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DEFENDANT-DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER HE WAS NEGLIGENT IN THIS VEHICLE-BICYCLE ACCIDENT CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant driver (Medina) raised a question of fact about whether he was negligent in this vehicle-bicycle collision case. Although plaintiff bicyclist made out a prima facie case, defendant’s affidavit was sufficient to defeat plaintiff’s summary judgment motion:

… [P]laintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability. In support of his motion, the plaintiff submitted, inter alia, his affidavit, which demonstrated that Medina was negligent in attempting to make a left turn at the intersection when the turn could not be made with reasonable safety (see Vehicle and Traffic Law § 1141 …). In opposition, however, the defendants raised triable issues of fact through the submission of Medina’s affidavit. Medina averred that he waited until traffic was clear before turning left with his left-turn indicator activated and a green traffic light in his favor. According to Medina, as he was making the turn, he observed a cyclist traveling west on Myrtle Avenue at a high rate of speed. Medina averred that he immediately brought his vehicle to a stop, but the cyclist was unable to stop due to his speed and collided with Medina’s vehicle. Medina’s affidavit was sufficient to raise triable issues of fact as to how the accident occurred and whether Medina was negligent in the happening of the accident  … . Amancio-Gonzalez v Medina, 2024 NY Slip Op 00400, Second Dept 1-31-24

Practice Point; It is possible that a driver can collide with a bicyclist and not be negligent.

 

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SUCCESSIVE SUMMARY JUDGMENT MOTIONS WHICH ARE NOT BASED ON INFORMATION WHICH WAS NOT AVAILABLE AT THE TIME OF THE PRIOR MOTIONS SHOULD NOT BE ENTERTAINED BY THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, held that the bank violated the prohibition of successive summary judgment motions:

“Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause” … . “Evidence is not newly discovered simply because it was not submitted on the previous motion” … . “Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means” … . “Successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment” … .

Here, the plaintiff failed to submit any newly discovered evidence on the subject motion that could not have been submitted on either of its prior two motions, and did not demonstrate sufficient cause why the third motion should have been entertained … . Thus, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint … . U.S. Bank N.A. v Kelly, 2024 NY Slip Op 00448, First Dept 1-31-24

Practice Point: Unless based on new evidence not available for a prior motion, successive summary judgment motions should not be entertained by the court.

 

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DENYING THE APPLICATION FOR A PISTOL PERMIT WITHOUT A HEARING BASED UPON PRIOR ARRESTS WHICH DID NOT INVOLVE VIOLENCE OR A WEAPON WAS ARBITRARY AND CAPRICIOUS; MATTER REMITTED FOR A HEARING (SECOND DEPT).

The Second Department, reversing County Court in this Article 78 proceeding, determined that the respondent-judge’s denial of petitioner’s application for a pistol permit without a hearing was arbitrary and capricious. Although petitioner had prior arrests, none involved violence or a weapon:

Although the respondent was entitled to consider the petitioner’s prior arrests, the record reflects, among other things, that none of the petitioner’s arrests involved violent crimes or a weapon. The record also contains the petitioner’s explanation of the circumstances surrounding his prior arrests; his activities since, which include employment, home ownership, charitable work, and abstinence from alcohol; evidence of the petitioner’s having successfully completed a firearms course; and the opinion of a psychologist that the petitioner has no current risk factors that renders him unsuitable to own and carry a firearm. Further, based upon the record before us, it is apparent that the respondent did not give the petitioner an opportunity to respond to the stated objections to his pistol permit application … .

Accordingly, we annul the determination denying the petitioner’s application for a pistol permit and remit the matter to the respondent to afford the petitioner the opportunity to respond to the stated objections to his pistol permit application at a hearing, after which the respondent shall make a new determination of the petitioner’s application. In remitting this matter to the respondent for a new determination, we express no opinion as to the merits of the new determination. Matter of Maher v Hyun Chin Kim, 2024 NY Slip Op 00425, Second Dept 1-31-24

Practice Point: Although prior arrests which were not violence- or weapon-related can be considered by the judge re: an application for a pistol permit, the application should not be denied without a hearing allowing the applicant to address the objections to the application.

 

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PLAINTIFF’S MOTION FOR A UNIFIED TRIAL (LIABILITY AND DAMAGES) IN THIS PEDESTRIAN-VEHICLE TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE NATURE OF THE INJURIES WAS RELEVANT TO HOW THE ACCIDENT OCCURRED (SECOND DEPT).

The Second Department, reversing the defense verdict and ordering a new trial, determined plaintiff’s motion for a unified trial on liability and damages should have been granted. Plaintiff was crossing a street when she was struck by defendant’s vehicle which was making a left turn across the crosswalk. Defendant alleged plaintiff walked into the side of defendant’s van. Plaintiff’s treating physician opined that the injury was consistent with plaintiff being in front of the van when she was struck. Because the injuries were relevant to the liability aspect of the trial, a unified trial was necessary:

Judges are encouraged to direct a bifurcated trial of the issues of liability and damages in any action to recover damages for personal injuries “where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action” … . “Although bifurcation is encouraged in appropriate settings, bifurcation is not an absolute given and it is the responsibility of the trial judge to exercise discretion in determining whether bifurcation is appropriate in light of all relevant facts and circumstances presented by the individual cases” … . A unified trial is appropriate where the nature of the plaintiff’s injuries has “an important bearing on the issue of liability” … .

Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion for a unified trial on the issues of liability and damages. The plaintiff and the defendant driver, the only witnesses to the accident, offered conflicting accounts of how the accident occurred, and the plaintiff demonstrated that evidence regarding the nature of her injuries was probative in determining how the accident occurred … . Marisova v Collins-Brewster, 2024 NY Slip Op 00414, Second Dept 1-31-24

Practice Point: Plaintiff, a pedestrian, was struck by defendant’s van in a crosswalk. Defendant alleged plaintiff walked into the side of the van and obtained a defense verdict. Plaintiff’s injuries indicated she was struck by the front of the van. Plaintiff’s motion for a unified trial should have been granted.

 

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DEFENDANT OPENED THE DRIVER’S-SIDE DOOR OF HIS PARKED CAR WITHOUT MAKING SURE IT WAS SAFE TO DO SO, A VIOLATION OF THE VEHICLE AND TRAFFIC LAW, AND PLAINTIFF WAS UNABLE TO AVOID STRIKING DEFENDANT’S CAR; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY AND THE DISMISSAL OF THE COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. Defendant suddenly opened the driver’s side door of his parked car and plaintiff struck defendant’s car. Opening the door without  making sure it is safe to do so is a violation of the Vehicle and Traffic Law. Plaintiff was entitled to summary judgment on liability and dismissing defendant’s comparative-negligence affirmative defense:

Pursuant to Vehicle and Traffic Law § 1214, “[n]o person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers.” Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting her affidavit, which demonstrated that [defendant] violated Vehicle and Traffic Law § 1214 by opening the door on the side of his vehicle adjacent to moving traffic when it was not reasonably safe to do so, and was negligent in failing to see what, by the reasonable use of his senses, he should have seen, and that his negligence proximately caused the accident … . Gil v Frisina, 2024 NY Slip Op 00407, Second Dept 1-31-24

Practice Point: Opening the drive’s side door of a parked car without checking to see it is safe to do so is a violation of the Vehicle and Traffic Law.

 

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DEFENDANT’S INNOCENT TEMPORARY POSSESSION OF A WEAPON WAS THE RESULT OF HIS DISARMING A MAN WHO WAS ASSAULTING THE MAN’S WIFE; THE POSSESSION-OF-A-WEAPON CONVICTION REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, over a two-justice dissenting opinion, determined defendant’s temporary possession of a weapon was not “criminal.” Defendant took the weapon from his friend, Moscoso, who was assaulting his (Moscoso’s) wife in an effort to protect her:

… [T]he evidence established that defendant’s possession of the weapon after disarming Moscoso was incidental, temporary, and lawful, and that he did not use the weapon in a dangerous manner. The trial court instructed the jury on “temporary and lawful possession of a weapon” by giving the charge as it appears in the Criminal Jury Instructions … which states in relevant part:

“A person has innocent possession of a weapon when that person comes into possession of the weapon in an excusable manner, and maintains possession, or intends to maintain possession, of the weapon only long enough to dispose of it safely.”

The charge does not define “safely.” Instead, it provides a list of non-dispositive factors for the jury to consider — essentially an “amalgam of elements” — with only some relating to how the defendant disposed of the weapon, suggesting that trial courts should expand on or alter the charge where necessary to fit the facts of the case … . People v Ramirez, 2024 NY Slip Op 00390, First Dept 1-30-24

Practice Point: This case has everything you could ever need to know about innocent temporary possession of a weapon.

 

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THE PROSECUTOR AND THE JUDGE AGREED DEFENDANT’S ALFORD PLEA WOULD BE PREMISED ON HIS ABILITY TO APPEAL A GRAND-JURY EVIDENCE ISSUE; THE THIRD DEPARTMENT HELD SUCH CONDITIONAL PLEAS ARE GENERALLY NOT ACCEPTED IN NEW YORK; MATTER SENT BACK TO ALLOW DEFENDANT TO MOVE TO WITHDRAW HIS PLEA (THIRD DEPT). ​

The Third Department, sending the matter back for a motion to withdraw the plea (if defendant so chooses), determined County Court’s telling the defendant he could appeal his claim that the grand jury was tainted by inadmissible hearsay was erroneous. Defendant, with the judge’s and prosecutor’s permission, decided to enter an Alford plea based on the understanding he could appeal the grand-jury-evidence issue. But the Third Department held that such conditional pleas are generally not accepted in New York and sent the matter back to allow defendant to withdraw the plea:

“As a rule, a defendant who in open court admits guilt of an offense charged may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered,” such as evidentiary or technical defects. Although defendant, the People and the court all agreed that defendant’s Alford plea would be premised on the preservation of his right to raise these issues on appeal, conditional pleas such as this are generally not accepted in this state … , and the contentions he sought to preserve do not fall within the “extremely limited group of issues [that] survive[ ] the entry of a guilty plea” … . In this respect, we cannot overlook defendant’s assertion that his decision to enter an Alford plea was predicated on County Court granting the People’s motion to preclude his defenses and the corresponding promise that he could challenge that determination on appeal. Accordingly, as defendant is no longer receiving the full extent of his bargain, we remit the matter for County Court to allow defendant to withdraw his plea, should he elect to pursue that course … . People v Hafer, 2024 NY Slip Op 00341, Third Dept 1-25-23

Practice Point: Here defendant’s Alford plea, with the permission of the judge and prosecutor, was conditioned on his being able to appeal a Grand Jury evidence issue. The Third Department held that such conditional pleas are generally not accepted in New York. Defendant was allowed to move to withdraw his plea if he so chooses.

 

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DEFENDANT SHOULD NOT HAVE BEEN DENIED ACCESS TO COMPLAINANT’S MENTAL HEALTH RECORDS AND SHOULD NOT HAVE BEEN PREVENTED FROM CROSS-EXAMINING COMPLAINANT ABOUT HER MENTAL HEALTH; CONVICTION REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction in this sex offense trial, determined defendant should not have been denied access to the complainant’s mental  health records and should not been prevented from cross-examining the complainant about her mental health:

… County Court erred in denying the defendant any access to the complainant’s mental health records … . Further, while the scope of cross-examination generally rests within the trial court’s discretion … , here, the court improvidently exercised its discretion in sustaining the People’s objections to the cross-examination of the complainant with respect to her mental health, particularly since the People’s case primarily rested upon the complainant’s eyewitness testimony … . Moreover, these errors cannot be deemed harmless since the evidence of the defendant’s guilt, without reference to the errors, was not overwhelming, and it cannot be said that there is no reasonable possibility that the jury would have acquitted the defendant had it not been for the errors … . People v Nagle, 2024 NY Slip Op 00329, Second Dept 1-24-24

Practice Point: Defendant’s conviction rested on the testimony of the complainant in this sex offense trial. Defendant should not have been denied access to complainant’s mental health records and should not have been prevented from cross-examining complainant about her mental health. New trial ordered.

 

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DEFENDANT DID NOT SUBMIT PROOF DEMONSTRATING WHEN THE AREA OF THE SLIP AND FALL WAS LAST INSPECTED BEFORE THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; THE VIDEO SUBMITTED BY THE DEFENDANT WAS NOT AUTHENTICATED SO IT SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT (SECOND DEPT). ​

he Second Department, reversing Supreme Court, determined defendant NYC Transit Authority was not entitled to summary judgment dismissing plaintiff’s slip and fall action. Plaintiff alleged she slipped and fell on a wet substance on the floor of defendant’s bus. The evidence of when the floor was last inspected was insufficient to show a lack of constructive notice. And the video submitted by the defendant was inadmissible because it was not authenticated:

The deposition testimony of a dispatcher employed by the defendant merely referred to general pre-trip inspection procedures performed by drivers. The defendant failed to present any evidence regarding “specific cleaning or inspection of the area in question relative to the time when the subject accident occurred” … .

Further, the defendant could not rely upon the video of the bus that it submitted on its motion so as to meet its prima facie burden, as the video was not authenticated, and thus, was not in admissible form … . Harrington v New York City Tr. Auth., 2024 NY Slip Op 00297, Second Dept 1-24-24

Practice Point: To demonstrate a lack of construction notice of the condition in a slip and fall case, the defendant must submit evidence of a specific inspection of the area close in time to the fall. Evidence of general inspection practices is never enough.

Practice Point: In order to submit a video in evidence, it must be authenticated.

 

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THE POLICE HAD ENOUGH CAUSE FOR A LEVEL TWO INQUIRY BUT DID NOT HAVE REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED, FRISKED AND BROUGHT TO THE GROUND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the police did not have reasonable suspicion defendant was involved in a crime at the time defendant was stopped, grabbed and brought to the ground. The police were aware there had been 10 robberies in the area where the victims were punched or struck with objects. The arresting officer saw two men, including the defendant, holding onto a third man on a bicycle. When the men saw the police, one man ran and the man on the bicycle left the scene. Defendant began walking. The police stopped defendant with the police car. The officer touched what he thought was a gun in defendant’s pocket and then brought defendant to the ground. At the station the defendant stated the gun belonged to one of the other men and he had prevented a shooting: The gun and the statement should have been suppressed:

Officer Garcia did not have the requisite reasonable suspicion to detain and frisk the defendant. The unusual interaction that Officer Garcia described regarding the man on the bicycle, coupled with reports and “intel” as to robberies in the area, may have provided circumstances giving rise to a founded suspicion that criminal activity was afoot—i.e., level two under De Bour. Thus, Officer Garcia would have had a right of inquiry that permitted him to approach the defendant. However, rather than conducting meaningful inquiry to further his investigation, after the police vehicle stopped in front of the defendant, Officer Garcia exited the vehicle and immediately grabbed the defendant and touched his right rear pants pocket. People v Hernandez, 2024 NY Slip Op 00196, Second Dept 1-17-24

Practice Point: The case illustrates the difference between the police having enough information to approach a defendant on the street to make an inquiry, and having reasonable suspicion of criminal activity. Here the police had sufficient cause to inquire further, but not to stop and frisk.

 

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