acted in anger or sought information from the victim, taking pleasure in inflicting extreme pain upon her was a substantial motivation. People v Bohn, 2024 NY Slip Op 01500, Ct App 3-19-24

Practice Point: Here the defendant argued his actions which resulted in the death of the victim were motivated solely by anger, and that there was no proof he “relished” the infliction of extreme pain as required by the first degree murder statute. The Court of Appeals held that the two emotional states, anger and relishing or enjoying the infliction of pain, are not mutually exclusive.

 

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THE APPELLATE DIVISION’S VACATION OF DEFENDANT’S FIRST DEGREE MURDER CONVICTION WAS AFFIRMED; THE PEOPLE DID NOT PROVE THE “RELISHING THE INFLICTION OF EXTREME PAIN” ELEMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two concurring opinions, affirmed the appellate division’s vacation of the defendant’s first degree murder conviction. The appellate division concluded two elements of first degree murder had not been proven: (1) a “course of conduct” which inflicted extreme physical pain; and (2) defendant’s “relishing” the infliction of extreme physical pain upon the victim. The majority agreed with the People that the “course of conduct” element had been proven. But the majority agreed with the appellate division that the “relishing the infliction of extreme pain” element was not proven. The victim was attacked and stabbed multiple times by a group of gang members, including defendant. Defendant inflicted the fatal stab wound to the victim’s neck which caused him to bleed to death. The stab wounds inflicted by others in the gang were deemed “superficial:”

A rational jury could have concluded that [the victim’s] other wounds, inflicted pursuant to a course of conduct during which [the victim] was dragged from the store to the street, and then while on the ground subjected to several stab wounds of varying degrees from multiple assailants, caused him extreme physical pain before his death. * * *

The People’s evidence with respect to this mens rea element consisted of testimony that, shortly after attacking [the victim], defendant stated in a boastful tone that [the victim] was “not gonna eat for a good long time because [defendant] hit him in the neck.” The People also presented evidence that defendant sought out [gang]  leadership after the attack to claim responsibility for stabbing [the victim] in the neck.

This evidence demonstrates, at most, that defendant took pride in having killed [the victim], not that he took pleasure in causing [the victim] extreme physical pain before his death. The statute is clear that the defendant must relish or take pleasure in inflicting extreme physical pain, not simply in killing the victim … . People v Estrella, 2024 NY Slip Op 01499, CtApp 3-19-24

Practice Point: The “course of conduct” to inflict extreme pain and the “relishing” the infliction of extreme pain elements of first degree murder explained and debated. Here the “relishing” element was not proven.

 

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THE SUPPRESSION COURT APPLIED THE WRONG “DEBOUR” LEVEL TO THE INITIAL INQUIRY BY THE OFFICER WHO APPROACHED DEFENDANT AND REQUESTED THAT HE STEP OUT OF THE CAR; BECAUSE THE SUPPRESSION ISSUE HAD NOT BEEN RULED UPON UNDER THE CORRECT “DEBOUR” STANDARD, THE APPELLATE COURT COULD NOT CONSIDER THE ISSUE AND THE MATTER WAS REMITTED FOR A RULING UNDER THE CORRECT “DEBOUR” STANDARD (FOURTH DEPT).

The Fourth Department, reserving decision, remitted the matter for another ruling on defendant’s suppression motion. The trial judge determined that the police officer conducted a level one (DeBour) inquiry when he ordered the defendant out of the car. In fact, the officer conducted a level three inquiry which required reasonable suspicion of criminal activity. Because the ruling on defendant’s suppression motion was based upon the wrong standard, the matter was remitted for a ruling under the correct standard:

… [T]he patrol lieutenant engaged in a level three intrusion under De Bour when he ordered the occupants out of the vehicle … . Although an “officer’s initial approach of [a person] and request for identification [may constitute] a permissible level one encounter” under De Bour, it is well established that an “officer’s request that [a person] exit [a] parked vehicle elevate[s] the situation to a level three encounter under De Bour” and requires reasonable suspicion that criminal activity is afoot … .

Because the court erroneously concluded that the patrol lieutenant engaged in only a level one intrusion when he directed defendant to step out of the vehicle, the court had no occasion to consider whether the patrol lieutenant had reasonable suspicion justifying that directive … . Although the People concede that the patrol lieutenant lacked reasonable suspicion, we are precluded “from reviewing an issue that . . . was not decided by the trial court” … . People v Taylor, 2024 NY Slip Op 01449, Fourth Dept 3-15-24

Practice Point: When the police officer approached defendant and asked defendant to get out of the car, the officer was conducting a level three DeBour inquiry which required reasonable suspicion of criminal activity. The suppression judge erroneously applied the criteria for a level one inquiry and denied suppression. Because the correct suppression issue was never ruled upon, the appellate court was forced to remit the matter for a ruling under the correct DeBour standard.

 

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PLAINTIFF, AN EXPERIENCED GOLFER WHO WAS PARTICIPATING IN A TOURNAMENT, ASSUMED THE RISK OF BEING STRUCK IN THE EYE BY A GOLF BALL WHILE RIDING IN A GOLF CART (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff golfer assumed the risk of being struck by a golf ball during a golf tournament. Supreme Court and the dissenters concluded there was a question of fact whether the design of the defendant golf course unreasonably increased the risk:

Plaintiff was riding in a golf cart on the seventh hole fairway when he was hit by a ball struck by defendant Justin Hubbard, who had just teed off from the third hole. Both the third and seventh holes are over 400 yards in length. The fairways on each hole run parallel, in part, in the area in front of the third tee, and that part of the seventh fairway approaching the green, which from a vantage point on the fairway, is adjacent to and to the right of the third tee.  * * *

… [I]t is well established that “being hit without warning by a shanked shot” is “a commonly appreciated risk” of participating in the sport … . ” ‘[G]olfers are deemed to assume the risks of open topographical features of a golf course’ “… , and “evidence establishing that the proximity of [a tee] to [a different] green and hole was open and obvious” will preclude liability against a golf course for injuries sustained as a result of such proximity … . Katleski v Cazenovia Golf Club, Inc., 2024 NY Slip Op 01366, Third Dept 3-14-24

Practice Point: The majority concluded plaintiff golfer assumed the risk of being struck by a golf ball. Supreme Court and the two dissenters argued the design of defendant golf course unreasonably increased the risk.

 

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