General Practice Update January 2023

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Appropriate for Experienced Attorneys

Areas of Professional Practice: 2 CLE Credit Hours

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) and posted on the New York Appellate Digest website in January 2023. In the spirit of “General Practice,” this CLE covers all of the January 2023 decision-summaries as collected in the four January 2023 “Weekly Reversal Reports.” The “General Practice Update CLE” provides credit for keeping up with the latest substantive appellate rulings.

The decision-summaries posted weekly on the New York Appellate Digest website are organized in “Weekly Reversal Reports” which are accessed on the Home Page.” The “Weekly Reversal Reports” comprise the written materials for the “General Practice Update CLE” courses. Links to the written materials for this course (the four January 2023 Weekly Reversal Reports) are provided below.

As you listen to the course, you will hear verification codes. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification codes, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 2.5 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (the four January 2023 Weekly Reversal Reports), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

The media player for this course is at the bottom of the page.

Weekly Reversal Report January 2 – 6, 2023

Weekly Reversal Report January 9 – 13, 2023

Weekly Reversal Report January 16 – 20, 2023

Weekly Reversal Report January 23 – 27, 2023

Attorney Affirmation General Practice Update January 2023

Evaluation Survey General Practice Update January 2023

Topics Covered in the “January 2023 General Practice Update CLE” Course Are Described Below; Page Numbers Refer to the Written Materials, i.e., the Pages in Each of the Four Weekly Reversal Reports

JANUARY 2 – 6, 2023 WEEKLY REVERSAL REPORT

CIVIL PROCEDURE, CONSUMER LAW, JURISDICTION OVER FOREIGN ELECTRONIC-CIGARETTE MANUFACTURER. 2

NEW YORK HAS JURISDICTION OVER OUT-OF-STATE DEFENDANT JUUL LABS, THE MANUFACTURER OF ELECTRONIC CIGARETTES, AND TWO CORPORATE OFFICERS IN AN ACTION ALLEGING DECEPTIVE BUSINESS PRACTICES, FRAUD AND PUBLIC NUISANCE (FIRST DEPT). 2

CIVIL PROCEDURE, NEGLECT TO PROSECUTE, SIX-MONTH RECOMMENCEMENT OPTION (CPLR 205(A)). 3

TO DEPRIVE A PLAINTIFF OF THE SIX-MONTH RECOMMENCEMENT BENEFIT OF CPLR 205(A) THERE MUST HAVE BEEN A PATTERN OF NEGLECT, NOT, AS HERE, A SINGLE INSTANCE OF NEGLECT (PLAINTIFF WAS NOT READY FOR TRIAL); THERE WAS A DISSENT (FIRST DEPT). 3

CORPORATION LAW, PIERCE-THE-CORPORATE-VEIL ALLEGATIONS INSUFFICIENT. 4

THE ALLEGATIONS IN THE COMPLAINT WERE NOT SUFFICIENT TO SUPPORT LIABILITY ON A PIERCING-THE-CORPORATE-VEIL THEORY AND THE HOPE THAT DISCOVERY WOULD REVEAL SOMETHING WAS NOT A BASIS FOR DENIAL OF THE MOTION TO DISMISS (FIRST DEPT). 4

CRIMINAL LAW, FAMILY LAW, FAMILY OFFENSES, DISORDERLY CONDUCT. 5

THE MAJORITY HELD THE EVIDENCE DID NOT ESTABLISH DISORDERLY CONDUCT AS A FAMILY OFFENSE, FINDING THE CONDUCT WAS NOT “PUBLIC;” THE DISSENT ARGUED THE CONDUCT WAS “PUBLIC” IN THAT IT TOOK PLACE IN THE PRESENCE OF ADULTS AND CHILDREN OUTSIDE A DAYCARE CENTER (THIRD DEPT). 5

MEDICAID, PUBLIC HEALTH LAW, TAX LAW, HEALTH CARE FACILITIES. 6

NONPUBLIC RESIDENTIAL HEALTH CARE FACILITIES NEED PERMISSION TO WITHDRAW EQUITY OR TRANSFER ASSETS IN EXCESS OF 3% OF THE FACILITIES’ REVENUE; CORPORATE OWNERS NEED NOT INCLUDE FEDERAL AND STATE INCOME TAXES IN THE 3% CALCULATION; FACILITIES OWNED BY PASS-THROUGH ENTITIES (I.E., LIMITED LIABILITY COMPANIES) MUST INCLUDE FEDERAL AND STATE INCOME TAXES IN THE 3% CALCULATION (THIRD DEPT). 6

TOXIC TORTS, ASBESTOS EXPOSURE, SUMMARY-JUDGMENT EVIDENCE REQUIREMENTS. 7

DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW THAT PLAINTIFF’S EXPOSURE TO ASBESTOS WHEN MAINTAINING DEFENDANT’S PRODUCTS DID NOT CONTRIBUTE TO PLAINTIFF’S ASBESTOS-INJURIES; AT THE SUMMARY JUDGMENT STAGE, IT IS NOT ENOUGH FOR DEFENDANT TO ARGUE PLAINTIFF COULD NOT PROVE CAUSATION (THIRD DEPT). 7

JANUARY 9 – 13, 2023 WEEKLY REVERSAL REPORT

BATTERY, INMATES, CORRECTIONS OFFICERS, EMPLOYMENT LAW, RESPONDEAT SUPERIOR. 3

THE ASSAULT AND BATTERY OF CLAIMANT-INMATE BY CORRECTIONS OFFICERS OCCURRED WITHIN THE SCOPE OF THE OFFICERS’ EMPLOYMENT AND WAS REASONABLY FORESEEABLE; THEREFORE THE STATE, AS THE OFFICERS’ EMPLOYER, COULD BE LIABLE FOR THE ASSAULT AND BATTERY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR (THIRD DEPT). 3

CIVIL PROCEDURE, VERDICT SHEETS, JUROR CONFUSION. 4

NO ONE OBJECTED TO THE VERDICT SHEET BEFORE THE VERDICT AND JUROR AFFIDAVITS ALLEGING CONFUSION ARE NOT TO BE CONSIDERED EXCEPT IN EXTRAORDINARY CIRCUMSTANCES NOT PRESENT HERE; THE MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 4

CIVIL PROCEDURE, MOTION TO DISMISS, DOCUMENTARY EVIDENCE. 5

THE EVIDENCE SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS WAS NOT “DOCUMENTARY EVIDENCE” WITHIN THE MEANING OF CPLR 3211(A)(1); THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 5
EMPLOYMENT LAW, HUMAN RIGHTS LAW, LABOR LAW, DISCRIMINATION. 6
PLAINTIFF STATED CAUSES OF ACTION FOR EMPLOYMENT DISCRIMINATION AND VIOLATIONS OF THE LABOR LAW (FIRST DEPT). 6

NEGLIGENCE, ATTORNEYS, DISCOVERY DISPUTE, AFFFIRMATION OF GOOD FAITH. 7

PLAINTIFFS’ COUNSEL’S GOOD-FAITH AFFIRMATION DID NOT INCLUDE DETAILS OF ANY EFFORTS TO RESOLVE THE DISCOVERY ISSUE AND WAS THEREFORE INADEQUATE; PLAINTIFFS’ MOTION TO COMPEL DEFENDANT TO SUBMIT TO A DEPOSITION UNDER THREAT OF PRECLUSION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 7

NEGLIGENCE, DAMAGES, EVIDENCE, PRIOR INJURY. 8

MEDICAL (SURGICAL) RECORDS IN A NO-FAULT FILE RELATED TO A PRIOR INJURY SUFFERED BY PLAINTIFF SHOULD NOT HAVE BEEN ADMITTED IN THIS DAMAGES TRIAL; NEW TRIAL ON DAMAGES ORDERED (FIRST DEPT). 8

NEGLIGENCE, SLIP AND FALL, INDEPENDENT MEDICAL EXAMINATION. 9

PLAINTIFF SLIPPED AND FELL COMING OUT OF THE SHOWER, INJURING HER GENITAL AND PELVIC AREAS; DEFENDANTS WERE ENTITLED TO AN INDEPENDENT MEDICAL EXAMINATION WHICH MIRRORED THE EXAM DONE BY PLAINTIFF’S OWN PHYSICIAN, INCLUDING A GYNECOLOGICAL EXAM AND A FULL PELVIC EXAM; SUPREME COURT HAD DENIED THE FULL PELVIC EXAM; THERE WAS AN EXTENSIVE DISSENT (FIRST DEPT). 9

NEGLIGENCE, SLIP AND FALL, MUNICIPAL LAW. 10

THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS ROAD-DEFECT SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; THE NINE-MONTH DELAY WAS NOT EXPLAINED; THE CITIY DID NOT HAVE TIMELY NOTICE OF THE POTENTIAL LAWSUIT; AND PETITIONER DID NOT SHOW THE CITY WOULD NOT BE PREJUDICED BY THE DELAY (SECOND DEPT). 10

NEGLIGENCE, SLIP AND FALL, OUT-OF-POSSESSION LANDLORD. 11

THE TERMS OF THE LEASE DID NOT DEMONSTRATE DEFENDANT OUT-OF-POSSESSION LANDLORD DID NOT HAVE A DUTY TO MAKE NONSTRUCTURAL FLOOR REPAIRS; THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 11

NEGLIGENCE, TRAFFIC ACCIDENTS, MUNICIPAL LAW, IMMUNITY. 12

THE CITY IS NOT ENTITLED TO GOVERNMENTAL FUNCTION IMMUNITY WHEN ENGAGED IN THE PROPRIETARY FUNCTION OF MAINTAINING ROADS; IN THE ABSENCE OF A STUDY TO DETERMINE THE RISKS OF A HIGHWAY DESIGN, THE CITY IS NOT ENTITLED TO QUALIFIED IMMUNITY; THERE WAS A QUESTION OF FACT WHETHER THE ABSENCE OF SIGNS AND ROADWAY MARKINGS WAS A PROXIMATE CAUSE OF THE INTERSECTION TRAFFIC ACCIDENT (FIRST DEPT). 12

NEGLIGENCE, SLIP AND FALL, CIVIL PROCEDURE, WORKERS’ COMPENSATION. 13

HERE THERE IS AN UNRESOLVED QUESTION ABOUT WHETHER PLAINTIFF IS ENTITLED TO WORKERS’ COMPENSATION BENEFITS; SUPREME COURT SHOULD GRANTED SUMMARY JUDGMENT TO DEFENDANTS AND REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD (SECOND DEPT). 13

PRODUCTS LIABILITY, UNIFORM COMMERCIAL CODE, IMPLIED WARRANTIES. 14

THE COMPLAINT DID NOT STATE CAUSES OF ACTION FOR BREACH OF IMPLIED WARRANTY FOR A PARTICULAR PURPOSE OR BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY (FIRST DEPT). 14

JANUARY 16 – 20, 2023, WEEKLY REVERSAL REPORT

CIVIL PROCEDURE, AMEND COMPLAINT. 3

THE TEN-MONTH DELAY BEFORE SEEKING TO AMEND THE COMPLAINT AND DEFENDANT’S SPECULATIVE ALLEGATION OF PREJUDICE WERE NOT SUFFICIENT GROUNDS FOR DENYING THE MOTION TO AMEND (SECOND DEPT). 3

CRIMINAL LAW, JUDGES, JURORS. 4

AFTER A JUROR CAME FORWARD DURING DELIBERATIONS TO SAY SHE THOUGHT THE DEFENDANT HAD FOLLOWED HER IN HIS CAR DURING THE TRIAL AND OTHER JURORS EXPRESSED SAFETY CONCERNS WITH RESPECT TO TRIAL SPECTATORS, THE JUDGE INTERVIEWED EACH JUROR AND PROPERLY DENIED DEFENDANT’S MOTION FOR A MISTRIAL BASED ON A GROSSLY-UNQUALIFIED-JUROR ARGUMENT; TWO-JUSTICE DISSENT (THIRD DEPT). 4

CRIMINAL LAW, UNCORROBORATED ADMISSION. 5

DEFENDANT’S RAPE CONVICTION BASED SOLELY ON HIS UNCORROBORATED ADMISSION WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (THIRD DEPT). 5

FAMILY LAW, CUSTODY, CHANGE IN CIRCUMSTANCES. 6

ALLEGATIONS FATHER DID NOT ABIDE BY THE VISITATION TERMS AND USED DRUGS DURING VISITATION SUPPORTED MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY BASED UPON CHANGED CIRCUMSTANCES (THIRD DEPT). 6

FAMILY LAW, JUDGES, PARENTAL RIGHTS, PERMANENT NEGLECT. 7

ALTHOUGH THE RECORD SUPPORTED FATHER’S PERMANENT NEGLECT AND THE TERMINATION OF FATHER’S PARENTAL RIGHTS, FAMILY COURT SHOULD NOT HAVE DISPENSED WITH THE DISPOSITIONAL HEARING ABSENT FATHER’S CONSENT; MATTER REMITTED (THIRD DEPT). 7

FAMILY LAW, NYC ADMINISTRATION OF CHILDREN’S SERVICES, CHILD ABUSE AND NEGLECT RECORDS. 8

FATHER MADE A PRIMA FACIE SHOWING THE NYC ADMINISTRATION OF CHILDREN’S SERVICES (ACS) SHOULD BE HELD IN CONTEMPT FOR FAILING TO PROVIDE UNREDACTED REPORTS OF CHILD ABUSE OR NEGLECT WHICH WERE DEEMED UNFOUNDED; MATTER REMITTED (FIRST DEPT). 8

FAMILY LAW, PARENTAL RIGHTS, ABANDONMENT. 9

THE ABANDONMENT PETITION SHOULD NOT HAVE BEEN GRANTED; PETITIONER DID NOT DEMONSTRATE RESPONDENT FATHER INTENDED TO FOREGO HIS PARENTAL RIGHTS AND, IN FACT, PETITIONER AFFIRMATIVELY INTERFERED WITH FATHER’S ATTEMPTS TO MAINTAIN CONTACT WITH THE CHILDREN (THIRD DEPT). 9

FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PROOF OF MAILING. 11

PLAINTIFF BANK DID NOT DEMONSTRATE THE NOTICE OF FORECLOSURE WAS MAILED IN ACCORDANCE WITH RPAPL 1304; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULDN’T HAVE BEEN GRANTED (SECOND DEPT). 11

LABOR LAW-CONSTRUCTION LAW. 12

PLAINTIFF ALLEGEDLY FELL INTO A DITCH WHICH WAS COVERED BY A TARP; THE FACT THAT PLAINTIFF WAS THE ONLY WITNESS AND THE ALLEGATION PLAINTIFF COULD HAVE TAKEN A DIFFERENT ROUTE DID NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). 12

LEGAL MALPRACTICE, FAILURE TO SEEK DAMAGES FROM TORTFEASOR PERSONALLY. 13

PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE ALLEGED DEFENDANT ATTORNEY NEGLIGENTLY FAILED TO PURSUE DAMAGES IN EXCESS OF THE POLICY LIMITS AGAINST THE TORTFEASOR PERSONALLY; DEFENDANT DID NOT DEMONSTRATE PLAINTIFF WOULD NOT HAVE PREVAILED AGAINST THE TORTFEASOR PERSONALLY; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 13

NEGLIGENCE, LANDLORD-TENANT, DANGEROUS CONDICTION. 14

PLAINTIFF FELL THROUGH A STOREFRONT WINDOW IN DEFENDANT PLANET ROSE’S KARAOKE BAR; GIVEN THE CIRCUMSTANCES, THE FAILURE TO INSTALL TEMPERED GLASS MAY HAVE BEEN NEGLIGENT; BY THE TERMS OF THE LEASE, THE OUT-OF-POSSESSION LANDLORD, DEFENDANT 219 AVE. A, COULD NOT BE HELD LIABLE (FIRST DEPT). 14

TRUSTS AND ESTATES, TESTAMENTARY CAPACITY, UNDUE INFLUENCE. 15

CONFLICTING EVIDENCE OF DECEDENT’S TESTAMENTARY CAPACITY AND PETITIONER’S UNDUE INFLUENCE PRECLUDED SUMMARY DISMISSAL OF RESPONDENT’S OBJECTIONS TO THE WILL SUBMITTED FOR PROBATE BY PETITIONER (THIRD DEPT). 15

JANUARY 23 – 27, 2023 WEEKLY REVERSAL REPORT

APPEALS, CIVIL PROCEDURE, SUMMARY JUDGMENT, SEARCH THE RECORD. 4

THE SECOND DEPARTMENT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO A NONAPPEALING PARTY IN THIS SLIP AND FALL CASE (SECOND DEPT). 4

CIVIL PROCEDURE, CORPORATION LAW, NEGLIGENCE, VENUE. 5

EVEN THOUGH THE DEFENDANT CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY AND THE TRAFFIC ACCIDENT OCCURRED IN NASSAU COUNTY WHERE THE CORPORATION DID HAVE AN OFFICE, VENUE WAS APPROPRIATELY PLACED IN NEW YORK COUNTY BASED ON DEFENDANT’S CERTIFICATE OF INCORPORATION (FIRST DEPT). 5

CIVIL PROCEDURE, EDUCATION-SCHOOL LAW, MUNICIPAL LAW, NEGLIGENCE, INFANCY TOLL, STATUTE OF LIMITATIONS. 6

THE ONE-YEAR-AND-NINETY-DAY TIME LIMIT FOR A SUIT AGAINST A SCHOOL DISTRICT IN GENERAL MUNICIPAL LAW 50-I(1)(C) IS SUBJECT TO THE INFANCY TOLL IN CPLR 208 (SECOND DEPT). 6
CIVIL PROCEDURE, PRODUCTS LIABILITY, JURISDICTION, FOREIGN CORPORATIONS. 7
NEW YORK DID NOT HAVE LONG-ARM OR PERSONAL JURISDICTION OVER THE ITALIAN MANUFACTURER OF A HOSE USED AS A COMPONENT IN A DISHWASHER MADE AND SOLD BY A NONPARTY (SECOND DEPT). 7

CONTRACT LAW, EVIDENCE, DAMAGES. 8

PLAINTIFF’S FAILURE TO PROVIDE EVIDENCE OF THE EXACT AMOUNT OF DAMAGES HE SUFFERED FROM DEFENDANT’S BREACH OF CONTRACT PRECLUDED SUMMARY JUDGMENT (SECOND DEPT). 8

CRIMINAL LAW, JUDGES, JURY INSTRUCTIONS, POSSESSION OF A WEAPON. 9

THE INDICTMENT CHARGED DEFENDANT WITH POSSESSION OF A WEAPON OUTSIDE HIS HOME OR BUSINESS; THE JUDGE INSTRUCTED THE JURY THEY NEED ONLY FIND DEFENDANT POSSESSED A LOADED FIREARM; THE POSSESSION OF A WEAPON CONVICTION WAS REVERSED (SECOND DEPT). 9

EDUCATION-SCHOOL LAW, MUNICIPAL LAW, NEGLIGENCE. 10

THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SCHOOL PLAYGROUND ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED; PETITIONER DID NOT DEMONSTRATE THE SCHOOL HAD TIMELY ACTUAL KNOWLEDGE OF THE POTENTIAL NEGLIGENT-SUPERVISION CLAIM AND PETITIONER DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TIMELY FILE (SECOND DEPT). 10

FAMILY LAW, JUDGES, ATTORNEYS. 11

FAMILY COURT SHOULD NOT HAVE PROCEEDED WITH THE CUSTODY HEARING WITHOUT A SEARCHING INQUIRY INTO WHETHER RESPONDENT FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (SECOND DEPT). 11

FORECLOSURE, CIVIL PROCEDURE, MOTION TO RENEW. 13

IN THIS FORECLOSURE ACTION, THE BANK’S FAILURE TO EXPLAIN WHY AN AFFIDAVIT DEMONSTRATING THE NOTICE OF DEFAULT WAS PROPERLY MAILED WAS NOT SUBMITTED WITH THE INITIAL MOTION FOR SUMMARY JUDGMENT PRECLUDED A MOTION FOR LEAVE TO RENEW (SECOND DEPT). 13

LABOR LAW-CONSTRUCTION LAW. 14

A HEAVY DOOR FELL ON PLAINTIFF’S HAND AS HE AND A CO-WORKER ATTEMPTED TO LIFT THE DOOR ONTO A TRUCK; NO LIFTING DEVICES WERE AVAILABLE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). 14

LABOR LAW-CONSTRUCTION LAW. 15

PLAINTIFF STRUCK HIS HEAD AS HE FELL AND WAS INJURED BY THE ABRUPT STOP OF HIS FALL BY THE SAFETY HARNESS AND LANYARD; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). 15

LABOR LAW-CONSTRUCTION LAW. 16

PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS FALL; THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). 16

LABOR LAW-CONSTRUCTION LAW. 17

THERE WAS A QUESTION OF FACT WHETHER REPLACEMENT OF DAMAGED CEILING TILES WAS REPAIR, COVERED BY LABOR LAW 240(1) AND 241(6), OR ROUTINE MAINTENANCE, WHICH IS NOT COVERED (SECOND DEPT). 17

MEDICAL MALPRACTICE, INFORMED CONSENT. 18

A SIGNED CONSENT FORM ALONE DOES NOT PRECLUDE A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION IN A MEDICAL MALPRACTICE CASE (SECOND DEPT). 18

MEDICAL MALPRACTICE, VICARIOUS LIABILITY. 19

ATTENDING PHYSICIAN NOT VICARIOUSLY LIABLE FOR NEGLIGENCE OF PHYSICIAN’S ASSISTANT BASED UPON THE PHYSICIAN’S STATUS AS A SHAREHOLDER IN THE PROFESSIONAL SERVICE CORPORATION WHICH EMPLOYED THE PHYSICIAN’S ASSISTANT; $3 MILLION VERDICT EXCESSIVE (FIRST DEPT). 19

MUNICIPAL LAW, CIVIL PROCEDURE, STATUTE OF LIMITATIONS, ARTICLE 78. 20

HERE NOTICE OF THE DENIAL OF PETITIONER’S APPLICATION TO THE TOWN FOR THE APPROVAL OF A FENCE AND GATE WAS MAILED TO PETITIONER; PETITIONER WAS ENTITLED TO THE PRESUMPTION THE NOTICE ARRIVED FIVE DAYS AFTER IT WAS MAILED; THEREFORE PETITIONER’S ARTICLE 78 PROCEEDING WAS TIMELY COMMENCED (SECOND DEPT). 20

NEGLIGENCE, CONSTRUCTIVE NOTICE. 21

DEFENDANT SUPERMARKET DID NOT OFFER PROOF OF WHEN THE AREA OF THE SLIP AND FALL WAS LAST INSPECTED OR CLEANED PRIOR TO THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE GRAPES ON THE FLOOR (FIRST DEPT). 21

NEGLIGENCE, ESPINAL EXCEPTIONS. 22

IN THIS SLIP AND FALL CASE, THE DEFENDANT SNOW-REMOVAL CONTRACTOR DID NOT NEED TO ADDRESS ANY ESPINAL EXCEPTION IN ITS ANSWER BECAUSE PLAINTIFF DID NOT ALLEGE AN EXCEPTION APPLIED; PLAINTIFF DID NOT DEMONSTRATE THAT AN ESPINAL EXCEPTION APPLIED IN OPPOSITION TO SUMMARY JUDGMENT; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). 22

NEGLIGENCE, PROXIMATE CAUSE 23

ALTHOUGH PLAINTIFF ALLEGED HE TRIPPED OVER A HOSE HE HAD PLACED ON THE STEPS, THERE WAS A QUESTION OF FACT WHETHER INADEQUATE LIGHTING WAS ANOTHER PROXIMATE CAUSE OF THE SLIP AND FALL (SECOND DEPT). 23

REAL ESTATE, CONTRACT LAW, LIMITED LIABILITY COMPANY LAW, STATUTE OF FRAUDS. 24

ALTHOUGH THE LIMITED LIABILITY COMPANY (LLC) VOTING AGREEMENT CONCERNED THE SALE OF REAL PROPERTY, IT WAS NOT SUBJECT TO THE STATUTE-OF-FRAUDS PROHIBITION OF ORAL AGREEMENTS (FIRST DEPT). 24

REAL ESTATE, CONTRACT LAW, TIME OF THE ESSENCE. 25

THE STIPULATION SETTING A DATE FOR THE CLOSING ON DEFENDANT’S PURCHASE OF THE PROPERTY DID NOT INFORM DEFENDANT HE WOULD BE CONSIDERED TO BE IN DEFAULT IF THE CLOSING DID NOT TAKE PLACE BY THAT DATE; THEREFORE THERE WAS NO “TIME OF THE ESSENCE” AGREEMENT AND PLAINTIFF WAS NOT ENTITLED TO THE DOWN PAYMENT (SECOND DEPT). 25

REAL PROPERTY TAX, CORPORATION LAW, EDUCATION-SCHOOL LAW. 26

TOWNHOUSES PURCHASED BY A NOT-FOR-PROFIT SCHOOL TO HOUSE FACULTY ARE TAX EXEMPT (SECOND DEPT), 26

RETIREMENT AND SOCIAL SECURITY LAW. 27

PETITIONER POLICE OFFICER FELL TWICE AT NIGHT WHILE INVESTIGATING SUSPICIOUS ACTIVITY; HE FELL IN A THREE-FOOT DEEP HOLE WHEN CHECKING OUT A HOUSE AND HE FELL DOWN SOME STAIRS CHECKING OUT A PARKING LOT; NEITHER FALL WAS A COMPENSABLE “ACCIDENT” (THIRD DEPT). 27

Criminal Law Update April – June 2022 – Part 1

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Appropriate for Experienced Attorneys

Areas of Professional Practice: 3.5 CLE Credit Hours

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between April 1, 2022 and June 30, 2022 which address issues in “Criminal Law.”

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly Reversal Reports which are accessed in the “Update Service.” The monthly Reversal Reports comprise the written materials for these monthly CLE courses. The course is divided into three parts: Part 1 is based on the April 2022 Reversal Report; Part 2 is based on the May 2022 Reversal Report; Part 3 is based on the June 2022 Reversal Report. The link to the April Reversal Report is below.

As you listen to the course, you will hear verification codes. After finishing Part 3 of the course, print and fill out the “Attorney Affirmation,” including the verification codes, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). The links to the “Attorney Affirmation” and “Evaluation Survey” are on the podcast page for Part 3 of this course. Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 3.5 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the link below for the written materials for Part 1: Criminal Law Reversal Report April 2022).

The media player for this course is at the bottom of the page.

Links to the Attorney Affirmation and Evaluation Form are on the podcast page for Part 3 of this course.

Criminal Law Reversal Report April 2022

Topics Covered in the “Criminal Law Reversal Report April 2022” Are Described Below; the Numbers Refer to the Page Numbers in the Report

APRIL 2022 REVERSAL REPORT

APPEALS, MOTION TO VACATE CONVICTION. 4

THE TWO-JUSTICE DISSENT ARGUED THAT THE MAJORITY ERRONEOUSLY AFFIRMED THE DENIAL OF THE MOTION TO VACATE THE CONVICTION ON A GROUND NOT RELIED UPON BY THE MOTION COURT (FOURTH DEPT). 4

BAIL-SETTING, HABEAS CORPUS. 5

ALTHOUGH BAIL-SETTING IS NOT APPEALABLE, WHETHER THE BAIL-SETTING COURT COMPLIED WITH THE CONSTITUTIONAL OR STATUTORY STANDARDS INHIBITING EXCESSIVE BAIL IS A PROPER SUBJECT FOR A HABEAS CORPUS PETITION; HERE THE BAIL-SETTNG COURT DID NOT COMPLY WITH CPL 510.30; MATTER REMITTED (FOURTH DEPT). 5

BRADY MATERIAL, PROVIDED FOUR DAYS BEFORE TRIAL. 6

ALTHOUGH INFORMATION PROVIDED FOUR DAYS BEFORE TRIAL PURSUANT TO A DEFENSE SUBPOENA INCLUDED BRADY MATERIAL, THE MAJORITY CONCLUDED THE DEFENSE HAD A MEANINGFUL OPPORTUNITY TO USE THE INFORMATION TO CROSS-EXAMINE THE PEOPLE’S WITNESSES; THE DISSENTER DISAGREED (THIRD DEPT). 6

CRIMINAL NEGLIGENCE, SPEEDING. 7

DEFENDANT WAS CONVICTED OF ASSAULT THIRD BASED UPON HIS LOSING CONTROL OF THE CAR AND CRASHING, INJURING A PASSENGER; THE “CRIMINAL NEGLIGENCE” ELEMENT OF ASSAULT THIRD WAS NOT SUPPORTED BY THE EVIDENCE; CONVICTION REVERSED UNDER A “WEIGHT OF THE EVIDENCE” ANALYSIS (FOURTH DEPT). 7

DISCIPLINARY HEARINGS (INMATES). 8

THE EVIDENCE DID NOT SUPPORT THE DETERMINATION PETITIONER-INMATE WAS GUILTY OF “CREATING A DISTURBANCE” (THIRD DEPT). 8

DISCOVERY, DEFENSE COUNSEL SHOULD BE PROVIDED WITH DISCOVERABLE MATERIAL PRIOR TO PROTECITVE-ORDER ARGUMENT. 9

THE PEOPLE’S APPLICATION FOR A PROTECTIVE ORDER PRECLUDING DISCLOSURE OF CERTAIN DISCOVERABLE MATERIALS TO THE DEFENDANT UNTIL A WEEK BEFORE TRIAL SHOULD HAVE BEEN PROVIDED TO DEFENSE COUNSEL TO ALLOW THE ISSUES TO BE FULLY LITIGATED; MATTER REMITTED (THIRD DEPT). 9

DWI, VEHICLE AND TRAFFIC LAW. 10

REFUSING TO TAKE A DWI BREATH TEST IS NOT AN OFFENSE (FOURTH DEPT). 10

EVIDENCE, PAST RECOLLECTION RECORDED, FLAWED JURY INSTRUCTIONS. 11

A PROSECUTION WITNESS’S WRITTEN STATEMENT DID NOT MEET THE CRITERIA FOR PAST RECOLLECTION RECORDED AND SHOULD NOT HAVE BEEN ADMITTED; THE JUDGE’S USE OF THE PHRASE “POTENTIALLY AIDS” INSTEAD OF “INTENTIONALLY AIDS” IN THE ACCOMPLICE LIABILITY JURY INSTRUCTION PREJUDICED THE DEFENDANT; ALTHOUGH THE JURY INSTRUCTION ERROR WAS NOT PRESERVED, THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT). 11

EVIDENCE, STATE-OF-MIND EVIDENCE, RAPE. 12

THE MAJORITY CONCLUDED THAT, IF IT WAS ERROR TO ADMIT TESTIMONY THAT THE RAPE VICTIM WAS AWARE DEFENDANT HAD BEEN INCARCERATED, THE ERROR WAS HARMLESS; TWO DISSENTERS ARGUED THE EVIDENCE HAD NO PROBATIVE VALUE BECAUSE THE VICTIM’S STATE OF MIND WAS NOT IN ISSUE AND ITS INTRODUCTION WAS THERFORE HIGHLY PREJUDICIAL (FOURTH DEPT). 12

FAMILY LAW, MOTHER’S MARIJUANA USE, NEGLECT. 13

MOTHER’S MARIJUANA USE DURING PREGNANCY AND THE FACT THAT MOTHER AND CHILD TESTED POSITIVE FOR MARIJUANA AT THE TIME OF THE CHILD’S BIRTH WERE NOT SUFFICIENT TO DEMONSTRATE NEGLECT; NEW YORK HAS LEGALIZED MARIJUANA USE (FIRST DEPT). 13

GUILTY PLEAS, INDUCED BY PROMISE NOT FULFILLED RE: ABILITY TO APPEAL ORDER. 14

ALTHOUGH THE ISSUE WAS NOT PRESERVED, DEFENDANT’S GUILTY PLEA WAS VACATED BECAUSE IT WAS INDUCED BY THE JUDGE’S PROMISE THAT ALL THE COURT’S ORDERS COULD BE APPEALED; IN FACT, THE DEFENDANT’S CONTENTION THAT TWO COUNTS OF THE INDICTMENT WERE DUPLICITOUS COULD NOT BE RAISED ON APPEAL (FOURTH DEPT). 14

JUDGES, ABUSE OF DISCRETION, PRECLUDING FURTHER APPLICATIONS 15

THE JUDGE, IN DENYING DEFENDANT’S SECOND MOTION T O SET ASIDE HIS SENTENCE, SHOULD NOT HAVE PRECLUDED DEFENDANT FROM MAKING “ADDITIONAL APPLICATIONS” WITHOUT THE PERMISSION OF THE COURT (THIRD DEPT). 15

JUDGES, INTERFERENCE BY JUDGE DURING TRIAL. 16

THE JUDGE’S INTERFERENCE IN AND RESTRICTIONS ON THE DEFENSE SUMMATION AND IMPROPER EXCLUSION AND ADMISSION OF EVIDENCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (SECOND DEPT). 16

JUDGES, VOIR DIRE, JURORS INDICATED INCLINATION TO BELIEVE VICTIM. 17

THE JUDGE SHOULD HAVE INQUIRED FURTHER WHEN SEVERAL PROSPECTIVE JURORS INDICATED THEY WOULD BE INCLINED TO BELIEVE THE VICTIM IN THIS SEXUAL ABUSE CASE, NEW TRIAL ORDERED (FIRST DEPT). 17

JURORS, FOR CAUSE CHALLENGES, JUROR IS A DA. 18

THE FOR CAUSE CHALLENGE TO THE PROSPECTIVE JUROR WHO WAS AN ASSISTANT DISTRICT ATTORNEY IN THE OFFICE PROSECUTING THE DEFENDANT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT). 18

JURY INSTRUCTIONS, JUSTIFICATION DEFENSE. 19

THE EVIDENCE DEMONSTRATED THE DEFENDANT PUNCHED THE POLICE OFFICER AFTER THE DEFENDANT WAS SPRAYED IN THE FACE WITH PEPPER SPRAY; THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE TO THE ASSAULT CHARGE; TWO JUSTICE DISSENT (THIRD DEPT). 19

LESSER INCLUDED CONCURRENT COUNTS. 20

BURGLARY SECOND COUNT DISMISSED AS A LESSER INCLUDED CONCURRENT COUNT OF BURGLARY FIRST (SECOND DEPT). 20

SEARCH AND SEIZURE, REASONABLE SUSPICION, PAT-DOWN SEARCH. 20

THE MAJORITY HELD THE DEFENDANT’S ACTIONS INSIDE THE STOPPED VEHICLE RAISED A REASONABLE SUSPICION DEFENDANT WAS ARMED, JUSTIFYING A PAT DOWN SEARCH; THE DISSENT ARGUED THE DEFENDANT’S ACTIONS WERE EQUIVOCAL AND INNOCUOUS (FOURTH DEPT). 20

SENTENCING, CONCURRENT VS CONSECUTIVE. 21

THE SENTENCE FOR WEAPON-POSSESSION SHOULD BE CONCURRENT WITH THE SENTENCES FOR THE SHOOTING-RELATED CONVICTIONS (SECOND DEPT). 21

SENTENCING, CONSECUTIVE VS CONCURRENT. 22

ROBBERY WAS THE FELONY UPON WHICH THE FELONY ASSAULT WAS PREDICATED; THEREFORE THE SENTENCES FOR ASSAULT FIRST AND ROBBERY FIRST MUST RUN CONCURRENTLY (FOURTH DEPT). 22

SENTENCING, SECOND FELONY OFFENDERS. 22

DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BASED UPON A PRIOR FEDERAL DRUG CONSPIRACY CONVICTION; THE ISSUE FALLS WITHIN A NARROW EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT). 22

SEX OFFENDER REGISTRATION ACT (SORA), CONTINUOUS COURSE OF SEXUAL MISCONDUCT. 23

THE PEOPLE DID NOT PROVE THE ALLEGED ACTS OF SEXUAL MISCONDUCT OCCURRED AT LEAST 24 HOURS APART; THEREFORE THE PEOPLE DID NOT PRESENT PROOF SUPPORTING A 20 POINT ASSESSMENT FOR A “CONTINUOUS COURSE OF SEXUAL MISCONDUCT:” LEVEL THREE REDUCED TO LEVEL TWO (FOURTH DEPT). 23

SPEEDY TRIAL, 21-YEAR DELAY. 24

THE 21-YEAR DELAY BETWEEN THE CRIME AND DEFENDANT’S ARREST DID NOT VIOLATE DEFENDANT’S SPEEDY-TRIAL RIGHTS (SECOND DEPT). 24

CLICK HERE TO GO TO PART 2 OF THIS COURSE

Criminal Law Update April – June 2022 – Part 3

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Appropriate for Experienced Attorneys

Areas of Professional Practice: 3.5 CLE Credit Hours

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between April 1, 2022 and June 30, 2022 which address issues in “Criminal Law.”

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly Reversal Reports which are accessed in the “Update Service.” The monthly Reversal Reports comprise the written materials for these monthly CLE courses. The course is divided into three parts: Part 1 is based on the April 2022 Reversal Report; Part 2 is based on the May 2022 Reversal Report; Part 3 is based on the June 2022 Reversal Report. The link to the June 2022 Reversal Report is below.

As you listen to the course, you will hear verification codes. After finishing Part 3 of the course, print and fill out the “Attorney Affirmation,” including the verification codes, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). The links to the “Attorney Affirmation” and “Evaluation Survey” are below. Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 3.5 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the link below for the written materials for Part 1: Criminal Law Reversal Report June 2022).

The media player for this course is at the bottom of the page.

Criminal Law Reversal Report June 2022

Attorney Affirmation Criminal Law Update April May June 2022

Evaluation Survey Criminal Law Update April May June 2022

Topics Covered in the “Criminal Law Reversal Report June 2022” Are Described Below; the Numbers Refer to the Page Numbers in the Report

JUNE 2022 REVERSAL REPORT

ACCOMPLICE LIABILITY. 7

THERE WAS NO EVIDENCE DEFENDANT SHARED THE ATTACKERS’ INTENT TO ROB THE VICTIM; DEFENDANT’S ROBBERY CONVICTIONS UNDER AN ACCOMPLICE-LIABILITY THEORY REVERSED (THIRD DEPT). 7

ASSAULT, PHYSICAL INJURY. 8

THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT; ASSAULT SECOND CONVICTION REVERSED (FOURTH DEPT). 8

BURGLARY, PARTIAL FINGERPRINT, APPEALS. 9

THERE WAS NO EVIDENCE LINKING DEFENDANT TO A BURGLARY EXCEPT A PARTIAL FINGERPRINT FOUND AT THE SCENE WHICH ONLY MATCHED 15 TO 22.5% OF THE CHARACTERISTICS OF DEFENDANT’S INKED PRINT; THE BURGLARY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT). 9

CONSTRUCTIVE POSSESSION. 10

THE PROOF DEFENDANT CONSTRUCTIVELY POSSESSED A FIREARM FOUND IN THE CEILING OF A HOUSE WHERE DEFENDANT WAS A GUEST WAS LEGALLY INSUFFICIENT; DNA EVIDENCE MAY HAVE DEMONSTRATED DEFENDANT POSSESSED THE FIREARM AT SOME POINT IN TIME, BUT IT DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION AT THE TIME THE FIREARM WAS SEIZED (FOURTH DEPT). 10

COURT CLERK’S QUESTIONING PROSPECTIVE JURORS, NO MODE OF PROCEEDINGS ERROR. 11

AN INQUIRY MADE BY THE COURT CLERK OF PROSPECTIVE JURORS ABOUT WHETHER THEY COULD SERVE IN THIS SEXUAL-ASSAULT-OF-A-CHILD CASE DID NOT AMOUNT TO AN IMPROPER DELEGATION OF JUDICIAL AUTHORITY; THERE WAS NO MODE OF PROCEEDINGS ERROR (FIRST DEPT). 11

COURT OF APPEALS, SCOPE OF REVIEW. 12

THE VALIDITY OF A GUILTY PLEA IS NOT PROPERLY RAISED IN THE COURT OF APPEALS AFTER THE AFFIRMANCE OF A LEGAL SENTENCE BY THE APPELLATE DIVISION; WHERE THE SENTENCE IS LEGAL, AN EXCESSIVE-SENTENCE CLAIM IS BEYOND THE SCOPE OF THE COURT OF APPEALS (CT APP). 12

DEPRAVED INDIFFERENCE MURDER, PLEA COLLOQUY. 13

THE PLEA COLLOQUY IN WHICH DEFENDANT STATED HE CARED FOR THE THREE-YEAR-OLD VICTIM NEGATED AN ESSENTIAL ELEMENT OF DEPRAVED INDIFFERENCE MURDER; PLEA VACATED (FOURTH DEPT). 13

DEPRAVED INDIFFERENCE MURDER, VEHICLE AND TRAFFIC LAW. 14

THE INTOXICATED DEFENDANT’S DRIVING WHEN HE FLED FROM THE POLICE, WHILE RECKLESS, DID NOT DEMONSTRATE DEPRAVED INDIFFERENCE; DEPRAVED INDIFFERENCE MURDER CONVICTION NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; CONVICTION REDUCED TO MANSLAUGHTER (THIRD DEPT). 14

DWI, IGNITION INTERLOCK DEVICE. 15

IN ORDER TO DIRECT A DEFENDANT TO INSTALL AN IGNITION INTERLOCK DEVICE, THE DEFENDANT MUST BE SENTENCED TO A PERIOD OF PROBATION OR A CONDITIONAL DISCHARGE (SECOND DEPT). 15

HARVEY WEINSTEIN.

HARVEY WEINSTEIN’S CRIMINAL SEXUAL ACT AND RAPE CONVICTIONS AFFIRMED (FIRST DEPT). 16

IMPROPER STAY, JUDGE CANNOT STAY ITS OWN DISMISSAL OF A CHARGE. 17

COUNTY COURT DISMISSED THE PROMOTING PRISON CONTRABAND COUNT; THE PEOPLE APPEALED; COUNTY COURT THEN STAYED ITS DISMISSAL, HELD A TRIAL, AND DEFENDANT WAS CONVICTED; AFTER THE CONVICTION THE PEOPLE’S APPEAL WAS DISMISSED AS MOOT; THE DEFENDANT APPEALED; THE JUDGE HAD NO AUTHORITY TO STAY THE DISMISSAL AND GO TO TRIAL ON THAT COUNT; THE CONVICTION WAS THEREFORE VACATED (THIRD DEPT). 17

INEFFECTIVE ASSISTANCE. 19

DEFENDANT PLED GUILTY TO ATTEMPTED GANG ASSAULT, WHICH IS A LEGAL IMPOSSIBILITY AT TRIAL; DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER HIS PLEA WAS RENDERED INVOLUNTARY BY COUNSEL’S INACCURATE ADVICE ABOUT THE POSSIBILITY OF CONVICTION; MATTER REMITTED (FOURTH DEPT). 19

INEFFECTIVE ASSISTANCE. 20

DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INTERVIEW A POTENTIALLY EXCULPATORY WITNESS; MOTION TO VACATE THE MURDER CONVICTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 20

INVALID WAIVER OF INDICTMENT. 21

HERE DEFENDANT PLED GUILTY TO A SUPERIOR COURT INFORMATION (SCI) AFTER HE HAD BEEN INDICTED; THE WAIVER OF INDICTMENT WAS INVALID AND THE SCI WAS DISMISSED; THE ERROR IS JURISDICTIONAL AND NEED NOT BE PRESERVED BY OBJECTION (THIRD DEPT). 21

JUDGES, ATTORNEYS, CONFLICT OF INTEREST. 22

THE JUDGE’S LAW CLERK WAS THE DISTRICT ATTORNEY WHO PROSECUTED DEFENDANT; THE JUDGE SHOULD NOT HAVE DECIDED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (THIRD DEPT). 22

JUROR BIAS, ERROR NOT PRESERVED OR APPEAL. 23

BECAUSE THE ISSUE WAS NOT PRESERVED BY OBJECTION, THE MAJORITY DID NOT CONSIDER WHETHER COUNTY COURT MADE A PROPER INQUIRY OF A JUROR WHO, DURING DELIBERATIONS, FOR THE FIRST TIME, REVEALED SHE WAS A RAPE VICTIM; DEFENDANT WAS CHARGED WITH RAPE; THE DISSENTING JUDGE WOULD HAVE CONSIDERED THE ISSUE IN THE INTEREST OF JUSTICE AND ORDERED A NEW TRIAL (THIRD DEPT). 23

JURORS, DISCHARGE OF JUROR, UNPRESERVED ERROR. 24

THE MAJORITY REFUSED TO CONSIDER WHETHER COUNTY COURT PROPERLY DISCHARGED A JUROR WHO FAILED TO APPEAR BECAUSE THE ISSUE WAS NOT PRESERVED BY OBJECTION; TWO DISSENTERS WOULD HAVE CONSIDERED THE ISSUE IN THE INTEREST OF JUSTICE AND ORDERED A NEW TRIAL (THIRD DEPT). 24

JURY INSTRUCTIONS, JUSTIFICATION DEFENSE, APPEALS. 25

THE JURY WAS NOT INSTRUCTED TO STOP DELIBERATIONS IF IT FOUND THE JUSTIFICATION DEFENSE APPLIED TO THE TOP COUNT (MURDER); DEFENDANT’S MANSLAUGHTER CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THE ISSUE WAS NOT PRESERVED) (THIRD DEPT). 25

JUVENILE DELINQUENCY, DNA. 26

APPELLANT, 16, IN THIS JUVENILE DELINQUENY PROCEEDING, WAS BEING INTERROGATED ABOUT A ROBBERY WHEN HE DRANK WATER FROM A DISPOSABLE CUP; THE INTERROGATING OFFICER SENT THE CUP FOR DNA ANALYSIS; THERE WAS NO INVESTIGATORY PURPOSE FOR THE DNA COLLECTION; APPELLANT’S MOTION TO EXPUNGE THE DNA EVIDENCE SHOULD HAVE BEEN GRANTED (FIRST DEPT). 26

JUVENILE DELINQUENCY. 28

THIS JUVENILE DELINQUENCY PROCEEDING STEMMED FROM ALLEGATIONS RESPONDENT COMMITTED VIOLENT ACTS AGAINST THE MOTHER OF HIS CHILD; THE PROCEEDING SHOULD NOT HAVE BEEN DISMISSED “IN FURTHERANCE OF JUSTICE;” CRITERIA EXPLAINED (THIRD DEPT). 28

LARCENY, INTENT TO PERMANENTLY DEPRIVE OWNER OF PROPERTY. 29

DEFENDANT TOOK A KEY, GOT IN A U-HAUL VAN, SAT FOR TWO MINUTES AND GOT OUT OF THE VAN; THE PEOPLE DID NOT PROVE DEFENDANT INTENDED TO PERMANENTLY DEPRIVE THE OWNER OF ITS PROPERTY; GRAND LARCENY AND POSSESSION OF STOLEN PROPERTY CONVICTIONS REVERSED (SECOND DEPT). 29

MIRANDA. 30

AFTER TRIGGERING A SECURITY ALARM AT A SPORTING GOODS STORE, DEFENDANT WAS DETAINED IN THE STORE FOR HALF AN HOUR IN THE PRESENCE OF POLICE OFFICERS WHOSE QUESTIONS WERE NOT CONFINED TO THE PETIT LARCENY INVESTIGATION RE: AMMUNITION, BUT RATHER RELATED TO DEFENDANT’S POSSESSION OF FIREARMS; DEFENDANT’S UNWARNED STATEMENTS SHOULD HAVE BEEN SUPPRESSED; CONVICTION REVERSED (THIRD DEPT). 30

MISTRIAL, DOUBLE JEOPARDY. 32

AFTER THE TRIAL HAD BEGUN AND WITNESSES HAD TESTIFIED, THE JUDGE BECAME ILL AND SOUGHT A COVID TEST; AFTER THE NEGATIVE TEST-RESULT, THE JUDGE, SUA SPONTE, WITHOUT DEFENDANT’S CONSENT, DECLARED A MISTRIAL; THE JUDGE’S FAILURE TO CONSIDER A CONTINUANCE OR THE SUBSTITUTION OF ANOTHER JUDGE WAS AN ABUSE OF DISCRETION; THE DOUBLE-JEOPARDY PROHIBITION PRECLUDED RETRIAL (FOURTH DEPT). 32

MOLINEUX EVIDENCE NOT NEEDED TO PROVE INTENT. 33

MOLINEUX EVIDENCE OF A PRIOR BURGLARY OF THE ROBBERY-VICTIM’S HOME TO SHOW THE INTENT TO COMMIT ROBBERY AND GRAND LARCENY SHOULD NOT HAVE BEEN ADMITTED; THE INTENT TO COMMIT ROBBERY AND GRAND LARCENY WAS DEMONSTRATED BY THE VICTIM’S TESTIMONY RENDERING EVIDENCE OF THE PRIOR BURGLARY TOO PREJUDICIAL (FOURTH DEPT). 33

MOLINEUX, MODUS OPERANDI. 34

THE SEXUAL ABUSE ALLEGATIONS FROM THE 1990’S WERE NOT SUFFICIENTLY SIMILAR TO THE CHARGED OFFENSES AND THEREFORE DID NOT MEET THE “MODUS OPERANDI” CRITERIA UNDER MOLINEUX TO PROVE IDENTITY; NEW TRIAL ORDERED (FOURTH DEPT). 34

MOTION TO VACATE CONVICTION, HEARING REQURED. 35

HERE THE DEFENDANT, IN HIS MOTION TO VACATE HIS CONVICTION, RAISED ISSUES ABOUT THE EXTENT OF HIS COOPERATION AND WHETHER NEW DEFENSE COUNSEL ADEQUATELY INVESTIGATED THE PROSECUTOR’S WITHDRAWAL OF THE COOPERATION AGREEMENT; THE PEOPLE’S RESPONSE DID NOT ADDRESS THESE SUBSTANTIVE ISSUES; THEREFORE COUNTY COURT SHOULD HAVE HELD A HEARING (THIRD DEPT). 35

PEOPLE’S APPEALS. 36

THE PEOPLE CAN NOT APPEAL THE GRANT OF DEFENDANT’S MOTION TO WITHDRAW HER PLEA, VACATE HER FELONY CONVICTION AND ALLOW HER TO PLEAD TO A MISDEMEANOR; DEFENDANT MADE THE MOTION AFTER SUCCESSFUL COMPLETION OF A DRUG-COURT TREATMENT PROGRAM (THIRD DEPT). 36

PHOTO-ARRAY. 37

THE PHOTO ARRAY WAS UNDULY SUGGESTIVE; THE VICTIM WAS FIXATED ON THE UNIQUE WHITE AND BLACK PATTERN ON THE SHIRT WORN BY THE ROBBER; IN THE PHOTO ARRAY A SHIRT WITH A BLACK AND WHITE DESIGN WAS VISIBLE IN THE DEFENDANT’S PHOTO, BUT THE FILLERS WERE ALL WEARING SOLID COLOR SHIRTS (SECOND DEPT). 37

PLEA ALLOCUTION NEGATES ELEMENT OF CHARGE. 38

DEFENDANT’S STATEMENTS DURING THE PLEA ALLOCUTION NEGATED ELEMENTS OF THE CHARGED OFFENSE; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY OR GIVEN THE DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS PLEA; THIS ISSUE FALLS WITHIN AN EXCEPTION TO THE PRESERVATION REQUIREMENT (THIRD DEPT). 38

PLEA ALLOCUTION NEGATES ELEMENT OF CHARGE. 38

DEFENDANT’S PLEA COLLOQUY NEGATED AN ESSENTIAL ELEMENT (JURAT) OF HIS PERJURY CONVICTIONS; PLEA VACATED (THIRD DEPT). 38

PLEA ALLOCUTION NEGATES ELEMENT OF CHARGE, DEPRAVED INDIFFERENCE MURDER. 40

THE PLEA COLLOQUY IN WHICH DEFENDANT STATED HE CARED FOR THE THREE-YEAR-OLD VICTIM NEGATED AN ESSENTIAL ELEMENT OF DEPRAVED INDIFFERENCE MURDER; PLEA VACATED (FOURTH DEPT). 40

PRONOUNCE SENTENCE. 41

THE SENTENCING JUDGE DID NOT SEPARATELY PRONOUNCE A SENTENCE FOR EACH CONVICTION; MATTER REMITTED (THIRD DEPT). 41

ROBBERY, LESSER INCLUDED OFFENSES. 41

ROBBERY THIRD AND ASSAULT SECOND CONVICTIONS REVERSED AS LESSER INCLUDED OFFENSES OF ROBBERY SECOND (FOURTH DEPT). 41

SELF-REPRESENTATION PROPERLY LIMITED. 42

THE TRIAL JUDGE PROPERLY TERMINATED DEFENDANT’S SELF-REPRESENTATION DURING THE TRIAL BASED ON DEFENDANT’S BEHAVIOR; THE TRIAL JUDGE PROPERLY DECLINED TO EXCUSE A JUROR WHO, DURING DELIBERATIONS, SAID HE DID NOT WANT TO CONTINUE; DEFENDANT WAS NOT EXCLUDED FROM A MATIERAL STAGE OF THE PROCEEDING WHEN THE TRIAL JUDGE DISCUSSED HIS MENTAL CONDITION WITH COUNSEL (FIRST DEPT). 42

SEX OFFENDER REGISTRATION ACT (SORA). 43

THE 20-YEAR DURATION OF REGISTRATION AND VERIFICATION OF A LEVEL ONE SEX OFFENDER STARTS ANEW WHEN THE OFFENDER, ALREADY REGISTERED IN ANOTHER STATE, MOVES TO NEW YORK AND NOTIFIES THE DIVISION OF CRIMINAL JUSTICE SERVICES (SECOND DEPT). 43

SPEEDY TRIAL, TRAFFIC INFRACTIONS. 44

THE AMENDMENT TO THE SPEEDY TRIAL STATUTE WHICH EXTENDED THE STATUTE’S COVERAGE TO TRAFFIC INFRACTIONS JOINTLY CHARGED WITH CRIMES OR VIOLATIONS IS NOT TO BE APPLIED RETROACTIVELY (CT APP). 44

STREET STOPS, REASONABLE SUSPICION, FRISK. 45

THE POLICE DID NOT HAVE A REASONABLE SUSPICION DEFENDANT WAS ARMED AND THEREFORE SHOULD NOT HAVE ATTEMPTED TO FRISK HIM; THE POLICE DID NOT HAVE PROBABLE CAUSE TO ARREST DEFENDANT WHEN HE THREW HIS COAT AT AN OFFICER AND RAN BECAUSE THE POLICE WERE NOT AUTHORIZED TO ATTEMPT THE FRISK; INDICTMENT DISMISSED; AN APPELLATE COURT CANNOT CONSIDER A THEORY WHICH WOULD SUPPORT DENIAL OF SUPPRESSION BUT WHICH WAS NOT RAISED BY THE PEOPLE BELOW (FOURTH DEPT). 45

STREET STOPS. 46

THE LEVEL THREE STREET STOP WAS NOT JUSTIFIED BY THE VAGUE DESCRIPTION OF A ROBBERY SUSPECT WHICH DEFENDANT DID NOT MATCH; THAT THE DEFENDANT HID HIS FACE AND WALKED QUICKLY WHEN THE POLICE FOLLOWED HIM DID NOT PROVIDE THE POLICE WITH THE REQUISITE REASONABLE SUSPICION (FIRST DEPT). 46

SYNTHETIC CANNABINOIDS. 47

THE MISDEMEANOR COMPLAINT DID NOT ALLEGE SUFFICIENT FACTS TO DETERMINE WHETHER THE SYNTHETIC CANNABINOID DEFENDANT WAS CHARGED WITH POSSESSING WAS ONE OF THE SYNTHETIC CANNABINOIDS DESIGNATED AS CONTROLLED SUBSTANCES BY THE PUBLIC HEALTH LAW (CT APP). 47

TERRORISTIC THREAT. 49

DEFENDANT WAS CONCERNED HIS INCARCERATED BROTHER WAS BEING HARASSED BY CORRECTIONS OFFICERS; HE CALLED THE DEPARTMENT OF CORRECTIONS AND THREATENED TO “BLOW AN OFFICER’S HEAD OFF” “IF THEY TOUCH MY BROTHER;” DEFENDANT’S “MAKING A TERRORISTIC THREAT” CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT). 49

TRAFFIC ACCIDENTS, CRIMINAL NEGLIGENCE. 50

THE UNEXPLAINED FAILURE TO SEE A VEHICLE BEFORE COLLIDING WITH IT, WITHOUT MORE, DOES NOT RISE TO THE LEVEL OF CRIMINAL NEGLIGENCE; THE EVIDENCE OF CRIMINAL NEGLIGENCE WAS LEGALLY INSUFFICIENT (THIRD DEPT). 50

TRAFFIC STOPS. 51

THE POLICE DID NOT HAVE PROBABLE CAUSE TO BELIEVE DEFENDANT HAD COMMITTED OR WAS COMMITTING A CRIME WHEN THEY BLOCKED DEFENDANT’S VEHICLE WITH THE POLICE VEHICLE, WHICH CONSTITUTES A SEIZURE; PLEA VACATED AND SUPPRESSION MOTION GRANTED (FOURTH DEPT). 51

Civil Procedure Update April – June 2022 – Part 2

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Appropriate for Experienced Attorneys

Areas of Professional Practice: 3 CLE Credit Hours

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between April 1, 2022 and June 30, 2022 which address issues in “Civil Procedure.”

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly Reversal Reports which are accessed in the “Update Service.” The monthly Reversal Reports comprise the written materials for these monthly CLE courses. The course is divided into three parts: Part 1 is based on the April 2022 Reversal Report; Part 2 is based on the May 2022 Reversal Report; Part 3 is based on the June 2022 Reversal Report. The link to the May 2022 Reversal Report is below.

As you listen to the course, you will hear verification codes. After finishing Part 3 of the course, print and fill out the “Attorney Affirmation,” including the verification codes, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). The links to the “Attorney Affirmation” and “Evaluation Survey” are on the podcast page for Part 3 of this course. Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 3 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the link below for the written materials for Part 1: Civil Procedure Reversal Report May 2022).

The media player for this course is at the bottom of the page.

Links to the Attorney Affirmation and Evaluation Form are on the podcast page for Part 3 of this course.

Civil Procedure Reversal Report May 2022

Topics Covered in the “Civil Procedure Reversal Report May 2022” Are Described Below; the Numbers Refer to the Page Numbers in the Report

MAY 2022 REVERSAL REPORT

AMENDMENT OF AFFIDAVIT OF SERVICE. 6

DEFENDANT RAISED A QUESTION OF FACT WHETHER THE ADDRESS AT WHICH SERVICE OF PROCESS WAS ATTEMPTED WAS DEFENDANT’S ACTUAL PLACE OF BUSINESS; AN AFFIDAVIT OF SERVICE MAY NOT BE AMENDED TO CURE AN ERRONEOUS ADDRESS (SECOND DEPT). 6

AMENDMENT OF BILL OF PARTICULARS. 7

PLAINTIFFS WERE ENTITLED TO AMEND THE BILL OF PARTICULARS TO THE EXTENT THE AMENDMENT AMPLIFIED THE ALLEGATIONS ALREADY MADE WITHOUT OBJECTION IN THE SUPPLEMENTAL BILL OF PARTICULARS (SECOND DEPT). 7
ATTORNEYS, FAILURE TO PROVIDE DISCOVERY, SANCTIONS. 7
A MONETARY PENALTY IMPOSED UPON PLAINTIFF’S ATTORNEY, AS OPPOSED TO DISMISSAL OF THE COMPLAINT, WAS THE APPROPRIATE SANCTION FOR PLAINTIFF’S FAILURE TO PROVIDE DISCOVERY (SECOND DEPT). 7

ATTORNEYS, CRIMINAL CONTEMPT. 8

PLAINTIFF’S COUNSEL SHOULD HAVE BEEN HELD IN CRIMINAL CONTEMPT FOR ISSUING SUBPOENAS IN DEFIANCE OF AN ORDER STAYING THE PROCEEDINGS; DIFFERENCE BETWEEN CIVIL AND CRIMINIAL CONTEMPT EXPLAINED (SECOND DEPT). 8

CHANGE OF VENUE, PROPER PROCEDURE. 10

WHEN A PARTY BRINGS A MOTION TO CHANGE VENUE IN THE COUNTY TO WHICH THE PARTY WANTS VENUE CHANGED, AS OPPOSED TO THE COUNTY WHERE THE ACTION WAS STARTED, THE PARTY MUST USE THE SPECIAL PROCEDURE IN CPLR 511 (A) AND (B), WHICH REQUIRES MAKING A DEMAND ON THE OTHER PARTY BEFORE BRINGING A MOTION; HERE THE SPECIAL PROCEDURE WAS NOT USED, THE MOTION TO CHANGE VENUE WAS MADE IN THE “WRONG COUNTY” AND SHOULD HAVE BEEN DISMISSED (SECOND DEPT). 10

CHILD VICTIMS ACT, NON-RESIDENT PLAINTIFF, STATUTE OF LIMIITATIONS, BORROWING STATUTE. 11

PLAINTIFF, A FLORIDA RESIDENT, ALLEGEDLY WAS ABUSED BY A PRIEST IN FLORIDA IN 1983 AND 1984; PLAINTIFF SUED THE DIOCESE OF BROOKLYN BECAUSE THE PRIEST WHO ALLEGEDLY ABUSED HIM WAS TRANSFERRED FROM BROOKLYN TO FLORIDA, ALLEGEDLY BECAUSE OF SEXUAL MISCONDUCT WITH CHILDREN; THE CHILD VICTIMS ACT DOES NOT APPLY TO THE NONRESIDENT PLAINTIFF AND THE BORROWING STATUTE DOES APPLY; THEREFORE FLORIDA’S FOUR-YEAR STATUTE OF LIMITATIONS RENDERED PLAINTIFF’S ACTION TIME-BARRED (SECOND DEPT). 11

COURT OF CLAIMS, LABOR LAW-CONSTRUCTION LAW, NOTICE OF CLAIM. 12

CLAIMANTS’ MOTION FOR LEAVE TO FILE AND SERVE A LATE NOTICE OF CLAIM IN THIS CONSTRUCTION-ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT). 12

CRIMINAL LAW, CIVIL DISCOVERY NOT PRECLUDED BY PARALLEL CRIMINAL INVESTIGATION. 13

SUPREME COURT PROPERLY REFUSED TO QUASH SUPBOENAS ISSUED BY THE OFFICE OF THE ATTORNEY GENERAL (OAG) TO THE TRUMP ORGANIZATION IN THE OAG’S FRAUD INVESTIGATION; THE FACT THAT THERE IS A RELATED CRIMINAL INVESTIGATION DOES NOT PRECLUDE CIVIL DISCOVERY (FIRST DEPT). 13

DISMISSAL WITHOUT PREJUDICE, BREACH OF FORUM SELECTION CLAUSE, ATTORNEY’S FEES. 14

A DISMISSAL WITHOUT PREJUDICE IS NOT A FINAL DETERMINATION ON THE MERITS AND IS NOT SUBJECT TO COLLATERAL ESTOPPEL; ATTORNEY’S FEES ARE APPROPRIATE DAMAGES IN AN ACTION FOR BREACH OF A FORUM SELECTION CLAUSE (FIRST DEPT). 14

ELECTION LAW, VERIFICATION OF PETITION. 15

THE VALIDATING PETITION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THE PETITION WAS NOT VERIFIED; THE FAILURE TO RAISE THE OBJECTION WITH DUE DILIGENCE WAIVED IT; ALTHOUGH THE LANGUAGE IN THE PETITION WAS NOT EXACTLY THAT IN CPLR 3021, THE PETITION WAS IN FACT VERIFIED (SECOND DEPT). 15

EXPERT DISCLOSURE, TREATING PHYSICIAN, THIRD DEPARTMENT’S UNIQUE REQUIREMENTS. 16

CLAIMANT’S ATTORNEY WAS NOT AWARE OF THE THIRD DEPARTMENT’S UNIQUE REQUIREMENT OF FULL EXPERT-WITNESS DISCLOSURE FOR A TREATING PHYSICIAN; THAT WAS AN ADEQUATE EXCUSE FOR AN UNTIMELY DISCLOSURE (THIRD DEPT). 16

FAMILY LAW, DEFAULT, ATTORNEYS, APPEALS. 17

ALTHOUGH FATHER FAILED TO APPEAR, HIS COUNSEL APPEARED AND FATHER WAS THEREFORE NOT IN DEFAULT; BECAUSE FATHER WAS NOT IN DEFAULT, APPEAL IS NOT PRECLUDED (FOURTH DEPT). 17

FORECLOSURE, BANK’S STANDING. 18

TO CHALLENGE THE BANK’S STANDING TO FORECLOSE THE DEFENDANT MUST ASSERT THE LACK OF STANDING AS AN AFFIRMATIVE DEFENSE; MERELY DENYING THE RELEVANT ALLEGATIONS IN THE COMPLAINT IS NOT ENOUGH (SECOND DEPT). 18

FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), STATUTE OF LIMITATIONS, ONLY AN EXPLICIT ACKNOWLEDGMENT OF THE MORTGAGE DEBT WILL REVIVE AN EXPIRED STATUTE OF LIMITATIONS. 19

ONLY AN EXPRESS ACKNOWLEDEMENT OF THE MORTGAGE DEBT PURSUANT TO GENERAL OBLIGATIONS LAW 17-105 COULD REVIVE OR TOLL THE STATUTE OF LIMITATIONS IN THIS FORECLOSURE ACTION; THE REFERENCES TO THE MORTGAGE DEBT IN FINANCIAL STATEMENTS AND TAX RETURNS PROVIDED TO THE MORTGAGOR BY THE MORTGAGEE WERE NOT ENOUGH (CT APP). 19

GOOD FAITH EFFORT TO FILE AND SERVE OPPOSITION PAPERS. 20

PETITIONER DEMONSTRATED A GOOD FAITH EFFORT TO TIMELY FILE AND SERVE HIS OPPOSITION PAPERS AND DEMONSTRATED A POTENTIALLY MERITORIOUS CAUSE OF ACTION; SUPREME COURT HAD REFUSED TO CONSIDER THE OPPOSITION PAPERS BEFORE ISSUING ITS ORDER DISMISSING THE PETITION; THE ORDER SHOULD HAVE BEEN VACATED (SECOND DEPT). 20

JUDGES, SUA SPONTE DISMISSAL. 21

ABSENT “EXTRAORDINARY CIRCUMSTANCES,” A JUDGE DOES NOT HAVE THE AUTHORITY TO, SUA SPONTE, DISMISS A COMPLAINT (SECOND DEPT). 21

LIMITED LIABILITY COMPANY LAW, REAL PROPERTY LAW, DEFAULT, LIS PENDENS. 22

THE LLC’S FAILURE TO CHANGE THE ADDRESS ON FILE WITH THE SECRETARY OF STATE IS NOT A SUFFICIENT EXCUSE FOR A DEFAULT; PARTIES TO WHICH THE SUBJECT PROPERTY WAS TRANSFERRED AFTER THE LIS PENDENS WAS FILED ARE NOT NECESSARY PARTIES BECAUSE THEY ARE BOUND BY THE RESULT IN THIS ACTION (FIRST DEPT). 22

LONG-ARM JURISDICTION. 23

NEW YORK DID NOT HAVE LONG-ARM JURISDICTION OVER A BAVARIAN STEM DONOR REGISTRY INVOLVED IN DECEDENT’S PHYSICIANS’ SEARCH FOR A BONE-MARROW MATCH TO TREAT LEUKEMIA (FIRST DEPT). 23

LONG-ARM JURISDICTION. 24

PLAINTIFF, A TEXAS RESIDENT WHO WAS A FLIGHT ATTENDANT FOR 30 YEARS WITH MONTHLY STAY-OVERS IN NEW YORK, DEMONSTRATED NEW YORK HAD LONG-ARM JURISDICTION OVER THE NEW JERSEY COMPANY WHICH MANUFACTURED AND DISTRIBUTED TALCUM POWDER PLAINTIFF USED; THE TALCUM POWDER ALLEGEDLY CAUSED PLAINTIFF’S MESOTHELIOMA (FIRST DEPT). 24

MOTIONS TO RENEW, SUCCESSIVE SUMMARY JUDGMENT MOTIONS. 25

WHEN THE FAILURE TO PRESENT FACTS IN A PRIOR MOTION IS NOT JUSTIFIED, THE SECOND MOTION DOES NOT FIT THE CRITERIA FOR A MOTION TO RENEW OR AN ALLOWABLE SUCCESSIVE SUMMARY JUDGMENT MOTION (SECOND DEPT). 25

PLEADING, CONTRACT LAW, FRAUD, DUPLICATIVE CAUSES OF ACTION. 26

THE FRAUD CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS NOT DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION; CRITERIA EXPLAINED (FIRST DEPT). 26

PUNITIVE DAMAMGES, CONTRACT LAW, INSURANCE LAW. 27

PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES IN THIS BREACH OF AN INSURANCE CONTRACT ACTION SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT). 27

REAL PROPERTY LAW, JOINT VENTURE, LIS PENDENS. 28

PLAINTIFF WAS SEEKING THE PROCEEDS OF A JOINT VENTURE, WHICH, UNDER PARTNERSHIP LAW, INVOLVES PERSONAL PROPERTY, NOT REAL PROPERTY; PLAINTIFF HAD NO INTEREST IN THE REAL PROPERTY WHICH WAS TO BE USED AS AN INN OPERATED AS A JOINT VENTURE; THERFORE THE LIS PENDENS FILED BY PLAINTIFF SHOULD HAVE BEEN CANCELLED (FOURTH DEPT). 28

RELATION-BACK DOCTRINE, STATUTE OF LIMITATIONS. 29

THE RELATION-BACK DOCTRINE DID NOT APPLY TO SAVE THE AMENDED PETITION CHALLENGING A USE VARIANCE; THE INTITIAL PETITION FAILED TO NAME A NECESSARY PARTY WHO WAS KNOWN TO THE PETITIONERS AND WAS DISMISSED ON THAT GROUND; THE AMENDED PEITITION, WHICH NAMED THE NECESSARY PARTY, WAS DISMISSED AS TIME-BARRED; BECAUSE THE PETITIONERS HAD NO DOUBT ABOUT WHO THE NECESSARY PARTY WAS AND HAD NAMED HER IN A PRIOR PETITION, THE RELATION-BACK DOCTRINE COULD NOT BE INVOKED (SECOND DEPT). 29

REPLIES, EVIDENCE FIRST PRESENTED IN REPLY, LABOR LAW-CONSTRUCTION LAW, WORKERS’ COMPENSATION. 31

PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DENIED BECAUSE IT WAS BASED ON EVIDENCE FIRST PRESENTED IN REPLY; PLAINTIFF WAS COLLATERALY ESTOPPED FROM CLAIMING TRAUMATIC BRAIN INJURY AND COGNITIVE DISORDER BY THE RULING IN HIS WORKERS’ COMPENSATION CASE (FIRST DEPT). 31

RES JUDICATA. 32

HERE THE DOCTRINE OF RES JUDICATA PRECLUDED PLAINTIFF’S FRAUDULENT CONVEYANCE ACTION; THE CAUSE OF ACTION COULD HAVE BEEN RAISED IN THE PRIOR ACTION WHICH WAS DISMISSED (FIRST DEPT). 32

SECURITIES, THE STRICT PLEADING REQUIREMENTS FOR FRAUD DO NOT APPLY TO VIOLATIONS OF SECURITIES ACT. 33

PLAINTIFFS STATED CAUSES OF ACTION FOR VIOLATIONS OF THE SECURITIES ACT BASED UPON ALLEGEDLY MISLEADING INFORMATION IN THE SECONDARY PUBLIC OFFERING (SPO) (FIRST DEPT). 33

SOVEREIGN IMMUNITY, NEGLIGENCE, TRAFFIC ACCIDENTS. 34

PLAINTIFF WAS STRUCK BY A NEW JERSEY TRANSIT CORP (NJT) BUS IN NEW YORK; NJT IS AN ARM OF THE STATE OF NEW JERSEY AND THE SOVEREIGN IMMUNITY DOCTRINE APPLIES; HOWEVER, UNDER NEW JERSEY LAW PLANTIFF CANNOT SUE IN NEW JERSEY BECAUSE THE CAUSE OF ACTION DID NOT ARISE THERE; APPLYING THE FORUM NON CONVENIENS DOCTRINE AS AN ANALYTICAL FRAMEWORK, PLAINTIFF’S NEW YORK LAWSUIT WAS ALLOWED TO GO FORWARD (FIRST DEPT). 34

UNTIMELY ANSWER AS NOTICE OF APPEARANCE. 35

DEFENDANT’S UNTIMELY ANSWER WAS REJECTED BY PLAINTIFF BUT PLAINTIFF DEEMED THE ANSWER TO BE A NOTICE OF APPEARANCE; DEFENDANT DID NOT OBJECT; AN APPEARANCE IS THE EQUIVALENT OF SERVICE OF A SUMMONS; THEREFORE DEFENDANT WAIVED THE LACK-OF-PERSONAL-JURISDICTION DEFENSE (SECOND DEPT). 35

CLICK HERE TO GO TO PART 3 OF THIS COURSE

Personal Injury Update April – June 2022 – Part 2 of 3

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Appropriate for Experienced Attorneys

Areas of Professional Practice: 3.5 CLE Credit Hours

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between April 1, 2022 and June 30, 2022 which address issues in “Personal Injury,” including Negligence, Medical Malpractice, Products Liability, Labor Law-Construction Law and Workers’ Compensation.

The “Personal Injury” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly Reversal Reports which are accessed in the “Update Service.” The monthly Reversal Reports comprise the written materials for these monthly CLE courses. The course consists of three parts, each with its own podcast page. Part 1 is based on the Personal Injury Reversal Report for April, 2022; Part 2 is based on the Reversal Report for May, 2022; and Part 3 is based on the Reversal Report for June 2022.

As you listen to the course, you will hear verification codes. After finishing Part 3 of the course, print and fill out the “Attorney Affirmation,” including the verification codes, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). The links to the “Attorney Affirmation” and “Evaluation Survey” are on the podcast page for Part 3 of this course. Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 3.5 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written material for Part 2 of this course: Personal Injury Reversal Report May, 2022.

The media player for this course is at the bottom of the page.

Links to the Attorney Affirmation and Evaluation Form are on the podcast page for Part 3 of this course.

Personal Injury Reversal Report May 2022

Topics Covered in the “Personal Injury Reversal Report May 2022” (Part 2 of this Course) Are Described Below; The Numbers are the Page Numbers in the Reversal Report 

MAY 2022 REVERSAL REPORT

LABOR LAW-CONSTRUCTION LAW, FALL FROM BATHTUB RIM. 4

PLAINTIFF FELL OFF THE EDGE OF A BATHTUB WHEN HE WAS ATTEMPTING TO INSTALL A SHOWER-CURTAIN ROD; THE EDGE OF THE TUB WAS THE EQUIVALENT OF A SCAFFOLD AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; TWO-JUSTICE DISSENT (FIRST DEPT). 4

LABOR LAW-CONSTRUCTION LAW, SUBCONTRACTOR LIABILITY. 5

ALTHOUGH PLAINTIFF FELL FROM THE SCAFFOLDING SYSTEM CONSTRUCTED BY SWING, A SUBCONTRATOR, PLAINTIFF’S LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION AGAINST SWING SHOULD HAVE BEEN DISMISSED; SWING WAS NOT A CONTRACTOR OR OWNER, OR A CONTRACTOR’S OR OWNER’S STATUTORY AGENT, WITHIN THE MEANING OF THE STATUTES (FIRST DEPT). 5

LABOR LAW-CONSTRUCTION LAW, CONTRACT LAW, INDEMNIFICATION CLAUSE. 6

THE INDEMNIFICATION CLAUSE IN THIS LADDER-FALL CASE STATED THAT THE CONTRACTOR FOR WHOM THE INJURED PLAINTIFF WORKED WOULD HOLD THE “OWNER’S AGENT” HARMLESS AND DID NOT MENTION THE PROPERTY OWNER; THE CONTRACT MUST BE STRICTLY CONSTRUED; THE PROPERTY OWNER’S INDEMNIFICATION ACTION AGAINST THE CONTRACTOR SHOULD HAVE BEEN DISMISSED (FIRST DEPT). 6

LABOR LAW-CONSTRUCTION LAW. 7

PLAINTIFF ALLEGEDLY TRIPPED AND FELL CARRYING A PIPE DOWN A PLYWOOD RAMP IN THIS LABOR LAW 200 ACTION; THERE WERE QUESTIONS OF FACT WHETHER THE RAMP CONSTITUTED A DANGEROUS CONDITION AND WHETHER THE DEFENDANTS HAD CONSTRUCTIVE NOTICE OF IT (FIRST DEPT). 7

LABOR LAW-CONSTRUCTION LAW. 8

PLAINTIFF FELL DOWN AN OPEN, UNGUARDED MANHOLE AS HE ATTEMPTED TO STEP OVER IT; PLAINTIFF’S ACTION WAS NOT THE SOLE PROXIMATE CAUSE OF THE FALL BECAUSE THERE WAS NO PROTECTIVE RAILING AROUND THE MANHOLE (FIRST DEPT). 8

LABOR LAW-CONSTRUCTION LAW, WORKERS’ COMPENSATION. 9

PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DENIED BECAUSE IT WAS BASED ON EVIDENCE FIRST PRESENTED IN REPLY; PLAINTIFF WAS COLLATERALY ESTOPPED FROM CLAIMING TRAUMATIC BRAIN INJURY AND COGNITIVE DISORDER BY THE RULING IN HIS WORKERS’ COMPENSATION CASE (FIRST DEPT). 9

NEGLIGENCE, SLIP AND FALL, CAUSE OF FALL. 10

PLAINTIFF IN THIS SLIP AND FALL CASE DID NOT SEE THE CONDITION THAT CAUSED HIM TO FALL NEAR A SINK IN DEFENDANTS’ BATHROOM, BUT HIS PANTS WERE WET AFTER THE FALL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE GROUND THAT PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HIS FALL SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 10

NEGLIGENCE, SLIP AND FALL, CONSTRUCTIVE NOTICE. 11

DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION OF THE STAIRS ALLEGED TO HAVE CAUSED PLAINTIFF’S SLIP AND FALL BECAUSE THEY OFFERED NO PROOF OF WHEN THE STAIRS WERE LAST INSPECTED (SECOND DEPT). 11

NEGLIGENCE, SLIP AND FALL, CONSTRUCTIVE NOTICE. 12

DEFENDANTS PRESENTED NO PROOF OF WHEN THE AREA OF THE SLIP AND FALL WAS LAST INSPECTED; THERFORE DEFENDANTS DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE (SECOND DEPT). 12

NEGLIGENCE, SLIP AND FALL, CONTRACTOR LIABILTY. 13

A CONTRACTOR WHICH CREATES A DANGEROUS CONDITION ON A PUBLIC SIDEWALK MAY BE LIABLE FOR A SLIP AND FALL BY A MEMBER OF THE PUBLIC (SECOND DEPT). 13

NEGLIGENCE, SLIP AND FALL, LACK OF CONSTRUCTIVE NOTICE. 14

RARE SLIP AND FALL WON BY THE DEFENDANT AT SUMMARY JUDGMENT BY DEMONSTRATING A LACK OF CONSTRUCTIVE NOTICE OF THE PRESENCE OF THE BOX WHICH ALLEGEDLY CAUSED PLAINTIFF’S FALL (FIRST DEPT). 14

NEGLIGENCE, SLIP AND FALL, STORM IN PROGRESS, EXPERT OPINION. 15

DEFENDANT PROPERTY OWNER DEMONSTRATED THAT THE STORM IN PROGRESS DOCTRINE APPLIED IN THIS SLIP AND FALL CASE (A PROPERTY OWNER WILL NOT BE LIABLE FOR A SNOW AND ICE CONDITION UNTIL A REASONABLE TIME AFTER THE PRECIPITATION HAS STOPPED); THE BURDEN THEN SHIFTED TO PLAINTIFF TO SHOW DEFENDANT’S EFFORT TO REMOVE SNOW HOURS BEFORE THE FALL CREATED THE DANGEROUS CONDITION; TO MEET THAT BURDEN AN EXPERT AFFIDAVIT SHOULD HAVE BEEN, BUT WAS NOT, SUBMITTED (FIRST DEPT). 15

NEGLIGENCE, TRAFFIC ACCIDENTS, ROADWAY DESIGN. 16

THE NEGLIGENT ROADWAY DESIGN CAUSE OF ACTION IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFFS ALLEGED THE ABSENCE OF TURNOUTS FOR DISABLED VEHICLES CREATED A DANGEROUS CONDITION (FIRST DEPT). 16

NEGLIGENCE, TRAFFIC ACCIDENTS, SOVEREIGN IMMUNITY. 17

PLAINTIFF WAS STRUCK BY A NEW JERSEY TRANSIT CORP (NJT) BUS IN NEW YORK; NJT IS AN ARM OF THE STATE OF NEW JERSEY AND THE SOVEREIGN IMMUNITY DOCTRINE APPLIES; HOWEVER, UNDER NEW JERSEY LAW PLANTIFF CANNOT SUE IN NEW JERSEY BECAUSE THE CAUSE OF ACTION DID NOT ARISE THERE; APPLYING THE FORUM NON CONVENIENS DOCTRINE AS AN ANALYTICAL FRAMEWORK, PLAINTIFF’S NEW YORK LAWSUIT WAS ALLOWED TO GO FORWARD (FIRST DEPT). 17

NEGLIGENCE, TRAFFIC ACCICENTS, VEHICLE AND TRAFFIC LAW, GRAVES AMENDMENT, LIABILITY OF LESSOR. 18

PLAINTIFF DID NOT DEMONSTRATE THE GRAVES AMENDMENT, WHICH RELIEVES THE OWNER OF A LEASED VEHICLE FROM LIABILITY FOR A TRAFFIC ACCIDENT, DID NOT APPLY TO THE DEFENDANT OWNER; THEREFORE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 18

NEGLIGENCE, TRAFFIC ACCIDENTS, VEHICLE AND TRAFFIC LAW. 19

DEFENDANT ATTEMPTED A LEFT TURN IN VIOLATION OF VEHICLE AND TRAFFIC LAW 1141; PLANTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC-ACCIDENT CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT). 19

NEGLIGENCE, TRAFFIC ACCIDENTS. 20

ALTHOUGH PLAINTIFF WAS STRUCK IN THE ON-COMING LANE WHILE ATTEMPTING A LEFT TURN IN AN INTERSECTION, THERE WERE QUESTIONS OF FACT WHETHER DEFENDANT SHOULD HAVE SEEN THE PLAINTIFF (SECOND DEPT). 20

NEGLIGENT-HIRING, DOCTOR EMPLOYED BY HOSPITAL, PATIENT ASSAULTS. 22

PLAINTIFF IN THIS NEGLIGENT-HIRING ACTION AGAINST THE HOSPITAL WHICH EMPLOYED A DOCTOR WHO ALLEGEDLY SEXUALLY ASSAULTED HER AND OTHER PATIENTS SOUGHT DISCOVERY; THE IDENTITIES OF THE OTHER ASSAULTED PATIENTS WERE NOT PROTECTED BY THE DOCTOR-PATIENT PRIVILEGE; PARTY STATEMENTS WERE NOT PROTECTED BY THE QUALITY ASSURANCE PRIVILEGE; AND PLAINTIFF WAS ENTITLED TO THE NAMES OF THE DOCTOR’S COWORKERS (FIRST DEPT). 22

PRODUCTS LIABILITY, ROUTER, SEVERED THUMB. 23

IN THIS PRODUCTS LIABILITY ACTION WHERE A ROUTER SEVERED PLAINTIFF’S THUMB, THE FAILURE-TO-WARN CAUSE OF ACTION BASED ON THE MANUAL SHOULD HAVE BEEN DISMISSED BECAUSE PLANTIFF NEVER READ IT; THE GENERALIZED FAILURE-TO-WARN CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; DISAGREEING WITH THE SECOND DEPARTMENT, THE DESIGN-DEFECT CAUSE OF ACTION BASED ON THE LACK OF AN INTERLOCK DEVICE PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT). 23

CLICK HERE TO GO TO PART 3 OF THE COURSE