JUST RELEASED

October Page I

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)

 

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APPEALS (COUNTY COURT DID NOT HAVE THE POWER, ON APPEAL FROM A SMALL CLAIMS COURT JUDGMENT, TO REMIT THE MATTER FOR A NEW ASSESSMENT OF DAMAGES; BECAUSE THE DAMAGES AMOUNT WAS WAS NOT SUFFICIENTLY DEMONSTRATED, COUNTY COURT SHOULD HAVE DISMISSED THE CLAIM)/DAMAGES (APPEALS, COUNTY COURT DID NOT HAVE THE POWER, ON APPEAL FROM A SMALL CLAIMS COURT JUDGMENT, TO REMIT THE MATTER FOR A NEW ASSESSMENT OF DAMAGES; BECAUSE THE DAMAGES AMOUNT WAS WAS NOT SUFFICIENTLY DEMONSTRATED, COUNTY COURT SHOULD HAVE DISMISSED THE CLAIM)/SMALL CLAIMS (APPEALS, COUNTY COURT DID NOT HAVE THE POWER, ON APPEAL FROM A SMALL CLAIMS COURT JUDGMENT, TO REMIT THE MATTER FOR A NEW ASSESSMENT OF DAMAGES; BECAUSE THE DAMAGES AMOUNT WAS WAS NOT SUFFICIENTLY DEMONSTRATED, COUNTY COURT SHOULD HAVE DISMISSED THE CLAIM)

 

APPEALS.

 

COUNTY COURT DID NOT HAVE THE POWER, ON APPEAL FROM A SMALL CLAIMS COURT JUDGMENT, TO REMIT THE MATTER FOR A NEW ASSESSMENT OF DAMAGES; BECAUSE THE DAMAGES AMOUNT WAS NOT SUFFICIENTLY DEMONSTRATED, COUNTY COURT SHOULD HAVE DISMISSED THE CLAIM.

 

The Fourth Department determined County Court, upon an appeal of a small claims court judgment for conversion, did not have the power to remit the matter to small claims court for a redetermination of damages. County Court was obligated to dismiss the claim:

 

We agree with defendant that County Court erred in remitting the matter for a new trial on the issue of damages with respect to her, and we therefore modify the order accordingly. "[S]ubstantive justice cannot permit plaintiff[] a second opportunity to prove [her] damages merely because [she] failed to meet [her] prima facie burden in the first instance" ... . Thus, upon determining that there was insufficient evidence of damages with respect to defendant, County Court was obligated to dismiss the claim against her rather than remit the matter for a new trial ... . Mahar v Proper, 2016 NY Slip Op 06590, 4th Dept 10-7-16

 

 

 

 

 

CIVIL PROCEDURE (PLAINTIFF SHOULD HAVE BEEN SANCTIONED FOR DISREGARDING A COURT ORDER AND SUBMISSION OF A MATERIALLY FALSE AFFIDAVIT)/FRIVOLOUS CONDUCT (PLAINTIFF SHOULD HAVE BEEN SANCTIONED FOR DISREGARDING A COURT ORDER AND SUBMISSION OF A MATERIALLY FALSE AFFIDAVIT)/SANCTIONS (PLAINTIFF SHOULD HAVE BEEN SANCTIONED FOR DISREGARDING A COURT ORDER AND SUBMISSION OF A MATERIALLY FALSE AFFIDAVIT)

 

CIVIL PROCEDURE.

 

PLAINTIFF SHOULD HAVE BEEN SANCTIONED FOR DISREGARDING A COURT ORDER AND SUBMISSION OF A MATERIALLY FALSE AFFIDAVIT.

 

The Fourth Department determined Supreme Court should have sanctioned plaintiff for disregarding a court order and submitted a materially false affidavit:

 

Pursuant to 22 NYCRR 130-1.1 (a), a court may award to any party fees and costs resulting from frivolous conduct, i.e., conduct that is "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; . . . [or that is] undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or . . . asserts material factual statements that are false" (22 NYCRR 130-1.1 [c]). Factors to consider in determining whether the conduct undertaken was frivolous include "the circumstances under which the conduct took place," and whether "the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party" (id.).

 

Here, plaintiff's conduct was clearly frivolous inasmuch as she submitted an affidavit that disregarded a court order and, in response to a second order, she submitted a second affidavit that contained a material falsehood. When that conduct is viewed along with plaintiff's failure to comply with discovery demands and other orders, we conclude that it was an abuse of discretion for the court to refuse to sanction plaintiff. Place v Chaffee-Sardinia Volunteer Fire Co., 2016 NY Slip Op 06588, 4th Dept 10-7-16

 

 

 

 

 

CIVIL PROCEDURE (JOINT VENTURE AGREEMENT, ALTHOUGH UNSIGNED, WAS VALID BECAUSE IT WAS CAPABLE OF BEING PERFORMED IN ONE YEAR; CAUSE OF ACTION FOR BREACH ACCRUED IN 2013 WHEN PAYMENT REQUIRED BY THE 2001 AGREEMENT WAS NOT MADE)/CONTRACT LAW (JOINT VENTURE AGREEMENT, ALTHOUGH UNSIGNED, WAS VALID BECAUSE IT WAS CAPABLE OF BEING PERFORMED IN ONE YEAR; CAUSE OF ACTION FOR BREACH ACCRUED IN 2013 WHEN PAYMENT REQUIRED BY THE 2001 AGREEMENT WAS NOT MADE)/CORPORATION LAW (JOINT VENTURE AGREEMENT, ALTHOUGH UNSIGNED, WAS VALID BECAUSE IT WAS CAPABLE OF BEING PERFORMED IN ONE YEAR; CAUSE OF ACTION FOR BREACH ACCRUED IN 2013 WHEN PAYMENT REQUIRED BY THE 2001 AGREEMENT WAS NOT MADE)/JOINT VENTURES (JOINT VENTURE AGREEMENT, ALTHOUGH UNSIGNED, WAS VALID BECAUSE IT WAS CAPABLE OF BEING PERFORMED IN ONE YEAR; CAUSE OF ACTION FOR BREACH ACCRUED IN 2013 WHEN PAYMENT REQUIRED BY THE 2001 AGREEMENT WAS NOT MADE)/STATUTE OF FRAUDS (JOINT VENTURE AGREEMENT, ALTHOUGH UNSIGNED, WAS VALID BECAUSE IT WAS CAPABLE OF BEING PERFORMED IN ONE YEAR; CAUSE OF ACTION FOR BREACH ACCRUED IN 2013 WHEN PAYMENT REQUIRED BY THE 2001 AGREEMENT WAS NOT MADE)

 

CIVIL PROCEDURE, CONTRACT LAW, CORPORATION LAW.

 

JOINT VENTURE AGREEMENT, ALTHOUGH UNSIGNED, WAS VALID BECAUSE IT WAS CAPABLE OF BEING PERFORMED IN ONE YEAR; CAUSE OF ACTION FOR BREACH ACCRUED IN 2013 WHEN PAYMENT REQUIRED BY THE 2001 AGREEMENT WAS NOT MADE.

 

The First Department, in a full-fledged opinion by Justice Saxe, determined defendants' motion to dismiss breach of contract and breach of fiduciary duty causes of action as untimely was properly denied. The facts, which concern the sale of interests in a Russian oil company, are too complex to summarize here. The court held that the complaint alleged a breach of a 2001 joint venture investment agreement based upon an alleged failure to pay plaintiff a portion of sale proceeds in 2013, making the 2014 lawsuit timely:

 

... [T]he motion court denied defendants' motion to dismiss plaintiff's causes of action for breach of their joint venture agreement and the 2001 Agreement, and for breach of defendants' fiduciary duty. It held that although there was no written investment agreement signed by both defendants ... plaintiff sufficiently pleaded the existence of a valid oral agreement by alleging that the parties agreed to the central terms of the unsigned investment agreement. It further held that the oral agreement was not void under the statute of frauds because it was capable of being performed within one year, and because the statute of frauds is generally inapplicable to joint ventures. It also rejected defendants' argument that plaintiff's breach of contract and breach of joint venture claims were time barred, reasoning that the claimed breach of the 2001 Agreement was defendants' failure to pay plaintiff his percentage share of the 2013 ... sale proceeds. * * *

 

This action was commenced within both limitations periods, because defendants "had a recurring obligation to pay plaintiff his . . . share of the profits generated by" the joint venture. ... . A new claim accrued when the obligation to do so was allegedly breached in 2013. Lebedev v Blavatnik, 2016 NY Slip Op 06463, 1st Dept 10-4-16

 

 

 

 

 

 

CIVIL PROCEDURE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/NEGLIGENCE (MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/MEDICAL MALPRACTICE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/DAMAGES (MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/VERDICT, MOTION TO SET ASIDE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)

 

CIVIL PROCEDURE, NEGLIGENCE, MEDICAL MALPRACTICE.

 

SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS.

 

The Second Department, although agreeing with Supreme Court that aspects the damages award in this medical malpractice case were excessive, determined Supreme Court did not have the power to simply reduce the damages amounts. Rather, Supreme Court should have granted the motion to set aside the verdict and ordered a new trial unless the parties stipulate to the reduced damages:

 

... [I]t was procedurally improper for the Supreme Court to enter a judgment reducing the awards for future medical care, future medications, future physical and occupational therapy from age 21, future speech therapy from age 21, future medical equipment, future medical supplies, future loss of earning capacity, past pain and suffering, and future pain and suffering without granting a new trial on those issues unless the plaintiffs stipulated to reduce the verdict ... . Reilly v St. Charles Hosp. & Rehabilitation Ctr., 2016 NY Slip Op 06485, 2nd Dept 10-5-16

 

 

 

 

 

 

COURT OF CLAIMS ACT (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT'S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/ENVIRONMENTAL LAW (HIGHWAY DEICING AGENTS, STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT'S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/REAL PROPERTY (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT'S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/HIGHWAYS (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT'S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/DEICING AGENTS  (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT'S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)

 

COURT OF CLAIMS ACT, ENVIRONMENTAL LAW, REAL PROPERTY.

 

STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT'S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS.

 

The Fourth Department, reversing the Court of Claims, determined the Court of Claims did not have the power to order the state to pay for liability insurance to allow claimant's expert to test soil and water for contamination by highway deicing agents. Under the Court of Claims Act, the state cannot be required to pay fees for claimant's witnesses:

 

In this real property tort action, claimants assert that deicing agents have run off of the Thruway and onto their farm located adjacent to the Thruway, thereby contaminating the soil and water. In order to prove their claim, claimants sought to inspect, test, and sample the Thruway shoulder and median adjacent to their farm. The testing would include, among other things, air, soil, and water testing and would involve "six visits to the site during the winter and early spring." Claimants located a professor who agreed to perform the testing as their expert in exchange for permission to use the tests in his research and teaching; however, neither claimants nor the professor could afford the liability insurance routinely required by defendant in connection with inspections performed on its property.

 

Defendant moved for a protective order "requiring [c]laimants to provide satisfactory liability insurance in connection with proposed testing." The Court of Claims issued an order stating, inter alia, that "[d]efendant shall be required to obtain or pay the costs of the insurance necessary to cover the anticipated testing activities" and that "the amount of insurance necessary shall be as determined by [d]efendant." * * *

 

Under Court of Claims Act § 27, "costs, witnesses' fees and disbursements shall not be taxed . . . by the court to any party." Frederick v New York State Thruway Auth., 2016 NY Slip Op 06585, 4th Dept 10-7-16

 

 

CRIMINAL LAW (SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE'S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED)/SPEEDY TRIAL (SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE'S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED)

 

CRIMINAL LAW.

 

SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE'S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED.

 

The First Department, over an extensive two-justice dissent, determined the trial court properly denied defendant's motion to dismiss on speedy-trial grounds stemming from the six-year delay between the shooting and trial. The defendant and another man, Armstead, were charged in the shooting death of a bystander while intending to shoot another. The People wanted to convict Armstead before trying defendant in the hope Armstead would testify against defendant. Three trials of Armstead ended in at least a partial mistrial. Before the fourth trial, Armstead pled guilty to manslaughter. Over the course of the six years, delays were incurred, inter alia, because counsel were unavailable and because of damage caused by Hurricane Sandy:

 

The chronology of this case highlights some of the problems faced by the courts of this state in large metropolitan areas. These include overburdened courts, overcrowded jails, and overworked prosecutors and legal services defense counsel. Nevertheless, these issues must be considered in the context of this particular case as they affect, if at all, this particular defendant.

 

The dissent tends to minimize the defense side of the equation in determining the reason for the delay, choosing to focus on the prosecution's attempt to get Armstead to testify against defendant as the main reason for the delay in bringing him to trial. While the attempt to get Armstead to testify against defendant certainly played an important role in the delay, it is not the only reason and ignores the many other causes for the delay.

 

The ... chronology shows that much of the delay was occasioned by requests for adjournments by defendant and/or his codefendant for motion practice, change of counsel, discovery proceedings, unavailability of co-defendant's counsel and the like. In the analogous CPL 30.30 situation, adjournments granted with a codefendant's consent are not chargeable to the People ... , and they should not be chargeable here. Despite the dissent's conclusion to the contrary, the record supports the conclusion that these adjournments were not motivated by a goal on the part of the People to gain an unfair tactical advantage over defendant ... . People v Wiggins, 2016 NY Slip Op 06538, 1st Dept 10-6-16

 

 

 

 

CRIMINAL LAW (SENTENCE FOR CONSPIRACY COUNT OF AN INDICTMENT SHOULD HAVE BEEN IMPOSED CONCURRENTLY WITH SENTENCES FOR OVERT ACTS WITH WHICH DEFENDANT HAD PREVIOUUSLY BEEN CHARGED IN A SUPERIOR COURT INFORMATION)/SENTENCING (SENTENCE FOR CONSPIRACY COUNT OF AN INDICTMENT SHOULD HAVE BEEN IMPOSED CONCURRENTLY WITH SENTENCES FOR OVERT ACTS WITH WHICH DEFENDANT HAD PREVIOUUSLY BEEN CHARGED IN A SUPERIOR COURT INFORMATION)

 

CRIMINAL LAW.

 

SENTENCE FOR CONSPIRACY COUNT OF AN INDICTMENT SHOULD HAVE BEEN IMPOSED CONCURRENTLY WITH SENTENCES FOR OVERT ACTS WITH WHICH DEFENDANT HAD PREVIOUSLY BEEN CHARGED IN A SUPERIOR COURT INFORMATION.

 

The Second Department determined the sentences imposed for conspiracy and criminal possession of a controlled substance should run concurrently, not consecutively. The possession offenses, charged in a superior court information (SCI) to which defendant pled guilty, were the overt acts charged in the conspiracy count of a subsequent indictment:

 

As charged here, the underlying crimes were criminal possession of a controlled substance in the second degree and criminal sale of a controlled substance in the second degree. The offenses of criminal possession of a controlled substance in the third and fourth degrees, to which the defendant pleaded guilty as charged under the SCI, were based on the same acts charged, in the indictment, as overt acts committed in furtherance of the conspiracy in the second degree count. As such, the actus reus of each of the offenses charged in the SCI was, by definition, "a material element" of the offense charged in the indictment ... . Since the People failed to establish the legality of consecutive sentences by showing that the acts committed by the defendant were separate and distinct acts ... , the County Court should have directed that the sentence imposed under the indictment run concurrently with the sentences imposed under the SCI. People v Rifino, 2016 NY Slip Op 06513, 2nd Dept 10-5-16

 

 

 

 

 

CRIMINAL LAW (DEFENSE COUNSEL'S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT'S SPEEDY TRIAL RIGHTS)/SPEEDY TRIAL (DEFENSE COUNSEL'S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT'S SPEEDY TRIAL RIGHTS)

 

CRIMINAL LAW.

 

DEFENSE COUNSEL'S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT'S SPEEDY TRIAL RIGHTS.

 

The Fourth Department, reversing County Court, determined defendant's motion to dismiss the marijuana-related indictments should have been granted on speedy trial grounds. The Fourth Department found that defense counsel's letter asking for a discussion of a plea bargain could not be construed as a waiver of defendant's speedy trial rights:

 

Defense counsel did not explicitly state or even suggest in his letter that he was waiving his client's rights to a speedy trial under CPL 30.30; instead, counsel merely requested an opportunity to discuss a plea bargain before the District Attorney presented the case to the grand jury. In our view, that request does not constitute an explicit and "unambiguous" waiver of defendant's speedy trial rights ... , and we thus conclude that "the People failed to meet their burden of proving that the disputed . . . period was not chargeable to them" ... . People v Leubner, 2016 NY Slip Op 06569, 4th Dept 10-7-16

 

 

 

 

 

CRIMINAL LAW (STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION)/GRAND JURY (STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION)

 

CRIMINAL LAW.

 

STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION.

 

The Fourth Department, reversing defendant's conviction, determined the People's notice to defendant about the time and place the grand jury presentation would take place was deficient. The prosecutor told defense counsel the presentation would take place the next day:

 

Here, we conclude that, after receiving defendant's March 1, 2013 request to appear before the grand jury, the People did not provide defendant with notice "of the time and place of the grand jury presentation" ... , as is required by CPL 190.50 (5) (b), and we therefore reverse. We note that, on March 25, 2013, the People sent a letter to defense counsel stating that, "during the week of April 8, 2013, the Erie County Grand Jury will hear testimony concerning this matter. In accordance with CPL 190.50, should your client wish to testify, please clearly state so, in writing, no later than April 5, 2013, so that I can make the necessary arrangements to receive his testimony." Although that letter would have been sufficient to satisfy the initial and separate requirement set forth in CPL 190.50 (5) (a) that the People notify defendant of his right to appear before the grand jury ... , the letter did not satisfy the requirements of CPL 190.50 (5) (b) to inform defendant of the time and place of the grand jury presentation, which were triggered by defendant's March 1, 2013 request to appear before the grand jury. It is of no moment that defendant did not respond to the People's letter because nothing in CPL 190.50 requires a defendant to resubmit a valid notice pursuant to CPL 190.50 (5) (a) when he has already done so. We further note that the prosecutor's oral statement to defense counsel on April 10, 2013 that "he will be presenting the matter to the Erie County Grand Jury the next day" was insufficient to satisfy the notice requirement inasmuch as it did not provide defendant with the requisite notice of the time and place of the grand jury presentation ... . People v Moss, 2016 NY Slip Op 06587, 4th Dept 10-7-16

 

 

 

 

 

 

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/VACATE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION,DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)

 

 

CRIMINAL LAW, ATTORNEYS.

 

DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS.

 

The Fourth Department determined defendant was entitled to a hearing on her motion to vacate her conviction on ineffective assistance grounds. Defendant testified her husband's neck was cut in a struggle for the knife her husband had used to attack her. The People apparently argued defendant's wounds were self-inflicted. There was evidence of a wound behind defendant's left armpit which could not have been self-inflicted. The Fourth Department held that defense counsel's failure to show the jury the wound, failure to engage an expert concerning the wound, failure to examine defendant's clothing and failure to show the clothing to the jury could amount to ineffective assistance of counsel because such evidence would demonstrate the wound behind the armpit was not surgical in origin (as was argued at trial). A hearing, therefore, should have been held:

 

Defendant ... submitted an affirmation from her appellate counsel, who examined the shirts and asserted that, contrary to the testimony of the ... prosecution witness, the holes in the shirts matched precisely the location of defendant's alleged stab wound behind her left armpit. At oral argument of the motion, appellate counsel urged the court to examine the garments before ruling on the motion. The court declined to do so and denied defendant's motion without a hearing.

 

We conclude that, if, as appellate counsel asserts, there are holes in the shirts defendant was wearing at the time of the altercation matching the wound behind her left armpit, in the absence of some strategic explanation, the failure of defendant's trial attorney to examine that clothing, coupled with his failure to call a medical expert to discuss the wound and to show the wound to the jury, would have been so " egregious and prejudicial' " as to deprive defendant of a fair trial ... . Because defendant's "submissions [thus] tend[ ] to substantiate all the essential facts' necessary to support [her] claim of ineffective assistance of counsel" ... , we conclude that the court should have held a hearing on the motion ... . People v Smith, 2016 NY Slip Op 06565, 4th Dept 10-7-16

 

 

 

 

 

 

CRIMINAL LAW (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT'S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/ATTORNEYS (INEFFECTIVE ASSISTANCE, HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT'S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/INEFFECTIVE ASSISTANCE (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT'S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION, HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT'S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/VACATE CONVICTION, MOTION TO (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT'S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)

 

CRIMINAL LAW, ATTORNEYS, EVIDENCE.

 

HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT'S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION.

 

The First Department determined defendant's motion to vacate his conviction (by guilty plea), based upon defense counsel's failure to advise defendant of the possibility of deportation, should not have been denied without a hearing. The decision includes a concise yet complete summary of the federal and state criteria for ineffective assistance and the burdens of proof re: a motion to vacate a conviction by plea. The court noted that credibility questions, here whether defendant's claim he would have rejected the plea had he known of the risk of deportation, can only be resolved by a hearing:

 

The issue before us thus turns on whether counsel's lack of advice on the deportation consequences of defendant's guilty plea resulted in sufficient prejudice to warrant the withdrawal of his guilty plea. In order to prevail, a defendant must demonstrate a "reasonable probability that, [had counsel properly advised him of the implication of his plea on his immigration status], he would not have pleaded guilty and would have insisted on going to trial" ... . ... [D]efendant alleges that he would have gone to trial, despite its hazards and the potentially significant incarceration that a conviction would entail, had he been advised he would be deported. Although to have done so would have meant the rejection of "the very beneficial deal" his counsel had negotiated, the motion court erred in finding that defendant's claim was not "credible," given the length of time defendant resided legally in the United States, and the other factors raised in his motion papers. Such credibility determinations should be made only after a hearing ... . People v Samuels, 2016 NY Slip Op 06423, 1st Dept 10-4-16

 

 

 

 

 

CRIMINAL LAW (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/EVIDENCE (CRIMINAL LAW, DNA, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/PROSECUTORIAL MISCONDUCT (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/DNA (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)

 

CRIMINAL LAW, ATTORNEYS, EVIDENCE.

 

DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE.

 

The Fourth Department reversed defendant's conviction and ordered a new trial because of prosecutorial misconduct to which defense counsel did not object. The prosecutor grossly exaggerated the nature and importance of DNA evidence found on a weapon. Defense counsel's failure to object constituted ineffective assistance:

 

At trial, the People presented testimony of a forensic expert to discuss DNA evidence collected from the gun, but the testimony was not conclusive. The expert testified that she analyzed the DNA mixture and determined that defendant was among 1 in 15 Americans who could not be excluded as a contributor. Nevertheless, on summation, the prosecutor grossly exaggerated the DNA evidence as "overwhelming" proof establishing defendant's "guilt beyond all doubt" and posited: "If the defendant had not possessed the gun, wouldn't science have excluded him?" In our view, the prosecutor's flagrant distortion of the DNA evidence caused defendant such substantial prejudice that he was denied due process of law, particularly in light of the circumstantial nature of the People's case ... . In light of the foregoing, we agree with defendant's related contention that he was denied effective assistance of counsel owing to defense counsel's failure to object to the prosecutor's misconduct during summation ... . People v Rozier, 2016 NY Slip Op 06577, 4th Dept 10-7-16

 

 

 

 

CRIMINAL LAW (STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)/EVIDENCE (CRIMINAL LAW, STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)/DYING DECLARATIONS (CRIMINAL LAW, (STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)

 

CRIMINAL LAW, EVIDENCE.

 

STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION.

 

The First Department, reversing defendants' convictions, determined statements made by the shooting victim should not have been admitted as dying declarations because the statements reflected speculation, not facts. Whether the statements were admissible as dying declarations was not a question of fact for the jury. The defendants were not present at the shooting. The prosecution was based upon the theory the defendants hired the shooter:

 

... [W]e reverse the judgments and order a new trial because the court erred in admitting, as dying declarations, the victim's statements implicating defendants, since they were his "mere expression of belief and suspici[ons]" that defendants were involved in his shooting rather than "statements of facts to which a living witness would have been permitted to testify, if placed upon the stand" ... . Although the dying declarant may accuse his or her killer in conclusory language, "[t]he declaration is kept out if the setting of the occasion satisfies the judge, or in reason ought to satisfy him [or her], that the speaker is giving expression to suspicion or conjecture, and not to known facts" ... .

 

... Contrary to the People's argument, the question of what the victim was referring to when he implicated these defendants was not a proper jury question, nor did the lack of specificity merely go to the weight to be accorded this evidence.

 

The admission of the statements, which was over defendants' timely and specific objection, was not harmless. Although some facts that may have led the victim to suspect that defendants were involved in his murder were part of the trial evidence, there was nothing to prevent the jury from speculating that the victim was privy to other information, outside the record, connecting defendants to the crime. We also note that the jury, which issued several deadlock notes during its very lengthy deliberations, twice requested to hear the dying declaration evidence. People v Gumbs, 2016 NY Slip Op 06424, 1st Dept 10-4-16

 

 

 

 

 

CRIMINAL LAW (SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)

 

CRIMINAL LAW, EVIDENCE.

 

SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED.

 

The Second Department, reversing Supreme Court, determined there were no exigent circumstances justifying the warrantless search of a briefcase found on a parked car near where defendant was arrested. Defendant was identified by a store clerk as the person who had just robbed him at gunpoint and a loaded gun was found on defendant's person upon arrest:

 

Because "[a]ll warrantless searches presumptively are unreasonable per se, . . . [w]here a warrant has not been obtained, it is the People who have the burden of overcoming this presumption of unreasonableness" ... . Under the New York State Constitution, an individual's right of privacy in his or her personal effects dictates that a warrantless search incident to arrest be deemed unreasonable unless (1) it satisfies certain "spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest" and (2) it is justified by the presence of exigent circumstances ... . "Exigency must be affirmatively demonstrated" ... . Exigent circumstances may be established by a showing that the search was necessary to ensure the safety of the public or the arresting officer, or that it was necessary to prevent the destruction or concealment of evidence ... .

 

Contrary to the Supreme Court's determination, the search of the briefcase was not justified as a search incident to a lawful arrest. The People failed to present evidence establishing exigent circumstances at the time of the arrest that would justify the search. The arresting officer did not claim that he searched the briefcase out of concern for the safety of himself or the public and, in any event, the circumstances did not support a reasonable belief that the briefcase contained a weapon ... . Additionally, the officer did not claim that he searched the briefcase to prevent the defendant from destroying evidence and, in any event, the facts do not support such a claim. Moreover, despite the People's contention to the contrary, the error was not harmless, as it cannot be said that there was no significant probability that the jury would have acquitted the defendant of robbery in the first degree had it not been for the error ... . People v Houston, 2016 NY Slip Op 06510, 2nd Dept 10-5-16

 

 

 

 

 

 

CRIMINAL LAW (CONVICTION BASED SOLELY ON DEFENDANT'S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE)/EVIDENCE (CRIMINAL LAW, CONVICTION BASED SOLELY ON DEFENDANT'S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE)/CONFESSIONS (CONVICTION BASED SOLELY ON DEFENDANT'S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE

 

CRIMINAL LAW, EVIDENCE.

 

CONVICTION BASED SOLELY ON DEFENDANT'S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE.

 

The Fourth Department determined defendant's sexual abuse conviction, which was based solely on defendant's confession, was against the weight of the evidence:

 

CPL 60.50 requires corroboration of such a confession: "A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed." Here, there is no such corroboration. The People assert that defendant's confession "was sufficiently corroborated by the testimony of the child victim and her numerous hearsay disclosures solicited by the defense." The record does not support that assertion, however, inasmuch as the victim never testified that she touched defendant's penis with her hand, and there is no other evidence—hearsay or otherwise—independent of defendant's confession to support defendant's conviction of sexual abuse. Although it is well settled that "additional proof need not corroborate every detail of the confession,' " we conclude that defendant's conviction of sexual abuse in the first degree was "based solely on [defendant's] uncorroborated [confession]" ... . Since there was "no corroborating proof of whatever weight,' [count two of the indictment] must be dismissed" ... . People v Maynard, 2016 NY Slip Op 06573, 4th Dept 10-7-16

 

 

 

 

 

CRIMINAL LAW (15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL)/SEX OFFENDER REGISTRATION ACT (SORA) (15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL)

 

CRIMINAL LAW, SEX OFFENDER REGISTRATION ACT (SORA)

 

15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL.

 

The Second Department determined defendant was entitled to a downward departure based upon a 15-year period during which defendant did not reoffend. Defendant's SORA risk level was reduced from three to two:

 

In light of the purpose of SORA, which is to assess the risk that the offender poses while at liberty, lengthy periods during which the defendant has been at liberty after the offense are significant in determining the risk of reoffense and the danger posed in the event of reoffense ...  . Since these periods are not taken into account in the risk assessment instrument (hereinafter the RAI), they are a permissible ground for departure ... . Here, the defendant committed a sex offense in New Jersey in 1982. In the time between that crime and the SORA hearing, which was held in 2012, after the defendant returned to New York, he was incarcerated in New Jersey for approximately 15 years, and he was also at liberty for approximately the same amount of time without reoffending. In light of the lengthy amount of time without reoffense, we conclude that the RAI overstated the defendant's risk of reoffense. People v Sotomayer, 2016 NY Slip Op 06482, 2nd Dept 10-5-16

 

 

 

 

 

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER'S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED)/EVIDENCE (DISCIPLINARY HEARINGS, INMATES, (HEARING OFFICER'S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED)

 

DISCIPLINARY HEARINGS (INMATES), EVIDENCE.

 

HEARING OFFICER'S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED.

 

The Second Department determined several failures to gather proof requested by the inmate (petitioner) deprived petitioner of a fair disciplinary hearing. The determination was annulled and the violation expunged. The hearing officer, inter alia: (1) failed to retrieve a document which could have supported the petitioner's claim he was not served with the proper disciplinary papers; (2) failed to ascertain the identity of the confidential informant who claimed a weapon was in petitioner's cell; and (3) failed to ask a witness (petitioner claimed the witness planted the weapon) relevant questions posed by the petitioner:

 

Considering all of these circumstances, the petitioner did not receive a fair hearing ... . While a prison inmate facing a disciplinary hearing is not entitled to the same level of due process as a criminal defendant, there are minimum standards that must be met ... . Here, since the petitioner did not receive a fair hearing, the minimum due process standard was not met ... . Matter of Harvey v Prack, 2016 NY Slip Op 06497, 2nd Dept 10-5-16

 

 

 

 

 

 

EDUCATION-SCHOOL LAW (LAWSUIT ALLEGING CONSTITUTIONALLY DEFICIENT FUNDING FOR CHARTER SCHOOL FACILITIES SHOULD HAVE BEEN DISMISSED IN ITS ENTIRETY)/CHARTER SCHOOLS (LAWSUIT ALLEGING CONSTITUTIONALLY DEFICIENT FUNDING FOR CHARTER SCHOOL FACILITIES SHOULD HAVE BEEN DISMISSED IN ITS ENTIRETY)

 

EDUCATION-SCHOOL LAW.

 

LAWSUIT ALLEGING CONSTITUTIONALLY DEFICIENT FUNDING FOR CHARTER SCHOOL FACILITIES SHOULD HAVE BEEN DISMISSED IN ITS ENTIRETY.

 

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined a lawsuit brought by a charter school network and students (infant plaintiffs), alleging deficient funding for charter-school facilities violated the Education Article and equal protection, should have been dismissed in its entirety. Although the network was deemed to have the capacity to sue under the Education Article, it did not have standing to sue because the article protects students not schools. The infant plaintiffs' cause of action under the Education Article was deficient because it did not plead a district-wide funding problem. The disparity in facilities funding between charter and public schools was deemed to have a rational basis. The "disparate impact" cause of action failed to allege discriminatory intent.  Brown v State of New York, 2016 NY Slip Op 06566, 4th Dept 10-7-16

 

 

 

 

 

 

EDUCATION-SCHOOL LAW (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT'S TIMELY AWARENESS OF THE INJURIES)/MUNICIPAL LAW (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT'S TIMELY AWARENESS OF THE INJURIES)/NOTICE OF CLAIM (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT'S TIMELY AWARENESS OF THE INJURIES)

 

EDUCATION-SCHOOL LAW, MUNICIPAL LAW.

 

APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT'S TIMELY AWARENESS OF THE INJURIES.

 

The Fourth Department determined claimant's application for leave to file a late notice of claim should not have been granted. Apparently plaintiff's daughter was injured by a student from defendant school district who was subject to an order of protection requiring the student to stay away from the school attended by claimant's daughter. Although claimant demonstrated defendant had timely knowledge of the order of protection but not demonstrate the defendant had timely knowledge of any injuries resulting from the violation of the order:

 

Supreme Court abused its discretion in granting claimant's application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5) approximately one year after the incident in which her daughter was injured occurred. "It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are whether the claimant has demonstrated a reasonable excuse for the delay, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining a defense on the merits" ... . "While the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [municipality] received actual knowledge of the facts constituting the claim in a timely manner" ... . It is well established that "[k]nowledge of the injuries or damages claimed . .. , rather than mere notice of the underlying occurrence, is necessary to establish actual knowledge of the essential facts of the claim within the meaning of General Municipal Law § 50-e (5)" ... , and the claimant has the burden of demonstrating that the respondent had actual timely knowledge ... . Matter of Turlington v Brockport Cent. Sch. Dist., 2016 NY Slip Op 06572, 4th Dept 10-7-16

 

 

 

 

 

 

 

FAMILY LAW (COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/ATTORNEYS (FAMILY LAW, CUSTODY, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/APPEALS (FAMILY LAW, CUSTODY, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/APPEALS (FAMILY LAW, CONSENT ORDER, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)

 

FAMILY LAW, ATTORNEYS, APPEALS.

 

COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE.

 

The Second Department, reversing a consent order, determined Family Court did not take the necessary steps to ensure father wished to waive his right to counsel in this custody/relocation proceeding. Father had indicated he wished to be represented by legal aid. Legal aid informed the court father did not qualify for their services. Father appeared pro se without any further inquiry by the court:

 

Although the order appealed from recites that it was entered on consent, under the particular facts and circumstances of this case, we are not precluded from reviewing whether the Family Court secured a valid waiver of the father's right to counsel. The Family Court erred in allowing the father to proceed pro se. When the father expressed a desire to have an attorney appointed, the court should have inquired further into the father's financial circumstances, including, but not limited to, inquiring about his expenses ... . Moreover, the court did not determine whether the father was unequivocally, voluntarily, and intelligently waiving his right to counsel ... . Despite the father's statements at pretrial appearances that he would like to have an attorney appointed, the court presided over the hearing without inquiring into why the father was appearing pro se, or whether he understood the risks and disadvantages of doing so. Matter of Soto v Willis, 2016 NY Slip Op 06505, 2nd Dept 10-5-16

 

 

 

 

 

 

FAMILY LAW (EVIDENCE OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN'S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)/EVIDENCE (FAMILY LAW, EVIDENCE, INCLUDING OUT OF COURT STATEMENTS BY A CHILD, OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN'S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)/HEARSAY (FAMILY LAW, EVIDENCE, INCLUDING OUT OF COURT STATEMENTS BY A CHILD, OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN'S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)/NEGLECT (EVIDENCE OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN'S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)

 

FAMILY LAW, EVIDENCE.

 

EVIDENCE OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN'S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED.

 

The Second Department, reversing Family Court, determined the out-of-court statements of the child (Tahjane) were sufficiently corroborated, and the proof of excessive corporal punishment and a history of violence against mother in the children's presence supported a finding of neglect by father:

 

Contrary to the Family Court's determination, the mother's testimony and medical records provided sufficient corroboration to support the reliability of Tahjane's out-of-court statements that the father choked her and, together with the petitioner's progress notes, established the allegation, by a preponderance of the evidence, that the father inflicted excessive corporal punishment on Tahjane ... . Further, the court should have drawn a negative inference from the father's failure to testify ... . Accordingly, the petitioner established, by a preponderance of the evidence, that the father neglected Tahjane by inflicting excessive corporal punishment on her.

 

The petitioner also established, by a preponderance of the evidence, that the father neglected all of the subject children by perpetrating acts of domestic violence against the mother in their presence. Although "exposing a child to domestic violence is not presumptively neglectful" ... , a finding of neglect based on an incident or incidents of domestic violence is proper where a preponderance of the evidence establishes that the child was actually or imminently harmed by reason of the parent or caretaker's failure to exercise a minimum degree of care ... . Matter of Nah-Ki B. (Nakia B.), 2016 NY Slip Op 06492, 2nd Dept 10-5-16

 

 

 

 

 

 

FAMILY LAW (FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)/EVIDENCE (FAMILY LAW, FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)/CHILD SUPPORT (FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)

 

FAMILY LAW, EVIDENCE.

 

FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED.

 

The Second Department, reversing Family Court, determined Family Court should have granted mother's objection to the support magistrate's finding father did not willfully violate the support order. Proof that support payments were not made is prima facie proof of a willful violation requiring father to come forward with an explanation. Father offered no explanation:

 

Here, the father's failure to satisfy his child support obligations constituted prima facie evidence of a willful violation ... . This showing shifted the burden to the father to come forward with competent, credible evidence that his failure to pay support in accordance with the terms of the support order was not willful ... . The father failed to satisfy this burden. There was no evidence that the father was financially unable to meet his child support obligations. Accordingly, the Family Court should have granted the mother's objection to so much of the Support Magistrate's order as determined that the father did not willfully violate the support order. Since the father's violation of the support order was willful, the court was required to award an attorney's fee to the mother ... . Matter of Torres v Moran, 2016 NY Slip Op 06506, 2nd Dept 10-5-16

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF FELL 13 OR 14 FEET FROM THE BACK OF A FLATBED TRUCK)/FLATBED TRUCK (LABOR LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF FELL 13 OR 14 FEET FROM THE BACK OF A FLATBED TRUCK)

 

LABOR LAW-CONSTRUCTION LAW.

 

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF FELL 13 OR 14 FEET FROM THE BACK OF A FLATBED TRUCK.

 

The First Department, over an extensive dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action stemming from a fall of 13 to 14 feet from the back of a flatbed truck. Plaintiff was standing on top of steel beams, securing the beams with a cable (to be hoisted by crane off the truck), when he fell. The dissent argued plaintiff did not demonstrate he could have been provided with any kind of safety equipment which would have prevented the fall. Plaintiff was wearing a safety harness, but the harness was not tied off:

 

The motion court correctly determined that defendants, other than Metropolitan Steel, were liable under Labor Law § 240(1) for plaintiff's injuries because they failed to provide plaintiff with an adequate safety device to prevent his fall from steel beams placed on a flatbed trailer. ... [D]efendants' contention that the accident is outside the scope of Labor Law § 240(1) is without merit, because plaintiff's fall from a height of 13 or 14 feet above the ground "constitutes precisely the type of elevation-related risk envisioned by the statute" ... . The fact that plaintiff did not ask for a specific safety device prior to the accident is not dispositive and is not a prerequisite for recovery under Labor Law § 240(1) ... . Plaintiff has met his burden of showing that his fall resulted from the lack of a safety device and is, therefore, entitled to summary judgment on liability (see Phillip v 525 E. 80th St. Condominium, 93 AD3d 578, 579 [1st Dept 2012] [the plaintiff entitled to summary judgment where evidence showed that the plaintiff, who fell while unloading scaffolding material from the flatbed of a truck, was provided with a safety harness, but there was no place where the harness could be secured]). Myiow v City of New York, 2016 NY Slip Op 06461, 1st Dept 10-4-16

 

 

 

 

 

 

MUNICIPAL LAW (NYC DEPARTMENT OF HEALTH EXCEEDED ITS REGULATORY AUTHORITY WITH RESPECT TO MANDATING INFLUENZA VACCINATIONS FOR CERTAIN PRE-SCHOOL PROGRAMS)/ADMINISTRATIVE LAW (NYC DEPARTMENT OF HEALTH EXCEEDED ITS REGULATORY AUTHORITY WITH RESPECT TO MANDATING INFLUENZA VACCINATIONS FOR CERTAIN PRE-SCHOOL PROGRAMS)/INFLUENZA VACCINATIONS (NYC DEPARTMENT OF HEALTH EXCEEDED ITS REGULATORY AUTHORITY WITH RESPECT TO MANDATING INFLUENZA VACCINATIONS FOR CERTAIN PRE-SCHOOL PROGRAMS)

 

MUNICIPAL LAW.

 

NYC DEPARTMENT OF HEALTH EXCEEDED ITS REGULATORY AUTHORITY WITH RESPECT TO MANDATING INFLUENZA VACCINATIONS FOR CERTAIN PRE-SCHOOL PROGRAMS.

 

The First Department, in a full-fledged opinion by Justice Richter, determined the New York City Department of Health exceeded the scope of its regulatory authority when it adopted regulations mandating influenza vaccinations for children attending certain child care, pre-kindergarten and kindergarten programs. The regulations allowed programs to opt-out of the vaccination requirement by paying a fine. The opt-out provision was deemed unrelated to public health, and therefore beyond the Department of Health's regulatory authority:

 

... [W]e conclude that by adopting the challenged amendments, the Board of Health "cross[ed] the line into legislative territory" ... . [T]he Board of Health did not merely balance costs and benefits, but instead improperly made value judgments by creating a regulatory scheme with exceptions not grounded in promoting public health. ... [T]he challenged amendments do not prohibit a child who was not vaccinated against the flu from attending child care or school, but provide only that the facility "may" refuse entry to the unvaccinated child ... . Instead, the provider or school can, in effect, opt-out of the vaccination requirement and allow an unvaccinated child to attend, upon payment of a monetary fine ... .

 

This opt-out provision stands in stark contrast to section 2164(7)(a) of the State's Public Health Law, which, logically, forbids children from remaining in school without proof of the immunizations required under that statute. The challenged amendments, on the other hand, allow a child care provider or school to make an economic choice to pay a fine rather than expel a student and lose a year's worth of tuition. Creating a policy whereby unvaccinated children are allowed to stay in child care or school flies in the face of respondents' claim that the challenged amendments are meant to promote the public health by reducing transmission of the flu virus. Not surprisingly, respondents are unable to point to any health-related reason supporting the opt-out provision. Garcia v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 06559, 1st Dept 10-6-16

 

NEGLIGENCE (WHEEL STOP WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/SLIP AND FALL (WHEEL STOP WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/WHEEL STOP (WHEEL STOP WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)

 

NEGLIGENCE.

 

WHEEL STOP WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS.

 

The Second Department determined the wheel stop was an open and obvious condition which can not be the basis for liability in a slip and fall case:

 

While a property owner has a duty to maintain its premises in a reasonably safe manner for its patrons ... , there is no duty to protect or warn against an open and obvious condition which is not inherently dangerous ... . "A wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm" ... .

 

Here, the defendant ... established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff's deposition testimony and photographic evidence demonstrating that the plaintiff tripped when her foot came into contact with a wheel stop, which was open and obvious and not inherently dangerous, as she attempted to step over it on the way to her car ... . Lacerra v CVS Pharmacy, 2016 NY Slip Op 06474, 2nd Dept 10-5-16

 

 

 

 

 

NEGLIGENCE (CHAIN BETWEEN TWO POLES NOT AN OPEN AND OBVIOUS CONDITION, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE PROPERLY DENIED)/EDUCATION-SCHOOL LAW (TRIP AND FALL, CHAIN BETWEEN TWO POLES NOT AN OPEN AND OBVIOUS CONDITION, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE PROPERLY DENIED)/SLIP AND FALL (CHAIN BETWEEN TWO POLES NOT AN OPEN AND OBVIOUS CONDITION, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE PROPERLY DENIED)

 

NEGLIGENCE, EDUCATION-SCHOOL LAW.

 

CHAIN BETWEEN TWO POLES NOT AN OPEN AND OBVIOUS CONDITION, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE PROPERLY DENIED.

 

The Second Department determined the defendant school district did not demonstrate a chain stretched between two poles, over which plaintiff tripped and fell at a pep rally, was an open and obvious condition. Therefore the school's motion for summary judgment was properly denied:

 

There is no duty to warn of a condition which is open and obvious and not inherently dangerous ... . "The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question for a jury" ... . "A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted' ... .

 

Here, the defendant failed to establish, prima facie, that the chain was open and obvious given the crowd and lighting conditions at the time of the accident ... . Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, it is not necessary to review the sufficiency of the plaintiff's opposition papers ... . Simon v Comsewogue Sch. Dist., 2016 NY Slip Op 06486, 2nd Dept 10-5-16

 

 

 

 

 

NEGLIGENCE (PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (REAR-END COLLISION, PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/COMPARATIVE FAULT (SUMMARY JUDGMENT, PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/SUMMARY JUDGMENT (REAR-END COLLISION PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/REAR-END COLLISIONS (PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)

 

NEGLIGENCE, EVIDENCE.

 

PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED.

 

The Second Department, reversing Supreme Court, determined plaintiffs' failure to demonstrate the absence of comparative fault in this rear-end collision case required the denial of plaintiffs' motion for summary judgment without reference to defendant's papers:

 

"To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault" ... . 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, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence ... . Here, the plaintiffs' submissions in support of their motion, which included the defendant's deposition transcript, failed to eliminate a triable issue of fact as to whether the defendant had a nonnegligent explanation for the collision. According to the defendant, the plaintiffs' vehicle came to a stop, started again, and came to a second stop for no apparent reason. The defendant claimed that when he braked to avoid a collision, his vehicle skidded on a roadway which was wet from melting snow ... . Moluh v Vord, 2016 NY Slip Op 06477, 2nd Dept 10-5-16

 

 

 

 

 

 

NEGLIGENCE (DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/EVIDENCE (REAR-END COLLISION, DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/SUMMARY JUDGMENT (REAR-END COLLISION, DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/COMPARATIVE FAULT (REAR-END COLLISION, DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/REAR-END COLLISION (DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)

 

 

NEGLIGENCE, EVIDENCE.

 

DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT.

 

The Second Department, reversing Supreme Court, determined the defendant (Dick) in this rear-end collision case demonstrated freedom from fault and was entitled to summary judgment. The evidence, including plaintiff's testimony, demonstrated defendant's vehicle was struck from behind while stopped behind plaintiff, and thereby pushed into contact with the rear of plaintiff's vehicle. It was alleged that defendant's vehicle was struck from behind by a Verizon truck which left the scene. That there was a question of fact whether any Verizon truck was involved in the accident had no effect on defendant's entitlement to summary judgment:

 

"The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway" ... . Hence, "[a] rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision" ... . "Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation" ... .

 

Here, Dick established his prima facie entitlement to judgment as a matter of law by demonstrating that his stopped vehicle was propelled forward into the plaintiff's vehicle after his vehicle was struck in the rear by a third vehicle, and that he was not at fault in the happening of the accident ... . In opposition, the Verizon defendants failed to raise a triable issue of fact as to whether Dick was at fault in the happening of the accident ... . Contrary to the Verizon defendants' contention, the issue of whether they owned the third vehicle which struck Dick's vehicle is not relevant to the determination of this motion. Wooldridge-Solano v Dick, 2016 NY Slip Op 06488, 2nd Dept 10-5-16

 

 

 

 

 

 

NEGLIGENCE (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF'S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/EVIDENCE (SLIP AND FALL, STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF'S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/SLIP AND FALL (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF'S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/STORM IN PROGRESS RULE (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER)/ROUTINE MAINTENANCE SCHEDULE (EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF'S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)

 

NEGLIGENCE, EVIDENCE.

 

STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF'S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR.

 

The First Department determined the storm in progress rule relieved defendants of responsibility for tracked in water during a snow storm. With respect to a second accident alleged in the complaint (slipping on urine on the building floor) the court held that evidence of the daily maintenance routine, coupled with plaintiff's testimony she did not see urine on the floor on the afternoon of the accident (which occurred at 6:30 or 7 pm), demonstrated the defendants did not have constructive notice of the condition:

 

Here, plaintiff testified that ten or fifteen minutes before her first accident, she saw that it was snowing. Thus, any issue concerning whether defendants made reasonable efforts to remedy the wet condition on the steps of the entry vestibule was beside the point since they had no duty to correct the ongoing problem of pedestrians tracking water into the vestibule, until a reasonable time after the storm ended ... .

 

With respect to plaintiff's second accident in the building, the court properly concluded that defendants demonstrated prima facie the absence of actual or constructive knowledge of urine on the second floor platform based on the testimony of the superintendent that he inspected daily, mopped three times a week, and swept the stairs every day. Plaintiff also testified that she did not see the urine on the afternoon before her 6:30 p.m. or 7 p.m. accident, and was unaware of any complaints of a recurring moisture condition on the platform... . Rosario v Prana Nine Props., LLC, 2016 NY Slip Op 06431, 1st Dept 10-4-16

 

 

 

 

 

 

 

NEGLIGENCE (PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/SLIP AND FALL (PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/EVIDENCE (SLIP AND FALL, PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/CONTRACT LAW (SLIP AND FALL, FAILURE TO ALLEGE ANY ESPINAL EXCEPTION MANDATED SUMMARY JUDGMENT IN FAVOR OF THE CLEANING CONTRACTOR)

 

NEGLIGENCE, EVIDENCE, CONTRACT LAW.

 

PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL; FAILURE TO ALLEGE ANY ESPINAL EXCEPTION MANDATED SUMMARY JUDGMENT IN FAVOR OF THE CLEANING CONTRACTOR.

 

Although the facts were not explained, the Second Department determined proof of "specific," as opposed to "general," cleaning practices, "under the circumstances," was sufficient to meet defendant's burden demonstrating the absence of constructive notice of the condition which caused plaintiff to fall (not specified in the decision). In addition, because plaintiff did not allege any of the "Espinal" exceptions, proof the plaintiff was not a party to the building owner's contract with the cleaning contractor was sufficient to warrant summary judgment in favor of the contractor:

 

A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it ... . To meet its initial burden on the issue of lack of constructive notice, the defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall ... . Although submission of evidence as to the defendant's general cleaning practices is generally insufficient to meet the defendant's burden on the issue of lack of constructive notice, specific evidence as to cleaning practices may be adequate, depending on the circumstances of the case ... .

 

Here, the owner satisfied its prima facie burden through submission of the deposition testimony of an employee of the contractor and the building concierge employed by the owner. The testimony of the building concierge, and the testimony of the contractor's employee regarding the frequency of the employee's inspections of the area where the injured plaintiff fell, established, prima facie, that the owner did not have constructive notice of the allegedly dangerous condition ... . Mavis v Rexcorp Realty, LLC, 2016 NY Slip Op 06476, 2nd Dept 10-5-16

 

 

 

 

 

 

PRODUCTS LIABILITY (BOILER MANUFACTURER LIABLE FOR FAILURE TO WARN EMPLOYEES OF THE HAZARDS OF WORKING WITH ASBESTOS; DAMAGES FOR PAST PAIN AND SUFFERING REDUCED FROM NEARLY $10 TO $4.5 MILLION)/ASBESTOS (BOILER MANUFACTURER LIABLE FOR FAILURE TO WARN EMPLOYEES OF THE HAZARDS OF WORKING WITH ASBESTOS; DAMAGES FOR PAST PAIN AND SUFFERING REDUCED FROM NEARLY $10 TO $4.5 MILLION)/BOILERS (BOILER MANUFACTURER LIABLE FOR FAILURE TO WARN EMPLOYEES OF THE HAZARDS OF WORKING WITH ASBESTOS; DAMAGES FOR PAST PAIN AND SUFFERING REDUCED FROM NEARLY $10 TO $4.5 MILLION)

 

PRODUCTS LIABILITY.

 

BOILER MANUFACTURER LIABLE FOR FAILURE TO WARN EMPLOYEES OF THE HAZARDS OF WORKING WITH ASBESTOS; DAMAGES FOR PAST PAIN AND SUFFERING REDUCED FROM NEARLY $10 TO $4.5 MILLION.

 

The First Department determined the jury's finding of fault for failure to warn in this asbestos case was supported by the evidence. Defendant used asbestos in the manufacture of its boilers where plaintiff's decedent worked. However, the First Department reduced the trial court's nearly $10,000,000 award for past pain and suffering to $4, 500,000:

 

The jury's verdict is based on sufficient evidence and is not against the weight of the evidence ... . The evidence adduced at trial demonstrates that, while defendant did not manufacture asbestos, for decades it heavily promoted the use of the type of asbestos insulation to which the decedent was exposed. Further, defendant often sold asbestos products along with its boilers and advertised asbestos as the preferred insulation product to use for its boilers. The evidence also shows that defendant was aware of the dangers of asbestos exposure well before the decedent's first exposure in the late 1970s, and that the decedent was never advised by defendant or his employers about those dangers. Accordingly, there is no reason to disturb the jury's determination that defendant had a legal obligation to warn workers such as the decedent of the hazards of asbestos exposure, and that defendant's failure to warn proximately caused the decedent's mesothelioma ... . Peraica v A.O. Smith Water Prods. Co., 2016 NY Slip Op 06537, 1st Dept 10-6-16

 

 

 

 

REAL PROPERTY LAW (CONDOMINIUM UNIT OWNER HAS RIGHT TO INSPECT AND MAKE PAPER AND ELECTRONIC COPIES OF CONDOMINIUM RECORDS; CONDOMINIUM BOARD MEMBERS CANNOT BE SUED INDIVIDUALLY FOR NONFEASANCE BUT CAN BE SUED IN THEIR OFFICIAL CAPACITIES)/CONDOMINIUMS (CONDOMINIUM UNIT OWNER HAS RIGHT TO INSPECT AND MAKE PAPER AND ELECTRONIC COPIES OF CONDOMINIUM RECORDS; CONDOMINIUM BOARD MEMBERS CANNOT BE SUED INDIVIDUALLY FOR NONFEASANCE BUT CAN BE SUED IN THEIR OFFICIAL CAPACITIES)

 

REAL PROPERTY LAW.

 

CONDOMINIUM UNIT OWNER HAS RIGHT TO INSPECT AND MAKE PAPER AND ELECTRONIC COPIES OF CONDOMINIUM RECORDS; CONDOMINIUM BOARD MEMBERS CANNOT BE SUED INDIVIDUALLY FOR NONFEASANCE BUT CAN BE SUED IN THEIR OFFICIAL CAPACITIES.

 

The First Department determined plaintiff, an owner of condominium unit, had the right to inspect and make paper and electronic copies of condominium records. The court further ruled that members of the condominium board could not be held personally liable for actions which amounted only to nonfeasance:

 

Condominium unit owners' inspection rights are not governed by Business Corporation Law § 624, as condominium associations, unlike cooperative apartment corporations, are generally unincorporated. Rather, Real Property Law § 339-w governs the statutory inspection rights of condominium unit owners, and grants unit owners the right to examine "records . . . of the receipts and expenditures arising from the operation of the property," as well as "the vouchers authorizing [such] payments," during "convenient hours of weekdays." Real Property Law § 339-w further provides: "A written report summarizing such receipts and expenditures shall be rendered by the board of managers to all unit owners at least once annually." * * *

 

... [A]lthough defendants are correct that the board does not have an obligation to mail or email to plaintiff copies of monthly financial reports, building invoices, redacted legal invoices, or board meeting minutes, plaintiff's right to examine these records at the managing agent's office, during convenient weekday hours, includes the right to create paper copies or electronic copies at her own expense during her inspection.  * * *

 

Here, plaintiff merely alleges that the board did not honor her inspection rights and failed to respond adequately to her complaints of noise emanating from an adjacent apartment. These allegations amount only to mere nonfeasance for which the board members cannot be held individually liable. Plaintiff's conclusory allegation that the board ignored her noise complaints to retaliate against her for other disputes does not suffice to transform the claim into one for affirmative tortious misconduct. We note, however, that the claims will proceed against the board members in their official capacities. Pomerance v McGrath, 2016 NY Slip Op 06462, 1st Dept 10-4-16

 

 

 

 

 

 

UNEMPLOYMENT INSURANCE (HOUSEKEEPER WAS EMPLOYEE OF CLEANING REFERRAL AGENCY)/HOUSEKEEPER (UNEMPLOYMENT INSURANCE, HOUSEKEEPER WAS EMPLOYEE OF CLEANING REFERRAL AGENCY)

 

UNEMPLOYMENT INSURANCE.

 

HOUSEKEEPER WAS EMPLOYEE OF CLEANING REFERRAL AGENCY.

 

The Third Department determined a housekeeper was an employee of Today's Cleaning Service (TCS), a referral agency which provided housekeepers for clients and was therefore entitled to unemployment insurance benefits:

 

The record evidence establishes that TCS solicited applicants through online advertisements and through its website — which claimant used to complete an application and submit her résumé — and screened the applications that it received ... . TCS's hiring process also required claimant to complete several jobs on a voluntary and trial basis, during which she would work alongside an experienced housekeeper who would report back on claimant's work and ability to effectively provide services for TCS's clients. The initial rate of pay was established and set by TCS, and TCS paid claimant by check. TCS informed claimant of her scheduled jobs — which claimant was required to promptly accept or reject — and the nature and scope of services required for each. During the performance of those cleaning services, TCS required claimant to wear an identification badge reflecting her affiliation with TCS ... . TCS also provided its clients with "scoreboards" that the clients could use to evaluate the services provided and inform TCS of a housekeeper's performance, which TCS could consider when assigning future jobs. If claimant was unable to provide an agreed-upon service or report for a job, claimant was required to immediately inform TCS, and TCS would secure a substitute ... .

 

Although claimant was allowed to keep any existing clients upon being hired by TCS and could work for other employers, the written referral agreement governing TCS's relationship with each housekeeper prohibited solicitation of TCS's clients for one year after the time period encompassed by the agreement and specified that TCS's client information remained the private property of TCS... . Matter of Jachym (Today's Cleaning Serv.--Commissioner of Labor), 2016 NY Slip Op 06523, 3rd Dept 10-6-16

 

 

 

 

 

 

 

UNEMPLOYMENT INSURANCE (BRAND AMBASSADOR WAS NOT AN EMPLOYEE)/BRAND AMBASSADOR (UNEMPLOYMENT INSURANCE, BRAND AMBASSADOR WAS NOT AN EMPLOYEE)

 

UNEMPLOYMENT INSURANCE.

 

BRAND AMBASSADOR WAS NOT AN EMPLOYEE.

 

The Third Department determined a "brand ambassador" hired by G&R (an entertainment and communication business) to promote products at live events was not an employee and therefore was not entitled to unemployment insurance benefits:

 

Here, the uncontroverted testimony of G & R's account executive established that G & R did not train or instruct claimant on his duties for this event, was not present on the event day and lacked any authority to and did not supervise claimant or the means by which he performed these duties for the client. G & R advertised the position on a Facebook page for brand ambassadors, using information about the event position provided by the client, and it received via email resumes and accompanying photographs from applicants, which it reviewed and submitted to the client, which selected its brand ambassadors. Claimant was free to decline the position and was permitted to and had worked for other brand promoters; after the client selected claimant and other individuals for this event, G & R provided them with written show information and guidelines supplied by the client, which outlined the details and expectations for the event.

 

G & R also sent claimant a welcome letter agreement — that the parties signed — designating him as an independent contractor and that required, among other provisions, that any substitutes be approved; it also set forth the client's expectations and rules ... . Matter of Berger (Gail & Rice, Inc.--Commissioner of Labor), 2016 NY Slip Op 06527, 3rd Dept 10-6-16

 

 

 

 

 

 

UNEMPLOYMENT INSURANCE (TENNIS PRO WAS AN EMPLOYEE)/TENNIS PRO (UNEMPLOYMENT INSURANCE, TENNIS PRO WAS AN EMPLOYEE)

 

UNEMPLOYMENT INSURANCE.

 

TENNIS PRO WAS AN EMPLOYEE.

 

The Third Department determined tennis pro who provided lessons for TDA, an indoor tennis club, was an employee entitled to unemployment insurance benefits:

 

The testimony at the hearing established that TDA is solely responsible for setting the court rental and lesson fees, scheduling lessons, assigning tennis pros to clients who sign up for lessons and dictating which particular tennis court is to be used for each lesson. For certain group lessons, TDA even directs what type of stroke the tennis pros must teach. If a client is dissatisfied with a tennis pro's services, the complaint is handled by TDA. In addition, in the event that a tennis pro is unable to attend a scheduled lesson, TDA facilitates the rescheduling of the lesson or the coordinating of a substitute tennis pro to teach the lesson. According to the testimony of claimant and another tennis pro, which the Board explicitly credited, if a tennis pro misses a scheduled lesson and the court cannot be rented to another client, TDA deducts the cost of the court rental fee from the tennis pro's weekly earnings.

 

As for payment, each tennis pro is paid per lesson and the pay rate varies depending on, among other things, the pro's certifications. Seasonal clients — i.e., clients who reserve a court for an entire season — pay their court rental fee up front and then pay the tennis pros directly for each lesson at a rate suggested by TDA and set forth in a contract between TDA and the client.  Matter of Campbell (TDA Indus., Inc.--Commissioner of Labor), 2016 NY Slip Op 06528, 3rd Dept 10-6-16

 

 

 

 

 

 

VEHICLE AND TRAFFIC LAW (DEALER ACT, UNDER THE DEALER ACT, GENERAL MOTORS WAS NOT REQUIRED TO NOTIFY PLAINTIFF CHEVROLET DEALERSHIP OF GM'S APPROVAL OF THE RELOCATION OF ANOTHER CHEVROLET DEALERSHIP IN THE SAME AREA)/DEALER ACT (DEALER ACT, UNDER THE DEALER ACT, GENERAL MOTORS WAS NOT REQUIRED TO NOTIFY PLAINTIFF CHEVROLET DEALERSHIP OF GM'S APPROVAL OF THE RELOCATION OF ANOTHER CHEVROLET DEALERSHIP IN THE SAME AREA)

 

VEHICLE AND TRAFFIC LAW 463 (DEALER ACT)

 

UNDER THE DEALER ACT, GENERAL MOTORS WAS NOT REQUIRED TO NOTIFY PLAINTIFF CHEVROLET DEALERSHIP OF GM'S APPROVAL OF THE RELOCATION OF ANOTHER CHEVROLET DEALERSHIP IN THE SAME AREA.

 

The Fourth Department, in a full-fledged opinion by Justice Centra, determined defendant General Motors (GM) did not violate the Dealer Act (Vehicle and Traffic Law 463(2)(ff)(1)) by failing to notify plaintiff Chevrolet dealership of GM's approval of the relocation of another Chevrolet dealership to an area about four miles from plaintiff's dealership. The opinion focuses on statutory interpretation principles, the terms of the plaintiff's dealership agreement with GM, and the application of federal and Michigan law:

 

We reject plaintiff's contention that GM's approval of Sharon's relocation request ipso facto results in a modification of plaintiff's franchise for which notice may be required under section 463 (2) (ff) (1). To construe section 463 (2) (ff) (1) to require notice to a dealer when a franchisor approves a relocation request of another dealer would essentially render section 463 (2) (cc) (1), which requires notice to certain dealers of relocations of other dealers, superfluous. It is well settled that "[a] court must consider a statute as a whole, reading and construing all parts of an act together to determine legislative intent . . . , and, where possible, should harmonize[] [all parts of a statute] with each other . . . and [give] effect and meaning . . . to the entire statute and every part and word thereof' "... . Courts should construe a statute "to avoid rendering any of its language superfluous" ... . Van Wie Chevrolet, Inc. v General Motors, LLC, 2016 NY Slip Op 06583, 4th Dept 10-7-16

 

 

 

 

 

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