Criminal Law Update July 2020

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

This Course Is Appropriate for Experienced Attorneys

Areas of Professional Practice: 0.5 CLE Credit Hour

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 July 1, 2020 and July 31, 2020 which address issues in “Criminal Law.” Similar 1/2-to 1-hour CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.

The “Criminal Law” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these monthly CLE courses. A link to the written materials for this course (“Criminal Law Update Pamphlet July 2020”) is provided below.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, 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 0.5 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 (“Criminal Law Update Pamphlet July 2020”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

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

Criminal Law Update Pamphlet July 2020

Criminal Law Update July 2020 Attorney Affirmation

Criminal Law Update July 2020 Evaluation Survey

Topics Covered in the “Criminal Law Update July 2020” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Criminal Law Update Pamphlet July 2020”

APPEALS.

ALTHOUGH THE ‘LEGALLY INSUFFICIENT EVIDENCE’ ISSUE WAS NOT PRESERVED BY THE MOTION FOR A TRIAL ORDER OF DISMISSAL, THE APPEAL WAS HEARD IN THE INTEREST OF JUSTICE; THE ELEMENT OF RECKLESSNESS IN THIS ASSAULT CASE WAS LEGALLY INSUFFICIENT; INDICTMENT DISMISSED (FOURTH DEPT). 6

ATTORNEYS, CONFLICT OF INTEREST.

THE INITIAL PROSECUTOR IN DEFENDANT’S CASE BECAME THE TRIAL JUDGE’S LAW CLERK; DEFENDANT WAS NOT INFORMED AND WAIVED HIS RIGHT TO A JURY TRIAL; THE WAIVER WAS NOT ‘KNOWINGLY’ AND ‘INTELLIGENTLY’ MADE (FOURTH DEPT). 6

ATTORNEYS, JURY NOTES.

THE EX PARTE ORDER ALLOWING THE PROSECUTOR TO SEIZE AND READ DEFENDANT’S NON-LEGAL MAIL DID NOT REQUIRE DISQUALIFICATION OF THE PROSECUTOR OR A MISTRIAL; THE PROSECUTOR’S DEMONSTRATION OF THE OPERATION OF THE MURDER WEAPON (A KNIFE) DID NOT WARRANT A MISTRIAL; AND THE FAILURE TO NOTIFY THE COURT AND THE ATTORNEYS OF THE JURY NOTE REQUESTING THE EXAMINATION OF THE KNIFE WAS NOT AN O’RAMA VIOLATION AND DID NOT WARRANT A MISTRIAL (FIRST DEPT). 8

CONSTRUCTIVE POSSESSION, DNA.

THE DEFENDANT’S DNA ON THE WEAPON AND DEFENDANT’S PRESENCE AS A PASSENGER IN THE CAR WHERE THE WEAPON WAS FOUND WERE NOT SUFFICIENT TO PROVE DEFENDANT POSSESSED THE WEAPON AT THE TIME ALLEGED IN THE INDICTMENT; DEFENDANT’S CONVICTION REVERSED BASED ON A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT). 9

COVID-19, HABEAS CORPUS.

THE PETITIONS FOR WRITS OF HABEAS CORPUS SEEKING RELEASE FROM RIKERS ISLAND BASED UPON THE RISK OF CONTRACTING COVID-19 PROPERLY DENIED (FIRST DEPT). 9

EXPERT OPINION.

PROPER FOUNDATION FOR EXPERT OPINION EVIDENCE FINDING THAT THE TESTED SUBSTANCES CONTAINED COCAINE WAS NOT LAID AND THE TESTIMONY WAS THEREFORE INADMISSIBLE; CONVICTIONS ON TWO DRUG-POSSESSION COUNTS REVERSED, NEW TRIAL ORDERED (SECOND DEPT). 10

FALSE ARREST (CIVIL).

THE CITY NEED NOT PROVE THE POLICE CORROBORATED INFORMATION PROVIDED BY AN INFORMANT IN A CIVIL ACTION FOR FALSE ARREST STEMMING FROM THE EXECUTION OF A SEARCH WARRANT BASED UPON ‘BAD CI INFORMATION’ (SECOND DEPT). 11

FORFEITURE.

QUESTION OF FACT WHETHER FORFEITURE OF DEFENDANT’S VEHICLE WOULD BE A CONSTITUTIONALLY IMPERMISSIBLE EXCESSIVE FINE (FIRST DEPT). 12

GRAND JURY.

BECAUSE THE GRAND JURY MINUTES WERE NOT PART OF THE MOTION TO AMEND THE INDICTMENT OR THE RECORD ON APPEAL, IT COULD NOT BE DETERMINED WHETHER THE DEFENDANT WAS ACTUALLY INDICTED ON THE OFFENSE CHARGED IN THE AMENDED INDICTMENT; PLEA VACATED AND AMENDED INDICTMENT DISMISSED (THIRD DEPT). 12

GRAND JURY.

GRAND JURY EVIDENCE WAS LEGALLY SUFFICIENT IN THIS AGGRAVATED UNLICENSED OPERATION CASE; THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT). 13

GUILTY PLEAS, APPEALS.

THE BURGLARY PLEA COLLOQUY DID NOT INDICATE DEFENDANT INTENDED TO COMMIT A CRIME OTHER THAN TRESPASS IN THE PREMISES; THEREFORE THE COLLOQUY NEGATED AN ESSENTIAL ELEMENT OF THE CRIME; PRESERVATION FOR APPEAL IS NOT REQUIRED FOR THIS GENRE OF ERROR (FOURTH DEPT). 14

GUILTY PLEAS.

DEFENDANT’S INTELLECTUAL DISABILITY REQUIRED A MORE PROBING COLLOQUY BEFORE ACCEPTING THE GUILTY PLEA AND THE WAIVER OF APPEAL, PLEA VACATED (SECOND DEPT). 15

HEARSAY, EXTRINSIC EVIDENCE.

ALTHOUGH SECONDARY EVIDENCE (HEARSAY TESTIMONY) AND EXTRINSIC DOCUMENTARY EVIDENCE ARE NOT ADMISSIBLE FOR COLLATERAL MATTERS LIKE IMPEACHING CREDIBILITY, SUCH EVIDENCE IS ADMISSIBLE WHEN IT IS RELEVANT TO A CORE ISSUE; HERE THE CONTENTS OF A NOTE PRESENTED TO A BANK EMPLOYEE WAS RELEVANT TO THE ‘THREATENED USE OF FORCE ‘ ELEMENT OF ROBBERY (FOURTH DEPT). 16

IDENTIFICATION.

ALTHOUGH IT WAS ERROR TO DENY THE DEFENSE REQUEST FOR A RODRIGUEZ HEARING BASED UPON THE PROSECUTOR’S ASSERTION THE COMPLAINANT AND THE DEFENDANT KNEW EACH OTHER, THE TRIAL TESTIMONY DEMONSTRATED THE COMPLAINANT AND DEFENDANT IN FACT KNEW EACH OTHER; THE DISSENT ARGUED THE COURT OF APPEALS REQUIRES THAT THE IDENTIFICATION ISSUE BE RESOLVED BEFORE TRIAL (SECOND DEPT). 17

INDICTMENTS.

THE DUPLICITY IN THE INDICTMENT WAS REMEDIED BY DETAILS PROVIDED TO THE DEFENSE PRIOR TO TRIAL AND BY DETAILED TRIAL EVIDENCE (FOURTH DEPT). 18

JURORS.

FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (FIRST DEPT). 19

JURORS.

IN THIS BATSON CHALLENGE CASE, THE MAJORITY HELD THE DEFENSE’S FAILURE TO ADDRESS THE PROSECUTOR’S STATED REASON FOR EXCLUDING A PROSPECTIVE JUROR, I.E. THAT THE PROSPECTIVE JUROR WAS NOT AFRICAN-AMERICAN, PRECLUDED APPEAL ON THAT ISSUE; THE DISSENT ARGUED THE THREE-STEP BATSON PROCEDURE WAS NOT FOLLOWED WITH RESPECT TO THAT JUROR, REQUIRING REVERSAL (SECOND DEPT). 20

JURORS.

THE PROSPECTIVE JUROR AND A PROSECUTION WITNESS WERE FRIENDS; DEFENDANT’S FOR CAUSE CHALLENGE TO THE JUROR SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 21

JURY INSTRUCTIONS, JUDGES.

JUSTIFICATION DEFENSE JURY INSTRUCTION WAS NOT SUFFICIENT; NEW TRIAL MUST BE BEFORE A DIFFERENT JUDGE BECAUSE OF THE JUDGE’S EXCESSIVE INVOLVEMENT (SECOND DEPT). 22

JUVENILE DELINQUENCY.

FAMILY COURT ABUSED ITS DISCRETION BY DENYING THE REQUEST FOR AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL IN THIS JUVENILE DELINQUENCY PROCEEDING (SECOND DEPT). 23

SEARCHES.

ALL THE ITEMS IN DEFENDANT’S CAR WERE NOT LISTED IN A WRITTEN INVENTORY, IN VIOLATION OF THE POLICE DEPARTMENT’S INVENTORY-SEARCH POLICY; THEREFORE THE FIREARM WAS NOT FOUND DURING A VALID INVENTORY SEARCH AND SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). 24

SENTENCING, YOUTHFUL OFFENDER.

ALTHOUGH DEFENDANT COMPLETED HIS SENTENCE HE IS ENTITLED TO A DETERMINATION WHETHER HE SHOULD BE ADJUDICATED A YOUTHFUL OFFENDER; THE ORDER OF PROTECTION EXCEEDED THE STATUTORY TIME LIMIT (SECOND DEPT). 25

SENTENCING, YOUTHFUL OFFENDER.

DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A DETERMINATION WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS (FOURTH DEPT). 26

SENTENCING.

DEFENDANT WAS PROPERLY SENTENCED TO INCARCERATION UPON A VIOLATION OF PROBATION IN THIS FELONY DWI CASE, DESPITE DEFENDANT’S COMPLETION OF THE SIX-MONTH PERIOD OF INCARCERATION ORIGINALLY IMPOSED (FOURTH DEPT). 26

SENTENCING.

DEFENDANT’S SENTENCE FOR MANSLAUGHTER REDUCED BASED UPON DEFENDANT’S BACKGROUND, REMORSE AND LACK OF A CRIMINAL HISTORY (FOURTH DEPT). 27

SENTENCING.

DEFENDANT’S SENTENCE REDUCED IN THIS MANSLAUGHTER, BURGLARY, MURDER CASE DUE TO DEFENDANT’S AGE AND MENTAL ILLNESS (FOURTH DEPT). 28

SENTENCING.

DEFENDANT’S SENTENCE REDUCED TO TIME-SERVED BASED UPON HIS HEALTH (FIRST DEPT). 29

SENTENCING.

RESTITUTION ORDERED WAS GREATER THAN THAT AGREED TO IN THE PLEA AGREEMENT; ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; RESTITUTION VACATED AND MATTER REMITTED (THIRD DEPT). 30

SENTENCING.

RESTITUTION PAYABLE TO THE CRIME VICTIMS BOARD EXCEEDED THE STATUTORY CAP FOR A FELONY (SECOND DEPT). 30

SENTENCING.

THE PERSISTENT FELONY OFFENDER STATEMENT WAS INADEQUATE BECAUSE IT DID NOT CLEARLY INDICATE THE PERIODS OF DEFENDANT’S PRIOR INCARCERATION; THEREFORE, BECAUSE THE TEN-YEAR CUT-OFF PERIOD IS TOLLED DURING INCARCERATION, IT COULD NOT BE DETERMINED WHETHER DEFENDANT’S PRIOR FELONIES FELL WITHIN THE TEN-YEAR CUT-OFF PERIOD FOR A VALID PERSISTENT FELONY OFFENDER SENTENCE (FOURTH DEPT). 31

STATEMENTS, SENTENCING.

DEFENDANT TOLD THE POLICE HE DIDN’T WANT TO TALK, HIS STATEMENT SHOULD HAVE BEEN SUPPRESSED BUT THE ERROR WAS HARMLESS; CONSECUTIVE SENTENCES FOR POSSESSION OF THE KNIFE AND MURDER BY STABBING FOUND PROPER (FOURTH DEPT). 32

STREET STOPS.

POLICE DID NOT HAVE REASONABLE SUSPICION DEFENDANT WAS ENGAGED IN CRIMINAL ACTIVITY AT THE TIME OF THE STOP AND PURSUIT; THEREFORE THE WEAPON DISCARDED BY DEFENDANT SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT). 33

SUPERIOR COURT INFORMATION.

ANY CHALLENGE BASED ON A DEFECT IN THE SUPERIOR COURT INFORMATION AND WAIVER OF APPEAL FOR FAILURE TO SET FORTH THE DATE AND TIME OF THE OFFENSE WAIVED BY THE GUILTY PLEA; THE PLEA WAS INVALID BECAUSE OF THE INCOMPLETE COLLOQUY (THIRD DEPT). 34

VACATE CONVICTION, ATTORNEYS.

DESPITE HAVING MADE A PRIOR MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT WAS ENTITLED TO A HEARING ON THE INSTANT MOTION WHICH WAS SUPPORTED BY AN AFFIDAVIT BY HIS ATTORNEY WHO ACKNOWLEDGED HE TOLD DEFENDANT A GUILTY PLEA WOULD NOT RESULT IN DEPORTATION (THIRD DEPT). 35

Civil Procedure Update April 2019

Course #MSC1164 (Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for September 2, 2020, through December 31, 2021

This Course Is Appropriate for Experienced Attorneys

Areas of Professional Practice: 0.5 CLE Credit Hour

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, 2019 and April 30, 2010 which address issues in “Civil Procedure.” Similar 1/2-to 1-hour CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these monthly CLE courses. A link to the written materials for this course (“Civil Procedure Update April 2019”) is provided below.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, 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 0.5 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 (“Civil Procedure Update April 2019”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

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

Civil Procedure Update Pamphlet April 2019

Civil Procedure Update April 2019 Attorney Affirmation

Civil Procedure Update April 2019 Evaluation Survey

Topics Covered in the “Civil Procedure Update April 2019” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Civil Procedure Update Pamphlet April 2019”

AMEND COMPLAINT, MOTION TO DISMISS.

MOTION TO AMEND THE COMPLAINTS IN THESE RESIDENTIAL MORTGAGE BACKED SECURITIES ACTIONS SHOULD HAVE BEEN GRANTED, COMPETING INTERPRETATIONS OF A CONTRACT SHOULD NOT BE DETERMINED AT THE MOTION-TO-DISMISS STAGE (FIRST DEPT). 5

BUSINESS RECORDS EXCEPTION, NEW THEORY RAISED IN OPPOSITION.

REPORT OF FIRE MARSHAL, WHO HAD NO INDEPENDENT RECOLLECTION OF HIS INVESTIGATION INTO THE CAUSE OF THE FIRE, WAS ADMISSIBLE PURSUANT TO THE BUSINESS RECORD EXCEPTION TO THE HEARSAY RULE, COURT SHOULD NOT HAVE CONSIDERED A NEW THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (FIRST DEPT). 6

DEPOSITIONS, REPLY PAPERS.

UNSIGNED DEPOSITIONS WERE ADMISSIBLE AND EVIDENCE SUBMITTED IN REPLY SHOULD HAVE BEEN CONSIDERED (SECOND DEPT). 7

DISCOVERY, MEDICAL RECORDS.

DEFENDANT’S HEALTH AT THE TIME OF THE TRAFFIC ACCIDENT WAS NEVER PLACED IN CONTROVERSY AND THE PHYSICIAN-PATIENT PRIVILEGE WAS NOT WAIVED BY A LETTER TO PLAINTIFF’S ATTORNEY INDICATING DEFENDANT SUFFERED FROM DEMENTIA, ANXIETY AND DEPRESSION (SECOND DEPT). 7

DISCOVERY, SPOLIATION.

PLAINTIFF WAS NOT ENTITLED TO THE PRESUMPTION DEFENDANT RECEIVED A LETTER ALLEGEDLY REQUESTING THAT SURVEILLANCE VIDEO BEFORE AND AFTER PLAINTIFF’S SLIP AND FALL BE PRESERVED AS THERE WAS NO PROOF OF MAILING, DEFENDANT SHOULD NOT HAVE BEEN SANCTIONED FOR SPOLIATION PURSUANT TO CPLR 3126 (SECOND DEPT). 8

FAMILY LAW, CHOICE OF LAW.

DESPITE THE PROVISION IN THE SEPARATION AGREEMENT REQUIRING THAT ANY MODIFICATION OF SUPPORT APPLY NEW JERSEY LAW, BECAUSE ALL PARTIES RESIDED IN NEW YORK WHEN THE MODIFICATION APPLICATION WAS MADE, NEW YORK LAW CONTROLS (FOURTH DEPT). 9

FAMILY LAW, JURISDICTION.

NEW YORK DID NOT HAVE SUBJECT MATTER JURISDICTION OVER A CUSTODY MATTER BECAUSE THE CHILD HAD NOT LIVED IN NEW YORK FOR SIX MONTHS AT THE TIME THE PROCEEDINGS WERE COMMENCED, NEW JERSEY STILL HAD JURISDICTION AT THAT TIME BECAUSE THE CHILD HAD BEEN REMOVED FROM NEW JERSEY LESS THAN SIX MONTHS BEFORE THE NEW YORK PROCEEDINGS WERE COMMENCED (FOURTH DEPT). 10

FAMILY LAW, POSTNUPTIAL AGREEMENT.

ALLEGATIONS THAT A POSTNUPTIAL AGREEMENT WAS UNCONSCIONABLE SURVIVED THE MOTION TO DISMISS, THE SUBSTANTIVE AND PROCEDURAL CRITERIA FOR THE DISMISSAL OF COUNTERCLAIMS AND AFFIRMATIVE DEFENSES ALLEGING FRAUD, DURESS, COERCION AND UNCONSCIONABILITY DISCUSSED IN SOME DEPTH (SECOND DEPT). 11

FORECLOSURE, NYSCEF ELECTRONIC FILING.

PURSUANT TO AN EXCEPTION IN 22 NYCRR 202.5-b, USING THE NYSCEF ELECTRONIC FILING SYSTEM DID NOT CONSTITUTE PROPER SERVICE OF A NOTICE OF ENTRY ON DEFENDANTS, THE TIME FOR DEFENDANTS TO ANSWER THEREFORE NEVER STARTED TO RUN AND DEFENDANTS WERE NOT IN DEFAULT (SECOND DEPT). 12

FORECLOSURE, DISMISSAL BASED ON LOCAL RULE.

DENIAL OF DEFENDANT’S MOTION TO VACATE HIS DEFAULT IN THIS FORECLOSURE ACTION DID NOT PRECLUDE DEFENDANT’S MOTION TO DISMISS BASED UPON PLAINTIFF BANK’S FAILURE TO MOVE FOR A JUDGMENT OF FORECLOSURE WITHIN ONE YEAR AS REQUIRED BY KINGS COUNTY LOCAL RULE 8 (SECOND DEPT). 13

FORECLOSURE, JUDGES, SUA SPONTE.

JUDGE’S SUA SPONTE DISMSSAL OF THE COMPLAINT IN THIS FORECLOSURE ACTION DEPRIVED PLAINTIFF OF NOTICE AND A CHANCE TO BE HEARD, A VIOLATION OF DUE PROCESS (SECOND DEPT). 14

FORECLOSURE, JUDGES.

SUPREME COURT SHOULD NOT HAVE DISMISSED THE FORECLOSURE COMPLAINT IN THE ABSENCE OF THE PRECONDITIONS REQUIRED BY CPLR 3216 (SECOND DEPT). 14

FORECLOSURE, NOTICE REQUIRMENTS, REPLY PAPERS.

PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; EVIDENCE OFFERED FOR THE FIRST TIME IN REPLY CAN BE CONSIDERED IF THE OPPOSING PARTY HAS THE OPPORTUNITY TO RESPOND (SECOND DEPT). 15

FRAUD, CONSTRUCTIVE FRAUD.

COMPLAINT STATED A CAUSE OF ACTION FOR CONSTRUCTIVE FRAUD BUT THE HEIGHTENED PLEADING REQUIREMENTS FOR ACTUAL FRAUD WERE NOT MET (FIRST DEPT). 16

JUDGES, SUA SPONTE, DEFAULT JUDGMENT.

JUDGE SHOULD NOT HAVE, SUA SPONTE, VACATED A DEFAULT JUDGMENT IN THE ABSENCE OF A MOTION OR REQUEST, NO APPEAL AS OF RIGHT FROM A SUA SPONTE ORDER (FIRST DEPT). 17

JUDGES, SUA SPONTE.

JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ACTION FOR NEGLECT TO PROSECUTE WITHOUT MEETING THE REQUIREMENTS OF CPLR 3216 (SECOND DEPT). 17

JUDGES, SUA SPONTE.

JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT FOR FAILURE TO PROSECUTE WITHOUT FOLLOWING THE REQUIREMENTS OF CPLR 3216 (SECOND DEPT). 18

JUDGMENT AS A MATTER OF LAW, SPOLIATION, LAW OF THE CASE.

MOTION FOR A JUDGMENT AS A MATTER OF LAW MADE DURING JURY SELECTION WAS PREMATURE, GRANTING THE MOTION ON SPOLIATION GROUNDS VIOLATED THE LAW OF THE CASE (SECOND DEPT). 19

LAW OFFICE FAILURE, FAILURE TO ANSWER.

LAW OFFICE FAILURE WAS A REASONABLE EXCUSE FOR FAILING TO ANSWER, DEFENDANT’S MOTION TO EXTEND THE TIME TO APPEAR SHOULD HAVE BEEN GRANTED (FIRST DEPT). 20

PRIVATE RIGHT OF ACTION.

NO PRIVATE RIGHT OF ACTION UNDER NEW YORK’S MENTAL HEALTH PARITY LAW (TIMOTHY’S LAW) (SECOND DEPT). 20

SERVICE OF PROCESS, PROOF BURDEN.

ALTHOUGH DEFENDANT WAS AMBIVALENT ABOUT WHEN HE WAS SERVED, THE MOTION TO DISMISS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND, IT IS PLAINTIFF’S BURDEN TO DEMONSTRATE A DEFENDANT WAS TIMELY SERVED WITH A SUMMONS AND COMPLAINT (SECOND DEPT). 21

STATUTE OF LIMITATIONS, DEFAMATION.

HYPERLINK TO A 2007 ALLEGEDLY DEFAMATORY ARTICLE IS NOT A REPUPLICATION OF THE ARTICLE WHICH WOULD START THE STATUTE OF LIMITATIONS RUNNING AGAIN, THE DEFAMATION ACTION WAS THEREFORE TIME-BARRED (FIRST DEPT), 22

YOUTHFUL OFFENDERS, QUESTIONS ABOUT CHARGES.

A PERSON ADJUDICATED A YOUTHFUL OFFENDER CAN REFUSE TO ANSWER QUESTIONS ABOUT THE CHARGES, THE POLICE INVESTIGATION, THE PLEA AND THE ADJUDICATION, BUT CANNOT REFUSE TO ANSWER QUESTIONS ABOUT THE UNDERLYING FACTS (SECOND DEPT). 22

Criminal Law Update June 2020

Course #CRM0366 (Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for September 2, 2020, through December 31, 2021

This Course Is Appropriate for Experienced Attorneys

Areas of Professional Practice: 1 CLE Credit Hour

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 June 1, 2020 and June 30, 2020 which address issues in “Criminal Law.” Similar 1/2-to 1-hour CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.

The “Criminal Law” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these monthly CLE courses. A link to the written materials for this course (“Criminal Law Update Pamphlet June 2020”) is provided below.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, 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 1 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 (“Criminal Law Update Pamphlet June 2020”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

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

Criminal Law Update Pamphlet June 2020

Criminal Law Update June 2020 Attorney Affirmation

Criminal Law Update June 2020 Evaluation Survey

Topics Covered in the “Criminal Law Update June 2020” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Criminal Law Update Pamphlet June 2020”

APPEAL, WAIVER OF.

SUPREME COURT MISCHARACTERIZED THE SCOPE OF THE WAIVER OF APPEAL BY NOT CLARIFYING THAT CERTAIN FUNDAMENTAL ISSUES REMAIN APPEALABLE DESPITE THE WAIVER; WAIVER INVALID (SECOND DEPT). 8

APPEAL, WAIVER OF.

WHERE A TRIAL JUDGE DEMANDS A WAIVER OF APPEAL, THE JUDGE SHOULD PLACE HIS OR HER REASONS ON THE RECORD SO THE DEMAND IS NOT SEEN AS A TOOL FOR AVOIDING APPELLATE REVIEW; THE JUDGE-DEMANDED WAIVER WAS NOT ENFORCED IN THIS CASE (SECOND DEPT). 9

APPEALS, WEIGHT OF THE EVIDENCE, DEPRAVED INDIFFERENCE.

THE DEPRAVED-INDIFFERENCE ELEMENT OF THE CHARGED OFFENSES WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; ALTHOUGH DEFENDANT’S ATTEMPTS TO CARE FOR BURNS ON THE CHILD’S LEGS WERE GROSSLY INADEQUATE, THOSE MEASURES DID NOT SUPPORT A FINDING DEFENDANT DID NOT CARE AT ALL ABOUT THE CONDITION OF THE CHILD (SECOND DEPT). 10

APPEALS, WEIGHT OF THE EVIDENCE.

RECKLESS ENDANGERMENT AND MENACING A POLICE OFFICER CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT). 11

APPEALS.

14-MONTH DELAY IN THE TRANSCRIPTION OF THE RECORD DID NOT DEPRIVE DEFENDANT OF HIS RIGHT TO APPEAL (THIRD DEPT). 11

APPEALS.

AFTER REVERSAL BY THE COURT OF APPEALS, DEFENDANT’S SUPPRESSION MOTION WAS GRANTED AND HIS GUILTY PLEA WAS VACATED; EVEN THOUGH DEFENDANT’S SUPPRESSION MOTION DID NOT RELATE TO THE OFFENSE TO WHICH DEFENDANT PLED GUILTY, THE APPELLATE DIVISION SHOULD HAVE REACHED THE MERITS OF THE MOTION BECAUSE OF ITS POTENTIAL EFFECT ON THE DECISION TO PLEAD GUILTY TO ANOTHER OFFENSE IN FULL SATISFACTION OF ALL THE CHARGES (FOURTH DEPT). 12

APPEALS.

EVEN THOUGH THE US SUPREME COURT CASE REQUIRING WARRANTS FOR CELL SITE LOCATION DATA WAS NOT DECIDED AT THE TIME OF TRIAL, PRESERVATION OF THAT ISSUE FOR APPEAL IS STILL NECESSARY; A DEFENDANT MAY BE INDICTED FOR BOTH DEPRAVED INDIFFERENCE AND INTENTIONAL MURDER; CONSECUTIVE SENTENCES FOR THE SHOOTINGS AND POSSESSION OF A WEAPON WERE APPROPRIATE (FIRST DEPT). 13

APPEALS.

SUPPRESSION COURT’S FAILURE TO EXPLAIN THE BASIS FOR DENYING THE MOTION TO SUPPRESS PRECLUDED DETERMINATION OF THE APPEAL; MATTER REMITTED (SECOND DEPT). 14

APPEALS.

THE APPELLATE DIVISION COULD NOT DECIDE THE APPEAL OF THE DENIAL OF A SUPPRESSION MOTION ON A GROUND NOT RELIED UPON BY THE SUPPRESSION COURT (CT APP). 15

ATTORNEYS, INEFFECTIVE ASSISTANCE.

DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD HAVE BEEN GRANTED; DEFENSE COUNSEL DID NOT ATTEMPT TO SECURE THE TESTIMONY OF A WITNESS WHO WOULD TESTIFY THAT HER BOYFRIEND, WHO USED TO BE THE BOYFRIEND OF THE MURDER VICTIM, CONFESSED TO KILLING THE VICTIM (FOURTH DEPT). 16

ATTORNEYS, INEFFECTIVE ASSISTANCE, STREET STOPS.

THE SECTION OF THE VEHICLE AND TRAFFIC LAW RELIED ON BY THE POLICE FOR THE VEHICLE STOP MAY NOT HAVE BEEN APPLICABLE AND THE STOP THEREFORE MAY HAVE BEEN ILLEGAL; DEFENSE COUNSEL’S FAILURE TO MAKE A MOTION TO SUPPRESS ON THAT GROUND CONSTITUTED INEFFECTIVE ASSISTANCE; PLEA VACATED AND MATTER REMITTED (FOURTH DEPT). 17

ATTORNEYS, INEFFECTIVE ASSISTANCE.

DEFENDANT ALLEGED DEFENSE COUNSEL OVERSTATED THE RISK OF DEPORTATION CAUSING HIM TO REJECT A FAVORABLE PLEA OFFER; DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE (FIRST DEPT). 18

ATTORNEYS, PROSECUTORIAL MISCONDUCT, COMFORT DOGS.

IT MAY HAVE BEEN ERROR TO ALLOW THE VICTIM TO TESTIFY ACCOMPANIED BY A DOG, BUT THE ISSUE WAS NOT PRESERVED; ALTHOUGH THE PROSECUTOR MADE AN IMPROPER COMMENT IT DID NOT REQUIRE REVERSAL; PROSECUTORS ADMONISHED THAT THEIR ROLE IS TO ENSURE JUSTICE IS DONE, NOT SIMPLY SEEK CONVICTIONS (FOURTH DEPT). 19

BRADY MATERIAL, INDICTMENTS.

EXCULPATORY (BRADY) EVIDENCE IN THE COMPLAINANT’S MENTAL HEALTH RECORDS WAS REDACTED BY THE JUDGE; TWO INDICTMENT COUNTS WERE MULTIPLICITOUS; NEW TRIAL ORDERED IN THIS SEXUAL ABUSE CASE (SECOND DEPT). 20

CITIZEN’S ARREST.

FEDERAL CUSTOMS AND BORDER PATROL MARINE INTERDICTION AGENT IS NOT A PEACE OFFICER UNDER NEW YORK LAW; THEREFORE THE AGENT MADE A VALID CITIZEN’S ARREST OF AN ERRATIC DRIVER HE OBSERVED WHILE ON THE HIGHWAY; MOTION TO SUPPRESS THE WEAPON FOUND IN DEFENDANT’S CAR SHOULD NOT HAVE BEEN GRANTED (CT APP). 20

CONCURRENT INCLUSORY COUNTS.

THE TWO COUNTS OF ROBBERY THIRD WERE CONCURRENT INCLUSORY COUNTS OF THE TWO COUNTS OF ROBBERY SECOND; CONVICTIONS ON THE ROBBERY SECOND COUNTS REQUIRED VACATION OF THE CONVICTIONS ON THE ROBBERY THIRD COUNTS AND THE RELATED SENTENCES (SECOND DEPT). 22

DEPRAVED INDIFFERENCE.

THE OPINION CHANGING THE CRITERIA FOR THE DEPRAVED-INDIFFERENCE MENS REA CAME DOWN BEFORE DEFENDANT’S CONVICTION BECAME FINAL; DESPITE THE AFFIRMANCE OF DEFENDANT’S MURDER CONVICTION ON APPEAL, THE DENIAL OF A MOTION TO REARGUE THE APPEAL, THE DENIAL OF THE MOTION FOR LEAVE TO APPEAL TO THE COURT OF APPEALS, AND THE DENIAL OF DEFENDANT’S PETITION FOR A WRIT OF HABEAS CORPUS IN FEDERAL COURT, SUPREME COURT SHOULD HAVE GRANTED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (SECOND DEPT). 22

DISMISS, MOTION TO, INTEREST OF JUSTICE.

DEFENDANT’S MOTION TO DISMISS IN THE INTEREST OF JUSTICE SHOULD NOT HAVE BEEN GRANTED; THE MOTION, BROUGHT AFTER CONVICTION BY A JURY, WAS UNTIMELY AND NOT WARRANTED ON THE MERITS (SECOND DEPT). 23

DNA.

FRYE HEARING SHOULD HAVE BEEN HELD TO DETERMINE THE ADMISSIBILITY OF DNA EVIDENCE DERIVED USING THE FORENSIC STATISTICAL TOOL (FST); NEW TRIAL ORDERED (SECOND DEPT). 24

EXPERTS.

DEFENSE ‘FALSE CONFESSION’ EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY, CONVICTION REVERSED; RIGHT TO CONFRONT WITNESSES NOT VIOLATED BY STATEMENTS IN THE VIDEO INTERROGATION THAT NONTESTIFYING WITNESSES HAD IMPLICATED THE DEFENDANT (SECOND DEPT). 25

GRAND JURY, INSTRUCTIONS, DEFENSES.

FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF PROPERTY JUSTIFICATION DEFENSE REQUIRED DISMISSAL OF THE MURDER/MANSLAUGHTER INDICTMENT (CT APP). 26

GUILTY PLEAS, WITHDRAWAL OF.

DEFENDANT SHOULD HAVE BEEN ALLOWED TO EXPLAIN WHY HE WANTED TO WITHDRAW HIS GUILTY PLEA; MATTER REMITTED (FOURTH DEPT). 27

HABEAS CORPUS, COVID-19.

HABEAS CORPUS PETITION ORDERING THE RELEASE OF A PRISONER BECAUSE OF THE RISK POSED BY COVID-19 SHOULD NOT HAVE BEEN GRANTED; THE PETITION DID NOT DEMONSTRATE THE PRISON OFFICIALS WERE DELIBERATELY INDIFFERENT TO THE RISK (THIRD DEPT). 28

HEARSAY, INCONSISTENT STATEMENTS.

HEARSAY STATEMENTS BY THE ONLY WITNESS TO IDENTIFY DEFENDANT AS A PERPETRATOR INDICATED THE WITNESS WAS NOT IN FACT ABLE TO IDENTIFY ANY OF THE PERPETRATORS; THE INCONSISTENT STATEMENTS SHOULD HAVE BEEN ADMITTED BECAUSE THEY WENT TO A CORE ISSUE IN THE CASE IMPLICATING THE RIGHT TO PUT ON A DEFENSE; CONVICTION REVERSED (SECOND DEPT). 29

INTOXICATION DEFENSE.

DEFENDANT WAS ENTITLED TO A JURY INSTRUCTION ON THE INTOXICATION DEFENSE; DEFENDANT SHOULD HAVE BEEN ALLOWED TO ATTEMPT TO LAY FOUNDATIONS FOR THE ADMISSION OF POLICE AND DISTRICT ATTORNEY BUSINESS RECORDS IN SUPPORT OF HIS INTOXICATION DEFENSE; NEW TRIAL ORDERED DESPITE DEFENDANT’S COMPLETION OF HIS SENTENCE (SECOND DEPT). 30

JUDGES.

TRIAL JUDGE ASSUMED THE ROLE OF THE PROSECUTOR AND ELICITED CRUCIAL IDENTIFICATION TESTIMONY, NEW TRIAL ORDERED (SECOND DEPT). 31

JURORS.

STEP ONE OF DEFENDANT’S BATSON CHALLENGE PROPERLY REJECTED AS VAGUE AND CONCLUSORY; THERE WAS NO CONCEPCION BARRIER TO AFFIRMING THE TRIAL COURT’S STEP-ONE RULING; THE REQUEST FOR THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 32

JURORS.

THE TRIAL JUDGE DID NOT MAKE AN ADEQUATE INQUIRY ABOUT THE REASONS FOR A SITTING JUROR’S ABSENCE BEFORE SUBSTITUTING AN ALTERNATE JUROR; NEW TRIAL ORDERED (CT APP). 33

JURY NOTES.

COURT’S ERRORS IN DEALING WITH NOTES FROM THE JURY, INCLUDING SUBSTITUTING THE WORD ‘INITIALLY’ FOR ‘INTENTIONALLY,’ REQUIRED REVERSAL (SECOND DEPT). 33

JUVENILE DELINQUENCY.

FAMILY COURT SHOULD HAVE GRANTED THE APPLICATION FOR AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL IN THIS JUVENILE DELINQUENCY PROCEEDING (SECOND DEPT). 34

LESSER INCLUDED OFFENSES.

CONVICTION OF COURSE OF SEXUAL CONDUCT AGAINST A CHILD FIRST DEGREE MUST BE VACATED AS A LESSER INCLUDED OFFENSE OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD (SECOND DEPT). 35

PAROLE.

PETITIONER WAS INITIALLY APPROVED FOR PAROLE, BUT AFTER THE VICTIM IMPACT HEARING A RESCISSION HEARING WAS HELD AND PAROLE WAS RESCINDED; THE RESCISSION WAS PROPERLY BASED UPON VICTIM IMPACT STATEMENTS SUPPLYING INFORMATION WHICH WAS NOT “NEW” BUT WHICH WAS NOT PREVIOUSLY KNOWN TO THE PAROLE BOARD (CT APP). 35

POLICE OFFICERS, CROSS-EXAMINATION.

CROSS-EXAMINATION OF A POLICE OFFICER ABOUT MISCONDUCT IN A CIVIL SUIT SHOULD HAVE BEEN ALLOWED; CONVICTION REVERSED (FIRST DEPT). 37

PRISON CONTRABAND.

COCAINE IS NOT DANGEROUS CONTRABAND WITHIN THE MEANING OF PROMOTING PRISON CONTRABAND IN THE FIRST DEGREE; CONVICTION REDUCED TO PROMOTING PRISON CONTRABAND IN THE SECOND DEGREE (PROHIBITING ‘CONTRABAND,’ AS OPPOSED TO ‘DANGEROUS CONTRABAND’) (FOURTH DEPT). 37

SEARCHES, BORDERS.

WARRANTLESS MANUAL SEARCH OF DEFENDANT’S IPAD AT JFK AIRPORT PROPER; CRITERIA FOR SEARCHES OF ELECTRONIC DEVICES AT BORDERS EXPLAINED (SECOND DEPT). 38

SENTENCING.

ALTHOUGH THE PERSISTENT FELONY OFFENDER STATUS WAS AUTHORIZED AND LEGAL, THE APPELLATE DIVISION EXERCISED ITS DISCRETION TO FIND DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT FELONY OFFENDER AND REDUCED HIS SENTENCE (FOURTH DEPT). 39

SENTENCING.

CONSECUTIVE PERIODS OF POSTRELEASE SUPERVISION VIOLATED THE PENAL LAW; ERROR DID NOT NEED TO BE PRESERVED (FOURTH DEPT). 40

SENTENCING.

DEFENDANT WAS ADJUDICATED A YOUTHFUL OFFENDER AND SENTENCED TO 60 DAYS IN JAIL AND FIVE YEARS PROBATION FOR STEALING A BREAKFAST SANDWICH FROM A RESTAURANT; EXTENSIVE DISSENT ARGUED THE SENTENCE WAS HARSH AND EXCESSIVE (FIRST DEPT). 41

SENTENCING.

THE SENTENCE FOR KIDNAPPING MUST RUN CONCURRENTLY WITH THE SENTENCE FOR FELONY MURDER; MOTION TO VACATE THE CONVICTION PROPERLY BROUGHT PURSUANT TO CRIMINAL PROCEDURE LAW 440.20 (SECOND DEPT). 41

SEX OFFENDER REGISTRATION ACT (SORA).

PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE IN THIS SORA RISK ASSESSMENT PROCEEDING SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 42

SEX OFFENDER REGISTRATION ACT (SORA).

PETITIONER SOUGHT A REDUCTION OF HIS 1996 LEVEL THREE SEX OFFENDER CLASSIFICATION BUT COUNTY COURT DENIED THE PETITION WITHOUT REQUESTING AN UPDATED RECOMMENDATION FROM THE BOARD OF EXAMINERS OF SEX OFFENDERS IN VIOLATION OF THE CORRECTION LAW; ORDER REVERSED AND MATTER REMITTED (THIRD DEPT). 43

SEX OFFENDER REGISTRATION ACT (SORA).

SUPREME COURT’S DENIAL OF DEFENDANT’S PETITION TO MODIFY HIS SORA RISK LEVEL CLASSIFICATION WITHOUT HOLDING A HEARING VIOLATED THE CORRECTION LAW (SECOND DEPT). 43

SEXUAL ABUSE, PUBLIC NUISANCE.

COMPLAINT AGAINST THE DIOCESE OF BUFFALO ALLEGING SEXUAL ABUSE BY A PRIEST DID NOT STATE A CAUSE OF ACTION FOR PUBLIC NUISANCE (FOURTH DEPT). 44

STREET STOPS, SEARCHES.

THE MAJORITY HELD THE WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK WAS JUSTIFIED BECAUSE IT OCCURRED CLOSE IN TIME TO DEFENDANT’S ARREST ON THE STREET AND WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES; THE DISSENT ARGUED THERE WAS NO PROOF THE BACKPACK WAS WITHIN THE GRABBABLE AREA AND NO PROOF OF EXIGENT CIRCUMSTANCES (SECOND DEPT). 45

STREET STOPS, SEARCHES.

WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK AFTER HE WAS HANDCUFFED NOT JUSTIFIED; CONVICTION REVERSED (SECOND DEPT). 46

SUPERIOR COURT INFORMATION, WAIVER OF INDICTMENT.

ABSENCE OF APPROXIMATE TIME OF THE OFFENSE IN THE SUPERIOR COURT INFORMATION (SCI) WAS NOT JURISDICTIONAL AND WAS THEREFORE WAIVED BY THE GUILTY PLEA; ABSENCE OF DA’S SIGNATURE ON THE WAIVER OF INDICTMENT DID NOT INVALIDATE IT; CONSECUTIVE SENTENCES FOR CRIMES ARISING FROM ONE CONTINUOUS INCIDENT WERE NOT ILLEGAL (THIRD DEPT). 47

Negligence Update March 2019

Course #TRT0854 (Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for September 2, 2020, through December 31, 2021

This Course Is Appropriate Experienced Attorneys

Areas of Professional Practice: 0.5 CLE Credit Hour

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 March 1, 2019 and March 31, 2019 which address issues in “Negligence.” Similar 1/2-to 1-hour CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.

The “Negligence” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these monthly CLE courses. A link to the written materials for this course (“Negligence Update March 2019”) is provided below.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, 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 0.5 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 (“Negligence Update Pamphlet March 2019”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

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

Negligence Update Pamphlet March 2019

Negligence Update March 2019 Attorney Affirmation

Negligence Update March 2019 Evaluation Survey

Topics Covered in the “Negligence Update March 2019” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Negligence Update Pamphlet March 2019”

ARCHITECTURAL MALPRACTICE.

ARCHITECT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, THE FACT THAT ANOTHER PARTY PLACED THE ANGLE IRON WHICH INJURED PLAINTIFF IN AN EFFORT TO FIX AN ALLEGED DEFECT IN THE DESIGN OF THE SUBJECT BOILER SYSTEM DID NOT CONSTITUTE A SUPERSEDING CAUSE OF PLAINTIFF’S INJURY AS A MATTER OF LAW (FIRST DEPT). 7

DAMAGES.

DAMAGES AWARDED 69-YEAR-OLD PLAINTIFF FOR PAST AND FUTURE PAIN AND SUFFERING DEEMED EXCESSIVE (FIRST DEPT). 8

EDUCATION-SCHOOL LAW, SUPERVISION.

LACK OF SUPERVISION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF STUDENT’S FALL, PLAINTIFF WAS ENGAGING IN AGE-APPROPRIATE BEHAVIOR TAKING TURNS JUMPING OVER A KNEE-HIGH FENCE WHEN SHE FELL AND WAS INJURED, SCHOOL DISTRICT’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT). 8

EDUCATION-SCHOOL LAW, THIRD-PARTY ASSAULT.

QUESTION OF FACT WHETHER SCHOOL BUS DRIVER AND MONITOR TOOK APPROPRIATE STEPS AFTER THE FIGHT IN WHICH PLAINTIFF STUDENT WAS INJURED BROKE OUT ON THE BUS (SECOND DEPT). 9

EDUCATION-SCHOOL LAW, THIRD-PARTY ASSAULT.

STUDENT ON STUDENT ASSAULT WAS NOT FORESEEABLE, THEORIES IN THE PLEADINGS WHICH WERE NOT MENTIONED IN THE NOTICE OF CLAIM PROPERLY DISMISSED (SECOND DEPT). 10

GROSS NEGLIGENCE, CONTRACT, LOW BID FOR HIGHWAY PROJECT.

QUESTION OF FACT WHETHER GROSS NEGLIGENCE MIGHT OVERCOME A CONTRACTUAL LIMITATION ON LIABILITY (FIRST DEPT). 11

HIGHWAYS, DANGEROUS CONDITION.

QUESTIONS OF FACT WHETHER STATE HAD CONSTRUCTIVE NOTICE OF THE CONDITION OF THE ROAD WHICH ALLEGEDLY CAUSED PLAINTIFF’S BICYCLE ACCIDENT (THIRD DEPT). 11

INDEPENDENT MEDICAL EXAMINATION, PRIVILEGE.

NOTES TAKEN BY AN OBSERVER HIRED BY PLAINTIFF’S ATTORNEY TO WITNESS AN INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BY DEFENDANTS’ DOCTOR ARE PRIVILEGED AS MATERIAL PREPARED FOR TRIAL, THE OBSERVER WAS ACTING AS AN AGENT OF PLAINTIFF’S ATTORNEY (FIRST DEPT). 12

MEDICAL MALPRACTICE, DEAD MAN’S STATUTE.

DECEDENT’S CONSENT TO SURGERY SUBMITTED IN SUPPORT OF SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION DID NOT VIOLATE THE DEAD MAN’S STATUTE, THE CONSENT WAS AUTHENTICATED BY THE MEDICAL RECORDS (SECOND DEPT). 13

MEDICAL MALPRACTICE, EXPORT OPINION.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S EXPERT’S AFFIDAVIT WAS CONCLUSORY AND SPECULATIVE AND IMPROPERLY RAISED AN ISSUE NOT DISCERNABLE FROM THE PLAINTIFF’S BILL OF PARTICULARS (SECOND DEPT). 14

MEDICAL MALPRACTICE, MUNICIPAL LAW.

LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION, SERVED THREE YEARS AFTER THE DEVELOPMENTALLY DELAYED CHILD’S BIRTH, SHOULD HAVE BEEN DEEMED TIMELY SERVED (SECOND DEPT). 15

MEDICAL MALPRACTICE, SUPERVISION.

ACTION BASED UPON FAILURE TO SUPERVISE PLAINTIFF’S USE OF A HOSPITAL REST ROOM SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, THE ACTION WAS THEREFORE TIME-BARRED (FIRST DEPT). 16

MEDICAL MALPRACTICE.

AUDIT TRAIL, I.E., METADATA SHOWING WHO ACCESSED PLAINTIFF’S MEDICAL RECORDS, WHERE AND WHEN THEY WERE ACCESSED, AND ANY CHANGES TO THE RECORDS, WAS DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION ALLEGING IMPROPER TREATMENT AFTER SURGERY (SECOND DEPT). 16

MEDICAL MALPRACTICE.

DEFENDANTS’ MOTION TO SET ASIDE THE VERDICT FINDING LIABILITY IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT AWARDING NO DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING OR FUTURE LOST WAGES SHOULD HAVE BEEN GRANTED, PLAINTIFF ALLEGED HER CHILD WAS INJURED IN UTERO (SECOND DEPT). 17

MUNICIPAL LAW.

ALTHOUGH PLAINTIFFS APPEARED FOR THE 50-h HEARING, PLAINTIFFS’ ATTORNEY REFUSED TO LET THE PLAINTIFFS TESTIFY UNLESS EACH PLAINTIFF COULD HEAR THE OTHER’S TESTIMONY, BECAUSE THE 50-h HEARING IS A CONDITION PRECEDENT TO BRINGING SUIT, PLAINTIFFS’ LAWSUIT WAS PROPERLY PRECLUDED (SECOND DEPT). 18

MUNICIPAL LAW.

ELDERLY PLAINTIFF’S HEALTH PROBLEMS EXCUSED HER FAILURE TO APPEAR FOR A 50-h HEARING, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). 19

MUNICIPAL LAW.

UNEXCUSED FAILURE TO APPEAR AT A SCHEDULED 50-h HEARING REQUIRED DISMISSAL OF THE COMPLAINT (FOURTH DEPT). 20

PLAYGROUND, DANGEROUS CONDITION.

PLAYGROUND EQUIPMENT ON WHICH PLAINTIFF’S SON WAS INJURED, ACCORDING TO EXPERT EVIDENCE, WAS IN COMPLIANCE WITH APPLICABLE GUIDELINES AND STANDARDS, WAS PROPERLY MAINTAINED AND WAS NONHAZARDOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). 20

PRODUCTS LIABILITY.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS FARM EQUIPMENT PRODUCTS LIABILITY ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 21

RES IPSA LOQUITUR.

PLAINTIFF WAS STRUCK BY A FACE PLATE WHICH FELL OFF AN AIR CONDITIONER, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE UNDER THE DOCTRINE OF RES IPSA LOQUITUR, DEFENDANTS RAISED QUESTIONS OF FACT ABOUT THE CAUSE AND EXCLUSIVE CONTROL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SEOND DEPT). 22

SLIP AND FALL, ESCALATOR.

DEFENDANT DID NOT ELIMINATE QUESTIONS OF FACT CONCERNING WHETHER IT HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE ALLEGEDLY DANGEROUS CONDITION IN THIS ESCALATOR SLIP AND FALL CASE, ANY CONFLICT IN PLAINTIFF’S TESTIMONY DID NOT RENDER IT INCREDIBLE AS A MATTER OF LAW, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 23

SLIP AND FALL, OPEN AND OBVIOUS.

PLAINTIFF FELL INTO A THREE-FEET-DEEP HOLE, QUESTION OF FACT WHETHER THE HOLE WAS AN OPEN AND OBVIOUS CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT 23

SLIP AND FALL, STORM IN PROGRESS.

DEFENDANTS’ PROOF DEMONSTRATED THE SNOW STORM WAS OVER 12 HOURS BEFORE PLAINTIFF’S SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 24

SLIP AND FALL.

CAUSE OF THE SLIP AND FALL WAS NOT BASED UPON PURE SPECULATION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). 25

SLIP AND FALL.

DEFENDANT DID NOT SHOW A LACK OF CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 26

SLIP AND FALL.

DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE WET CONDITION ON THE STAIRS IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). 26

SLIP AND FALL.

DEFENDANTS DID NOT DEMONSTRATE THRESHOLD STRIP WHICH ALLEGEDLY CAUSE PLAINTIFF TO SLIP AND FALL WAS NOT INHERENTLY DANGEROUS AND TRIVIAL AS A MATTER OF LAW, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). 27

SLIP AND FALL.

DEFENDANTS DID NOT SUBMIT EVIDENCE SHOWING WHEN THE SIDEWALK WAS LAST INSPECTED IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 28

SLIP AND FALL.

EVEN WHERE A CAUSE OF ACTION HAS NOT BEEN PROPERLY PLED THE COURT WILL SEARCH THE RECORD TO DETERMINE WHETHER THERE IS AN ACTIONABLE CLAIM IN RESPONSE TO A DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, HERE IN THIS SLIP AND FALL CASE THERE WAS NO EVIDENTIARY SUPPORT FOR CERTAIN CAUSES OF ACTION AGAINST THE BUILDING OWNER (FIRST DEPT). 28

SLIP AND FALL.

MERELY QUESTIONING THE CREDIBILITY OF PLAINTIFF’S EXPLANATION OF THE CAUSE OF HER STAIRWAY SLIP AND FALL DID NOT RAISE A QUESTION OF FACT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 29

SLIP AND FALL.

QUESTION OF FACT WHETHER DEFENDANT IN THIS SLIP AND FALL CASE HAD CONSTRUCTIVE KNOWLEDGE OF MELTED ICE CREAM ON THE STAIRS, THERE WAS EVIDENCE THE ICE CREAM HAD BEEN THERE FOR AT LEAST THREE HOURS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 30

SLIP AND FALL.

QUESTION OF FACT WHETHER DEFENDANTS HAD ACTUAL OR CONSTRUCTIVE NOTICE OF ELEVATED WHEEL STOP IN THIS SLIP AND FALL CASE (SECOND DEPT). 30

SLIP AND FALL.

THE CAUSE OF PLAINTIFF’S DECEDENT’S SLIP AND FALL CALL COULD NOT BE IDENTIFIED, THE LIGHTER BURDEN OF PROOF PURSUANT TO THE NOSEWORTHY DOCTRINE DID NOT APPLY (SECOND DEPT). 31

SLIP AND FALL.

SUPREME COURT SHOULD NOT HAVE SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO THE CITY IN THIS SIDEWALK SLIP AND FALL CASE, NO SUCH MOTION WAS BEFORE THE COURT (SECOND DEPT). 31

THIRD-PARTY ASSAULT, LANDLORD-TENANT.

PLAINTIFF, WHO WAS ASSAULTED IN DEFENDANT’S BUILDING, DID NOT RAISE A QUESTION OF FACT ON WHETHER THE ASSAILANT WAS AN INTRUDER OR A TENANT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT). 32

TOXIC TORTS.

IN THIS ASBESTOS EXPOSURE CASE, A WITNESS’S VIDEOTAPED DEPOSITION TESTIMONY FROM PROCEEDINGS IN OTHER STATES SHOULD NOT HAVE BEEN ADMITTED IN THE PLAINTIFF’S DIRECT CASE OR IN THE DEFENSE CASE, NEW TRIAL ORDERED (THIRD DEPT). 33

TRAFFIC ACCIDENTS, MEDICAL RECORDS.

DEFENDANTS’ DECEDENT’S PHARMACY RECORDS IN THIS BICYCLE-VEHICLE COLLISION CASE ARE NOT PROTECTED BY PHYSICIAN-PATIENT PRIVILEGE AND MUST BE DISCLOSED SUBJECT TO TIME LIMITATIONS AND IN CAMERA REVIEW (FOURTH DEPT). 34

TRAFFIC ACCIDENTS.

DEFENDANT DRIVER HAD ONLY TWO SECONDS TO REACT TO FORKLIFT WHICH ENTERED THE ROADWAY BLOCKING THE RIGHT-OF-WAY, DRIVER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, NO COMPARATIVE NEGLIGENCE (SECOND DEPT). 35

TRAFFIC ACCIDENTS.

FAILURE TO PROVIDE SEATBELTS IN A TAXICAB VIOLATES THE VEHICLE AND TRAFFIC LAW AND IS NEGLIGENCE AS A MATTER OF LAW (FIRST DEPT). 36

TRAFFIC ACCIDENTS.

PLAINTIFF MADE A LEFT TURN IN FRONT OF DEFENDANT’S ONCOMING CAR WHEN DEFENDANT WAS FOUR CAR LENGTHS AWAY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ALLEGATION THE TRAFFIC LIGHT WAS YELLOW DID NOT RAISE A QUESTION OF FACT (FOURTH DEPT) 36

TRAFFIC ACCIDENTS.

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NO LONGER NEED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT (FIRST DEPT). 37

Civil Procedure Update March 2019

Course #MSC1163 (Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for September 2, 2020, through December 31, 2021

This Course Is Appropriate for Experienced Attorneys

Areas of Professional Practice: 0.5 CLE Credit Hour

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 March 1, 2019 and March 31, 2019 which address issues in “Civil Procedure.” Similar 1/2-to 1-hour CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these monthly CLE courses. A link to the written materials for this course (“Civil Procedure Update March 2019”) is provided below.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, 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 0.5 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 (“Civil Procedure Update March 2019”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

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

Civil Procedure Update Pamphlet March 2019

Civil Procedure Update March 2019 Attorney Affirmation

Civil Procedure Update March 2019 Evaluation Survey

Topics Covered in the “Civil Procedure Update March 2019” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Civil Procedure Update Pamphlet March 2019”

ADMINISTRATIVE LAW, COURT REVIEW, APPEALS.

DEPARTMENT OF LABOR’S INTERPRETATION OF A WAGE ORDER WHICH ALLOWED 24-HOUR LIVE-IN HOME HEALTH CARE AIDES TO BE PAID FOR 13 HOURS WAS NOT IRRATIONAL OR UNREASONABLE, APPELLATE DIVISION REVERSED, MATTER REMITTED FOR CONSIDERATION OF OTHER GROUNDS FOR CLASS CERTIFICATION (CT APP). 5

APPEALS, NOTICE OF ENTRY.

30-DAY TIME TO APPEAL WITH RESPECT TO ALL PARTIES IS TRIGGERED BY THE SERVICE OF THE ORDER OR JUDGMENT WITH WRITTEN NOTICE OF ENTRY BY ANY PARTY (SECOND DEPT). 6

DEAD MAN’S STATUTE.

DECEDENT’S CONSENT TO SURGERY SUBMITTED IN SUPPORT OF SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION DID NOT VIOLATE THE DEAD MAN’S STATUTE, THE CONSENT WAS AUTHENTICATED BY THE MEDICAL RECORDS (SECOND DEPT). 7

DEFAMATION, CONSTITUTIONAL LAW.

SUPREMACY CLAUSE DOES NOT PRECLUDE DEFAMATION SUIT AGAINST PRESIDENT TRUMP FOR STATEMENTS MADE WHILE A CANDIDATE (FIRST DEPT). 8

DEFAULT, MOTION TO VACATE, CORPORATION LAW.

DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED DESPITE FAILURE TO UPDATE THE ADDRESS ON FILE WITH THE SECRETARY OF STATE (SECOND DEPT). 9

DEFAULT, MOTION TO VACATE.

DELIBERATE ACTS BY DEFENDANT’S ATTORNEY RESULTED IN THE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 10

DEMAND FOR JURY TRIAL, APPEALS.

DEMAND FOR A JURY TRIAL, MADE ONE DAY LATE, SHOULD HAVE BEEN GRANTED, THE DENIAL OF THE ORAL APPLICATION FOR A JURY TRIAL IS PROPERLY CONSIDERED ON APPEAL FROM THE FINAL JUDGMENT, EVEN THOUGH NO FORMAL MOTION ON NOTICE WAS MADE (FOURTH DEPT). 10

DISCOVERY, METADATA, MEDICAL MALPRACTICE.

AUDIT TRAIL, I.E., METADATA SHOWING WHO ACCESSED PLAINTIFF’S MEDICAL RECORDS, WHERE AND WHEN THEY WERE ACCESSED, AND ANY CHANGES TO THE RECORDS, WAS DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION ALLEGING IMPROPER TREATMENT AFTER SURGERY (SECOND DEPT). 11

DISCOVERY, ORDERS OF PRECLUSION.

SANCTION FOR PLAINTIFF’S FAILURE TO COMPLY WITH A CONDITIONAL ORDER OF PRECLUSION SHOULD NOT HAVE GONE BEYOND THE PENALTY DESCRIBED IN THE ORDER (SECOND DEPT). 12

DISCOVERY, PHARMACY RECORDS, PRVILEGE.

DEFENDANTS’ DECEDENT’S PHARMACY RECORDS IN THIS BICYCLE-VEHICLE COLLISION CASE ARE NOT PROTECTED BY PHYSICIAN-PATIENT PRIVILEGE AND MUST BE DISCLOSED SUBJECT TO TIME LIMITATIONS AND IN CAMERA REVIEW (FOURTH DEPT). 13

DOCUMENTARY EVIDENCE, MOTION TO DISMISS.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM IN THIS BREACH OF CONTRACT ACTION, BASED UPON DOCUMENTARY EVIDENCE, SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 13

ENVIRONMENTAL LAW, STANDING.

PETITIONER DID NOT HAVE STANDING TO SEEK A STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) REVIEW OF A ONE-DAY SQUIRREL-HUNTING FUND-RAISING EVENT (FOURTH DEPT). 14

FAMILY LAW, DEFAULT, APPEALS.

THERE IS NO APPEAL FROM A DEFAULT STEMMING FROM FAILURE TO APPEAR, MUST MOVE TO VACATE THE DEFAULT (THIRD DEPT). 15

FORECLOSURE, ACTION NOT ABANDONED.

FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED OR FOR FAILURE TO PROSECUTE (SECOND DEPT). 16

FRIVILOUS ACTIONS.

SANCTIONS PROPERLY IMPOSED FOR BRINGING A FRIVOLOUS LAWSUIT (SECOND DEPT). 16

JUDGES, SUA SPONTE, PRELIMINARY INJUNCTION.

JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED A PRELIMINARY INJUNCTION IN THIS TRADEMARK INFRINGEMENT CASE, CORPORATE OFFICERS PROPERLY SUED IN THEIR INDIVIDUAL CAPACITIES (SECOND DEPT). 17

JUDGES, SUA SPONTE.

SUPREME COURT SHOULD NOT HAVE SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO THE CITY IN THIS SIDEWALK SLIP AND FALL CASE, NO SUCH MOTION WAS BEFORE THE COURT (SECOND DEPT). 18

MEDICAL MALPRACTICE, EXPERT OPINION.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S EXPERT’S AFFIDAVIT WAS CONCLUSORY AND SPECULATIVE AND IMPROPERLY RAISED AN ISSUE NOT DISCERNABLE FROM THE PLAINTIFF’S BILL OF PARTICULARS (SECOND DEPT). 19

NOTICE OF CLAIM, EDUCATION-SCHOOL LAW.

STUDENT ON STUDENT ASSAULT WAS NOT FORESEEABLE, THEORIES IN THE PLEADINGS WHICH WERE NOT MENTIONED IN THE NOTICE OF CLAIM PROPERLY DISMISSED (SECOND DEPT). 20

PRIVILEGE, INDEPENDENT MEDICAL EXAMINATION.

NOTES TAKEN BY AN OBSERVER HIRED BY PLAINTIFF’S ATTORNEY TO WITNESS AN INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BY DEFENDANTS’ DOCTOR ARE PRIVILEGED AS MATERIAL PREPARED FOR TRIAL, THE OBSERVER WAS ACTING AS AN AGENT OF PLAINTIFF’S ATTORNEY (FIRST DEPT). 21

SEARCH THE RECORD, SUMMARY JUDGMENT.

EVEN WHERE A CAUSE OF ACTION HAS NOT BEEN PROPERLY PLED THE COURT WILL SEARCH THE RECORD TO DETERMINE WHETHER THERE IS AN ACTIONABLE CLAIM IN RESPONSE TO A DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, HERE IN THIS SLIP AND FALL CASE THERE WAS NO EVIDENTIARY SUPPORT FOR CERTAIN CAUSES OF ACTION AGAINST THE BUILDING OWNER (FIRST DEPT). 22

STATUTE OF LIMITATIONS, DECLARATORY JUDGMENTS.

IN THIS COMBINED ARTICLE 78 AND DECLARATORY JUDGMENT ACTION, THE FOUR-MONTH STATUTE OF LIMITATIONS APPLICABLE TO ARTICLE 78 DID NOT APPLY TO THE DECLARATORY JUDGMENT ACTION WHICH ONLY INVOLVED PRIVATE PARTIES, NOT A GOVERNMENT BODY OR OFFICER (FOURTH DEPT). 23

STATUTE OF LIMITATIONS, INTEREST.

ONCE AN ACTION TO RECOVER THE PRINCIPAL OF A BOND IS TIME-BARRED, THERE IS NO LEGALLY COGNIZABLE CLAIM FOR POST-MATURITY INTEREST (CT APP). 24

STATUTE OF LIMITATIONS, MEDICAL MALPRACTIVE VS NEGLIGENCE.

ACTION BASED UPON FAILURE TO SUPERVISE PLAINTIFF’S USE OF A HOSPITAL REST ROOM SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, THE ACTION WAS THEREFORE TIME-BARRED (FIRST DEPT). 24

SUBPOENAS.

NONPARTY SUBPOENA PROPERLY QUASHED BECAUSE IT DID NOT PROVIDE THE REASONS FOR THE REQUESTED DISCLOSURE, QUESTIONS OF FACT WHETHER STIPULATION OF SETTLEMENT WAS UNCONSCIONABLE AND WHETHER PLAINTIFF EXECUTED THE STIPULATION UNDER DURESS (SECOND DEPT). 25

VERDICT, MOTION TO SET ASIDE, MEDICAL MALPRACTICE, DAMAGES.

DEFENDANTS’ MOTION TO SET ASIDE THE VERDICT FINDING LIABILITY IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT AWARDING NO DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING OR FUTURE LOST WAGES SHOULD HAVE BEEN GRANTED, PLAINTIFF ALLEGED HER CHILD WAS INJURED IN UTERO (SECOND DEPT). 26

VIDEOTAPED DEPOSITION TESTIMONY INADMISSIBLE.

IN THIS ASBESTOS EXPOSURE CASE, A WITNESS’S VIDEOTAPED DEPOSITION TESTIMONY FROM PROCEEDINGS IN OTHER STATES SHOULD NOT HAVE BEEN ADMITTED IN THE PLAINTIFF’S DIRECT CASE OR IN THE DEFENSE CASE, NEW TRIAL ORDERED (THIRD DEPT). 27

YELLOWSTONE INJUNCTION, LANDLORD-TENANT.

TENANT’S ALLEGED FAILURE TO INSURE THE PROPERTY AND ALLEGED IMPROPER ASSIGNMENT OF THE LEASE ARE NOT DEFAULTS THAT CAN BE CURED, THEREFORE THE TENANT IS NOT ENTITLED TO A YELLOWSTONE INJUNCTION (FIRST DEPT). 28