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LYING TO AN INVESTIGATOR WHO RECORDS THE LIE IN A REPORT CANNOT BE THE BASIS OF A “FALSIFYING A BUSINESS RECORD” CHARGE; ALTHOUGH THE ISSUE WAS NOT PRESERVED THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction after considering the unpreserved issue in the interest of justice, determined the People did not present legally sufficient evidence of the “falsifying a business record” charge. The People alleged defendant lied to the sheriff who interviewed him resulting in a false entry in the sheriff’s report. The report itself was not entered into evidence:

… [T]o meet its burden, the prosecution relied on testimony from a county sheriff’s office sergeant that, during the investigation into a shooting incident, he recorded his conversation with defendant in a report and the report became part of the business records for the sheriff’s office. The sergeant as well as additional sheriff’s deputies testified that defendant’s version of events conflicted with the concurrent observations of defendant’s gunshot wound by the members of the sheriff’s office. The People’s theory was that, by lying to the sergeant, defendant caused a false entry in the business records of the sheriff’s office. The trial testimony established, however, that the sergeant’s report was written to record the “condition or activity” of the sheriff’s office’s investigation into the shooting (Penal Law § 175.00 [2]). We conclude that there is no valid line of reasoning and permissible inferences from which a rational jury could have concluded beyond a reasonable doubt that the sergeant’s report contained a false record of that investigation. Indeed, the sergeant testified that the report accurately documented defendant’s responses to the sergeant’s investigatory questions. People v Andrews, 2023 NY Slip Op 05085, Fourth Dept 10-6-23

Practice Point: The Appellate Division can consider an unpreserved “legally insufficient evidence” issue.

Practice Point: Lying to an investigator who records the lie in the investigation report cannot be the basis for a “falsifying a business record” charge.

 

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THE MOTION TO BIFURCATE THE LIABILITY AND DAMAGES ASPECTS OF THE TRIAL IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; STATEMENTS MADE TO HEALTHCARE PERSONNEL AND MEDICAL RECORDS WERE RELEVANT TO LIABILITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s motion to bifurcate the trial (liability versus damages) in this slip and fall case should not have been granted. Plaintiff made statements to medical personnel which were relevant to liability:

Plaintiff commenced this action seeking damages for injuries that he allegedly sustained when he fell from an “upper patio or balcony” of an apartment building … . We agree with plaintiff that Supreme Court abused its discretion in granting defendants-respondents’ motion to bifurcate the trial with respect to the issues of liability and damages. “As a general rule, issues of liability and damages in a negligence action are distinct and severable issues which should be tried separately” … . Here, however, we conclude that the issue of liability is not distinct from the issue of plaintiff’s injuries because plaintiff made statements to several of his medical care providers following his fall that render the testimony of several medical witnesses as well as hospital and medical records relevant to the liability phase of the trial. Plaintiff has thus established that bifurcation would not “assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action” … .  Bogumil v Greenbaum Family Holdings, LP, 2023 NY Slip Op 05069, Fourth Dept 10-6-23

Practice Point: It is usual to bifurcate the liability and damages aspects of negligence trials. Here plaintiff’s statements to medical personnel and his medical records were relevant to liability as well as damages. The motion to bifurcate should not, therefore, have been granted.

 

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VIDEO SURVEILLANCE SHOWING DEFENDANT ENTERING THE MALL WITH EMPTY BAGS FROM A STORE THAT WAS NOT IN THE MALL AND LEAVING WITH ITEMS IN THE BAGS DID NOT AMOUNT TO “REASONABLE SUSPICION” JUSTIFYING THE VEHICLE STOP; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined the sheriffs did not have the requisite “reasonable suspicion” to justify the stop of defendant’s vehicle in a mall parking lot. A deputy had seen a surveillance video showing defendant going into the mall with empty bags from a store which was not in the mall and leaving a few minutes later with items in the bags:

The deputies readily acknowledged … that bringing outside bags into the mall was not unlawful or violative of mall policy, that it was not uncommon for mall visitors to return merchandise in bags that were not from the original store, and that mall visitors could properly put merchandise into personal, non-store bags if it was paid for. The first deputy conceded that, while viewing the live surveillance video, he did not observe defendant or the other individuals stealing anything from the subject store, and the second deputy likewise acknowledged that, prior to the vehicle stop, he had not made any observations to indicate that defendant or the other individuals had failed to pay for the merchandise. Additionally, the first deputy observed defendant and the other individuals walking, not running, back to the vehicle after exiting the store, and conceded that it was possible that they had purchased the merchandise during their time in the store … . People v Mcmillon, 2023 NY Slip Op 05064, Fourth Dept 10-6-23

Practice Point: Here the deputies conceded people do bring bags from other stores into the mall and can use those bags for purchases. Therefore, without more, video surveillance of the defendant entering the mall with empty bags from a “non-mall” store and then leaving with items in the bags did not justify the subsequent vehicle-stop.

 

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DEFENDANT PROPERTY OWNERS PRESENTED NO EVIDENCE TO DEMONSTRATE WHEN THE STEPS WHERE PLAINTIFF SLIPPED AND FELL WERE LAST INSPECTED OR CLEANED; THEREFORE DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT). ​

​The First Department, reversing Supreme Court, determined there was a question of fact whether defendants created or had notice of the slippery condition of the steps alleged to have caused plaintiff’s slip and fall. Defendants presented no evidence about when the steps were last cleaned or inspected:

Defendant Bruhilde Koenig testified during her deposition that she painted the concrete steps leading down to plaintiff’s basement apartment with nonslip paint, and that she never had issues with the patio being slippery when wet prior to plaintiff’s accident. However, she presented no testimony as to the condition of the steps on the day of the accident or as to when the steps had most recently been inspected or cleaned. Plaintiff testified that it was “wet and misty” at the time of the accident, that he observed standing water on the steps, and that he had previously asked Koenig to place safety strips on the staircase, as he and his daughter had slipped and fallen in the past during rainy weather. Plaintiff also testified that the steps were “irregular” and not “very well uniformed [sic].” Plaintiff has raised a triable issue of fact as to whether defendants created or had notice of the alleged defect. Iaccarino v Koenig, 2023 NY Slip Op 05037, First Dept 10-5-23

Practice Point: In a slip and fall case, the property owner cannot demonstrate a lack of notice of the slippery condition without presenting evidence demonstrating when the area was last inspected or cleaned.

 

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DEFENDANT WAS NOT GIVEN AN OPPORTUNITY TO RESPOND TO A RISK-ASSESSMENT THEORY RAISED FOR THE FIRST TIME AT THE HEARING; MATTER REMANDED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant should not have been assessed risk-factor points based on a theory which defendant was unable to respond to because it was raised for the first time at the SORA risk-assessment hearing. The matter was remanded:

… [T]he court should have found that the People acted improperly in raising, for the first time at the hearing, as the basis for scoring defendant 15 points for inflicting physical injury under risk factor 1, a new reason or theory that differed from the basis for that scoring specified in the Board’s case summary and in the People’s prehearing submissions. This deprived defendant of the proper advance, informative notice of “the reasons” and “basis” for the People seeking the 15-point determination to which he was entitled under Correction Law § 168-n (3) and due process, so as to afford him a meaningful opportunity to respond to the assessment … People v Jackson, 2023 NY Slip Op 05043, First Dept 10-5-23

Practice Point: If the People present a new risk-assessment theory at the SORA hearing, the court must give the defendant a meaningful opportunity to respond before issuing a ruling.

 

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BECAUSE INDIVIDUAL CONDOMINIUM OWNERS ARE RESPONSIBLE FOR THE INSTALLATION OF WINDOW GUARDS, THE DEFENDANT CONDOMINIUM DID NOT HAVE A DUTY TO INSTALL WINDOW GUARDS; THEREFORE THE CONDOMINIUM COULD NOT BE LIABLE FOR PLAINTIFFS’ DAUGHTER’S FALL FROM THE WINDOW UNDER THE FAILURE-TO-INSTALL THEORY; HOWEVER, THE CAUSE OF ACTION BASED UPON THE CONDOMINIUM’S FAILURE TO GIVE PLAINTIFFS NOTICE OF THE CITY’S WINDOW-GUARD REQUIREMENT SURVIVED THE DISMISSAL MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the condominium (Cherry Tower) premised on the failure to install window guards should have been granted. Plaintiffs’ five-year-old daughter fell from the fifth floor window and died. Defendants submitted the deed to the condominium in support of their motion to dismiss. Because plaintiffs owned the condo unit, the defendants had no duty to install window guards. However, the cause of action alleging defendants’ failure to give notice of the window-guard requirements in the NYC Administrative Code properly survived dismissal:

“The characteristics of condominium ownership are individual ownership of a unit, an undivided interest in designated common elements, and an agreement among unit owners regulating the administration and maintenance of property” … . Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the documentary evidence submitted by the Cherry Tower defendants, including the deed demonstrating that the unit owners purchased the subject apartment in 2007 and the condominium bylaws placing the responsibility to install and maintain window guards on the unit owners, conclusively demonstrates that the Cherry Tower defendants had no duty to install window guards in the subject apartment (see Administrative Code of City of NY § 27-2043.1[a]; Real Property Law § 339-ee[1] …).

However, the Supreme Court properly denied that branch of the Cherry Tower defendants’ motion which was to dismiss so much of the complaint as was based on their failure to provide the plaintiff with notice of the window guard requirements. Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the complaint sufficiently alleges that the Cherry Tower defendants failed in their responsibility to deliver the required notice to the subject apartment (see Administrative Code § 17-123[b]). Kwan v Kuie Chin Yap, 2023 NY Slip Op 05005, Second Dept 10-4-23

Practice Point: The individual owners of condominium units are responsible for the installation of window guards. Therefore the condominium itself has no duty to do so. However, in New York City, the condominium must provided the individual owners with notice of the window-guard requirement in the NYC Administrative Code.

 

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QUESTIONS OF FACT ABOUT WHO HAD THE GREEN LIGHT AND WHETHER DEFENDANT DRIVER SAW WHAT SHOULD HAVE BEEN SEEN PRECLUDED SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact which precluded summary judgment in favor of defendants in this intersection traffic accident case. Although plaintiffs’ car was struck when attempting a left turn across defendant’s oncoming lane, there was conflicting evidence about which party had the green light and whether defendant failed to see what should have been seen:

Susan [plaintiff] testified at her deposition that she entered the subject intersection to turn left when a traffic arrow controlling the left turn was green in her favor. In contrast, Peter [defendant] testified at his deposition that the traffic light was green in his favor as he approached the subject intersection from the opposite direction. In addition, Peter testified that there was nothing obstructing his view of the intersection as he began to drive through it, and it is undisputed that he then struck the plaintiff’s vehicle on the middle portion of the passenger side door. Thus, although the defendants submitted some evidence that Susan failed to yield the right-of-way to the defendants’ vehicle at the intersection in apparent violation of Vehicle and Traffic Law § 1141, the evidence submitted by the defendants failed to eliminate triable issues of fact as to whether Peter entered the intersection against a red traffic light in violation of Vehicle and Traffic Law § 1111(d)(1) or, if the traffic light was green in his favor, failed to exercise reasonable care notwithstanding the invitation to proceed by the green light facing him … . Accordingly, the defendants did not establish, prima facie, that Susan’s failure to yield the right-of-way was the sole proximate cause of the accident and that the defendants were themselves free from fault … . Schmitz v Pinto, 2023 NY Slip Op 04983, Second Dept 10-4-23

Practice Point: There can be more than one proximate cause of a traffic accident. Although plaintiff was struck making a left turn across defendant’s lane, there were questions of fact about who had the green light, and, if defendant had the green light, whether he should have seen what was there to be seen (plaintiff’s car was struck in the middle of the passenger door).

 

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PETITIONER-PEDESTRIAN ESTABLISHED THE IDENTITY OF THE DRIVER WHO STRUCK HER COULD NOT BE ASCERTAINED THROUGH REASONABLE EFFORTS; THEREFORE SHE COULD SUE THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner-pedestrian demonstrated the driver who violated the Vehicle and Traffic Law, struck her and fled the scene could not be identified. Therefore she was entitled to sue the Motor Vehicle Accident Indemnification Corporation (MVAIC). The court noted that, although petitioner relied on a hearsay police report, the report could be considered because the MVAIC also relied on it:

Petitioner alleged that on March 4, 2021, she was injured as a pedestrian in the crosswalk after a two-motor-vehicle collision between a BMW and Cadillac. The police report stated that petitioner was struck by the Cadillac after its driver disobeyed a traffic light and collided with the BMW, and the driver of the Cadillac subsequently fled from the scene by foot. The police later discovered that the Cadillac’s license plate did not match the vehicle.

… [P]etitioner proffered … a police accident report pertaining to the incident, a letter from the BMW’s insurer disclaiming coverage on the ground that its insured driver did not disobey any traffic law, and a sworn Notice of Intention to Make a Claim (Notice of Intention) attesting that the Cadillac’s driver was unknown, and the vehicle had a fake license plate. … [T]hese documents were sufficient to satisfy the requirements of Insurance Law § 5218 to commence an action against MVAIC … . Petitioner met her burden of demonstrating that the subject accident was one in which the identity of the owner and operator of the Cadillac was not ascertainable through reasonable efforts … . Although a police report is generally inadmissible as hearsay, MVAIC also relied on it in opposing the petition, and thus it may be considered in support of the Notice of Intention .. . Matter of Richardson v Motor Veh. Acc. Indem. Corp., 2023 NY Slip Op 04950, Second Dept 10-3-23

Practice Point: This decision gives some insight into the proof required to demonstrate the identity of a driver involved in an accident cannot be ascertained, clearing the way for a suit against the MVAIC.

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING RESPONDENT COMMITTED THE FAMILY OFFENSE OF HARASSMENT SECOND DEGREE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the family offense of harassment second degree:

“A petitioner bears the burden of proving by a preponderance of the evidence that respondent committed a family offense” … . To establish that respondent committed acts constituting harassment in the second degree, petitioner was required to establish that respondent engaged in conduct that was intended to harass, annoy or alarm petitioner, that petitioner was alarmed or seriously annoyed by the conduct, and that the conduct served no legitimate purpose (see Penal Law § 240.26 [3]). Here, the evidence presented by petitioner at the hearing consisted primarily of petitioner’s testimony that respondent posted “negative posts and stuff” on social media about him including, in particular, two posts on Facebook about an unnamed “ex” that he believed referred to him, after which respondent blocked him from viewing her posts. We conclude under the circumstances of this case that the evidence presented by petitioner failed to establish by a preponderance of the evidence that respondent engaged in acts constituting harassment in the second degree … . Matter of Geremski v Berardi, 2023 NY Slip Op 04883, Fourth Dept 9-29-23

Practice Point: Here the finding respondent committed the family offense of harassment second degree was not supported by the preponderance of the evidence.

 

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EQUIVOCAL AND UNSUBSTANTIATED EVIDENCE OF DEFENDANT’S DRUG ABUSE WAS NOT ENOUGH TO JUSTIFY THE 15-POINT DRUG-ABUSE ASSESSMENT UNDER SORA (FOURTH DEPT).

The Fourth Department, reversing County Court, determined 15 points should not have been assessed against the defendant under SORA for drug abuse. The evidence was too weak:

Here, we conclude that the People failed to prove by the requisite clear and convincing evidence that defendant had a history of substance abuse. Although the case summary presented by the People at the SORA hearing establishes that defendant was convicted under the Uniform Code of Military Justice (UCMJ) of possessing an unknown amount of testosterone and using an anabolic steroid … , which offense occurred nearly one year after the underlying sex offense of sexual abuse of a child … , there is “no evidence that defendant was ever screened for substance abuse issues” and ” ‘only very limited information about his alleged prior history of drug . . . abuse’ ” … . Indeed, the sole information in the record regarding defendant’s purported history of drug abuse is the “conclusory hearsay” statement … of a correctional treatment specialist—here, a licensed marriage and family therapist—who commented in the updated treatment assessment he prepared prior to defendant’s release from incarceration that defendant had “substance abuse problems with steroids pre-confinement” but that confinement had “cleaned . . . up” that problem such that defendant now understood “the repercussions of that type of abuse.” Inasmuch as the only evidence that defendant abused steroids consists of a ” ‘hearsay statement[] that [is] vague, . . . equivocal, and otherwise unsubstantiated,’ ” the People failed to establish by the requisite clear and convincing evidence that defendant had a history of substance abuse … . People v Currington, 2023 NY Slip Op 04874, Fourth Dept 9-29-23

Practice Point: Here the evidence purporting to demonstrate defendant had a history of drug abuse was deemed too weak to support the 15-point drug-abuse assessment under SORA.

 

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