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DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW THAT PLAINTIFF’S EXPOSURE TO ASBESTOS WHEN MAINTAINING DEFENDANT’S PRODUCTS DID NOT CONTRIBUTE TO PLAINTIFF’S ASBESTOS-INJURIES; AT THE SUMMARY JUDGMENT STAGE, IT IS NOT ENOUGH FOR DEFENDANT TO ARGUE PLAINTIFF COULD NOT PROVE CAUSATION (THIRD DEPT). ​

The Third Department determined there were questions of fact whether plaintiff (Howard) was exposed to asbestos in his maintenance of defendant’s pumps on Navy submarines: Defendant failed to demonstrate as a matter of law that its products did not contribute to plaintiff’s asbestos-injuries:

“In order to establish entitlement to judgment as a matter of law, defendant[] bore the initial burden of demonstrating that [its] respective products ‘could not have contributed to the causation’ of [Howard]’s asbestos-related injuries” … . Defendant could not prevail on its motion for summary judgment by “merely pointing to gaps in . . . plaintiff[s’] proof” … . In other words, “[defendant] could not simply argue that plaintiff[s] could not affirmatively prove causation, but rather it had to affirmatively prove, as a matter of law, that there was no causation” … .

… According to Howard [plaintiff], his duties aboard these various vessels required, among other things, that he directly supervise maintenance on defendant’s pumps, which included asbestos-containing gaskets, packing and insulation. Howard stated that he would work in the immediate vicinity of the pumps when the gaskets were removed and scraped from the pumps, and when packing and insulation on the pumps was removed and replaced. Howard v A.O. Smith Water Prods., 2023 NY Slip Op 00017, Third Dept 1-5-23

Practice Point: In a toxic tort case, in order to prevail on a summary judgment motion, defendant must demonstrate as a matter of law that defendant’s products did not cause plaintiff’s injuries. The defendant will not win a summary judgment motion in this context by arguing plaintiff could not prove causation.

 

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THE POLICE OFFICER’S TESTIMONY ABOUT HOW THE DEFENDANT’S DAUGHTER, WHO DID NOT TESTIFY AT THE TRIAL, DESCRIBED THE ALLEGED STABBING WAS INADMISSBILE TESTIMONIAL HEARSAY; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing defendant’s assault conviction, over a dissent, determined the police officer’s (Costello’s) testimony about the defendant’s daughter’s explanation of the alleged stabbing, which included a reinactment, was testimonial hearsay and should not have been admitted. The defendant’s daughter did not testify at the trial. In addition, the defendant’s son’s statement to the defendant at the scene (Why, why, why? Why did you stab my mom?”) should not have been admitted as an excited utterance because the son did not witness the alleged stabbing:

“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution” … . To determine which of these categories an out-of-court statement falls into, a court should focus on “the purpose that the statement was intended to serve” … , and to ascertain “the ‘primary purpose’ of an interrogation,” a court should “objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties” … .

… [T]he daughter’s statements to Costello regarding the circumstances under which the defendant had stabbed the victim were testimonial in nature. Viewing the record objectively, at the time the statements were made, there was no ongoing emergency. The victim had been removed from the scene and taken to a hospital. The defendant had been taken into custody and transported to a police station. Indeed, Costello testified that a detective was never even assigned to the case, precisely because the police already “had the alleged perpetrator in custody.” Although the daughter was still deeply upset as a result of the stabbing, she was not in need of police assistance, and it is clear that Costello’s questions were not asked for the purpose of facilitating such assistance. Rather, the primary purpose of Costello’s questioning of the daughter “was to investigate a possible crime” … . Costello “was not seeking to determine . . . what is happening, but rather what happened” … . Indeed, Costello expressly asked the daughter to “indicate to [him] what happened.” Moreover, Costello went beyond simply asking what happened and requested that the daughter describe and illustrate exactly how it happened using simple words and gestures. While the People argue that Costello requested the use of gestures merely to overcome a language barrier, the fact remains that he asked the daughter to convey information about past events. The daughter’s detailed account of those events, complete with a physical re-enactment of the crime, did “precisely what a witness does on direct examination,” and thus was “inherently testimonial” … . People v Vargas, 2022 NY Slip Op 07460, Second Dept 12-28-22

Practice Point: Here a police officer was allowed to testify about how defendant’s daughter described the alleged stabbing. The daughter did not testify at the trial. Because the officer was trying to ascertain what happened in the past (the defendant was already in custody), as opposed to “what is happening” during an emergency, what the daughter told the officer was testimonial hearsay which should not have been admitted. The decision includes a good explanation of the difference between testimonial and nontestimonial hearsay.

 

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ALTHOUGH DEFENDANT WAS PROCEEDING THROUGH AN INTERSECTION WHEN THE CAR IN WHICH PLAINTIFF WAS A PASSENGER ATTEMPTED A LEFT TURN, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; THE POLICE REPORT, PHOTOS AND DASHBOARD VIDEO WERE INADMISSIBLE AND DEFENDANT’S AFFIDAVIT DID NOT DEMONSTRATE HE WAS FREE FROM FAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant (Wen Xu) in this intersection traffic accident case should not have been granted summary judgment. The defendant was apparently proceeding through the intersection when the driver of the car in which plaintiff was a passenger was attempting to make a left turn. The uncertified police report, photos and dashboard video submitted by the defendant were inadmissible and his affidavit did not demonstrate he was free from fault:

Pursuant to Vehicle and Traffic Law § 1141, “[t]he driver of a vehicle intending to turn . . . left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close [to it] as to constitute an immediate hazard.” “The operator of a vehicle with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield” …  “However, a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle that allegedly failed to yield the right-of-way” … .

Here, Wen Xu failed to demonstrate his prima facie entitlement to judgment as a matter of law, as he failed to establish that he was free from fault in the happening of the accident. In support of his motion, Wen Xu submitted, inter alia, an uncertified police accident report, photographs, a dashboard video camera recording, and his own affidavit. However, the uncertified police accident report constitutes inadmissible hearsay evidence …  The photographs and dashboard video camera recording are similarly inadmissible, as they were not properly authenticated … . Moreover, Wen Xu’s affidavit was insufficient to establish his prima facie entitlement to judgment as a matter of law as it failed to eliminate triable issues of fact with regard to whether he was free from fault in the happening of the accident … . Wen Xu failed to establish that he “took reasonable care to avoid the collision” with the other vehicle … . Rosa v Gordils, 2022 NY Slip Op 07466, Second Dept 12-28-22

Practice Point: Even the driver of the car with the right-of-way in an intersection accident can be liable if reasonable care to avoid the collision is not taken.

Practice Point: The police report, photos and dashboard video submitted by defendant in support of summary judgment were not in admissible form (the police report was uncertified and the photos and video were not authenticated) and defendant’s affidavit did not demonstrate he was free from fault. Therefore, even though defendant apparently had the right-of-way when the other driver attempted a left turn, defendant’s summary judgment motion should not have been granted.

 

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ALTHOUGH THE PEOPLE PRESENTED EVIDENCE OF THE SHOWUP IDENTIFICATION AT THE SUPPRESSION HEARING, THEY DID NOT PRESENT ANY EVIDENCE OF THE INITIAL STOP OF THE DEFENDANT; THE PEOPLE DID NOT MEET THEIR BURDEN TO SHOW THE LEGALITY OF THE POLICE CONDUCT; SUPPRESSION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea, determined the People did not present sufficient evidence at the suppression hearing and suppression of the seized evidence and statements should have been granted. Defendant was accused of a knifepoint robbery of a gas station and was identified in a showup procedure. At the suppression hearing, the People did not present any evidence of the initial stop of the defendant and therefore did not establish the legality of the police conduct:

“On a motion to suppress, the People bear the burden of going forward to establish the legality of police conduct in the first instance” … . “Where a police encounter is not justified in its inception, it cannot be validated by a subsequently acquired suspicion” … . Here, at the suppression hearing, the People failed to present any evidence establishing the basis for the police to have made the initial stop of the defendant. Thus, the People failed to carry their burden of establishing the legality of police conduct in the first instance, and all evidence recovered as a result of the unlawful stop must be suppressed … . People v Vazquez, 2022 NY Slip Op 07461, Second Dept 12-28-22

Practice Point: If, at the suppression hearing, the People do not present any evidence of the initial contact between the police and the defendant, they do not meet their burden to show the legality of the police conduct and suppression is required.

 

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SUPPRESSION OF THE WEAPON WAS PROPERLY DENIED, BUT DEFENDANT’S STATEMENT ADMITTING POSSESSION OF THE WEAPON SHOULD HAVE BEEN SUPPRESSED; ALTHOUGH THE HARMLESS ERROR DOCTRINE IS RARELY APPLIED TO UPHOLD A GUILTY PLEA WHERE SUPPRSSION SHOULD HAVE BEEN GRANTED, HERE THE APPELLATE DIVISION DETERMINED THE PLEA WOULD NOT HAVE BEEN AFFECTED BY SUPPRESSION OF THE STATEMENT; THE DISSENT DISAGREED (FOURTH DEPT). ​

The Fourth Department, over a dissent, determined defendant’s guilty plea to possession of a weapon could not have been affected by the failure to suppress his statement admitting possession of the weapon. The Fourth Department determined the statement was a product of unwarned custodial interrogation:

‘The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response’ ” … . “Although the police may ask a suspect preliminary questions at a crime scene in order to find out what is transpiring . . . , where criminal events have been concluded and the situation no longer requires clarification of the crime or its suspects, custodial questioning will constitute interrogation” … . Here, after defendant had been restrained and handcuffed, an officer asked defendant, “what’s going on? Are you all right? Are you okay?” Defendant responded, “you saw what I had on me. I was going to do what I had to do.” We conclude that the interaction between defendant and the officer “had traveled far beyond a ‘threshold crime scene inquiry’ ” and, under the circumstances, it was likely that the officer’s particular questions ” ‘would elicit evidence of a crime and, indeed, it did elicit an incriminating response’ ” … . …

“[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision, unless at the time of the plea he [or she] states or reveals his [or her] reason for pleading guilty” (People v Grant, 45 NY2d 366, 379-380 [1978]). “The Grant doctrine is not absolute, however, and [the Court of Appeals has] recognized that a guilty plea entered after an improper court ruling may be upheld if there is no ‘reasonable possibility that the error contributed to the plea’ ” … . People v Robles, 2022 NY Slip Op 07336, Fourth Dept 12-23-22

Practice Point: This case is rare exception to the rule that a guilty plea will not stand if a suppression motion should have been granted. Here the appellate division determined suppression of defendant’s statement admitting possession of the weapon would not have affected his decision to plead guilty because the weapon itself had not been suppressed. There was a dissent.

 

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THE AMENDED STATUTE CHANGING THE CRITERIA FOR NEGLECT BASED ON MARIHUANA USE WENT INTO EFFECT TWO DAYS BEFORE THE HEARING AND WAS NOT APPLIED TO THE FACTS; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, modifying Family Court, determined whether mother neglected the children within the meaning of the statute as amended by the Marihuana Regulation and Taxation Act required remittal:

“The Marihuana Regulation and Taxation Act …  amended Family [Court] Act § 1046 (a) (iii) … by specifically foreclosing a prima facie neglect finding based solely upon the use of marihuana, while still allowing for consideration of the use of marihuana to establish neglect, provided ‘[that there is] a separate finding that the child’s physical[,] mental or emotional condition was impaired or is in imminent danger of becoming impaired’ ” … . The amendment to section 1046 (a) (iii) went into effect … two days before the court rendered its decision in this case and, “[a]s a general matter, a case must be decided upon the law as it exists at the time of the decision” … . Inasmuch as petitioner’s presentation of evidence was based on the state of the law at the time of the hearing, however, petitioner may not have fully explored the issue of impairment. We therefore remit the matter to Family Court to reopen the fact-finding hearing on the issue whether the children’s condition was impaired or at imminent risk of impairment as a result of the mother’s use of marihuana … . Matter of Gina R. (Christina R.), 2022 NY Slip Op 07321, Fourth Dept 12-23-22

Practice Point: The Family Court Act was amended to prohibit a finding of neglect based solely on marihuana use unless there is a finding the child’s physical, mental or emotional condition was impaired or in danger of being impaired by the marihuana use.

 

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THE PEOPLE DID NOT DEMONSTRATE THE POLICE OFFICER HAD SUFFICIENT TRAINING AND EXPERIENCE TO VISUALLY ESTIMATE THE SPEED OF DEFENDANT’S CAR; SUPPRESSION SHOULD HAVE BEEN GRANTED IN THIS SPEEDING CASE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the People did not demonstrate the defendant was speeding. No radar gun was used and the officer estimated defendant’s speed. The People did not demonstrate the officer had sufficient training and experience to support the speed-estimate:

At the suppression hearing, the officer testified that he stopped the vehicle after he visually estimated defendant’s speed at 82 miles per hour in a 65 mph zone, and there was no testimony that the officer used a radar gun to establish defendant’s speed. While it is well-settled that a qualified police officer’s testimony that he or she visually estimated the speed of a defendant’s vehicle may be sufficient to establish that a defendant exceeded the speed limit … , here, the People failed to establish the officer’s training and qualifications to support the officer’s visual estimate of the speed of defendant’s vehicle … . Thus, inasmuch as the People failed to meet their burden of showing the legality of the police conduct in stopping defendant’s vehicle in the first instance, we conclude that the court erred in refusing to suppress the physical evidence and defendant’s statements obtained as a result of the traffic stop. Because our determination results in the suppression of all evidence supporting the crime charged, the indictment must be dismissed … . People v Reedy, 2022 NY Slip Op 07397, Fourth Dept 12-23-22

Practice Point: Although a police officer’s visual estimate of a vehicle’s speed may be sufficient to support a speeding conviction, the People must show the officer had sufficient training and experience to make the speed-estimate, which was lacking in this case.

 

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AT THE TIME THE POLICE PARKED THE POLICE CAR BEHIND THE CAR IN WHICH DEFENDANT WAS A PASSENGER SUCH THAT THE DRIVER COULD NOT LEAVE THE AREA, THE POLICE DID NOT HAVE REASONABLE SUSPICION THAT THE OCCUPANTS OF THE CAR HAD COMMITTED A CRIME; DEFENDANT’S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the police did not have the requisite reasonable suspicion when they parked behind the vehicle in which defendant was a passenger such that the driver could not leave the area. Therefore defendant’s motion to suppress should have been granted:

Police officer testimony at the suppression hearing established that, at the time the officers made the initial stop, they were responding to the sound of multiple gunshots that had originated at or near the gas station, which was known to be a high crime area. The officers also testified, however, that at no time did they visually observe the source of the gunshots, and they did not see any shots emanating from the area where defendant’s vehicle was parked. The officers’ attention was drawn to defendant’s vehicle because, at the time they arrived on the scene, it had collided with another vehicle as it tried to leave the area. Defendant’s vehicle was one of a number of vehicles and pedestrians that the police saw trying to leave the gas station due to the ongoing gunfire. Under those circumstances—i.e., where the police are unable to pinpoint the source of the gunfire, and the individuals in defendant’s vehicle are not the only potential suspects present at the scene—the evidence does not provide a reasonable suspicion that the individuals in defendant’s vehicle had committed, were committing, or were about to commit a crime … . On the record before us, defendant’s vehicle was, at most, “simply a vehicle that was in the general vicinity of the area where the shots were heard,” which is insufficient to establish reasonable suspicion … . People v Singletary, 2022 NY Slip Op 07392, Fourth Dept 12-23-22

Practice Point: Parking a police car behind a car such that the car cannot leave is a seizure requiring reasonable suspicion a crime has taken place.

 

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AT THE TIME DEFENDANT RAN AS THE POLICE APPROACHED THERE WAS NO INDICATION THE POLICE WERE GOING TO CITE DEFENDANT FOR TRESPASS OR VIOLATION OF AN OPEN-CONTAINER LAW; DEFENDANT THEREFORE COULD NOT HAVE INTENDED TO OBSTRUCT GOVERNMENTAL ADMINISTRATION BY RUNNING; DEFENDANT’S RUNNING DID NOT PROVIDE PROBABLE CAUSE TO ARREST; THE PEOPLE’S ALTERNATIVE PROBABLE CAUSE ARGUMENT (TRESPASS AND OPEN-CONTAINER VIOLATION), ALTHOUGH PRESENTED TO THE SUPPRESSION COURT, WAS NOT RULED ON AND THEREFORE COULD NOT BE CONSIDERED ON APPEAL (FOURTH DEPT).

​The Fourth Department, reversing the denial of defendant’s suppression motion, determined the police did not have probable cause to arrest defendant for obstructing governmental administration. The People’s alternative argument (the police had probable cause to arrest defendant for trespass and violation of an open-container law), made in a post-suppression-hearing memo, could not be considered on appeal because the suppression court did not rule on it. The police approached defendant as he was sitting at a picnic table on vacant property drinking from a cup. As the police approached, defendant got up from the table and ran:

… [A]lthough the officers testified that they were planning to issue citations for violation of the open container ordinance as they approached the picnic table, there is no evidence that, when defendant jumped up from the table and attempted to run away, the officers were in the process of issuing the citations … or that they had given any directive for defendant to remain in place while they issued such citations … . The officers thus had no reasonable basis to believe that defendant had the requisite intent—i.e., the conscious objective—to prevent them from issuing citations … . * * *

… [T]he court’s determination that the officers had probable cause to arrest defendant for obstructing governmental administration, and that the searches and seizures were incident to a lawful arrest for that offense, “was the only issue decided adversely to defendant at the trial court” … . That determination “alone constituted the ratio decidendi for upholding the legality of the [searches and seizures] and denying the suppression of evidence” (id.). Our “review, therefore, is confined to that issue alone” … . People v Tubbins, 2022 NY Slip Op 07317, Fourth Dept 12-23-22

Practice Point: Here defendant did not know the police were going to cite him for trespass and an open-container violation at the time he ran. Therefore his running was not obstruction of governmental administration and did not provide probable cause for arrest on that ground.

Practice Point: The People’s alternative argument that the police had probable cause to arrest for trespass and an open-container violation was presented to the suppression court but was not ruled on. Therefore the appellate court could not consider it.

 

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DEFENDANT IN THIS PERSONAL INJURY CASE DID NOT WAIVE THE PHYSICIAN-PATIENT PRIVILEGE BY SUBMITTING MENTAL HEALTH RECORDS TO THE SENTENCING COURT IN THE RELATED CRIMINAL CASE; THE RECORDS WERE SUBMITTED AS PART OF A MITIGATION REPORT WHICH IS DEEMED “CONFIDENTIAL” PURSUANT TO THE CRIMINAL PROCEDURE LAW; TWO-JUSTICE DISSENT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant in this pedestrian-vehicle-accident case was not required to disclose privileged medical (mental health) information which was provided to the sentencing court in the related criminal case as a “mitigation report:”

“CPLR 3121 (a) authorizes discovery of a party’s mental or physical condition when that party’s condition has been placed in controversy” … . Nevertheless, even where a defendant’s mental or physical condition is in controversy, discovery will be precluded if the information falls within the physician-patient privilege and the defendant has not waived that privilege … . Where the physician-patient privilege has not been waived, the party asserting the privilege may “avoid revealing the substance of confidential communications made to [his or] her physician, but may not refuse to testify as to relevant medical incidents or facts concerning [himself or] herself” … .

We agree with defendant that he did not waive the physician-patient privilege by disclosing his mental health information in the sentencing phase of the related criminal proceeding. Here, defendant submitted the mitigation report in the criminal proceeding for the court’s consideration in the determination of an appropriate sentence. Thus, this is not a case where a criminal defendant waived any privilege applicable to that defendant’s mental health records by raising a justification or other affirmative defense to be litigated in the criminal proceeding … . Instead, the mitigation report was prepared for and “submitted directly to the court[] in connection with the question of sentence” and, as a result, the mitigation report is “confidential and may not be made available to any person or public or private agency except where specifically required or permitted by statute or upon specific authorization of the court” (CPL 390.50 [1] …). Johnson v Amadorzabala,, 2022 NY Slip Op 07355, Fourth Dept 12-23-22

Practice Point: The defendant in this personal injury case did not waive the physician-patient privilege by submitting mental health records to the sentencing court in the related criminal case. Under the Criminal Procedure Law, the mitigation report was for the judge’s eyes only and was confidential.

 

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