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HERE THE STUDENT WITH DISABILITIES WAS UNSUPERVISED IN GYM CLASS WHEN SHE WAS INJURED; THE DEFENDANT SCHOOL DISTRICT SUCCESSFULLY EXCLUDED EVIDENCE THAT MORE SUPERVISION OF THE STUDENT WAS NEEDED BECAUSE SUCH EVIDENCE PURPORTEDLY CONFLICTED WITH THE STUDENT’S “AMERICANS WITH DISABILITIES ACT 504 PLAN” (WHICH DID NOT CALL FOR EXTRA SUPERVISION) AND THEREFORE EXTRA SUPERVISION WOULD HAVE AMOUNTED TO DISCRIMINATION; THE THIRD DEPARTMENT REJECTED THE ARGUMENT FINDING THAT THE 504 PLAN DID NOT ACT AS A CEILING FOR THE LEVEL OF SUPERVISION TO BE AFFORDED THE STUDENT AND ORDERED A NEW TRIAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, reversing the judgment and ordering a new trial, determined expert evidence and lay-witness testimony should not have been excluded from this negligent-supervision-of-a-student trial. The student had some physical disabilities and a “504 plan” had been developed for her pursuant to the Americans with Disabilities Act (ADA). The plan did not explicitly call for extra supervision. The student was injured when she was practicing jumps in gym class while the teacher was working with other students. The school district successfully argued to the judge that any evidence that the “504 plan” was inadequate to protect the student amounted to discrimination because the plan did not call for extra supervision. That argument was rejected by the Third Department:

… [A] school district’s written 504 plan does not operate as a supervision ceiling in all respects and circumstances.The central purpose of Section 504 is to assure that students with disabilities receive equal treatment in relation to their peers … , that is, that they receive support, based on their individual needs, so that they may also meaningfully access a given educational experience … . This stands in stark contrast to defendant’s reliance upon federal antidiscrimination law as a shield from liability. Plainly put, if two kindergarteners have difficulty performing a skill in a mainstream physical education class, adequate support should be provided to both of them — not, illogically, only the one who does not have a 504 plan. Yet that is precisely what defendant’s argument devolves to. Jaquin v Canastota Cent. Sch. Dist., 2023 NY Slip Op 01039, Third Dept 2-23-23

Practice Point: Here the injured student had certain disabilities and the school district put in place a 504 Plan pursuant to the Americans with Disabilities Act to accommodate for her disabilities. The plan did not call for extra supervision. The student was injured while unsupervised in gym class. The school district successfully argued evidence that more supervision was needed conflicted with the 504 plan. The argument was rejected and a new trial ordered.

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THE RECORD DID NOT SUPPORT THE FINDING THAT FATHER NEGLECTED THE CHILD BASED ON MOTHER’S DRUG USE WHEN SHE WAS PREGNANT; ALTHOUGH FATHER DID NOT REPORT MOTHER’S DRUG USE TO HER PROBATON OFFICER, FATHER MADE EFFORTS TO INTERVENE RE: MOTHER’S DRUG USE DURING THE PREGNANCY (THIRD DEPT).

The Third Department, reversing Family Court, determined the record did not support a finding that father (respondent) neglected the child based on mother’s drug use when she was pregnant:

Respondent argues that Family Court erred when it found that, knowing that the mother was abusing drugs while pregnant with the daughter, respondent failed to exercise a minimum degree of care when he failed to report the mother’s drug use to her probation officer In its decision, Family Court found that respondent made “some efforts to intervene as to the mother’s drug use,” by enrolling her in an inpatient drug treatment facility, attending drug treatment sessions and drug court proceedings with the mother and preventing her from residing with the son and limiting her contact with him. Indeed, the court stated that respondent had “failed to do the one thing that would have ensured that [the mother did] not have access to drugs while pregnant, reporting her to her probation officer,” and it found that this single failure constituted neglect. Under the circumstances of this case, we disagree.

Respondent testified that … he … learned that the mother had a warrant for her arrest due to her issues with probation. … [H]e and the mother agreed that the mother would engage in an inpatient treatment program to address her addiction and that she would then turn herself in to probation. … [F]our days after entering inpatient treatment, the mother signed herself out and absconded. … [P]etitioner failed to prove by a preponderance of the evidence that respondent failed to exercise a minimum degree of care required of a reasonable and prudent parent … . While respondent could have contacted the mother’s probation officer and reported her drug use, a warrant for the mother’s arrest was already in place, and respondent seemingly lacked any information to assist probation in locating her. Matter of Leo RR. (Joshua RR.), 2023 NY Slip Op 01041, second Dept 2-23-23

Practice Point: Father made efforts to intervene re: mother’s drug use during pregnancy. The record did not support a finding that father neglected the child because he did not report mother’s drug use to her probation officer.

 

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​ THE PEOPLE DID NOT HAVE THE DOCUMENT OFFERED TO PROVE DEFENDANT’S MASSACHUSETTS CONVICTION CERTIFIED PURSUANT TO CPLR 4540; SECOND FELONY OFFENDER SENTENCE VACATED (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence as a second felony offender, determined the proof of the Massachusetts conviction which was the basis for the second felony offender status was deficient:

… [T]he People offered a copy of a “warrant” transferring defendant from local custody to state prison, as well as a copy of defendant’s public docket report. Both documents reflect defendant’s conviction in Massachusetts of armed robbery, bear the seal of the Massachusetts Superior Court and contain the signature of a court official attesting that such documents are true copies. However, the People’s submissions “lacked the certificate, under seal, showing that the attestor was the legal custodian of the records and that this signature was genuine as required by CPLR 4540 [c]” …  As a result of such failure, we vacate defendant’s adjudication as a second felony offender, as well as the resulting sentence, and remit this matter to County Court for a new second felony offender hearing, at which time the People will have an opportunity to overcome the technical deficiencies in their proof … . People v Caraballo, 2023 NY Slip Op 01029, Third Dept 2-23-23

Practice Point: To prove a foreign conviction the relevant document must be certified in accordance with CPLR 4540 (c).

 

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ALTHOUGH THE SEARCH WARRANT DESCRIBED THE RESIDENCE AS HAVING TWO ENTRANCE DOORS, ONE LEADING TO THE AREA WHERE THE INFORMANT SAW THE FIREARMS AND ONE LEADING TO A STAIRWAY TO THE SECOND FLOOR (WHICH THE INFORMANT HAD NOT VISITED), THE WARRANT WAS NOT SEVERABLE AND WAS THEREFORE OVERBROAD (SECOND DEPT). ​

The Second Department determined Supreme Court properly found the search warrant overly broad and suppressed the seized evidence. The warrant described the premises to be searched as having two exterior doors, one leading to the area described by the confidential informant who had seen firearms there, and the other leading to stairs to the second floor. The informant had never been upstairs and nothing was seized from upstairs. The issue was whether the part of the warrant which authorized the search of the upstairs could be severed from the part of the warrant describing the area visited by the informant. The court reasoned that severance would be justified if the warrant described two separate apartments. But because the warrant described the premises as a single residence, it was overbroad:

Unlike the warrant in Hansen [38 NY2d 17], which authorized the search of two obviously separate places—a home and a vehicle—the language of the warrant in this case was ambiguous, and failed to clearly delineate whether it authorized a search of a single residence or two separate residences. The warrant did refer to the premises as a “two-family home,” with a “right main entrance” that led to “a living room, a kitchen, and bedrooms,” and a “left main entrance,” which led to “a set of stairs that lead up to a living room, a kitchen and bedrooms,” which may have suggested that the building contained two separate apartments. Yet, the warrant referred to the premises as the “Subject Location” and “the residence,” and instead of using words like “apartment” or “unit,” it referred to the rooms on the first floor as being “at the residence,” and referred to the rooms on the second floor as being “at the rear of the residence.”

In light of this ambiguity, a reviewing court could not determine that the warrant authorized the search of two separate places without impermissibly engaging in “retrospective surgery, dehors the language of the warrant, [to] cut away the illegal portions of the area to be searched and by judicially revised description save evidence recovered from a more narrowly limited area” … . People v Capers, 2023 NY Slip Op 01011, Second Dept 2-22-23

Practice Point: The Court of Appeals has held that where a warrant describes two distinct areas to be searched, a vehicle and a residence for example, and the search of one of the areas was not supported by probable cause, the warrant may be severed. Here, although there were two entrances to the premises, it was described as a single residence and therefore was not severable.

 

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FAMILY COURT ABUSED ITS DISCRETION IN FAILING TO CONDUCT AN IN CAMERA INTERVIEW WITH THE CHILD BEFORE DENYING MOTHER’S PETITION FOR IN-PERSON PARENTAL ACCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined the denial of mother’s petition for in-person parental access was not supported by the record, in part because the judge did not conduct an in camera interview with the child:

The Family Court’s determination, in effect, denying that branch of the mother’s petition which was for in-person parental access lacked a sound and substantial basis in the record. “The decision to conduct an in camera interview to determine the best interests of the child is within the discretion of the hearing court” … . Here, the court improvidently exercised its discretion in failing to conduct an in camera interview of the child, particularly given the mother’s testimony that the child’s fear of visiting her in person was due to outside influence … . The child is of such an age and maturity that his preferences are necessary to create a sufficient record to determine his best interests … . Matter of Badal v Wilkinson, 2023 NY Slip Op 00997, Second Dept 2-22-23

Practice Point: Here Family Court should have conducted an in-person interview with the child before denying mother’s petition for in-person parental access. The failure to conduct the interview was deemed an abuse of discretion.

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AN AFFIDAVIT FROM A WITNESS TO THIS REAR-END TRAFFIC ACCIDENT STATING THAT PLAINTIFF WAS BACKING UP AT THE TIME DEFENDANT’S CAR STRUCK PLAINTIFF’S RAISED ONLY A QUESTION OF PLAINTIFF’S COMPARATIVE FAULT WHICH WILL NOT DEFEAT PLANTIFF’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end traffic accident case should have been granted. The affidavit of a witness stating that plaintiff was backing up when defendant’s car struck it raised an issue of comparative negligence, which is no longer a bar to summary judgment:

“A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” … . As such, “[a] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision” … . “A nonnegligent explanation includes, but is not limited to, sudden or unavoidable circumstances” … . “[V]ehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows” … . “A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability”… .

… [T]he plaintiff submitted an affidavit in which he averred that his vehicle was at a full stop when it was struck in the rear by the defendants’ vehicle … . In opposition, the defendants failed to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . The defendants submitted an affidavit … a witness to the accident … who stated that he saw the plaintiff’s vehicle backing up while the defendants’ vehicle was moving forward and, as a result, the front of the defendants’ vehicle made contact with the rear of the plaintiff’s vehicle. … [The]statement that the plaintiff’s vehicle was backing up … was insufficient to raise a triable issue of fact because that statement related only to the plaintiff’s comparative fault … . An v Abbate, 2023 NY Slip Op 00977, Second Dept 2-22-23

Same result (but no comparative negligence evidence) in another rear-end traffic accident case: Balgobin v McKenzie, 2023 NY Slip Op 00978, Second Dept 2-22-23

Practice Point: Here a witness to the rear-end traffic accident provided an affidavit stating plaintiff was backing up when defendant struck the rear of plaintiff’s car. The affidavit raised a question of plaintiff’s comparative fault which was not enough to defeat plaintiff’s motion for summary judgment.

 

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A JUDGE HAS DISCRETION TO DENY A MOTION FOR A DEFAULT JUDGMENT ON THE GROUND THE CAUSE OF ACTION HAS NOT BEEN SHOWN TO BE VIABLE; HERE THE ALLEGATIONS IN THE COMPLAINT, WHICH ARE DEEMED ADMITTED, STATED A VIABLE CAUSE OF ACTION AND THE MOTION FOR A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in a case related to Aleyne v Rutland Dev. Group, Inc.,2023 NY Slip Op 00975, Second Dept 2-22-23 (also summarized in the Digest), determined plaintiff’s motion for a default judgment in this action to set aside a deed as forged should have been granted:

… [T]he plaintiff correctly contends that the motion for leave to enter a default judgment against Rutland was timely filed. The plaintiff served Rutland with the summons and complaint on March 25, 2019, pursuant to Business Corporation Law § 306 via service on the Secretary of State. Rutland defaulted by failing to appear or answer the complaint within 30 days (see CPLR 320[a]; 3012[c]). The plaintiff would have been required to take proceedings for the entry of a default judgment against Rutland within one year of the default, by April 24, 2020 (see id. § 3215[c]). However, time limitations in civil actions were tolled by executive order from March 20, 2020, until November 3, 2020 … . Since the plaintiff filed the motion on October 6, 2020, it was timely.

… “A plaintiff seeking leave to enter a default judgment under CPLR 3215 must file proof of: (1) service of a copy or copies of the summons and the complaint, (2) the facts constituting the claim, and (3) the defendant’s default” (…See CPLR 3215[f]). “[D]efaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” … . However, “‘a court does not have a mandatory, ministerial duty to grant a motion for leave to enter a default judgment, and retains the discretionary obligation to determine whether the movant has met the burden of stating a viable cause of action'” … .

… [Plaintiff’s] submissions, including her affidavit in which she denied signing the deed and other documents related to the transfer of the property, were sufficient to demonstrate that her causes of action, insofar as asserted against Rutland, were viable … . Alleyne v Rutland Dev. Group, Inc., 2023 NY Slip Op 00976,Second Dept 2-22-23

Practice Point: A judge has the discretion to deny a motion for a default judgment if the plaintiff has not demonstrated the action was viable. Here the allegations in the complaint, which are deemed admitted by the failure to answer, stated a viable cause of action and the default judgment should have been awarded.

 

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IF PLAINTIFF MOVED FOR SUMMARY JUDGMENT IN THIS ACTION TO SET ASIDE A DEED PLAINTIFF WOULD HAVE HAD TO PROVE THE DEED WAS FORGED; TO WIN A MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE, HOWEVER, THE DEFENDANT MUST UTTERLY REFUTE PLAINTIFF’S ALLEGATION THE DEED WAS FORGED WHICH DEFENDANT FAILED TO DO HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (Golden Bridge’s) motion to dismiss this action to set aside a deed (allegedly forged) should not have been granted. The decision clearly lays out the subtle but crucial differences in proof requirements between a defendant’s motion to dismiss based on documentary evidence and a a plaintiff’s motion for summary judgment.

On February 3, 2004, the plaintiff acquired title to real property located in Brooklyn. In 2017, the property was transferred to the defendant Rutland Development Group, Inc. (hereinafter Rutland), by the deed that is the subject of this action. Rutland granted the defendant Golden Bridge, LLC (hereinafter Golden Bridge), a mortgage on the property in exchange for the sum of $625,000. * * *

“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate … . A motion to dismiss a complaint based upon CPLR 3211(a)(1) may be granted “only where the documentary evidence utterly refutes [a] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . …

Here, in support of its motion, Golden Bridge submitted … a notary’s certificate of acknowledgment attesting that the plaintiff had appeared before him … , and executed the subject deed or acknowledged her execution thereof, a resolution by Rutland authorizing the plaintiff to borrow a sum of money from Golden Bridge on Rutland’s behalf, and bank checks … . Although Golden Bridge did proffer some evidence that the plaintiff may have received consideration as a result of the transfer of the property, Golden Bridge’s evidentiary submissions were insufficient to utterly refute the plaintiff’s allegations that the deed and other relevant documents were forged, she received no consideration, and she did not have any relationship to Rutland (see CPLR 4538 …). On a motion for summary judgment, the plaintiff would have had to proffer evidence so clear and convincing as to amount to a moral certainty, in order to rebut the presumption, based on the notary’s certificate of acknowledgment, that the deed was duly executed (see CPLR 4538 …). Here, however, on a motion to dismiss the complaint pursuant to CPLR 3211(a), the questions are whether the plaintiff has a cause of action and whether Golden Bridge conclusively established a defense as a matter of law. Aleyne v Rutland Dev. Group, Inc.,2023 NY Slip Op 00975, Second Dept 2-22-23

Practice Point: Here in this action to set aside a deed as forged, the proof requirements for a plaintiff’s motion for summary judgment and defendant’s motion to dismiss based on documentary evidence were compared. In the summary judgment motion, plaintiff would have to prove the deed was forged. In the motion to dismiss, the defendant must produce documentary evidence which utterly refutes plaintiff’s allegation the deed was forged–two very different standards of proof.

 

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DEFENDANT WAS NOT FREE TO LEAVE AFTER A STREET STOP AND WAS INTERROGATED WITHOUT HAVING BEEN AFFORDED THE MIRANDA WARNINGS; THE DEFENDANT’S STATEMENTS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and suppressing defendant’s statements, determined defendant was in custody after a street stop and was interrogated without the Miranda warnings:

At a pretrial suppression hearing, a police officer testified … he stopped the defendant and another male, both of whom matched the description of individuals suspected of leaving the scene of a motor vehicle accident where a motorcyclist had been struck. At that time, the defendant and the other male were detained and were not “free to leave.” Further, at least ten police vehicles responded to the location, along with several officers.

Thereafter, without advising the defendant of his Miranda rights … , a state trooper asked the defendant his name and performed a “quick cursory pat down” of the defendant’s person. The state trooper then engaged in what he indicated was a “more detailed conversation” with the defendant. Specifically, the state trooper inquired whether the defendant was the operator of the subject vehicle. According to the state trooper, in response thereto, the defendant initially admitted that he was the operator of that vehicle, but then “quickly corrected himself and stated that he took the train” to the location. The state trooper proceeded to ask the defendant additional details relating to the train trip, including “which train he took to that location, which stop he got off at, and where his trip began.” The state trooper testified that the defendant “couldn’t give . . . an answer to any of those questions.” At the time that the state trooper asked these questions, the defendant was placed with his hands on the hood of a police car. Additionally, the “entire street was pretty much blocked off by police vehicles.” People v Trice, 2023 NY Slip Op 01015, Second Dept 2-22-23

Practice Point: Here the defendant was stopped on the street and several police vehicles and ten police officers were at the scene. A state trooper questioned him while defendant was standing with his hands on the hood of a police car. The defendant was in custody and had not been afforded the Miranda warnings. His statements should have been suppressed.

 

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THE EXPERTS WHO TESTIFIED THE SEIZED SUBSTANCES CONTAINED HEROIN OR COCAINE RELIED ON COMPARISONS WITH STANDARD SAMPLES IN THEIR LABS BUT NO EVIDENCE WAS OFFERED TO DEMONSTRATE THE ACCURACY OF THE SAMPLES; THEREFORE THE EXPERTS’ OPINIONS RELIED ON EVIDENCE NOT IN THE RECORD; CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing the convictions which relied on expert evidence that the seized substances contained cocaine or heroin, determined the experts relied on evidence which was not in the record. Therefore a proper foundation had not been laid for the conclusions that the substances contained cocaine and heroin:

Here, each of the People’s five experts testified to arriving at the conclusion that the substance tested was either heroin or cocaine by comparing the substance with a standard sample in the laboratory that was known to be heroin or cocaine. When questioned about the accuracy of the known standard, the experts testified generally that the sample reference material was obtained from chemical manufacturers. Some of the experts testified that the samples came with certifications, which might have established the sample’s accuracy, but no such certifications were offered into evidence. Some of the experts testified that the sample reference material generally is tested upon arrival at the laboratory, but none of the experts could testify to personal knowledge of the testing of the known standard that she or he used in this case, and the People did not introduce any evidence establishing that such independent testing had occurred. …

Although an expert’s testimony that a substance contains a narcotic drug may be admissible when it is not based solely upon comparative tests using known standards, but is also based on other tests not involving known standards, or other facts in evidence … , here, two of the experts relied solely upon the comparative tests, and their testimony should have been stricken …. Further, while the other three experts testified that before using the comparative tests to confirm the identity of the substance, she or he employed one or more presumptive tests, each of those presumptive tests merely demonstrated the possibility that cocaine or heroin might be present in the substance, but did not confirm the presence of the narcotic drug. It was the comparison to the known standard that enabled each expert to conclude that the substance tested was heroin or cocaine … . People v Ramis, 2023 NY Slip Op 01013, Second Dept 2-22-23

Practice Point: If an expert’s opinion relies on information that is not in the record, a proper foundation for the opinion has not been laid. Here the experts’ opinions that seized substances contained cocaine and heroin were based on comparison with samples in the lab, but no evidence demonstrating the accuracy of the samples was presented.

 

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