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THE PROCESS SERVER DID NOT EXERCISE DUE DILIGENCE IN LOCATING THE DEFENDANT BEFORE RESORTING TO “NAIL AND MAIL” SERVICE OF PROCESS; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint should have been dismissed because plaintiff did not demonstrate the process server exercised diligence because resorting to “nail and mail” service:

The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received” … . “For the purpose of satisfying the ‘due diligence’ requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant’s whereabouts and place of employment” … .

Here, the plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix and mail service pursuant to CPLR 308(4) … . The process server averred that he made two attempts to personally serve the defendant at his home before affixing the summons and complaint to the door of the defendant’s home. There was no evidence that the process server made any genuine inquiries about the defendant’s whereabouts and place of employment, which was known to the plaintiff. Niebling v Pioreck, 2023 NY Slip Op 06526, Second Dept 12-20-23

Practice Point: A process server’s failure to exercise due diligence  in trying to locate a defendant before resorting to “nail and mail” service, including making inquiries about defendant’s whereabouts and place of employment, will result in dismissal of the complaint.

 

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QUESTION OF FACT WHETHER DEFENDANT DRIVER, WHO ALLEGEDLY MADE A TURN IN FRONT OF PLAINTIFF BICYCLIST, SAW WHAT WAS THERE TO BE SEEN (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant driver saw what was there to be seen in this bicycle-vehicle accident. Plaintiff bicyclist alleged he was halfway across the road in a crosswalk when defendant made a sudden turn into his path:

“Pursuant to Vehicle and Traffic Law § 1231, a person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle. A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself into a dangerous position” … . Pursuant to Vehicle and Traffic Law § 1146(a), motorists must “exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal” on the roadway and to “give warning by sounding the horn when necessary” … . A motorist also has a “common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses” … .

… T]he defendant … failed to establish … that his conduct was not a proximate cause of the accident. The defendant testified at his deposition that he slowly made his turn, and that he did not see the plaintiff prior to the impact. The plaintiff testified at his deposition that he saw the defendant’s vehicle make a sudden right turn in front of him one second prior to the impact. Thus, the defendant’s own submissions raised triable issues of fact as to whether the defendant failed to see what was there to be seen through the proper use of his senses … . Khalil v Garcia-Olea, 2023 NY Slip Op 06517, Second Dept 12-20-23

Practice Point: A driver is expected to see what is there to be seen. Here it was alleged defendant driver made a turn into the path of plaintiff bicyclist. Defendant driver’s motion for summary judgment should not have been granted.

 

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PLAINTIFF SUED AN ILLINOIS SCHOOL ALLEGING THAT THE ONLINE COURSES OFFERED BY DEFENDANT SCHOOL DURING THE PANDEMIC CONSTITUTED A TRANSACTION IN NEW YORK WITHIN THE MEANING OF THE LONG-ARM STATUTE; BUT PLAINTIFF DID NOT ALLEGE SHE WAS IN NEW YORK WHEN SHE TOOK THE ONLINE COURSES; DEFENDANT’S MOTION TO DISMISS FOR LACK OF JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not raise a question of fact about whether defendant, an Illinois school, conducted a transaction in New York sufficient to confer long-arm jurisdiction. Because of the pandemic, the courses offered by the school were online. Plaintiff alleged a breach of contract by the school involving a grading issue. A major flaw in plaintiff’s case was that she did not allege she was in New York when she took the online courses:

… [T]he plaintiff failed to show that the defendants purposefully availed themselves of the privilege of conducting activities in New York so as to subject them to long-arm jurisdiction pursuant to CPLR 302(a)(1) … . While the plaintiff attests in her affidavit that since March 2020, she has not taken a class at the defendants’ Illinois location, that the only contact she had with the defendants since that date was either virtually or by telephone, and that none of the facts alleged in her complaint took place in person in Illinois, none of this demonstrates that the defendants were engaged in any activity in New York, let alone purposeful activity. Other than the plaintiff’s allegation that she is a New York resident, there is no other reference to New York in the complaint or in the plaintiff’s affidavit. Significantly, the plaintiff’s allegations are devoid of any indication that she was in New York during the time of the alleged communications with the defendants. Greenfader v Chicago Sch. of Professional Psychology, 2023 NY Slip Op 06513, Second Dept 12-20-23

Practice Point: It is not clear from the decision whether taking an online course in New York offered by a school in Illinois confers long-arm jurisdiction over the school. Granting the school’s motion to dismiss appears to be based upon the plaintiff’s failure to allege she was in New York when she took the online course.

 

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A CANINE SNIFF FOR DRUGS IS A SEARCH; ALTHOUGH THE APPELLATE DIVISION HAD ALSO RULED THE CANINE SNIFF WAS A SEARCH, THE APPELLATE DIVISION WENT ON TO APPLY THE “REASONABLE SUSPICION” STANDARD AND FOUND THAT STANDARD HAD BEEN MET BY THE FACTS; THE COURT OF APPEALS DETERMINED THE APPELLATE DIVISION DID NOT HAVE THE AUTHORITY TO RULE ADVERSELY TO THE DEFENDANT ON THE STANDARD BECAUSE COUNTY COURT HAD NOT RULED ON THAT ISSUE (COUNTY COURT HELD THE SNIFF WAS NOT A SEARCH); THE MATTER WAS SENT BACK TO COUNTY COURT FOR RULINGS ON THE STANDARD FOR A SNIFF SEARCH (CT APP). ​

The Court of Appeals, in a comprehensive opinion by Judge Cannataro, determined that a canine sniff of a person to detect drugs is a search. The Fourth Department had reversed County Court and held that the canine sniff constituted a search. But the Fourth Department went on to apply the “reasonable suspicion” standard to whether the search was justified and found that standard had been met by the facts. Because County Count had not ruled on the correct standard for a sniff-search (County Court held the sniff was not a search), the Fourth Department did not have the authority rule against the defendant on that issue. The matter was sent back to County Court for rulings on what the correct standard is and whether that standard was met by the events preceding the sniff-search in this case:

… [W]e conclude that the canine sniff of defendant’s person qualified as a search under the Fourth Amendment. * * *

The second question presented by this appeal is whether the Appellate Division could decide that a canine sniff search of a person requires reasonable suspicion and was justified in this case. We conclude that the Appellate Division lacked jurisdiction to resolve those issues because County Court did not decide them adversely to defendant (see LaFontaine, 92 NY2d at 473-474). * * *

County Court held that the canine sniff of defendant’s person did not qualify as a search. The court did not decide the standard that would govern if the canine sniff did so qualify, much less whether that standard was met. Those questions present “separate” and “analytically distinct” issues from the threshold question of whether the sniff implicated constitutional protections or prohibitions … . The Appellate Division therefore erred in deciding those questions adversely to defendant…. . People v Butler, 2023 NY Slip Op 06468, CtApp 12-19-23

Practice Point: A canine sniff for drugs on a person is a search. The correct standard justifying such a search has not been determined.

Practice Point: If an issue has not been addressed by the lower court, the appellate court is powerless to rule adversely to the defendant on that issue. Here County Court had held that a canine sniff is not a search and therefore never ruled on the correct standard for such a search. The Appellate Division (which reversed County Court on whether the sniff is a search) could not decide what the correct standard for the search was and then rule that the standard had been met, because that ruling was adverse to the defendant. The matter was sent back to the County Court for a ruling.

 

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THE SCAFFOLD ON WHICH PLAINTIFF WAS WORKING COLLAPSED FOR NO APPARENT REASON; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE DEFENDANTS’ EXPERT’S AFFIDAVIT WAS CONCLUSORY AND DID NOT RAISE A QUESTION OF FACT; IN ANY EVENT THE EXPERT’S OPINION THAT PLAINTIFF FAILED TO LOCK THE SCAFFOLD SPOKE TO CONTRIBUTORY NEGLIGENCE WHICH IS NOT A DEFENSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, who was on a scaffold when it collapsed, was entitled to summary judgment on the Labor Law 240(1) cause of action. Defendants’ expert’s affidavit was conclusory and did not raise a question of fact. The noted that plaintiff’s comparative negligence (the alleged failure to lock all the pins in place) was not a defense to a Labor Law 240(1) cause of action:

The evidence that the scaffold on which plaintiff was working at the time of his accident collapsed under him for no apparent reason established his prima facie entitlement to partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim … . Defendants failed to raise an issue of fact in opposition. Their expert’s opinion that the cause of plaintiff’s accident was his alleged failure to properly lock all of the scaffold’s pins in place was conclusory, and unsupported by anyone “with personal knowledge of the circumstances surrounding plaintiff’s work at the time of the accident” … . “Furthermore, even if it could be established that plaintiff did not lock all the pins in place before ascending the scaffold, this would have amounted to only comparative negligence, which is not a defense to a Labor Law § 240 (1) claim” … . Bialucha v City of New York, 2023 NY Slip Op 06470, First Dept 12-19-23

Practice Point: A scaffold which collapses for no apparent reason supports summary judgment on a Labor Law 240(1) cause of action.

Practice Point: The conclusory affidavit by defendants’ expert did not raise a question of fact.

Practice Point: Contributory negligence is not a defense to a Labor Law 240(1) cause of action.

 

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BECAUSE THE NONPARTY WITNESS, WHO WAS PLAINTIFF’S ASSAILANT, HAD A COMMON NAME AND WAS HOMELESS, PLAINTIFF WAS ENTITLED TO DISCOVERY OF THE WITNESS’S DATE OF BIRTH AS AN AID IN LOCATING HIM; PLAINTIFF WAS NOT ENTITLED TO THE WITNESS’S SOCIAL SECURITY NUMBER HOWEVER (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to the birth date of a nonparty witness who was plaintiff’s assailant’s in the underlying event. Because the witness was homeless and had a common name, the witness’s date of birth would help in locating him. Plaintiff was not entitled to the witness’s social security number, however:

Supreme Court should have granted plaintiff’s request that defendants provide the date of birth of the nonparty witness. “[O]rdinarily the names and addresses of witnesses are a proper subject of disclosure” … . The identity of an active participant in an incident is discoverable because “‘the witness was so closely related to the [incident] that his testimony [became] essential in establishing [its] happening'” … .

Plaintiff seeks disclosure of the date of birth and social security number of the nonparty witness, who was also plaintiff’s assailant in the incident underlying the litigation. Defendants have already disclosed that plaintiff’s assailant, who has a remarkably common name, was homeless. Accordingly, the ordinary disclosure of “names and addresses” is unlikely to assist plaintiff in locating the witness. Disclosure of his date of birth may assist plaintiff in identifying and locating the witness. Defendants are not required to provide the witness’s social security number, however, as courts have recognized a heightened level of confidentiality with respect to an individual’s social security number. Lane v City of New York. 2023 NY Slip Op 06480, First Dept 12-19-23

Practice Point: Here plaintiff was entitled to discovery of a witness’s date of birth as an aid to locating him because the witness was homeless and had a very common name. However plaintiff was not entitled to the witness’s social security number which is protected by a higher level of confidentiality.

 

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HERE THE LEVEL-THREE STOP AND FRISK FOR A SUSPECTED FIREARM WAS VALID; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, affirming the denial of defendant’s suppression motion, explained the criteria for a level-three stop and frisk for a suspected firearm:

In assessing the propriety of a level-three stop and frisk of a defendant for a suspected firearm the court must consider three factors: First, whether there was proof of a describable object or of describable conduct that provides a reasonable basis for the police offer’s belief that the defendant had a gun in his possession … .

A stop and frisk for a firearm is justifiable in cases where the officer identifies the outline of a pistol in the defendant’s pocket … . Here, the officer described in detail the distinct pistol shape of the bulge in defendant’s jeans pocket, including the orientation of the barrel and pistol grip, that he observed over the course of approximately a minute. Pursuant to the first Prochilo factor, these observations constituted proof of a “describable object” that “provide[d] a reasonable basis for the police officer’s belief that the defendant had a gun in his possession,” justifying the officer’s immediate frisk of defendant’s pocket (Prochilo, 41 NY2d at 761).

The second Prochilo factor is whether the manner of the officer’s approach to the defendant and the seizure of the gun was reasonable under the circumstances (41 NY2d at 761). Following the observation of a gun-shaped bulge in a defendant’s pocket, an officer is generally justified in conducting a minimally invasive pat-down of the bulge to confirm that it is indeed a firearm … . Here, after observing the pistol-shaped bulge in defendant’s right rear jeans pocket, the officer conducted a pat-down of the bulge and confirmed that it was a gun. … Upon confirming that the object was a firearm, the officer had probable cause to effectuate an arrest and reasonably tackled defendant to the ground. People v Bowman, 2023 NY Slip Op 06494, First Dept 12-19-23

Practice Point: This decision explains the criteria for a valid level-three stop and frisk for a suspected firearm.

 

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HERE A WITNESS TO THE SHOOTING IDENTIFIED THE DEFENDANT AS THE SHOOTER FOR THE FIRST TIME AT TRIAL; UNDER THE FACTS, THE DEFENDANT WAS NOT PREJUDICED; THE COURT OFFERED GUIDANCE ON HOW TO HANDLE OR AVOID THE SITUATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a comprehensive dissenting opinion, affirming the Appellate Division, determined defendant was not prejudiced by a witness to the shooting who identified him as the shooter for the first-time at trial. The opinion takes note of the suggestiveness of a first-time identification at trial and offers instructions on how the situation should be handled and/or avoided. Here, however, the the defendant was aware of the witness and did not request any identification procedures, surveillance video captured both the shooter and the victim, the victim knew the shooter, and the victim identified the shooter. The court noted that any error was clearly harmless:

Concerning identifications made at trial, this Court and many others have recognized the inherent suggestiveness of the traditional in-court identification procedure, with a single defendant sitting at a table with defense counsel … . As with an unduly suggestive pretrial identification, it will often be immediately clear to the witness who the accused defendant is, especially if the witness has a rudimentary knowledge of courtroom seating arrangements. The principal danger is that, faced with the pressures of testifying at trial, the witness will identify the defendant as the perpetrator simply because the defendant is sitting in the appropriate spot, and not because the witness recognizes the defendant as the same person that they observed during the crime. Inasmuch as the traditional courtroom seating arrangement may itself suggest to the witness who should be identified, trial courts must be vigilant to ensure that where a witness has not previously identified the defendant in a properly conducted pretrial identification procedure such as a photo array or lineup, the suggestiveness of a first-time, in-court identification procedure does not create an unreasonable danger of a mistaken identification. People v Perdue, 2023 NY Slip Op 06404, CtApp 12-14-23

Practice Point: Here, under the unique facts of the case, defendant was not prejudiced by allowing a witness to identify him as the shooter for the first time at trial. The court offered guidance on how the situation should be handled and/or avoided.

 

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THE EVIDENCE OF “SERIOUS DISFIGUREMENT” WAS LEGALLY INSUFFICIENT; ASSAULT FIRST REDUCED TO ASSAULT SECOND; THE ISSUE WAS NOT PRESERVED (NO TRIAL ORDER OF DISMISSAL MOTION?) BUT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reducing defendant’s assault first conviction to assault second, determined the evidence of serious disfigurement was legally insufficient. The issue was not preserved (no motion for a trial order of dismissal on the issue?) but was considered on appeal in the interest of justice:

The People failed to demonstrate that the victim, who sustained a two-to-three-centimeter laceration on her forehead, which required three stitches and resulted in a small scar, suffered a serious disfigurement … . Accordingly, the convictions on those counts must be vacated. However, because the evidence sufficed to prove that the victim suffered a physical injury (Penal Law § 10.00[9]), we reduce the second-degree assault conviction to third-degree assault (Penal Law § 120.00[1]). People v Murray, 2023 NY Slip Op 06454, First Dept 12-14-23

Practice Point: If there is a “legally insufficient evidence” issue, raise it on appeal even if the issue was not preserved by a motion for a trial order of dismissal. The issue may be addressed in the interest of justice.

 

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IN A SLIP AND FALL CASE, WHETHER THE CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE AND THE PROPERTY OWNER’S DUTY TO WARN, BUT DOES NOT SPEAK TO PROXIMATE CAUSE OR NEGLIGENCE; HERE THE IRREGULARLY-SHAPED LANDING AND ABSENCE OF A HANDRAIL VIOLATED THE CITY BUILDING CODE; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the fact that the condition (an irregularly-shaped landing) is open and obvious does not speak to proximate cause but may be relevant to plaintiff’s comparative negligence (which will not defeat a summary judgment motion).. Here there was evidence the landing and the lack of a handrail violated the NYC Building Code. Defendants’ motion for summary judgment should not have been granted:

Plaintiff … raised a material issue of fact as to whether the irregular shape and dimensions of the landing and the lack of a handrail were the causes of his fall through, inter alia, his testimony that the “shortness” and “angle” of the landing caused his ankle to roll and through his expert engineer’s unrebutted affidavit that the “irregular shape” and “shortness” of the landing, which was in violation of the City of New York Building Code, and the lack of a handrail, proximately caused the fall.

The lower court’s assessment that the landing’s purported dangerous defects were open and obvious has no bearing upon the central, threshold issue of whether there was a causal connection between the defects and the plaintiff’s injury … . Further, it is axiomatic that the open and obvious nature of a hazard pertains to an owner’s duty to warn of such danger but does “not eliminate a claim that the presence of the hazardous condition constituted a violation of the property owner’s duty to maintain the premises in a reasonably safe condition” … . Perry v Sada Three, LLC, 2023 NY Slip Op 06456, First Dept 12-14-23

Practice Point: In a slip and fall, the “open and obvious” character of the condition has no bearing to the issue whether the defects caused plaintiff’s injury.

 

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