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PLAINTIFF’S INABILITY TO IDENTIFY THE WET SUBSTANCE ON THE STEP WHERE SHE ALLEGEDLY FELL WAS NOT AN INABILITY TO IDENTIFY THE CAUSE OF THE FALL (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the slip and fall complaint should not have been dismissed because plaintiff did not know what the wet substance on the step was:

… [T]he defendant failed to establish, prima facie, that the plaintiff did not know what caused her to fall. In support of its motion, the defendant submitted the deposition testimony of the plaintiff, who testified that she slipped and fell on a wet step … . Contrary to the defendant’s contention, the plaintiff’s alleged inability to identify the “precise nature of the wet substance upon which she allegedly slipped and fell cannot be equated with a failure to identify the cause of her fall” … . Diaz v SCG 502, LLC, 2023 NY Slip Op 01779, Second Dept 4-5-23

Practice Point: Plaintiff alleged she slipped and fell on a wet step. Her inability to identify the wet substance was not an inability to identify the cause of her fall.

 

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THE DEFENDANT RESTAURANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL HAD LAST BEEN INSPECTED PRIOR TO THE FALL; THEREFORE THE RESTAURANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE ALLEGED WET CONDITION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant restaurant (ABB) did not demonstrated when the area where plaintiff slipped and fell had been last inspected prior to the fall. Therefore ABB did not demonstrate it did not have constructive notice of the wet condition:

ABB … failed to demonstrate … that it lacked constructive notice of the alleged dangerous condition. Although ABB’s witness testified that the accident occurred five minutes after the witness had entered the restaurant and observed the floor to be dry, the plaintiff testified that the accident occurred at least one hour later, and ABB did not submit any evidence as to when it last inspected the area prior to the time when the plaintiff asserted the accident occurred … . Carey v Walt Whitman Mall, LLC, 2023 NY Slip Op 01773, Second Dept 4-5-23

Practice Point: To be entitled to summary judgment in a slip and fall case, the defendants must show where the area of the fall was last inspected prior to the fall to demonstrate it did not have constructive notice of the dangerous condition.

 

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THE MOTION TO SET ASIDE THE VERDICT APPORTIONING LIABILITY TO THE GYNECOLOGIST WHO NOTED IN HIS REPORT HE FOUND “NO ABNORMALITIES” SHOULD HAVE BEEN GRANTED; PLAINTIFF DID NOT PROVE THE NOTATION MISLED THE PRIMARY CARE PHYICIAN RESULTING IN A DELAY IN DIAGNOSING APPENDICITIS (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant Dr. Subramanyam’s motion to set aside the verdict apportioning liability to him in this medical malpractice case should have been granted. Plaintiff experienced abdominal and was referred by her primary physician (defendant Dr. Selitsky) to Dr. Subramanyam for a gynecological exam. Dr. Subramanyam’ noted in his report that “no abnormalities” were found. Plaintiff argued the “no abnormalities” finding misled Dr. Selitsky causing a delay in diagnosis of plaintiff’s appendicitis:

We find that the record was insufficient to support the jury’s findings that Dr. Subramanyam’s notation of “no abnormalities” misled Dr. Selitsky, who was plaintiff’s primary care physician, and thereby delayed plaintiff’s treatment for appendicitis.

Defendant Dr. Selitsky, testified that she did not rely upon Dr. Subramanyam’s sonogram report in ruling in or out the possibility of appendicitis, a diagnosis she already had considered as part of her differential diagnosis. She further testified that her referral of plaintiff to Dr. Subramanyam was solely to determine whether the source of plaintiff’s pain was gynecological in origin. Furthermore, Dr. Selitsky testified that while she assumed that she had received a copy of the report, she could not recall reading it, and, if she had read it, when she did so. Dr. Subramanyam also testified that it was not within his role to provide recommendations in his report or advise physicians what they should do next. Ameziani v Subramanyam, 2023 NY Slip Op 01759, First Dept 4-4-23

Practice Point: Defendant primary care doctor referred plaintiff to defendant gynecologist to determine the cause of abdominal pain. The gynecologist noted in his report he found “no abnormalities.” Plaintiff alleged that notation misled the primary care physician causing delay in the diagnosis of appendicitis. The appellate division set aside the verdict against the gynecologist.

 

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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT BREACHED THE CONTRACT, BUT SUMMARY JUDGMENT ON THE AMOUNT OF DAMAGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the defendant in this breach of contract action did not demonstrate the alleged cost of correcting defendant’s defective work was fair and reasonable. Therefore summary judgment on the damages amount should not have been granted:

To recover damages for breach of contract, a plaintiff must demonstrate “the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach” … . Here, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the issue of liability on the breach of contract cause of action. The plaintiff submitted evidence demonstrating that the defendant breached the agreement by not following the specifications provided by NYSTA [New York State Transit Authority]. … [T]he Supreme Court properly granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the breach of contract cause of action.

The Supreme Court erred, however, in granting that branch of the plaintiff’s motion which was for summary judgment on the issue of damages on the breach of contract cause of action. “In an action seeking damages for breach of a construction contract, the proper measure of damages is the fair and reasonable market price for correcting the defective installation” … . Here, the plaintiff failed to establish, prima facie, that the costs it incurred in correcting the defective work were fair and reasonable … . Ben Ciccone, Inc. v Naber Elec. Corp., 2023 NY Slip Op 01656, Second Dept 3-29-23

Practice Point: A plaintiff may be entitled to summary judgment on whether defendant breached a contract and still be denied summary judgment on the amount of damages.

 

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THE JUDGE SHOULD NOT HAVE DECIDED MOTHER’S CUSTODY PETITION WITHOUT A BEST INTERESTS HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing was required in this custody proceeding:

“Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry'” … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “[W]here . . . facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required” … .

Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties’ child … . Matter of Bendter v Elikwu, 2023 NY Slip Op 01670, Second Dept 3-29-23

Practice Point: Factual issues raised in a custody proceeding should not be decided without a hearing.

 

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PRECLUSION OF EVIDENCE AS A DISCOVERY SANCTION WAS NOT WARRANTED; THERE WAS NO EVIDENCE OF WILLFUL OR CONTUMACIOUS CONDUCT AND THE SANCTIONED PARTY WAS NOT GIVEN AN OPPORTUNITY TO EXPLAIN THE FAILURE TO COMPLY WITH DISCOVERY ORDERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discover sanctions imposed by the judge on plaintiff were not warranted:

… Supreme Court improvidently exercised its discretion by imposing the drastic sanction of preclusion upon the plaintiff without affording the plaintiff adequate notice and an opportunity to be heard, including on facts relevant to whether the plaintiff’s noncompliance was willful and contumacious. The defendant did not move for sanctions pursuant to CPLR 3126 due to the plaintiff’s failure to comply with the interim order, nor did the court make its own motion or include language in the interim order warning that noncompliance would result in sanctions. The court also made its determination without oral argument, such that it is unclear what opportunity the plaintiff had to explain the circumstances of its noncompliance. …

… [E]ven if the plaintiff had been provided with adequate due process, the Supreme Court still would have improvidently exercised its discretion by, inter alia, precluding the plaintiff from serving further demands and from introducing certain documents. The record contains no showing of “a clear pattern of willfulness and contumacious conduct necessary to justify [such] sanctions” … . There is no indication that the plaintiff “repeated[ly] fail[ed] to comply with court-ordered discovery” or “fail[ed] to comply with court-ordered discovery over an extended period of time” … . Instead, this case involves a “single incident of noncompliance” with a court order, which was insufficient to warrant a sanction as drastic as preclusion … , especially given the policy of resolving cases on their merits and the fact that discovery was still ongoing at the time the court made its determination. Korsinsky & Klein, LLP v FHS Consultants, LLC, 2023 NY Slip Op 01667, Second Dept 3-29-23

Practice Point; Before precluding evidence as a discovery sanction, there must be a finding of willful and contumacious conduct and the the sanctioned party must be given a chance to explain the failure to comply with discovery orders.

 

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​ THE JUDGE SHOULD NOT HAVE DETERMINED THE TRIAL WITNESS’S IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY FOR THE FIRST TIME AT TRIAL; A MIDTRIAL RODRIGUEZ HEARING SHOULD HAVE BEEN HELD; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing to determine whether a witness’s identification of defendant was confirmatory, noted that the judge should not have found the identification confirmatory for the first time based on the witness’s trial testimony. A Rodriguez hearing should have been when the issue came up at trial:

The witness in question disclosed on cross-examination at trial that he had identified defendant as the assailant in a photograph shown to him by the police. The People’s CPL 710.30 notice did not reference this identification. Defense counsel thus asked the court to strike the witness’s testimony on the ground of lack of notice, but the court, relying on the witness’s trial testimony, ruled that the People were not required to give notice because the identification was confirmatory. That was error. As the Court of Appeals has made clear, “prior familiarity should not be resolved at trial in the first instance” (Rodriguez, 79 NY2d at 452 …), and, in any event, the witness’s trial testimony was not sufficient to establish as a matter of law that the identification was confirmatory.

Although the witness testified that he knew defendant because he had seen him “a couple of times” at the barber shop, and that the two had each other’s phone numbers, he also testified that he did not know defendant well, that he knew him only by a common nickname, and that they never spoke again after the assault. A midtrial Rodriguez hearing would have allowed defense counsel to flesh out the extent of the relationship between the two men, thereby allowing the court to make a more informed determination as to whether the pretrial identification of defendant was confirmatory as a matter of law. People v Alcaraz-ubiles, 2023 NY Slip Op 01637, Fourth Dept 3-24-23

Practice Point: If the defense is not given notice of a witness’s identification of the defendant, the witness cannot testify about the identification unless it was “confirmatory,” I.e., based on knowing the defendant. Here the judge should not have found the identification confirmatory based on the witness’s trial testimony. A midtrial Rodriguez hearing should have been held. The matter was remitted.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF IMPLIED CONTRACT AND DEFENDANT’S MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint stated a cause of action for breach of implied contract and the defendant’s motion to dismiss the breach of implied cause of action based on documentary evidence should not have been granted:

“Whether an implied-in-fact contract was formed and, if so, the extent of its terms, involves factual issues regarding the intent of the parties and the surrounding circumstances” … . Contrary to the court’s determination, whether plaintiff “can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” … and, here, plaintiff’s allegations sufficiently state a cause of action for breach of an implied contract arising from an implicit agreement to extend the brokerage contract … . Similarly, the complaint sufficiently alleges the elements of a claim for unjust enrichment … .

… “A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff’s] claim[s]” … . Although contracts are among the types of documentary evidence that may be considered for purposes of CPLR 3211 (a) (1) … , we conclude that the contract submitted by defendants in support of their motion failed to “utterly refute . . . plaintiff’s allegations [that the contract was implicitly extended] or conclusively establish a defense as a matter of law” … . University Hill Realty, Ltd v Akl, 2023 NY Slip Op 01634, Fourth Dept 3-24-23

Practice Point: Here the breach of implied contract cause of action should not have been dismissed.

Practice Point: The motion to dismiss the breach of  implied contract cause of action based on documentary evidence should not have been granted. Although a contract can be the type of evidence which qualifies as “documentary evidence” here the contract did not utterly refute the allegation the contract was extended.

 

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THE PROSECUTOR DID NOT INSTRUCT THE GRAND JURY ON ALL OF THE ELEMENTS OF PROMOTING A SEXUAL PERFORMANCE OF A CHILD AND IMPROPERLY CROSS-EXAMINED THE DEFENDANT IN THE GRAND JURY PROCEEDINGS; ALTHOUGH DEFENDANT WAS PROPERLY CONVICTED, THE INDICTMENT WAS DISMISSED WITHOUT PREJUDICE (FOURTH DEPT).

The Fourth Department, reversing the conviction after trial and dismissing the indictment (without prejudice), determined the prosecutor did not properly instruct the grand jury on the law and improperly cross-examined the defendant in the grand jury proceedings:

… [T]he prosecutor failed to instruct the grand jury, pursuant to the holding in People v Kent (19 NY3d 290 [2012]), that some “affirmative act” is required to prove the crime, and that “viewing computer images of a sexual performance by a child on a computer does not by itself constitute promotion of such images” (CJI2d[NY] Penal Law § 263.15). Although it is well established that a grand jury “need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law” … , we conclude under the circumstances of this case that the deficiencies in the prosecutor’s charge impaired the integrity of the grand jury proceeding and gave rise to the possibility of prejudice. We further conclude that the potential for prejudice was increased by the prosecutor’s cross-examination of defendant during the grand jury presentation in a manner that was “calculated to unfairly create a distinct implication that [defendant] was lying” … . People v Congdon, 2023 NY Slip Op 01622, Fourth Dept 3-24-23

Practice Point: The grand jury should have been instructed that some affirmative act in addition to simply viewing child pornography of a computer is required for the offense of promoting the sexual performance of a child.

Practice Point: The prosecutor increased the prejudice resulting from the improper instruction on the law by improperly cross-examining the defendant in the grand jury proceeding to imply that the defendant was lying.

Practice Point: Even though the defendant was properly convicted at trial, the flaws in the grand jury proceeding required dismissal of the indictment.

 

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DEFENDANT SUFFICIENTLY RAISED INEFFECTIVE ASSISTANCE AND PREJUDICE ISSUES IN HIS MOTION TO VACATE HIS CONVICTION BECAUSE HE WAS NOT INFORMED HE COULD BE DEPORTED BASED ON THE GUILTY PLEA; THE JUDGE SHOULD NOT HAVE DENIED THE MOTION WITHOUT A HEARING (FIRST DEPT). ​

The Frist Department, reversing Supreme Court and recalling and vacating a prior appellate decision, determined defendant sufficiently raised ineffective assistance of counsel and prejudice in his motion to vacate his conviction on the ground he was not informed of the possibility of deportation before entering a guilty plea. The motion should not have been denied without a hearing:

Defendant moved to vacate the judgment of conviction based on Padilla v Kentucky (559 US 356 [2010]), which held that criminal defense attorneys must advise noncitizen clients about the deportation risks of a guilty plea. In light of the affidavits from defendant, defendant’s plea counsel (indicating no recollection or notation that he discussed immigration consequences with defendant), and his sister, as well as motion counsel’s representation that plea counsel admitted in an interview that he was not well-versed in immigration law, defendant presented sufficient evidence that counsel’s performance fell below an objective standard of reasonableness, such that a hearing was warranted if a sufficient showing was similarly raised as to prejudice.

Regarding whether defendant was prejudiced by counsel’s alleged deficient performance, we also find that defendant’s submissions are sufficient to warrant a hearing. Given the length of time defendant has resided in the United States, his ties to the United States, his lack of ties to the Dominican Republic, and his employment history, defendant demonstrated a reasonable possibility that, but for counsel’s errors, he would not have pleaded guilty and instead proceeded to trial … . People v Guzman-Caba, 2023 NY Slip Op 01593, First Dept 3-23-23

Practice Point: Here the motion to vacate the conviction sufficiently raised ineffective assistance and prejudice issues which warranted a hearing. The defendant presented evidence he was not informed he could be deported based on his guilty plea and demonstrated he was prejudiced by the failure. The judge should have ordered a hearing.

 

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