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PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HIS STAIRWAY FALL BUT HE TESTIFIED HE REACHED FOR A HANDRAIL AND THERE WAS NONE; DEFENDANTS DID NOT PRESENT ANY EVIDENCE ON THE PRESENCE OR NEED FOR A HANDRAIL; THERE CAN BE MORE THAN ONE PROXIMATE CAUSE OF A FALL; DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants were not entitled to summary judgment in this stairway slip and fall case. Although plaintiff could not identify the initial cause of his fall, plaintiff, in his deposition, testified he reached for a handrail, but there was none. Defendants did not present evidence there was a handrail or a handrail was not required. In the usual case, the inability to identify the cause of a fall is fatal to the action. But here there is a question of fact whether there was an additional proximate cause of the fall, i.e., the absence of a handrail:

… [T]he defendants established, prima facie, that a jury would be required to speculate that cement dust caused the plaintiff to fall. In support of their cross-motion, they submitted the plaintiff’s deposition testimony that, after his fall, he noticed concrete dust on his face, hair, and uniform. The plaintiff admitted, however, that he did not notice the cement dust before his fall or see it on the landing of the stairs after his fall, and he failed to point to any additional evidence that might create a reasonable inference that the cement dust, rather than a misstep or loss of balance, was a proximate cause of his fall.

However, “[t]here can be more than one proximate cause of an accident, and [g]enerally, it is for the trier of fact to determine the issue of proximate cause” … . Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party, the defendants failed to establish that a handrail was present or was not required, or that its alleged absence was not a proximate cause of the plaintiff’s injuries … . Adzei v Edward Bldrs., Inc., 2023 NY Slip Op 05580, Second Dept 11-8-23

Practice Point: Here plaintiff’s inability to identify the cause of his fall was not fatal to the action. There can be more than one proximate cause of a fall. Plaintiff testified he reached for a handrail but there was none and defendants presented no evidence of the presence or the need for a handrail.

 

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THE CRITERIA FOR “A CONTINUING COURSE OF SEXUAL CONTACT” WERE NOT MET; DEFENDANT’S SORA RISK-LEVEL REDUCED TO LEVEL ONE (SECOND DEPT).

The Second Department, reducing defendant’s SORA risk-level assessment to level one, determined the People did not demonstrate “a continuing course of sexual contact:“

The Guidelines provide, in part, regarding risk factor 4, that “an offender has engaged in a continuing course of sexual contact when he [or she] engages in either (i) two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours, or (ii) three or more acts of sexual contact over a period of at least two weeks” … .

In this proceeding, the People failed to meet their burden of proof on risk factor 4 since they failed to establish, by clear and convincing evidence, that the two acts of sexual contact the defendant committed against the victim were separated in time by at least 24 hours … . People v Parez, 2023 NY Slip Op 05526, Second Dept 11-1-23

Practice Point: There must be 24 hours between acts of sexual contact to constitute “a continuing course of sexual contact” under the SORA risk-level guidelines; not the case here.

 

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SUPREME COURT SHOULD NOT HAVE BASED AN UPWARD DEPARTURE IN THIS SORA RISK-ASSESSMENT PROCEEDING ON GROUNDS NOT RAISED BY THE PEOPLE WHERE THE DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO CONTEST THOSE GROUNDS (SECOND DEPT).

The Second Department, reversing the SORA risk level assessment, determined defendant should have been given the opportunity to contest the grounds for an upward department not raised by the People:

A “SORA court deprive[s a] defendant of those basic procedural guarantees when it upwardly depart[s] from the presumptive risk level without affording [the] defendant notice or an opportunity to contest the basis for the departure” … .

Here, the Supreme Court erred in basing its decision to depart from the presumptive risk level, in part, upon grounds that were not raised by the People and of which the defendant had no notice or an opportunity to contest ,,, , People v Cutting, 2023 NY Slip Op 05524, Second Dept 11-1-23

Practice Point: A SORA risk-level assessment cannot be based on grounds of which the defendant was not given notice or the opportunity to contest.

 

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THE PEOPLE WERE ALLOWED TO PRESENT EXPERT TESTIMONY ON CHILD PSYCHOLOGY AND CHILD ABUSE; DEFENDANT WAS DEPRIVED OF HIS RIGHT TO PRESENT A DEFENSE WHEN THE REQUEST TO PRESENT A REBUTTAL WITNESS WAS DENIED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defendant should have been allowed to present a witness to rebut the People’s expert testimony on child psychology and child abuse. Failure to allow the rebuttal witness deprived defendant of his right to a fair trial:

… Supreme Court did not err in permitting the People to call an expert witness in the field of child psychology and child sex abuse, notwithstanding any alleged delay in the People’s disclosure of the contents of the witness’s testimony, as the defendant failed to establish that he was prejudiced by the alleged delay … .

… Supreme Court improperly precluded the defendant from calling a rebuttal witness. The right to present a defense is a fundamental element of due process of law … , and, in the instant case, calling a rebuttal expert to testify was central to the defense case. … [T]here is no evidence that the People were prejudiced by the timing of the notice or that the delay was willfully motivated, inasmuch as the content of the People’s expert testimony was disclosed approximately one week prior.  People v Neustadt, 2023 NY Slip Op 05519, Second Dept 11-1-23

Practice Point: Here the denial of defendant’s request to present testimony rebutting the People’s expert denied defendant his right to present a defense (due process).

 

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THE DETECTIVE’S TESTIMONY, WITHOUT EVIDENCE FROM THE CONFIDENTIAL INFORMANT WHO MADE THE DRUG PURCHASES, WAS NOT ENOUGH TO DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH WARRANT; MATTER REMITTED FOR A DARDEN HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, held a Darden hearing was required to determine whether there was probable cause to justify the issuance of a search warrant. The testimony of the defective alone, without the evidence provided by the confidential informant (CI), did not demonstrate probable cause. Therefore the the matter was remitted and the appeal was held in abeyance pending the results of the Darden hearing:

“[A] Darden rule is necessary in order to fulfill the underlying purpose of Darden: insuring that the confidential informant both exists and gave the police information sufficient to establish probable cause, while protecting the informant’s identity. The surest way to accomplish this task is to produce the informant for an in camera examination” … . …

… [T]he detective’s on-the-scene observations during the two controlled drug buys fell short of probable cause without the information provided to him by the CI. Although the detective saw the CI walk toward the subject building and later return to the predesignated meeting location, he was unable to confirm that the CI had actually purchased the narcotics from the subject apartment … . … [W]e remit the matter … for an in camera hearing and inquiry in accordance with the guidelines set forth in Darden, and thereafter a report to this Court containing the Supreme Court’s findings following the hearing and inquiry. People v Huginnie, 2023 NY Slip Op 05516, Second Dept 11-1-23

Practice Point: Here evidence from the confidential informant who allegedly made the drug purchases was required to demonstrate probable cause for the search warrant. The appeal was held in abeyance and the matter was remitted for a Darden hearing.

 

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AFTER FINDING SPOLIATION OF EVIDENCE BY DEFENDANTS, THE JUDGE FASHIONED AN ADVERSE INFERENCE JURY INSTRUCTION TO BE GIVEN AT TRIAL; THE CHARGE IMPROPERLY REQUIRED, RATHER THAN PERMITTED, THE JURY TO FIND SPOLIATION; THE JUDGE WAS ORDERED TO REVISE THE CHARGE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the adverse inference jury charge was inappropriate because it requires, rather than permits, the jury to draw an adverse inference from the spoliation of evidence. The appeal was from the judge’s ruling on plaintiff’s motion for an adverse inference charge. The judge was directed to fashion a new adverse inference charge:

Upon its determination that defendants’ spoliation of evidence amounted to gross negligence, the court directed that the jury be instructed that “had the evidence been preserved the evidence would have been against defendants’ position that [defendant] Marom and/or his workers did not cut down branches or trees or inserted rotting garbage in the barriers on [plaintiff’s] property.” This adverse inference charge is inappropriate because it “requires, rather than permits, the jury to draw an adverse inference” … . In any event, because the conflicting testimony in the record raises questions concerning the existence of the purportedly spoliated evidence, the issues of whether any spoliation had occurred and whether any adverse inference is warranted should be presented to the jury in the first instance … . Children’s Magical Garden, Inc. v Marom, 2023 NY Slip Op 05464, First Dept 10-31-23

Practice Point: With respect to spoliation of evidence, an adverse inference charge should permit, rather than require, the jury to find spoliation.

Practice Point: It appears that this appeal was brought before trial to address the erroneous adverse inference charge fashioned by the judge. The appeal successfully required the revision of the erroneous charge before the jury heard it.

 

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​EMOTIONAL AND PSYCHOLOGICAL DAMAGES, AS OPPOSED TO PECUNIARY DAMAGES, WILL NOT SUPPORT AN ACTION FOR BREACH OF FIDUCIARY DUTY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined emotional and psychological damages, as opposed to pecuniary damages, will not support an action for breach of fiduciary duty:

… [P]laintiffs proffered no evidence showing that Atesa [plaintiff] sustained pecuniary damages, and adduced proof identifying only emotional and psychological injuries. Contrary to plaintiffs’ contention, the allegations in the complaint that Atesa incurred financial expenses as a result of having to seek medical treatment and retain new counsel due to defendants’ alleged misconduct are insufficient to defeat summary judgment, absent any supporting evidentiary proof (see CPLR 3212[b] …). Plaintiffs’ contention that they could present such proof at trial is unavailing … . Because plaintiffs failed to raise a triable issue of fact as to whether recoverable damages were incurred, summary judgment dismissing the claim should have been granted … . Pacelli v Peter L. Cedeno & Assoc., PC, 2023 NY Slip Op 05448, First Dept 10-26-23

Practice Point: Emotional and psychological damages, as opposed to pecuniary damages, will not support an action for breach of fiduciary duty.

 

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DEFENDANT GAVE TWO STATEMENTS, ONE IN THE MORNING TO THE POLICE, ONE IN THE AFTERNOON TO THE DISTRICT ATTORNEY; THE FIRST STATEMENT WAS INDUCED BY MISINFORMATION ABOUT WHETHER THE STATEMENT COULD BE USED AGAINST THE DEFENDANT AND WAS SUPPRESSED BY THE MOTION COURT; THE SECOND STATEMENT, AND THE KNIFE AND DNA RECOVERED BASED UPON THE SECOND STATEMENT, SHOULD ALSO HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined both statements by the defendant, the first in the morning to detectives, the second in the afternoon to the district attorney, should have been suppressed. The first statement was suppressed by Supreme Court because the police told the defendant that any statement he made would not necessary be used against him and could help him if confessed. The second statement, although also preceded by the Miranda warnings, should have been suppressed because nothing was done to correct the misinformation from the police which preceded the first statement:

… Statement #2, along with the knife and DNA evidence recovered from the knife, should have been suppressed as there was not a sufficient break in the interrogation to dissipate the taint from the initial Miranda violation. This is not a case where defendant initially received improper warnings prior to giving Statement #1 and then later received proper warnings prior to giving Statement #2. Instead, defendant received complete and proper Miranda warnings prior to giving Statement #1, but they were undermined by the additional commentary and misleading statements made by the police officers … thereby violating defendant’s Miranda rights and requiring the suppression of Statement #1. Moreover, after the officers made the misleading statements, nothing was specifically done to correct any resulting misunderstanding to ensure that the defendant understood the import and effect of the Miranda warnings and that his statements could, and would, be used against him. This misunderstanding cannot be assumed to have simply dissipated after the Assistant District Attorney gave defendant the second Miranda warnings, even though the second warnings took place hours later and in a different room. As the second Miranda warnings did not dissipate the taint, they did not effectively protect defendant’s rights. Although it “is not the business of the police or the courts” to “provid[e] a general legal education” … , those institutions also cannot be allowed to proliferate misleading information in situations where a suspect is entitled to be advised of his rights. People v Savage, 2023 NY Slip Op 05452, First Dept 10-26-23

Practice Point: Although both the initial tainted statement to the police and the subsequent statement to the DA were preceded by Miranda warnings, because nothing was done to correct the misinformation provided by the police prior to the first statement, the second statement, made the same day, and the knife and DNA located based on the second statement, should have been suppressed.

 

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DEFENDANT DEMONSTRATED IT WAS AN OUT-OF-POSSESSION LANDLORD WHICH HAD RELINQUISHED CONTROL OVER THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON A FLOOR ALLEGED TO HAVE BEEN SLIPPERY BECAUSE IT HAD BEEN WAXED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant Trinity demonstrated it was an out-of-possession landlord and the area where plaintiff slipped and fell was under the control of the lessee (LSSNY), plaintiff’s employer. Plaintiff alleged the floor was slippery because it had been waxed:

Defendant established prima facie that it was an out-of-possession landlord with no contractual obligation to maintain the demised premises. Defendant also established prima facie, that the accident was not caused by a structural or design defect that violated a specific statutory safety provision … . * * *

… [P]laintiff failed to raise a triable issue of fact as to whether defendant possessed and controlled the leased premises for purposes of liability. Plaintiff’s averment that she saw defendant’s personnel freely using the location during the three years she worked at the premises was insufficient to demonstrate that there exists a triable issue of fact as to whether defendant relinquished complete control over the area before she fell … . Rodriguez v Trinity Evangelical Lutheran Church, 2023 NY Slip Op 05453, First Dept 10-26-23

Practice Point: Here the out-of-possession landlord was not liable for plaintiff’s fall on a slippery floor. The alleged defect was not structural and did not violate a statutory duty.

 

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PLAINTIFF, WHO FELL FROM A HORSE, COULD SUE UNDER STANDARD PRINCIPLES OF NEGLIGENCE, AS OPPOSED TO THE STRICT LIABILITY THEORY IN THE AGRICULTURE AND MARKETS LAW; PLAINTIFF’S SUIT WAS PRECLUDED BY THE ASSUMPTION OF THE RISK DOCTRINE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined standard negligence principles, not strict liability, applied to this falling-off-a-horse case. Plaintiff, who fell from the horse when the horse stopped suddenly, assumed the risk of such an injury:

Defendant argues that, because the injury at issue was caused by a horse — a domestic animal — plaintiff may only sue in strict liability (see Agriculture and Markets Law § 108 [7]; … ). However, where a plaintiff suffers injuries stemming from horseback riding, such as here, the plaintiff may bring suit against the owner of the horse under traditional negligence standards … . Regardless, the primary assumption of risk doctrine functions as a “principle of no duty,” serving to “den[y] the existence of any underlying cause of action” … . Stanhope v Burke, 2023 NY Slip Op 05427, Third Dept 10-26-23

Practice Point: Plaintiff could maintain a standard negligence action against to owner of a horse stemming from plaintiff’s fall from the horse, as opposed to a strict liability action pursuant to the Agriculture and Markets Law.

Practice Point: Whether plaintiff sued in negligence or strict liability, the assumption of risk doctrine would apply to preclude the action.

 

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