Civil Procedure Update January – June 2025

(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) released January through June 2025 which address issues in “Civil Procedure.”

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 CLE update courses. The links to the written materials for this course (“Civil Procedure Reversal Report January 2025,” “Civil Procedure Reversal Report February 2025.” “Civil Procedure Reversal Report March 2025,” “Civil Procedure Reversal Report April 2025,” “Civil Procedure Report May 2025” and “Civil Procedure Reversal Report June 2025”) 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 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, Inc., 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 Reversal Reports January through June 2025), the “Attorney Affirmation” (the “verification codes” form) and the “Evaluation Survey.”

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

Civil Procedure Reversal Report January 2025

Civil Procedure Reversal Report February 2025

Civil Procedure Reversal Report March 2025

Civil Procedure Reversal Report April 2025

Civil Procedure Reversal Report May 2025

Civil Procedure Reversal Report June 2025

Attorney Affirmation Civil Procedure Update January through June 2025

Evaluation Survey Civil Procedure Update January through June 2025

Topics Covered in the “Civil Procedure Update January – June 2025” 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 Pages in the “Civil Procedure Reversal Reports”

JANUARY 2025 CIVIL PROCEDURE REVERSAL REPORT

COLLATERAL ESTOPPEL, WORKERS’ COMPENSATION, NEGLIGENCE…………………………………….. 3

THE JUSTICE FOR INJURED WORKERS ACT (JIWA), WHICH TOOK EFFECT DECEMBER 30, 2022,
AMENDED THE WORKERS’ COMPENSATION LAW SUCH THAT A WORKERS’ COMPENSATION
BOARD RULING CANNOT BE GIVEN COLLATERAL ESTOPPEL EFFECT IN A SUBSEQUENT PERSONAL
INJURY ACTION; THE FIRST DEPARTMENT HELD THE JIWA APPLIES RETROACTIVELY (FIRST DEPT). .. 3

DUE PROCESS, REMOVAL OF CHILDREN, FAMILY LAW, EVIDENCE, JUDGES. ……………………………. 5

REMOVAL OF THE CHILDREN FROM MOTHER’S CARE WITHOUT NOTICE DEPRIVED MOTHER OF
HER RIGHT TO DUE PROCESS; THE EVIDENCE DID NOT SUPPORT REMOVAL OF THE CHILDREN
(FIRST DEPT). ……………………………………………………………………………………………………………. 5

JURISDICTION, WORKERS’ COMPENSATION, NEGLIGENCE, ADMINISTRATIVE LAW. …………………. 6

HERE THE ADMINISTRATOR OF PLAINTIFF’S DECEDENT’S ESTATE BROUGHT A WRONGFUL DEATH
ACTION IN SUPREME COURT AND DEFENDANTS MOVED FOR SUMMARY JUDGMENT ARGUING
PLANTIFF’S EXCLUSIVE REMEDY WAS WORKERS’ COMPENSATION; RATHER THAN DECIDE THE
MOTION, SUPREME COURT SHOULD HAVE REFERRED THE MATTER TO THE WORKERS’
COMPENSATION BOARD WHICH HAS PRIMARY JURISDICTION RE: THE APPLICABILITY OF THE
WORKERS’ COMPENSATION LAW (SECOND DEPT). …………………………………………………………… 6

LAW OFFICE FAILURE, DEFAULT, CONTRACT LAW, FRAUD. …………………………………………………. 7

DEFENDANTS MOTION TO VACATE THE DEFAULT BASED UPON LAW OFFICE FAILURE AND PROOF
OF A MERITORIOUS DEFENSE SHOULD HAVE BEEN GRANTED (THIRD DEPT). ………………………….. 7

NECESSARY PARTIES, JUDGES, ZONING. ………………………………………………………………………… 8

RATHER THAN DISMISSING THE PETITION FOR FAILURE TO INCLUDE NECESSARY PARTIES,
SUPREME COURT SHOULD HAVE DIRECTED THAT THE NECESSARY PARTIES BE SUMMONED; THE
COURT’S POWER TO SUMMON NECESSARY PARTIES IS NOT AFFECTED BY THE RUNNING OF THE
STATUTE OF LIMITATIONS; ONLY THE SUMMONED NECESSARY PARTIES THEMSELVES HAVE
STANDING TO RAISE THE STATUTE OF LIMITATIONS DEFENSE (SECOND DEPT). ………………………. 8

PRIVATE RIGHT OF ACTION, PUBLIC HEALTH LAW. …………………………………………………………….. 9

THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST “ASSISTED
LIVING” AS OPPOSED TO “RESIDENTIAL HEALTH CARE” FACILITIES; COMPLAINT PROPERLY
DISMSSED (THIRD DEPT). …………………………………………………………………………………………….. 9

RENEW, MOTION TO, LABOR LAW-CONSTRUCTION LAW, EVIDENCE……………………………………. 10

PLAINTIFF’S MOTION TO RENEW HIS SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN
GRANTED; NO “NEW FACTS” WERE DEMONSTRATED (THIRD DEPT). ……………………………………. 10

STANDING, FORECLOSURE, EVIDENCE. ………………………………………………………………………… 11

PROOF THE MORTGAGE WAS ASSIGNED TO PLAINTIFF WITHOUT PROOF THE NOTE WAS ALSO
ASSIGNED BEFORE THE ACTION WAS COMMENCED IS NOT SUFFICIENT TO DEMONSTRATE
STANDING TO FORECLOSE (FIRST DEPT). ………………………………………………………………………. 11

STATUTE OF LIMITATIONS, “INSANITY TOLL,” FALSE ARREST, MUNICIPAL LAW. ……………………… 12

THERE IS A QUESTION OF FACT WHETHER THE “INSANITY” TOLL OF THE STATUTE OF LIMITATIONS
APPLIES TO THIS ASSAULT AND FALSE ARREST ACTION AGAINST THE CITY AND POLICE OFFICERS;
THE TOLL APPLIES WHEN PERSONS ARE UNABLE TO PROTECT THEIR LEGAL RIGHTS BECAUSE OF
AN INABILITY TO FUNCTION IN SOCIETY (SECOND DEPT). …………………………………………………. 12

STATUTE OF LIMITATIONS, CONTRACT LAW, LANDLORD-TENANT.

THE SIX-YEAR STATUTE OF LIMITATIONS BEGAN TO RUN WHEN THE LANDLORD COULD HAVE DEMANDED PAYMENT
PURSUANT TO THE LEASE, NOT WHEN THE DEMAND WAS ACTUALLY MADE YEARS LATER (FIRST
DEPT). …………………………………………………………………………………………………………………… 13

WRITTEN NOTICE REQUIREMENT, FAILURE TO TIMELY RAISE EXCEPTION, MUNICIPAL LAW,
NEGLIGENCE. …………………………………………………………………………………………………………. 15

THE CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE OPEN MANHOLE PLAINTIFF
DROVE OVER; PLAINTIFF UNSUCCESSFULLY TRIED TO RAISE, FOR THE FIRST TIME, AN EXCEPTION
TO THE WRITTEN NOTICE REQUIREMENT IN RESPONSE TO THE CITY’S MOTION FOR SUMMARY
JUDGMENT (SECOND DEPT). ………………………………………………………………………………………. 15

FEBRUARY 2025 CIVIL PROCEDURE REVERSAL REPORT

ACTION BROUGHT IN WRONG FORM, CONVERSION TO CORRECT FORM, MEDICAL
MALPRACTICE. ……………………………………………………………………………………………. 3

ALTHOUGH THIS MEDICAL MALPRACTICE ACTION WAS IMPROPERLY BROUGHT AS AN
ORDER TO SHOW CAUSE AND PETITION, IT SHOULD NOT HAVE BEEN DISMISSED; RATHER
IT SHOULD HAVE BEEN CONVERTED BY DEEMING THE ORDER TO SHOW CAUSE A
SUMMONS AND THE PETITION A COMPLAINT; MATTER REMITTED (SECOND DEPT). ………. 3

CHILD VICTIMS ACT, ALLEGATIONS DID NOT STATE A CAUSE OF ACTION AGAINST A
SCHOOL. ……………………………………………………………………………………………………. 5

BARE ALLEGATIONS THAT A SCHOOL KNEW OR SHOULD HAVE KNOWN OF A TEACHER’S
PROPENSITY TO ABUSE STUDENTS, UNSUPPORTED BY ANY FACTUAL ALLEGATIONS, ARE
NOT ENOUGH TO STATE A CAUSE OF ACTION FOR NEGLIGENCE OR NEGLIGENT
RETENTION (SECOND DEPT). …………………………………………………………………………… 5

CHILD VICTIMS ACT, FOSTER CARE, SPECIAL DUTY OWED BY MUNICIPALITY FOR
NEGLIGENT PLACEMENT. ……………………………………………………………………………….. 6

A MUNICIPALITY OWES A CHILD IT PLACES IN FOSTER CARE A SPECIAL DUTY SUCH THAT
THE MUNICIPALITY CAN BE LIABLE FOR A NEGLIGENT PLACEMENT WHICH LEADS TO
FORESEEABLE HARM TO THE CHILD (CT APP). ……………………………………………………… 6

DEBTOR-CREDITOR, APPEAL DID NOT DECIDE CERTAIN ISSUES WHICH WERE LEFT TO THE
DISCRETION OF THE JUDGE ON REMAND. ………………………………………………………….. 7

WHETHER THE JUDGMENT DEBTOR IS ENTITLED TO RESTITUTION AFTER REVERSAL OF A
RESTRAINING NOTICE AND WHETHER PLAINTIFF IS ENTITLED TO AN INSTALLMENT
PAYMENT ORDER ARE DISCRETIONARY ISSUES TO BE DECIDED UPON REMAND; CRITERIA
EXPLAINED (FIRST DEPT). ……………………………………………………………………………….. 7

DEFAULT JUDGMENTS, FORECLOSURE. …………………………………………………………….. 9

EVEN THOUGH THE BANK’S MOTION FOR AN ORDER OF REFERENCE WAS REJECTED AS
DEFICIENT, THE MOTION CONSTITUTED INITIATING PROCEEDINGS FOR A DEFAULT
JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT; THE BANK’S MOTION TO
VACATE THE DISMISSAL OF THE COMPLAINT SHOULD HAVE BEEN GRANTED (SECOND
DEPT). ……………………………………………………………………………………………………….. 9

FAMILY LAW, FAILURE TO HOLD CUSTODY HEARING. ………………………………………….. 10

ALTHOUGH FATHER FAILED TO APPEAR IN THE CUSTODY PROCEEDING, FAMILY COURT
SHOULD HAVE HELD A HEARING AND MADE FINDINGS OF FACT; CUSTODY ORDER
VACATED AND MATTER REMITTED (SECOND DEPT). ……………………………………………. 10

FAMILY LAW, FAILURE TO SERVE OBJECTIONS TO CHILD SUPPORT ORDER. ……………….. 11

MOTHER’S OBJECTIONS TO THE CHILD SUPPORT ORDER WERE NEVER SERVED ON
FATHER’S COUNSEL; THE SUBSEQUENT ORDER GRANTING THE OBJECTIONS IS VOID
(THIRD DEPT). ……………………………………………………………………………………………. 11

FAMILY LAW, TERMINATION OF PARENTAL RIGHTS, FAILURE TO HOLD DISPOSITIONAL
HEARING. …………………………………………………………………………………………………. 12

IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, ABSENT THE CONSENT OF THE
PARTIES TO DISPENSE WITH IT, A DISPOSITIONAL HEARING MUST BE HELD AFTER THE
COMPLETION OF THE FACT-FINDING HEARING (THIRD DEPT). ……………………………….. 12

FAMILY LAW, CUSTODY, DENIAL OF FATHER’S REQUEST FOR AN ADJOURNMENT DEPRIVED
HIM OF HIS RIGHT TO BE HEARD. ……………………………………………………………………. 13

DENYING FATHER’S REQUEST FOR AN ADJOURNMENT IN THIS CUSTODY MODIFICATION
PROCEEDING EFFECTIVELY DEPRIVED HIM OF HIS RIGHT TO TESTIFY AND HIS RIGHT TO A
FULL AND FAIR EVIDENTIARY HEARING (SECOND DEPT). ……………………………………… 13

FAMILY LAW, STANDING TO SEEK CUSTODY OR VISITATION. …………………………………. 14

PETITIONER, WHO IS NOT RELATED TO THE CHILD, DID NOT HAVE STANDING BY
EQUITABLE ESTOPPEL TO SEEK CUSTODY OR VISITATION; CRITERIA EXPLAINED (FIRST
DEPT). ……………………………………………………………………………………………………… 14

MISTRIAL, ATTORNEYS, IMPROPER CROSS-EXAMINATION. ……………………………………. 16

IMPROPER CROSS-EXAMINATION OF PLAINTIFF ABOUT HIS STATUS AS A DEFENDANT IN A
PENDING LAWSUIT WARRANTED GRANTING PLAINTIFF’S MOTION FOR A MISTRIAL
(SECOND DEPT). ………………………………………………………………………………………… 16

STATUTE OF LIMITATIONS, CHILD VICTIMS ACT, REVIVAL OF TIME-BARRED ACTIONS. …… 19

THE SIX-MONTH WAITING PERIOD ASSOCIATED WITH THE REVIVAL OF OTHERWISE TIME
BARRED ACTIONS PURSUANT TO THE CHILD VICTIMS ACT IS NEITHER A STATUTE OF
LIMITATIONS NOR A CONDITION PRECEDENT; THEREFORE, PURSUANT TO FEDERAL
PROCEDURAL LAW, THE SECOND CIRCUIT MAY RULE THAT DEFENDANT FORFEITED THE
RIGHT TO A TIMELINESS DISMISSAL OF THE FEDERAL COMPLAINT (BASED ON THE
ARGUMENT PLAINTIFF’S ACTION WAS PREMATURE) BY FAILING TO TIMELY RAISE THE
ISSUE (CT APP). …………………………………………………………………………………………. 19

STATUTE OF LIMITATIONS, FIDUCIARY DUTY. ………………………………………………………. 20

WHERE THE ONLY RELIEF SOUGHT FOR BREACH OF FIDUCIARY DUTY IS MONEY
DAMAGES, THE STATUTE OF LIMITATIONS IS THREE YEARS (SECOND DEPT). ……………… 20

STATUTE OF LIMITATIONS, FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS
LAW (RPAPL). …………………………………………………………………………………………….. 21

THE FORECLOSURE ACTION BROUGHT IN 2011 WAS DISMISSED BECAUSE THE BANK
FAILED TO COMPLY WITH THE NOTICE OF DEFAULT PROVISIONS IN THE MORTGAGE
AGREEMENT; THEREFORE THE 2011 ACTION DID NOT ACCELERATE THE DEBT AND THE
STATUTE OF LIMITATIONS FOR FORECLOSURE NEVER STARTED RUNNING (SECOND
DEPT). ……………………………………………………………………………………………………… 21

REPLY PAPERS, NEW EVIDENCE SHOULD NOT BE CONSIDERED, NEGLIGENCE, REAL
PROPERTY LAW. ………………………………………………………………………………………… 22

THE JUDGE SHOULD NOT HAVE CONSIDERED A NEW ARGUMENT RAISED FIRST IN REPLY;
THE HOLDER OF AN EASEMENT OVER THE PARKING LOT, NOT THE OWNER OF THE
PARKING LOT, IS PRIMARILY RESPONSIBLE FOR KEEPING THE LOT FREE OF ICE AND
SNOW, NOTWITHSTANDING AN AGREEMENT BETWEEN THE EASEMENT HOLDER AND THE
OWNER IN WHICH THE OWNER AGREED TO REMOVE ICE AND SNOW (FOURTH DEPT). .. 22

RETROACTIVE APPLICATION OF AMENDMENTS, LANDLORD-TENANT, MUNICIPAL LAW,
ADMINISTRATIVE LAW. ………………………………………………………………………………… 23

THE 2024 AMENDMENTS WHICH SET A STANDARD FOR DETERMINING CLAIMS ALLEGING
A FRAUDULENT SCHEME TO DEREGULATE A RENT-STABILIZED APARTMENT APPLY TO
CLAIMS PENDING AT THE TIME OF ENACTMENT AND ARE CONSTITUTIONAL (SECOND
DEPT). ……………………………………………………………………………………………………..23

MARCH 2025 CIVIL PROCEDURE REVERSAL REPORT

CHILD VICTIMS ACT, INSUFFICIENT CLAIM, COURT OF CLAIMS. ………………………………… 4

THE INFORMATION IN THE CHILD-VICTIMS-ACT CLAIM WAS NOT SPECIFIC ENOUGH TO
ALLOW THE STATE TO INVESTIGATE THE ALLEGATIONS OF SEXUAL ABUSE BETWEEN 1986
AND 1990; CLAIM DISMISSED (CT APP). ……………………………………………………………… 4

CONTRACTUAL STATUTE OF LIMITATIONS, EMPLOYMENT LAW, CIVIL RIGHTS
LAW, CONTRACT LAW. …………………………………………………………………………………… 6

THE SIX-MONTH STATUTE OF LIMITATIONS IN THE EMPLOYMENT CONTRACT WITH
PLAINTIFF WAS REASONABLE AND ENFORCEABLE; THEREFORE PLAINTIFF’S
EMPLOYMENT DISCRIMINATION ACTION, WHICH WAS COMMENCED SIX MONTHS AND
ONE DAY AFTER PLAINTIFF’S EMPLOYMENT WAS TERMINATED, WAS TIME-BARRED
(SECOND DEPT). ………………………………………………………………………………………….. 6

DISCOVERY, NEGLIGENCE, JUDGES. …………………………………………………………………. 9

PLAINTIFF ALLEGED DEFENDANT HOSPITAL WAS NEGLIGENT IN PLACING HIM IN A ROOM
WITH A PERSON WITH COVID; PLAINTIFF WAS ENTITLED TO DISCOVERY OF THAT
PERSON’S MEDICAL RECORDS TO DETERMINE WHEN THE HOSPITAL BECAME AWARE OF
THE COVID DIAGNOSIS (FOURTH DEPT). …………………………………………………………….. 9

FACTUAL HEARING REQUIRED BEFORE LEGAL ISSUE IS ADDRESSED,
APPEALS, ATTORNEYS, JUDGES. …………………………………………………………………….. 12

WHERE THERE IS A FACTUAL DISPUTE ON A MATERIAL ISSUE WHICH MUST BE RESOLVED
BEFORE THE COURT CAN DECIDE A LEGAL ISSUE, THE FACTUAL DISPUTE MUST BE
RESOLVED IN A HEARING BEFORE THE COURT CAN DECIDE THE LEGAL ISSUE; WHETHER
THE RECORD GIVES RISE TO A FACTUAL DISPUTE ON A MATERIAL ISSUE IS A QUESTION OF
LAW (CT APP). ……………………………………………………………………………………………. 12

NOTICE BEFORE ENTRY OF DEFAULT JUDGMENT, FORECLOSURE. ………………………….. 15

WHERE IT HAS BEEN MORE THAN A YEAR SINCE DEFENDANT FAILED TO ANSWER THE
COMPLAINT, THE DEFENDANT IS ENTITLED TO NOTICE BEFORE ENTRY OF A DEFAULT
JUDGMENT; HERE THE FAILURE TO GIVE DEFENDANT NOTICE RENDERED THE DEFAULT
JUDGMENT A NULLITY (SECOND DEPT). ……………………………………………………………. 15

PIERCE CORPORATE VEIL, LIMITED LIABILITY COMPANY LAW, CORPORATION LAW, FRAUD.
……………………………………………………………………………………………………………… 17

THE COMPLAINT SUFFICIENTLY ALLEGED FACTS THAT WOULD SUPPORT PIERCING THE
CORPORATE VEIL (SECOND DEPT). …………………………………………………………………. 17

PUNITIVE DAMAGES, MUNICIPAL LAW, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
(RPAPL). …………………………………………………………………………………………………… 18

THE TREBLE DAMAGES PROVISION IN RPAPL 861 FOR THE IMPROPER TRIMMING OR
REMOVAL OF TREES FROM ANOTHER’S PROPERTY IS PUNITIVE IN NATURE; HERE THE
TOWN TRIMMED AND REMOVED TREES FROM PLAINTIFF’S LAND; BECAUSE A
MUNICIPALITY CANNOT BE ASSESSED PUNITIVE DAMAGES, THE TREBLE DAMAGES
AWARD WAS REVERSED (CT APP). ………………………………………………………………….. 18

RES JUDICATA, CONTRACT LAW, FRAUD. ………………………………………………………….. 19

HERE THE PLAINTIFF WAS IN PRIVITY WITH A NONPARTY WHICH WAS DEEMED TO HAVE
HAD A “VICARIOUS DAY IN COURT” SUCH THAT THE DOCTRINE OF RES JUDICATA
PRECLUDED PLAINTIFF’S ACTION (FIRST DEPT). …………………………………………………. 19

STIPULATION OF SETTLEMENT, CONTRACT LAW, LEGAL MALPRACTICE, NEGLIGENCE,
EVIDENCE. ……………………………………………………………………………………………….. 21

THERE WAS NO EVIDENCE SUBSTANTIATING THE PURPORTED “OFF THE RECORD”
STIPULATION OF SETTLEMENT; THE TERMS OF THE SETTLEMENT AGREEMENT WERE
NEVER FILED WITH THE COUNTY CLERK; A PRETRIAL CONFERENCE WITH THE JUDGE’S
CLERK DOES NOT MEET THE “OPEN COURT” REQUIREMENT FOR A STIPULATION OF
SETTLEMENT (FOURTH DEPT). ……………………………………………………………………….. 21

SUBJECT MATTER JURISDICTION, FAMILY LAW, JUDGES. ……………………………………….. 22

FAMILY COURT LOST SUBJECT MATTER JURISDICTION AFTER THE NEGLECT PETITION WAS
DISMISSED; THEREFORE THE COURT SHOULD NOT HAV E CONTINUED THE CHILD’S
PLACEMENT IN FOSTER CARE (FIRST DEPT)……………………………………………………….. 22

SUPREME COURT VS COURT OF CLAIMS, CORRECTION LAW, NEGLIGENCE. ……………… 23

ALTHOUGH THE DEFENDANT STATE PAROLE OFFICER WAS DRIVING A STATE-OWNED
VEHICLE AND ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN THE TRAFFIC
ACCIDENT OCCURRED, PLAINTIFF PROPERLY BROUGHT SUIT IN SUPREME COURT AS
OPPOSED TO THE COURT OF CLAIMS (FOURTH DEPT). …………………………………………. 23

SUSPENDED ATTORNEY, FORECLOSURE…………………………………………………………… 25

WHEN DEFENDANT’S ATTORNEY WAS SUSPENDED ANY FURTHER PROCEEDINGS IN THIS
F ORECLOSURE ACTION WERE STAYED; NEITHER PROCEDURE FOR LIFTING THE STAY WAS
INVOKED; DEFENDANT’S MOTION TO VACATE SUMMARY JUDGMENT SHOULD HAVE BEEN
GRANTED (SECOND DEPT). …………………………………………………………………………… 25

APRIL 2025 CIVIL PROCEDURE REVERSAL REPORT

ADMINISTRATIVE LAW, TAX LAW, EXHAUSTION OF REMEDIES, MUNICIPAL LAW.
……………………………………………………………………………………………………………….. 5

WHERE, AS HERE, PLAINTIFFS ALLEGE THE CONTESTED SALES TAX STATUTE IS
“WHOLLY INAPPLICABLE” TO THEM, AND PLAINTIFFS SEEK A DECLARATORY
JUDGMENT TO THAT EFFECT, THE “EXHAUSTION OF ADMINISTRATIVE
REMEDIES” REQUIREMENT IS NOT RELEVANT (THRID DEPT). ……………………….. 5

AMEND COMPLAINT, ALLEGATIONS SUPPORTING “PIERCING THE CORPORATE
VEIL,” CORPORATION LAW, CONTRACT LAW. ……………………………………………….. 6

PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ADD ALLEGATIONS
SUPPORTING “PIERCING THE CORPORATE VEIL” SHOULD HAVE BEEN GRANTED,
CRITERIA EXPLAINED (SECOND DEPT). ……………………………………………………….. 6

APPEALS, COSTS INCLUDE TRANCRIPTS FOR RECORD ON APPEAL. ……………….. 7

HERE THE PARTY WHO WAS AWARDED COSTS ON APPEAL WAS ENTITLED TO
REIMBURSEMENT OF THE COST OF PROCURING THE TRANSCRIPTS FOR THE
RECORD ON APPEAL (SECOND DEPT). ………………………………………………………….. 7

DISMISSAL OF COMPAINT, SUA SPONTE. ………………………………………………………. 8

A JUDGE SHOULD NOT, SUA SPONTE, ORDER THE DISMISSAL OF A COMPLAINT
ABSENT “EXTRAORDINARY CIRCUMSTANCES,” NOT PRESENT HERE (SECOND
DEPT). ………………………………………………………………………………………………………. 8

DISMISSAL OF COMPLAINT, CPLR 3216 CONDITIONS PRECEDENT, JUDGES. …….. 8

THE FAILURE TO COMPLY WITH THE CONDITIONS PRECEDENT IN CPLR 3216
PRECLUDED DISMSSAL OF THE COMPLAINT (FOURTH DEPT)…………………………. 8

EVIDENCE SUBMITTED BY PLAINTIFF WITH INSUFFICIENT FOUNDATAION BUT
RELIED UPON BY THE OPPOSITON IS ADMISSIBLE, CONTRACT
LAW, ATTORNEYS, JUDGES. ………………………………………………………………………. 10

ALTHOUGH THE DEFENDANT’S ATTORNEY AFFIDAVIT DID NOT LAY A PROPER
FOUNDATION FOR THE ADMISSIBILITY OF THE ATTACHED DOCUMENTS, THE
DOCUMENTS SHOULD NOT HAVE BEEN DEEMED INADMISSIBLE BECAUSE THE
PLAINTIFF DID NOT OBJECT TO THEM AND RELIED ON THEM IN OPPOSITION TO
DEFENDANT’S MOTION (FIRST DEPT). ……………………………………………………….. 10

FAILURE TO ANSWER COMPLAINT, LAW OFFICE FAILURE, ATTORNEYS,
EVIDENCE. ……………………………………………………………………………………………… 11

“LAW OFFICE FAILURE” WAS NOT A REASONABLE EXCUSE FOR FAILING TO
ANSWER THE COMPLAINT; DEFENDANT’S MOTION TO COMPEL THE PLAINTIFF
TO ACCEPT A LATE ANSWER SHOULD NOT HAVE BEEN GRANTED (SECOND
DEPT). …………………………………………………………………………………………………….. 11

FORECLOSURE, STANDING TO FORECLOSE, EVIDENCE, UNIFORM COMMERCIAL
CODE. …………………………………………………………………………………………………….. 12

THE NOTE WAS ENDORSED IN BLANK REQUIRING PLAINTIFF TO DEMONSTRATE
POSSESSION OF THE NOTE AT THE TIME THE FORECLOSURE ACTION WAS
COMMENCED; FAILURE TO DEMONSTRATE POSSESSION CONSTITUTED A
FAILURE TO DEMONSTRATE STANDING TO FORECLOSE (THIRD DEPT). ………… 12

IMMUNITY, COVID-RELATED DEATH, PUBLIC HEALTH LAW, NEGLIGENCE. ……. 13

THE LAWSUIT AGAINST DEFENDANT RESIDENTIAL NURSING FACILITY
STEMMING FROM PLAINTIFF’S DECEDENT’S COVID-19-RELATED DEATH IS
PRECLUDED BY THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT
(EDTPA); THE REPEAL OF THE ACT IS NOT RETROACTIVE (SECOND DEPT). ……. 13

JUDGE FAILED TO HOLD HEARING, FAMILY LAW, PATERNITY. ……………………… 14

HE PETITIONER WAS ENTITLED TO A HEARING ON WHETHER HIS
ACKNOWLEDGMENT OF PATERNITY WAS BASED ON A MISREPRESENTATION BY
MOTHER AND WHETHER PETITIONER IS ESTOPPED FROM DENYING PATERNITY
BASED ON THE BEST INTERESTS OF THE CHILD (SECOND DEPT). …………………. 14

JUDGE ISSUED RULING BEFORE TESTIMONY COMPLETE, DUE PROCESS
VIOLATION, FAMILY LAW, EVIDENCE. ………………………………………………………… 15

ISSUING A RULING BEFORE FATHER COMPLETED HIS TESTIMONY IN THIS
CUSTODY PROCEEDING DEPRIVED THE PARTIES OF DUE PROCESS OF LAW
(THIRD DEPT). …………………………………………………………………………………………. 15

MOTION TO DISMISS SHOULD NOT HAVE BEEN TREATED AS A MOTION FOR
SUMMARY JUDGMENT, JUDGES. ……………………………………………………………….. 16

HOME DEPOT RENTED A TRUCK TO A MAN WHO DROVE THE TRUCK INTO A
CROWD OF PEDESTRIANS AND BICYCLISTS; THE COMPLAINT DID NOT STATE A
CAUSE OF ACTION FOR NEGLIGENT ENTRUSTMENT; THE MOTION COURT
IMPROPERLY TREATED THE MOTION TO DISMISS AS A MOTION FOR SUMMARY
JUDGMENT; ALTHOUGH THE ALLEGATIONS IN THE COMPLAINT ARE DEEMED
TRUE FOR A MOTION TO DISMISS, HERE THOSE ALLEGATIONS WERE PROPERLY
REFUTED BY AFFIDAVITS AND DEPOSITIONS SUBMITTED BY HOME DEPOT
(FIRST DEPT). ………………………………………………………………………………………….. 16

NEGLIGENCE, MUNICIPAL LAW, LEAVE TO FILE LATE NOTICE OF CLAIM. ……… 17

THE PETITIONER DID NOT DEMONSTRATE THE CITY HAD TIMELY ACTUAL
NOTICE OF THE NATURE OF HER CLAIM AND HER ALLEGATION THAT HER
INJURIES PREVENTED HER FROM MAKING A TIMELY CLAIM WAS NOT
SUPPORTED BY MEDICAL EVIDENCE; THE PETITION FOR LEAVE TO FILE A LATE
NOTICE OF CLAIM SHOULD HAVE BEEN DENIED (FIRST DEPT). ……………………. 17

PROHIBITION, WRIT OF, ONLY THE COURT CHARGED WITH EMPANELING
GRAND JURIES CAN RELEASE GRAND JURY MINUTES, CRIMINAL LAW. ………… 19

ONLY THE COURT CHARGED WITH EMPANELING THE GRAND JURY CAN ORDER
THE RELEASE OF THE GRAND JURY MINUTES; IN ORANGE COUNTY THE COURT
CHARGED WITH EMPANELING GRAND JURIES IS COUNTY COURT; THEREFORE
THE PETITON FOR A WRIT OF PROHIBITION PROHIBITING A SUPREME COURT
JUSTICE FROM ORDERING THE RELEASE OF THE GRAND JURY MINUTES WAS
GRANTED (SECOND DEPT). ……………………………………………………………………….. 19

SERVICE OF PROCESS, EXTENSION OF TIME, JUDGES. …………………………………. 21

PLAINTIFF SHOULD NOT HAVE BEEN GRANTED MORE TIME TO SERVE
DEFENDANT UNDER EITHER THE “GOOD CAUSE” OR “INTEREST OF JUSTICE”
CRITERIA (SECOND DEPT). ……………………………………………………………………….. 21

SET ASIDE VERDICT, MOTION TO, EVIDENCE, JUDGES. ………………………………… 22

THE USE OF POST-DISCHARGE AFFIDAVITS FROM TWO JURORS, CLAIMING
JUROR CONFUSION, AS THE BASIS FOR THE MOTION TO SET ASIDE THE
VERDICT WAS IMPROPER BECAUSE THERE WAS NO SUPPORT FOR THE CLAIMS
IN THE RECORD; THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT). .. 22

SET ASIDE VERDICT, MOTION TO, VERDICT SHOULD NOT HAVE BEEN SET ASIDE
AS EXCESSIVE, EVIDENCE, JUDGES, LABOR LAW-CONSTRUCTION LAW. ……….. 23

PLAINTIFF FELL 15 TO 20 FEET SUFFERING A FRACTURED RIB AND A
FRACTURED FEMUR WHICH REQUIRED AN OPEN REDUCTION AND INTERNAL
FIXATION SURGERY; THE VERDICT AWARDING $1.5 MILLION FOR PAST PAIN
AND SUFFERING, $2.5 MILLION FOR FUTURE PAIN AND SUFFERING, AND
$800,000 FOR FUTURE MEDICAL EXPENSES SHOULD NOT HAVE BEEN SET ASIDE
AS EXCESSIVE (SECOND DEPT). ………………………………………………………………… 23

STATUTE OF LIMITATIONS, FORECLOSURE, ACCELERATION OF THE DEBT, REAL
PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL). ……………………………….. 25

THE DISMISSAL OF A FORELCOSURE ACTION ON THE GROUND THE BANK
FAILED TO COMPLY WITH THE NOTICE OF DEFAULT PROVISIONS IN RPAPL 1304
IS NOT AN EXPRESS JUDICIAL DETERMINATION THAT THE ACTION DID NOT
VALIDLY ACCELERATE THE DEBT; THEREFORE, HERE, THE 2013 FORECLOSURE
ACTION IS TIME-BARRED PURSUANT TO THE FORECLOSURE ABUSE
PREVENTION ACT (FAPA) (SECOND DEPT)…………………………………………………… 25

SUBJECT MATTER JURISDICTION, LANDLORD-TENANT, CIVIL COURT VERSUS
SUPREME COURT, CONTRACT LAW. …………………………………………………………… 26

CIVIL COURT WHICH AWARDED RENT ARREARS IN THE EVICTION PROCEEDING
DID NOT HAVE SUBJECT MATTER JURISDICTION OVER THE CLAIM FOR RENT
DUE FOR THE REMAINDER OF THE LEASE (POST-EVICTION); THEREFORE THE
ACTION IN SUPREME COURT FOR THE POST-EVICTION RENT AS LIQUIDATED
DAMAGES WAS NOT BARRED BY THE DOCTRINE OF RES JUDICATA (FIRST
DEPT). …………………………………………………………………………………………………….. 26

SUBJECT MATTER JURISDICTION, FAMILY LAW, FAMILY OFFENSES, JUDGES. … 27

WHETHER FAMILY COURT HAS SUBJECT MATTER JURISDICTION OVER THIS
FAMILY OFFENSE PROCEEDING DEPENDS ON WHETHER THERE EXISTS AN
“INTIMATE RELATIONSHIP” BETWEEN THE CHILD AND THE RESPONDENT, THE
PARAMOUR OF PETITIONER’S FORMER HUSBAND; BEFORE THE COURT CAN
RULE ON THE JURISDICTION ISSUE A HEARING TO DETERMINE WHETHER
THERE IS AN “INTIMATE RELATIONSHIP” IS REQUIRED; MATTER REMITTED
(SECOND DEPT). ………………………………………………………………………………………. 27

MAY 2025 CIVIL PROCEDURE REVERSAL REPORT

AFFIRMATIVE DEFENSES, COMPARATIVE NEGLIGENCE, VEHICLE AND TRAFFIC LAW. ……. 4

HERE PLAINTIFF HAD THE RIGHT-OF-WAY ENTERING AN INTERSECTION AND DEFENDANT
FAILED TO YIELD; PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON LIABILITY AND
DISMISSAL OF DEFENDANTS’ COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE
(SECOND DEPT). ………………………………………………………………………………………….. 4

COMPLAINT DEFECTS ADDRESSED BY AFFIDAVIT, FRAUD, TRUSTS AND ESTATES, JUDGES. 5

PLAINTIFF SUBMITTED AN AFFIDAVIT TO REMEDY DEFECTS IN THE COMPLAINT IN
RESPONSE TO DEFENDANTS’ MOTION TO DISMISS; SUPREME COURT SHOULD HAVE
CONSIDERED THE AFFIDAVIT; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN
GRANTED (SECOND DEPT). …………………………………………………………………………….. 5

DEBTOR-CREDITOR, TURNOVER OF PROPERTY, FRAUD, PERSONAL PROPERTY, REAL
ESTATE, EVIDENCE. ………………………………………………………………………………………. 6

PETITIONER JUDGMENT-CREDITOR WAS ENTITLED TO THE TURNOVER OF CERTAIN REAL
PROPERTY WHICH HAD BEEN FRAUDULENTLY TRANSFERRED TO A TRUST BY THE
RESPONDENT JUDGMENT-DEBTORS, AS WELL AS THE CONTENTS OF RESPONDENTS’
SAFETY DEPOSIT BOX (SECOND DEPT). ……………………………………………………………… 6

DUPLICATIVE CAUSES OF ACTION, CHILD VICTIMS ACT, NEGLIGENCE, EDUCATION
SCHOOL LAW, EMPLOYMENT LAW, INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS, NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS, EVIDENCE. ………………….. 8

IN THIS CHILD VICTIMS ACT CASE ALLEGING SEXUAL ABUSE BY A SCHOOL JANITOR, THE
NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION
AND THE DEMAND FOR PUNITIVE DAMAGES SHOULD HAVE BEEN DISMISSED, CRITERIA
EXPLAINED (SECOND DEPT). …………………………………………………………………………… 8

FAMILY LAW, FAILURE TO HOLD HEARING, JUDGES. …………………………………………….. 10

ALTHOUGH FATHER IS INCARCERATED FOR ASSAULTING MOTHER WHEN SHE WAS SEVEN
MONTHS PREGNANT, FATHER IS ENTITLED TO A HEARING ON WHETHER VISITATION WITH
THE CHILD, WHICH NEED NOT INCLUDE CONTACT VISITATION, IS IN THE BEST INTERESTS
OF THE CHILD; IT IS THE MOTHER’S BURDEN TO DEMONSTRATE VISITATION WOULD BE
HARMFUL (THIRD DEPT). ………………………………………………………………………………. 10

FORECLOSURE, DEFENDANT’S FAILURE TO SEEK STAY PENDING APPEAL,
APPEALS, CONTRACT LAW, REAL ESTATE, REAL PROPERTY LAW. ……………………………. 11

THE JUDGMENT OF FORECLOSURE AND SALE WAS REVERSED ON APPEAL; THE
DEFENDANT IN THE FORECLOSURE ACTION DID NOT SEEK A STAY PENDING APPEAL; THE
FACT THAT THE NOTICE OF PENDENCY, FILED BY THE BANK AT THE OUTSET OF THE
FORECLOSURE PROCEEDINGS, WAS STILL IN EFFECT AT THE TIME OF THE FORECLOSURE
SALE DID NOT AFFECT THE TRANSFER OF TITLE TO A GOOD FAITH PURCHASER AT THE
FORECLOSURE SALE (SECOND DEPT). …………………………………………………………….. 11

FORECLOSURE, FORECLOSURE ABUSE PREVENTION ACT (FAPA), EVIDENCE. ……….. 12

THE BANK’S UNILATERAL ATTEMPT TO REVOKE THE ACCELERATION OF THE DEBT IS
PRECLUDED BY THE FORECLOSURE ABUSE PROTECTION ACT (FAPA) WHICH APPLIES
RETROACTIVELY TO THIS CASE; THE FORECLOSURE ACTION IS TIME-BARRED (SECOND
DEPT). …………………………………………………………………………………………………….. 12

FORECLOSURE, STANDING, EVIDENCE. ……………………………………………………………. 13

THE AFFIDAVIT SUBMITTED TO DEMONSTRATE PLAINTIFF HAD POSSESSION OF THE NOTE
PRIOR TO COMMENCING THE FORECLOSURE ACTION WAS HEARSAY (SECOND DEPT). .. 13

JUDICIAL ESTOPPEL, BANKRUPTCY, ATTORNEYS. ………………………………………………… 14

THE CRITERIA FOR JUDICIAL ESTOPPEL WERE NOT MET HERE (FIRST DEPT). ……………… 14

MANDAMUS-TO-COMPEL, FAMILY LAW, JUDGES, APPEALS. …………………………………… 15

MOTHER BROUGHT A MANDAMUS-TO-COMPEL PROCEEDING TO REQUIRE THE SUPPORT
MAGISTRATE TO HOLD A SUPPORT-ORDER-VIOLATION HEARING WITHIN THE TIME-LIMIT
SET IN THE UNIFORM RULES FOR FAMILY COURT; THE APPEAL WAS HEARD AS AN
EXCEPTION TO THE MOOTNESS DOCTRINE BECAUSE THE ISSUE IS LIKELY TO RECUR; THE
SECOND DEPARTMENT HELD THE SUPPORT MAGISTRATE HAD THE DISCRETION TO ADJOURN THE MATTER BEYOND THE DEADLINE SET IN THE UNIFORM RULES,DESPITE THE MANDATORY LANGUAGE IN THE RULE (SECOND DEPT). ……………………………………….. 15

PSEUDONYM USED IN CAPTION, EDUCATION-SCHOOL LAW, EMPLOYMENT LAW. ………. 17

PLAINTIFF’S REQUEST TO PROCEED UNDER THE PSEUDONYM “JANE DOE” SHOULD HAVE
BEEN GRANTED (FIRST DEPT). ……………………………………………………………………….. 17

PUNITIVE DAMAGES ……………………………………………………………………………………. 18
A SEPARATE CAUSE OF ACTION FOR PUNITIVE DAMAGES WILL BE DISMISSED (FIRST DEPT).
……………………………………………………………………………………………………………… 18

SERVICE OF PROCESS, EVIDENCE. …………………………………………………………………. 18

HERE MOTHER’S CONCLUSORY AFFIDAVIT CLAIMING SHE WAS NOT SERVED WITH THE
SUMMONS AND COMPLAINT BUT RATHER FOUND THE PAPERS ON THE GROUND IN
FRONT OF THE FRONT DOOR WAS CONCLUSORY AND INSUFFICIENT TO REBUT THE
PROCESS SERVER’S AFFIDAVIT; THEREFORE NO HEARING SHOULD HAVE BEEN HELD AND
THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ………………….. 18

STANDING, CORPORATION LAW, FIDUCIARY DUTY. ……………………………………………… 20

PURSUANT TO THE “INTERNAL AFFAIRS” DOCTRINE, PLAINTIFF, A NEW YORK
CORPORATION AND BENEFICIAL OWNER OF SHARES IN BARCLAYS, AN ENGLISH
CORPORATION, DID NOT HAVE STANDING TO BRING A DERIVATIVE SUIT ON BEHALF OF
BARCLAYS AGAINST OFFICERS AND MANAGERS OF A NEW YORK AFFILIATE OF BARCLAYS
IN NEW YORK (CT APP). ………………………………………………………………………………… 20

STIPULATIONS, CONTRACT LAW, JUDGES. ………………………………………………………… 21

HERE A DISPUTE AMONG BROTHERS ABOUT OWNERSHIP OF REAL PROPERTY WAS
RESOLVED BY AN OPEN COURT STIPULATION (CONTRACT) WHICH CANNOT BE
INVALIDATED ABSENT FRAUD, COLLUSION, MISTAKE OR ACCIDENT; THEREFORE SUPREME
COURT SHOULD HAVE HELD A HEARING BEFORE APPROVING THE SUBSEQUENT
APPORTIONMENT OF THE PROPERTY BY A RECEIVER WHICH WAS INCONSISTENT WITH
THE STIPULATION (SECOND DEPT). …………………………………………………………………. 21

TRANSLATED AFFIDAVIT INADMISSIBLE, NEGLIGENCE, EVIDENCE, VEHICLE AND TRAFFIC
LAW. ……………………………………………………………………………………………………….. 23

PLAINTIFF’S TRANSLATED AFFIDAVIT WAS NOT ACCOMPANIED BY THE TRANSLATOR’S
AFFIDAVIT AND WAS THEREFORE INADMISSIBLE; THE ROADWAY WHERE THE COLLISION
OCCURRED WAS NOT DIVIDED INTO TWO OR MORE CLEARLY MARKED LANES;
THEREFORE THE “UNSAFE LANE CHANGE” STATUTE (VEHICLE AND TRAFFIC LAW 1128(A))
DID NOT APPLY (FIRST DEPT). ………………………………………………………………………… 23

VENUE, JUDGES. ………………………………………………………………………………………… 24

IN THIS TRAFFIC-ACCIDENT CASE, PLAINTIFF BROUGHT THE ACTION IN AN IMPROPER
VENUE; DEFENDANTS’ MOTION TO CHANGE VENUE WAS SIX DAYS LATE; SUPREME COURT
IMPROVIDENTLY EXERCISED ITS DISCRETION IN DENYING THE MOTION (SECOND DEPT).
……………………………………………………………………………………………………………… 24

JUNE 2025 CIVIL PROCEDURE REVERSAL REPORT

APPEALS, ARGUMENT FIRST RAISED IN REPLY, FORECLOSURE. ………………………………… 6

HERE AN ARGUMENT RAISED FOR THE FIRST TIME IN PLAINTIFF’S REPLY PAPERS WAS
DEEMED NOT PROPERLY BEFORE THE APPELLATE COURT (SECOND DEPT). ………………… 6

APPEALS, MOTION TO RENEW AN APPEAL, FORECLOSURE. ……………………………………. 7

HERE A MOTION TO RENEW AN APPEAL WAS GRANTED AND THE PRIOR APPELLATE
DECISION WAS VACATED BASED ON THE ENACTMENT OF THE FORECLOSURE ABUSE
PREVENTION ACT (FAPA); THE THIRD DEPARTMENT HAD HELD THE FORECLOSURE ACTION
WAS TIMELY BECAUSE THE BANK HAD DE-ACCELERATED THE DEBT; BUT FAPA
RENDERED THE DE-ACCELERATION INVALID; SO THE INITIAL SUPREME COURT DECISION
GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS WAS REINSTATED (THIRD DEPT). . 7

ARBITRATION, WRONGFUL DEATH VERSUS NEGLIGENCE, CONTRACT LAW, TRUSTS AND
ESTATES, APPEALS. ………………………………………………………………………………………. 8

PLAINTIFF’S DECEDENT WAS KILLED WHEN THROWN FROM A RENTED MOPED; THE
RENTAL AGREEMENT INCLUDED AN ARBITRATION CLAUSE; THE NEGLIGENCE CAUSES OF
ACTION ARE SUBJECT TO THE ARBITRATION CLAUSE; HOWEVER, THE WRONGFUL DEATH
CAUSE OF ACTION IS NOT SUBJECT TO THE ARBITRATION CLAUSE; NEGLIGENCE AND
WRONGFUL-DEATH CAUSES OF ACTION ARE DISTINCT AND ADDRESS DIFFERENT
INJURIES; THE WINNING ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL (SECOND
DEPT). ……………………………………………………………………………………………………….. 8

ARBITRATION, CONTRACT LAW, EMPLOYMENT LAW, JUDGES. ……………………………….. 10

A COURT’S POWER TO VACATE AN ARBITRATOR’S AWARD IS EXTREMELY LIMITED; AN
ARBITRATOR’S INTERPRETATION OF A COLLECTIVE BARGAINING AGREEMENT CANNOT BE
REVIEWED UNLESS IT IS “COMPLETELY IRRATIONAL;” HERE THE ARBITRATOR’S AWARD
UPHOLDING THE SUSPENSION OF PETITIONER-DENTAL-HYGIENIST FOR HER FAILURE TO
OBTAIN A COVID-19 VACCINE WAS CONFIRMED (FOURTH DEPT). ………………………….. 10

BILL OF PARTICULARS, MOTION TO AMEND, NEGLIGENCE, EVIDENCE, JUDGES. …………. 12

IN THIS CHILD VICTIMS ACT CASE AGAINST A TEACHER, PLAINTIFF’S MOTION TO AMEND
THE BILL OF PARTICULARS TO ADD DEPOSITION TESTIMONY CONCERNING STATEMENTS
MADE BY WITNESSES TO PLAINTIFF’S ATTORNEYS SHOULD HAVE BEEN GRANTED
(SECOND DEPT). ………………………………………………………………………………………… 12

CLASS ACTIONS, EMPLOYMENT LAW, JUDGES, LABOR LAW. ………………………………….. 13

IN THIS CLASS-ACTION-CERTIFICATION PROCEEDING ALLEGING FAILURE TO PROVIDE
NOTICE OF PAY RATE AND PAY DAY AS REQUIRED BY LABOR LAW SECTION 195(1), THE
COURT SHOULD NOT HAVE GRANTED CERTIFICATION FOR THE CLAIM FOR LIQUIDATED
DAMAGES AND SHOULD NOT HAVE GRANTED THE REQUEST FOR THE SOCIAL SECURITY
NUMBERS OF CLASS MEMBERS WHOSE CLASS-ACTION NOTICE WAS RETURNED AS
UNDELIVERABLE (FIRST DEPT). ………………………………………………………………………. 13

COURT OF CLAIMS, SUBJECT MATTER JURISDICTION, MONEY JUDGMENT AGAINST STATE,
DEBTOR-CREDITOR, INSURANCE LAW. …………………………………………………………….. 14

SUPREME COURT HAS SUBJECT MATTER JURISDICTION OVER THIS PROCEEDING UNDER
CPLR ARTICLE 52 TO ENFORCE A MONEY JUDGMENT AGAINST THE STATE INSURANCE
FUND TO THE EXTENT THE STATE IS A GARNISHEE (SECOND DEPT). ………………………… 14

COURT RULES, FAILURE TO COMPLY WITH, FORECLOSURE, JUDGES. ………………………. 15

THE BANK’S FAILURE TO OFFER A REASONABLE EXCUSE FOR FAILURE TO COMPLY WITH A
COURT RULE REQUIRING THAT A MOTION FOR A JUDGMENT OF FORECLOSURE BE FILED
WITHIN ONE YEAR OF THE ENTRY OF THE ORDER OF REFERENCE WARRANTED DISMISSAL
OF THE FORECLOSURE ACTION (SECOND DEPT). ……………………………………………….. 15

CPLR 205(A), SECOND SIX-MONTH EXTENSION, NEGLIGENCE, PUBLIC HEALTH
LAW, TRUSTS AND ESTATES. …………………………………………………………………………. 16

HERE, EVEN THOUGH THE INITIAL ACTION WAS TIMELY ONLY BECAUSE OF THE SIX
MONTH “SAVINGS PROVISION” EXTENSION IN CPLR 205(A), THE SECOND ACTION,
COMMENCED AFTER THE DISMISSAL OF THE FIRST FOR LACK OF STANDING, CAN BE
DEEMED TIMELY UNDER A SECOND CPLR 205(A) SIX-MONTH “SAVINGS PROVISION”
EXTENSION (SECOND DEPT). ………………………………………………………………………. 16

FAMILY LAW, PATERNITY ALLEGATIONS SUFFICIENT, JUDGES. ………………………………… 17

FATHER’S PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED BECAUSE HIS
PATERNITY HAD NOT BEEN ADJUDICATED AT THE TIME THE PETITION WAS BROUGHT; THE
PETITION ADEQUATELY ALLEGED PATERNITY WHICH WAS SUBSEQUENTLY CONFIRMED BY
A DNA TEST (SECOND DEPT). …………………………………………………………………………. 17

FORECLOSURE, REFEREE’S REPORT, NO FOUNDATION FOR ATTACHED DOCUMENTS. …. 19

THE ACCOMPANYING AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR THE
ADMISSIBILITY OF THE DOCUMENTS RELIED UPON BY THE REFEREE IN THIS
FORECLOSURE ACTION; THEREFORE THE REFEREE’S REPORT SHOULD NOT HAVE BEEN
CONFIRMED (SECOND DEPT). ……………………………………………………………………….. 19

JUDGES, JURY INSTRUCTIONS, LIABLITY FOR EMPLOYEE’S BATTERY. ……………………….. 20

DEFENDANT DINER’S SECURITY GUARD KNOCKED PLAINTIFF TO THE GROUND AND
CHOKED HIM; WHETHER THE DINER DEFENDANTS ARE VICARIOUSLY LIABLE DEPENDED
UPON WHETHER THE SECURITY GUARD WAS ACTING WITHIN THE SCOPE OF HIS
EMPLOYMENT AT THE TIME OF THE ASSAULT; THE FAILURE TO PROVIDE THE JURY WITH AN
INTERROGATORY ON THE SCOPE-OF-EMPLOYMENT QUESTION REQUIRED A NEW TRIAL
(SECOND DEPT). ………………………………………………………………………………………… 20

JUDGES, SUA SPONTE DISMISSAL OF COMPLAINT. …………………………………………………. 21

IN THE ABSENCE OF A MOTION TO DISMISS THE COMPLAINT BY THE DEFENDANTS, THE
JUDGE DID NOT HAVE THE AUTHORITY TO DISMISS THE ACTION ON THE EVE OF TRIAL “IN
THE INTEREST OF JUDICIAL ECONOMY” BASED UPON PERCEIVED EVIDENTIARY
DEFICIENCIES (FOURTH DEPT). ……………………………………………………………………… 21

JUDGMENT NOTWITHSTANDING THE VERDICT, NEGLIGENCE, EVIDENCE. ………………… 22

IN THIS REAR-END COLLISION CASE, DEFENDANT DID NOT PRESENT EVIDENCE OF A
NONNEGLIGENT EXPLANATION OF THE ACCIDENT; PLAINTIFF WAS ENTITLED TO A
JUDGMENT NOTWITHSTANDING THE VERDICT FINDING DEFENDANT NEGLIGENT; THE
ARGUMENT THAT PLAINTIFF STOPPED QUICKLY IN STOP AND GO TRAFFIC IS NOT A
NONNEGLIGENT EXPLANATION OF A REAR-END COLLISION (FOURTH DEPT). ……………. 22

LANDLORD-TENANT, APPLICABILITY OF HOUSING STABILITY AND TENANT PROTECTION
ACT. ………………………………………………………………………………………………………… 24

THE HOUSING STABILITY AND TENANT PROTECTION ACT (HSTPA), BY ITS TERMS, APPLIES
TO THIS HOLDOVER ACTION WHICH WAS PENDING WHEN THE HSTPA WAS ENACTED BUT
HAS NOT PROCEEDED TO JUDGMENT; THEREFORE THE ACT NEED NOT BE APPLIED
RETROACTIVELY TO PRECLUDE THE HOLDOVER ACTION (SECOND DEPT). ………………… 24

LATE ANSWER, FAILURE TO REJECT WITHIN 15 DAYS, JUDGES. ……………………………….. 25

FAILURE TO REJECT A LATE ANSWER WITHIN 15 DAYS WAIVES LATE SERVICE AND THE
DEFAULT (SECOND DEPT)………………………………………………………………………………………………. 25

LITIGATION PRIVILEGE, IMMUNITY, CONTRACT LAW, DEFAMATION. …………………………. 26

THE LITIGATION PRIVILEGE WHICH APPLIES TO DEFAMATION ACTIONS WAS NOT
APPLICABLE HERE IN THIS BREACH OF CONTRACT ACTION ALLEGING BREACH OF
CONFIDENTIALITY AND NONDISPARAGEMENT PROVISIONS; DEFENDANT ALLEGEDLY
THREATENED TO PROVIDE DAMAGING TESTIMONY IN ANOTHER ACTION INVOLVING
PLAINTIFFS, IN WHICH DEFENDANT WA S NOT A PARTY, IF DEFENDANT’S DEMANDS WERE
NOT MET (FIRST DEPT). ………………………………………………………………………………… 26

LONG-ARM JURISDICTION, JURISICTIONAL DISCOVERY, MASS SHOOTING. ……………….. 27

A SHOOTER WEARING BODY ARMOR OPENED FIRE AT A BUFFALO GROCERY STORE
KILLING TEN AND INJURING MANY OTHERS; THE COMPLAINT ALLEGED THE BODY ARMOR
ALLOWED THE SHOOTER TO KILL THE SECURITY GUARD WHICH LEFT THE SHOPPERS
UNPROTECTED; THE ISSUE IS WHETHER NEW YORK HAS LONG-ARM JURISDICTION OVER
THE MANUFACTURER OF THE BODY ARMOR AND TWO INDIVIDUAL DEFENDANTS;
PLAINTIFFS’ ALLEGATIONS WERE SUFFICIENT TO WARRANT JURISDICTIONAL DISCOVERY;
THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ………………….. 27

MOTION TO COMPEL COMPLIANCE WITH DISCOVERY DEMANDS, JUDGES. ………………. 29

THE SUPREME COURT’S PART RULES REQUIRED PLAINTIFF TO FIRST CONFERENCE THE
MATTER BEFORE MOVING TO COMPEL DEFENDANTS TO COMPLY WITH DISCOVERY
DEMANDS; THE FAILURE TO CONFERENCE THE MATTER, HOWEVER, IS NOT A VALID
GROUND FOR DENYING THE MOTION (FIRST DEPT). ……………………………………………. 29

MOTION TO DISMISS, FAMILY LAW, EVIDENCE, JUDGES. ……………………………………….. 30

HERE FATHER MOVED TO DISMISS MOTHER’S PETITION TO MODIFY CHILD SUPPORT AT
THE CLOSE OF MOTHER’S PROOF; AT THAT STAGE OF THE PROCEEDINGS THE COURT
MUST ACCEPT PETITIONER’S EVIDENCE AS TRUE AND RESOLVE ALL CREDIBILITY
QUESTIONS IN PETITIONER’S FAVOR; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN
GRANTED (THIRD DEPT). ………………………………………………………………………………. 30

MOTION TO INTERVENE, FORECLOSURE. ………………………………………………………….. 31

BEACH 12, A NONPARTY WHICH BECAME TITLE OWNER OF THE PROPERTY AFTER
PLAINTIFF FILED THE NOTICE OF PENDENCY, WAS ENTITLED TO INTERVENE IN THE
FORECLOSURE ACTION AS OF RIGHT; CRITERIA EXPLAINED (SECOND DEPT). ……………. 31

MUNICIPAL LAW, PREEMPTION OF LOCAL LAW BY STATE LAW, CONSTITUTIONAL
LAW, LANDLORD-TENANT, SOCIAL SERVICES LAW. …………………………………………….. 32

THE NEW YORK CITY LOCAL LAWS REFORMING THE NYC FIGHTING HOMELESSNES AND
EVICTION PREVENTION SUPPLEMENT ARE NOT PREEMPTED BY THE NEW YORK STATE
SOCIAL SERVICES LAW (FIRST DEPT). ………………………………………………………………. 32

NINETY-DAY DEMAND TO FILE A NOTE OF ISSUE, FAILLURE TO RESPOND, ATTORNEYS,
MEDICAL MALPRACTICE, NEGLIGENCE, TRUSTS AND ESTATES. ……………………………… 33

PLAINTIFF IN THIS MED-MAL WRONGFUL-DEATH ACTION DID NOT RESPOND TO THE
NINETY-DAY DEMAND TO FILE A NOTE OF ISSUE, DID NOT PRESENT A REASONABLE
EXCUSE FOR THE FAILURE TO RESPOND, AND DID NOT DEMONSTRATE A MERITORIOUS
CAUSE OF ACTION; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT). . 33

NOTICE OF CLAIM ALLEGED WRONG DATE, NEGLIGENCE, MUNICIPAL LAW, JUDGES. ….. 34

HERE IN THIS BUS-PASSENGER-INJURY ACTION AGAINST THE CITY TRANSIT AUTHORITY,
PLAINTIFF STATED THE WRONG ACCIDENT-DATE IN THE NOTICE OF CLAIM; BECAUSE THE
WRONG DATE WAS NOT USED IN BAD FAITH AND THE CITY WAS NOT PREJUDICED,
PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE NOTICE OF CLAIM (SECOND
DEPT). ……………………………………………………………………………………………………… 34

NOTICE OF CLAIM, LEAVE TO FILE LATE NOTICE, NEGLIGENCE, MUNICIPAL, EVIDENCE. .. 36

THE ABSENCE OF A REASONABLE EXCUSE FOR FAILING TO FILE A TIMELY NOTICE OF
CLAIM IS NOT NECESSARILY FATAL TO A PETITION FOR LEAVE TO FILE A LATE NOTICE
WHERE, AS HERE, THE MUNICIPALITY HAD ACTUAL TIMELY NOTICE OF THE FACTS
UNDERLYING THE CLAIM AND IS NOT PREJUDICED BY THE DELAY (SECOND DEPT). …….. 36

PRE-ACTION DISCOVERY, LATE NOTICE OF CLAIM, MUNICIPAL LAW. ……………………….. 37

CLAIMANT MADE AN APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM
CONCERNING INJURIES INCCURRED WHEN WORKING FOR THE CITY; CLAIMANT WAS
ENTITLED TO PRE-ACTION DISCOVERY TO ESTABLISH WHEN THE CITY GAINED ACTUAL
KNOWLEDGE OF THE FACTS UNDERLYING THE CLAIM (FOURTH DEPT). ……………………. 37

SERVICE OF PROCESS, AUTHORITY TO ACCEPT SERVICE, EDUCATION-SCHOOL
LAW, MUNICIPAL LAW. …………………………………………………………………………………. 38

HERE THE ASSISTANT SUPERINTENDENT WHO WAS HANDED THE SUMMONS AND
COMPLAINT IN THIS PROPERTY-DAMAGE ACTION WAS AN AUTHORIZED AGENT OF THE
SCHOOL DISTRICT; THEREFORE THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED
FOR FAILURE TO COMPLETE PROPER SERVICE (SECOND DEPT). ……………………………. 38

SERVICE OF PROCESS, HEARING TO DETERMINE VALIDITY OF SERVICE, JUDGES. ……….. 40

HERE THE FIRST “NAIL AND MAIL” AFFIDAVIT BY THE PROCESS SERVER FAILED TO
DEMONSTRATE THE REQUIRED MAILING; A SECOND AFFIDAVIT WAS SUBMITTED WHICH
DESCRIBED THE MAILING; THE SECOND AFFIDAVIT DID NOT CURE THE DEFECT IN THE
ORIGINAL AFFIDAVIT; THEREFORE A HEARING ON THE VALIDITY OF THE SERVICE OF
PROCESS WAS REQUIRED (SECOND DEPT). ………………………………………………………. 40

SLAPP STATUTE, CIVIL RIGHTS LAW, DEFAMATION. ……………………………………………… 41

PLAINTIFF STATED A CAUSE OF ACTION FOR DEFAMATION PER SE (DEFENDANT
ALLEGEDLY STATED PLAINTIFF ENGAGED IN MONEY LAUNDERING); ALTHOUGH
DEFENDANT DEMONSTRATED THE ACTION INVOLVED “PUBLIC PETITION AND
PARTICIPATION” WITHIN THE MEANING OF THE SLAPP STATUTE, PLAINTIFF
DEMONSTRATED THE DEFAMATION ACTION HAD A SUBSTANTIAL BASIS IN LAW;
THEREFORE THE SLAPP STATUTE SHOULD NOT HAVE BEEN APPLIED TO DISMISS THE
COMPLAINT (SECOND DEPT). ………………………………………………………………………… 41

STATUTE OF LIMITATIONS, CORPORATION LAW, FIDUCIARY DUTY. …………………………… 42

THE STATUTE OF LIMITATIONS FOR BREACH OF FIDUCIARY DUTY BEGINS TO RUN WHEN
THERE HAS BEEN AN OPEN REPUDIATION OF FIDUCIARY OBLIGATIONS; HERE THERE HAS
NOT BEEN SUCH AN OPEN REPUDIATION; THE STATUTE NEVER BEGAN TO RUN AND THE
MOTION TO DISMISS THE SHAREHOLDER DERIVATIVE ACTION AS UNTIMELY SHOULD NOT
HAVE BEEN GRANTED (THIRD DEPT). ……………………………………………………………….. 42

 

Criminal Law Update January February March 2023

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

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 January, February, March 2023 which address issues in “Criminal Law.”

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 CLE update courses. The links to the written materials for this course (“Criminal Law Reversal Report January 2023,” “Criminal Law Reversal Report February 2023” and “Criminal Law Reversal Report March 2023”) are 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 Reversal Report January 2023.” “Criminal Law Reversal Report February 2023” and “Criminal Law Reversal Report March 2023”), 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 Reversal Newsletter January 2023

Criminal Law Reversal Report February 2023

Criminal Law Reversal Report March 2023

Attorney Affirmation Criminal Law Update January February March 2023

Evaluation Survey Criminal Law Update January February March 2023

Topics Covered in the “Criminal Law Update January February March 2023” 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 Pages in the “Criminal Law Reversal Report January 2023,” “Criminal Law Reversal Report February 2023” and “Criminal Law Reversal Report March 2023”

 

JANUARY 2023 CRIMINAL LAW REVERSAL REPORT

FAMILY OFFENSES, DISORDERLY CONDUCT. 1

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). 1

JUDGES, JURORS. 2

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). 2

JUDGES, JURY INSTRUCTIONS, POSSESSION OF A WEAPON. 3

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). 3

UNCORROBORATED ADMISSION. 3

DEFENDANT’S RAPE CONVICTION BASED SOLELY ON HIS UNCORROBORATED ADMISSION WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (THIRD DEPT). 3

 

FEBRUARY 2023 CRIMINAL LAW REVERSAL REPORT

APPEALS, TRIAL ORDER OF DISMISSAL, JUDGES. 4

THE TRIAL JUDGE DID NOT RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL; THE APPELLATE COURT CANNOT TREAT THE FAILURE TO RULE AS A DENIAL; MATTER REMITTED FOR A RULING (FOURTH DEPT). 4

ATTORNEYS, INEFFECTIVE ASSISTANCE. 5

DEFENSE COUNSEL MOVED TO SUPPRESS AN UNNOTICED EYEWITNESS IDENTIFICATION OF THE DEFENDANT AFTER BEING TOLD THE IDENTIFICATION WOULD BE PRECLUDED IF HE DID NOT MOVE TO SUPPRESS; DEFENSE COUNSEL INTRODUCED DEFENDANT’S MUG SHOT DESPITE THE SUPPRESSION OF THE PHOTO ID; DEFENSE COUNSEL DID NOT OBJECT TO A DETECTIVE’S IMPROPER IDENTIFICATION OF THE DEFENDANT IN A BLURRY VIDEO; THE MOTION TO VACATE DEFENDANT’S CONVICTION ON INEFFECTIVE ASSSISTANCE GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT). 5

ATTORNEYS, INEFFECTIVE ASSISTANCE. 6

DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE THE ROBBERY VICTIM’S STATEMENT THAT DEFENDANT WAS NOT ONE OF THE PERPETRATORS; NEW TRIAL ORDERED (FOURTH DEPT). 6

DISCIPLINARY HEARINGS (INMATES), DRUGS. 7

THE SUBSTANCE FOUND ON PETITIONER-INMATE’S PERSON WAS NOT TESTED OR OTHERWISE IDENTIFIED AS A DRUG; THE DRUG POSSESSION AND DISTRIBUTION, AS WELL AS THE SMUGGLING, DETERMINATIONS ANNULLED (THIRD DEPT). 7

EAVESDROPPIING. 9

THE ATTORNEY GENERAL’S OFFICE WAS MONITORING A WIRETAP WHEN DEFENDANT WAS OVERHEARD IN A CALL WHICH HAD ORIGINATED FROM THE COUNTY JAIL; LOCAL POLICE WERE ALERTED TO THE CONVERSATION AND THE POLICE OBTAINED THE RECORDING FROM THE JAIL; ALTHOUGH THE JAIL RECORDING WAS NOT AN “INTERCEPTED CONVERSATION” WITHING THE MEANING OF CPL 700.70, IT WAS EVIDENCE DERIVED FROM AN “INTERCEPTED CONVERSTION” TRIGGERING THE CPL 700.70 NOTICE REQUIREMENTS (CT APP). 9

EXPERT EVIDENCE, DRUGS. 10

THE EXPERTS WHO TESTIFIED THE SEIZED SUBSTANCES CONTAINED HEROIN OR COCAINE RELIED ON COMPARISONS WITH STANDARD SAMPLES IN THEIR LABS BUT NO EVIDENCE WAS OFFERED TO DEMONSTRATE THE ACCURACY OF THE SAMPLES; THEREFORE THE EXPERTS’ OPINIONS RELIED ON EVIDENCE NOT IN THE RECORD; CONVICTIONS REVERSED (SECOND DEPT). 10

FAMILY OFFENSES, PLEA ALLOCUTION, JUDGES. 11

THE JUDGE FAILED TO INQUIRE FURTHER DURING THE PLEA ALLOCUTION WHEN DEFENDANT SAID HE DID NOT VIOLATE THE ORDER OF PROTECTION INTENTIONALLY; THERE IS NO NEED TO PRESERVE A DEFECTIVE-ALLOCUTION ERROR; CONVICTION REVERSED (FOURTH DEPT). 11

HANDCUFFS, JUDGES. 12

HERE IT WAS REVERSIBLE ERROR TO PLACE THE DEFENDANT IN HANDCUFFS, WITHOUT EXPLANATION, BEFORE THE JURY RETURNED TO ANNOUNCE THE VERDICT; AT THAT POINT THE DEFENDANT IS CONSIDERED INNOCENT AND RESTRAINING THE DEFENDANT WITHOUT EXPLANATION IS CONSTITUTIONALLY PROHIBITED (CT APP). 12

INCLUSORY CONCURRENT COUNTS. 13

THE MURDER SECOND DEGREE COUNTS MUST BE DISMISSED AS INCLUSORY CONCURRENT COUNTS OF THE MURDER FIRST DEGREE CONVICTION (THIRD DEPT). 13

JUDGES, ATTORNEYS, APPEARANCE OF CONFLICT OF INTEREST. 14

THE JUDGE’S LAW CLERK WHEN DEFENDANT’S MOTION TO VACATE HIS CONVICTION WAS MADE WAS THE DISTRICT ATTORNEY WHEN DEFENDANT WAS INDICTED AND PROSECUTED; THE APPEARANCE OF A CONFLICT OF INTEREST REQUIRED REVERSAL AND REMITTAL; ALTHOUGH THE ISSUE WAS NOT BEFORE COUNTY COURT, THE ISSUE WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (THIRD DEPT). 14

JUDGES, FAILURE TO INFORM DEFENDANT OF POSTRELEASE SUPERVISION. 15

THE JUDGE’S FAILURE TO INFORM DEFENDANT OF POSTRELEASE SUPERVISION RENDERED DEFENDANT’S ADMISSION TO A PROBATION VIOLATION INVALID; THE ISSUE WAS CONSIDERED ON APPEAL DESPITE THE ABSENCE OF A MOTION TO WITHDRAW THE ADMISSION (FOURTH DEPT). 15

JURORS, JUDGES, SLEEPING JUROR. 16

AFTER COMPLAINING THAT A JUROR APPEARED TO BE SLEEPING AT TIMES, DEFENSE COUNSEL MADE A MOTION TO DISQUALIFY HIM; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY BEFORE DENYING THE MOTION; CONVICTION REVERSED (SECOND DEPT). 16

JURY INSTRUCTIONS. 17

BASED ON THE PEOPLE’S THEORY, THE JURY SHOULD NOT HAVE BEEN INSTRUCTED POSSESSION OF A WEAPON IS PRESUMPTIVE EVIDENCE OF AN INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER; DEFENDANT’S REQUEST TO CALL A WITNESS SHOULD NOT HAVE BEEN DENIED; DEFENDANT’S REQUEST FOR $1000 TO HIRE A PSYCHIATRIC EXPERT SHOULD NOT HAVE BEEN DENIED; NEW TRIAL ORDERED (FOURTH DEPT). 17

JURY INSTRUCTIONS. EVIDENCE. 18

EVEN THOUGH DEFENDANT CLAIMED THE STABBING INJURIES WERE ACCIDENTAL, HE WAS ENTITLED TO A JURY INTSTRUCTION ON THE JUSTIFICATION DEFENSE (FOURTH DEPT). 18

PARENT-CHILD PRIVILEGE. 19

THE RECORDED CONVERSATION BETWEEN THE 15-YEAR-OLD DEFENDANT AND HIS FATHER IN THE POLICE INTERVIEW ROOM IS PROTECTED BY PARENT-CHILD PRIVILEGE AND SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT). 19

PLEA ALLOCUTION, JUDGES. 20

THE PLEA ALLOCUTION RAISED THE POSSIBILITY OF DURESS AS AN AFFIRMATIVE DEFENSE; THE JUDGE MADE NO INQUIRY INTO THE VALIDITY OF PLEA; CONVICTION REVERSED DESPITE DEFENDANT’S FAILURE TO MOVE TO WITHDRAW THE PLEA (SECOND DEPT). 20

PRESENTENCE REPORTS, JUDGES. 21

A PRESENTENCE REPORT MUST BE CREATED FOR EACH OFFENSE; HERE THE JUDGE USED A PRESENTENCE REPORT PREPARED FOR A DIFFERENT UNRELATED OFFENSE; THE SENTENCE WAS ILLEGALLY IMPOSED (SECOND DEPT). 21

RESTITUTION HEARING. 22

A RESTITUTION HEARING IS REQUIRED WHEN (1) THE DEFENDANT REQUESTS IT, AND (2) WHEN THE EVIDENCE OF THE AMOUNT IS INSUFFICIENT (SECOND DEPT). 22

SEARCH WARRANTS, POLICE ENTRY. 23

THE MAJORITY HELD THE RECORD WAS SILENT ON WHETHER THE POLICE, WHO DID NOT APPLY FOR A NO-KNOCK WARRANT, ENTERED THE APARTMENT WITHOUT PROPER NOTICE TO THE OCCUPANTS AND THE ISSUE WAS NOT PRESERVED FOR APPEAL; THE DISSENT ARGUED THE ISSUE CAN BE ADDRESSED ON APPEAL UNDER INEFFECTIVE ASSISTANCE (FAILURE TO MOVE TO SUPPRESS), THE RECORD SUPPORTED AN UNAUTHORIZED NO-KNOCK ENTRY AND THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). 23

SEARCH WARRANTS. 24

ALTHOUGH THE SEARCH WARRANT DESCRIBED THE RESIDENCE AS HAVING TWO ENTRANCE DOORS, ONE LEADING TO THE AREA WHERE THE INFORMANT SAW THE FIREARMS AND ONE LEADING TO A STAIRWAY TO THE SECOND FLOOR (WHICH THE INFORMANT HAD NOT VISITED), THE WARRANT WAS NOT SEVERABLE AND WAS THEREFORE OVERBROAD (SECOND DEPT). 24

SEX OFFENDER REGISTRATION ACT (SORA), APPEALS. 25

DEFENDANT WAS NOT GIVEN THE REQUIRED 20-DAY NOTICE OF THE SORA RISK LEVEL HEARING, A VIOLATION OF DUE PROCESS; ALTHOUGH DEFENDANT DID NOT APPEAR AT THE HEARING, HE CAN APPEAL THE UPWARD DEPARTURE TO LEVEL THREE (THIRD DEPT). 25

SEX OFFENDER REGISTRATION ACT (SORA), CONSTITUTIONAL LAW, CORRECTION LAW. 26

THE CORRECTION LAW REQUIRING A SEX OFFENDER TO VERIFY HIS OR HER ADDRESS EVERY NINETY DAYS IS VOID FOR VAGUENESS AS APPLIED TO HOMELESS SEX OFFENDERS (FIRST DEPT). 26

SEX OFFENDER REGISTRATION ACT (SORA), DOWNWARD DEPARTURE. 27

DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO LEVEL ONE; THE PRIOR RAPE (THE JUSTIFICATION FOR COUNTY COURT’S LEVEL THREE DESIGNATION) STEMMED FROM AN ONGOING RELATIONSHIP WITH THE VICTIM WHO WAS UNABLE TO CONSENT SOLELY BECAUSE OF HER AGE (SECOND DEPT). 27

STREET STOPS, SEARCHES. 28

THE MAJORITY CONCLUDED THAT EVEN IF DEFENDANT WAS ILLEGALLY FRISKED AND DETAINED OUTSIDE OF HIS VEHICLE, THE DEPUTY’S SEEING COCAINE ON THE DRIVER’S SEAT PROVIDED PROBABLE CAUSE FOR THE SEARCH OF THE VEHICLE; THE TWO-JUSTICE DISSENT ARGUED THE OBSERVATION OF THE DRUGS WAS A PRODUCT OF THE ILLEGAL FRISK AND DETENTION OF THE DEFENDANT (FOURTH DEPT). 28

STREET STOPS. 29

DEFENDANT WAS NOT FREE TO LEAVE AFTER A STREET STOP AND WAS INTERROGATED WITHOUT HAVING BEEN AFFORDED THE MIRANDA WARNINGS; THE DEFENDANT’S STATEMENTS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT). 29

SUPPRESSION HEARING, EVIDENCE. 30

THE PEOPLE DID NOT MEET THEIR “BURDEN OF GOING FORWARD” BY PRESENTING SUFFICIENT PROOF OF THE LEGALITY OF POLICE CONDUCT AT THE SUPPRESSION HEARING; THERE WAS NO EVIDENCE THE OFFICERS WHO ARRESTED DEFENDANT WERE MADE AWARE OF THE CO-DEFENDANT’S STATEMENT WHICH WAS THE BASIS OF THE ARREST; THE FACT THAT GAPS IN THE PEOPLE’S PROOF MAY HAVE BEEN FILLED IN BY THE DEFENDANT’S TESTIMONY AT THE HEARING DIDN’T CURE THE DEFICIENCY (FIRST DEPT). 30

UNNOTICED STATEMENT, EVIDENCE. 31

THE ADMISSION OF AN UNNOTICED STATEMENT BY DEFENDANT WAS NOT HARMLESS ERROR; ALTHOUGH THE PEOPLE HAD DISCLOSED THE INTERVIEW IN WHICH THE STATEMENT WAS MADE, THEY DID NOT DISCLOSE THE SPECIFIC STATEMENT; THE DEFENDANT MOVED TO PRECLUDE THE STATEMENT AT TRIAL (FIRST DEPT). 31

 

MARCH 2023 CRIMINAL LAW REVERSAL REPORT 

APPEALS, SENTENCES. 5

EVEN WHERE A SENTENCE HAS BEEN AGREED TO BY THE DEFENDANT AS PART OF A PLEA BARGAIN, AN INTERMEDIATE APPELLATE COURT IS OBLIGATED TO CONSIDER WHETHER THE SENTENCE IS UNDULY HARSH OR SEVERE, SEPARATE AND APART FROM WHETHER THE SENTENCE IS LEGAL (CT APP). 5

APPEALS, SENTENCES. 6

THE THIRD DEPARTMENT HAS BEEN APPLYING THE WRONG STANDARD TO THE REDUCTION OF A SENTENCE IN THE INTEREST OF JUSTICE FOR DECADES; HOWEVER, BECAUSE THE THIRD DEPARTMENT HAS RECENTLY STOPPED APPLYING THE WRONG STANDARD, THIS APPEAL IS MOOT (CT APP), 6

APPEALS, WAIVER. 8

A WAIVER OF APPEAL NOT MENTIONED UNTIL SENTENCING IN INVALID; MATTER REMITTED FOR A DECISION ON DEFENDANT’S MOTION TO REDACT STATEMENTS MADE WITHOUT COUNSEL FROM THE PREPLEA INVESTIGATION REPORT (FOURTH DEPT). 8

APPEALS, MOTION TO VACATE CONVICTION BASED UPON DECISION RELEASED DURING THE APPELLATE PROCEEDINGS. 9

DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION BASED UPON AN APPELLATE DECISION WHICH CAME OUT AFTER HER APPEAL BUT BEFORE SHE APPLIED FOR PERMISSION TO APPEAL TO THE COURT OF APPEALS; THE COURT OF APPEALS DECISION WHICH HELD THE EXECUTIVE LAW ALLOWING DEFENDANT TO BE PROSECUTED BY THE “JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS” UNCONSTITUTIONAL SHOULD NOT BE APPLIED RETROACTIVELY (THIRD DEPT). 9

ASSAULT, PHYSICAL INJURY NOT PROVEN. 10

THE EVIDENCE OF “PHYSICAL INJURY” IN THIS ASSAULT SECOND PROSECUTION WAS LEGALLY INSUFFICIENT (FOURTH DEPT). 10

CONSTRUCTIVE POSSESSION. 11

THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION IN THIS CRIMINAL POSSESSION OF A WEAPON PROSECUTION (FOURTH DEPT). 11

DEFENDANT’S PRESENCE, SANDOVAL APPLICATION. 12

ALTHOUGH THE PEOPLE’S SANDOVAL APPLICATION WAS DISCUSSED IN CHAMBERS AND THE DEFENDANT WAS NOT PRESENT, THE MAJORITY CONCLUDED THAT THE JUDGE’S SUBSEQUENTLY ASKING, IN OPEN COURT AND IN THE DEFENDANT’S PRESENCE, WHETHER THE DEFENSE WANTED TO BE HEARD ON THE APPLICATION WAS SUFFICIENT; THE DISSENT DISAGREED (FOURTH DEPT). 12

DEPORTATION CONSEQUENCES OF PLEA. 13

ALTHOUGH THE DEFENDANT WAS AWARE THE GUILTY PLEA MAY HAVE A NEGATIVE IMPACT ON HIS IMMIGRATION STATUS HE WAS NOT SPECIFICALLY INFORMED DEPORTATION WAS POSSIBLE; MATTER SENT BACK TO GIVE THE DEFENDANT THE OPPORTUNITY TO MOVE TO VACATE THE PLEA (SECOND DEPT). 13

DEPORTATION CONSEQUENCES OF PLEA. 14

DEFENDANT SUFFICIENTLY RAISED INEFFECTIVE ASSISTANCE AND PREJUDICE ISSUES IN HIS MOTION TO VACATE HIS CONVICTION BECAUSE HE WAS NOT INFORMED HE COULD BE DEPORTED BASED ON THE GUILTY PLEA; THE JUDGE SHOULD NOT HAVE DENIED THE MOTION WITHOUT A HEARING (FIRST DEPT). 14

DNA, VACATION OF CONVICTION. 15

DNA EVIDENCE RECOVERED AFTER THE DEFENDANT WAS CONVICTED OF MURDER POINTED TO THE VICTIM’S BOYFRIEND AS THE PERPETRATOR; BECAUSE THE EVIDENCE AGAINST THE DEFENDANT WAS A SINGLE IDENTIFICATION WITNESS WHO WAS 88 YEARS OLD AND HAD POOR VISION, THE DNA EVIDENCE MAY HAVE LED TO A MORE FAVORABLE VERDICT; NEW TRIAL ORDERED (SECOND DEPT). 15

RAPE, CRIMINAL SEXUAL ACT, USE OF A CHILD IN A SEXUAL PERFORMANCE CONVICTIONS REVERSED, NO EVIDENCE OF FORCIBLE COMPULSION. 17

ALTHOUGH DEFENDANT AND DEFENDANT’S SISTER TOLD THE COMPLAINANT TO HAVE SEX WITH THEIR BOYFRIENDS, THERE WAS NO EVIDENCE OF FORCIBLE COMPULSION; DEFENDANT, WHO RECORDED SOME OF THE SEXUAL ACTS, HAD A REASONABLE BELIEF COMPLAINANT WAS OVER 17; RAPE, CRIMINAL SEXUAL ACT AND USE OF A CHIILD IN A SEXUAL PERFORMANCE CONVICTIONS REVERSED (SECOND DEPT). 17

FAMILY OFFENSES, INTIMATE RELATIONSHIP. 18

FORMER SISTERS-IN-LAW WHO LIVED ONE MILE APART AND SAW EACH OTHER FREQUENTLY FOR 30 YEARS HAD AN “INTIMATE RELATIONSHIP” WHICH SUPPORTED THE FAMILY OFFENSE PROCEEDING (SECOND DEPT). 18

GRAND JURY, PROSECUTORIAL MISCONDUCT. 19

THE PROSECUTOR DID NOT INSTRUCT THE GRAND JURY ON ALL OF THE ELEMENTS OF PROMOTING A SEXUAL PERFORMANCE OF A CHILD AND IMPROPERLY CROSS-EXAMINED THE DEFENDANT IN THE GRAND JURY PROCEEDINGS; ALTHOUGH DEFENDANT WAS PROPERLY CONVICTED, THE INDICTMENT WAS DISMISSED WITHOUT PREJUDICE (FOURTH DEPT). 19

IDENTIFICATION. 21

THE JUDGE SHOULD NOT HAVE DETERMINED THE TRIAL WITNESS’S IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY FOR THE FIRST TIME AT TRIAL; A MIDTRIAL RODRIGUEZ HEARING SHOULD HAVE BEEN HELD; MATTER REMITTED (FOURTH DEPT). 21

INCLUSORY CONCURRENT COUNTS. 22

CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE AND CRIMINAL POSSESSION OF A FIREARM ARE INCLUSORY CONCURRENT COUNTS (SECOND DEPT). 22

INCLUSORY CONCURRENT COUNTS. 23

THE RAPE FIRST AND CRIMINAL SEXUAL ACT FIRST CONVICTIONS WERE VACATED AS INCLUSORY CONCURRENT COUNTS OF TWO PREDATORY SEXUAL ASSAULT COUNTS (FIRST DEPT). 23

JUSTIFICATION DEFENSE. 24

HERE THE DEFENDANT CLAIMED HE ACTED IN SELF-DEFENSE WHEN HE STABBED THE VICTIM WITH A PEN KNIFE; THE DEFENDANT SOUGHT TO INTRODUCE EVIDENCE OF THE VICTIM’S PRIOR VIOLENT ACTS IN SUPPORT OF THE JUSTIFICATION DEFENSE; THE TRIAL JUDGE INSTRUCTED THE JURY ON THE JUSTIFICATION DEFENSE BUT DID NOT ALLOW EVIDENCE OF THE VICTIM’S PRIOR VIOLENT ACTS TO BE CONSIDERED ON THAT ISSUE; THE COURT OF APPEALS AFFIRMED, UPHOLDING THE RULE THAT THE VICTIM’S PRIOR VIOLENT ACTS ARE NOT ADMISSIBLE PROOF OF JUSTIFICATION UNLESS THE DEFENDANT WAS AWARE OF THE PRIOR VIOLENT ACTS AT THE TIME OF THE INCIDENT (CT APP). 24

JUVENILE DELINQUENCY, CIVIL PROCEDURE. 25

THE JUVENILE DELINQUENCY PETITIONS WERE TIMELY FILED; THE CORRECT APPLICATION OF THE COVID TOLL OF THE STATUTE OF LIMITATIONS EXPLAINED (FIRST DEPT). 25

LESSER INCLUDED OFFENSES, VIOLENT FELONY OFFENDERS. 27

BECAUSE THE OFFENSE TO WHICH DEFENDANT PLED GUILTY (ATTEMPTED CRIMINAL POSSESSION OF A WEAPON THIRD) WAS NOT A LESSER INCLUDED OFFENSE OF ANY OFFENSE CHARGED IN THE INDICTMENT, IT IS NOT CLASSIFIED AS A VIOLENT FELONY; DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT). 27

LESSER INCLUDED OFFENSES. 28

AS CHARGED IN THIS CASE, CRIMINAL TRESPASS THIRD IS NOT A LESSER INCLUDED OFFENSE OF BURGLARY THIRD AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED (FOURTH DEPT). 28

LESSER INCLUDED OFFENSES. 29

VEHICLE AND TRAFFIC LAW 1192(2) (DWI) IS A LESSER INCLUDED OFFENSE OF VEHICLE AND TRAFFIC LAW 1192(2-A) (AGGRAVATED DWI) (SECOND DEPT). 29

MARIHUANA CONVICTIONS, SUBSTITUTE CONVICTIONS. 30

PURSUANT TO THE MARIHUANA REGULATION AND TAXATION ACT (MRTA) (1) DEFENDANT’S MARIHUANA CONVICTION WAS PROPERLY VACATED (2) ANOTHER CONVICTION WAS PROPERLY SUBSTITUTED FOR THE VACATED CONVICTION (3) BUT COUNTY COURT COMMITTED REVERSIBLE ERROR BY FAILING TO CONSIDER WHETHER SUBSTITUTING ANOTHER CONVICTION SERVED THE INTEREST OF JUSTICE; MATTER REMITTED (SECOND DEPT). 30

MISDEMEANOR INFORMATION. 31

THE MISDEMEANOR INFORMATION WAS BASED ON THE POLICE OFFICER’S UNEXPLAINED CONCLUSION THE DOCUMENT WAS FORGED AND DID NOT ALLEGE FACTS TO SUPPORT ALL THE ELEMENTS OF THE OFFENSE; CONVICTION REVERSED AND INFORMATION DISMISSED (SECOND DEPT). 31

MOLINEUX. 32

EVIDENCE DEFENDANT COMMITTED A BANK ROBBERY ONE MONTH AFTER THE CHARGED MURDER WAS NOT ADMISSIBLE UNDER MOLINEUX TO FILL IN A GAP IN THE EVIDENCE OR EXPLAIN A RELATIONSHIP WITH A WITNESS OR TO SHOW A CONSCIOUSNESS OF GUILT; A WITNESS SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY DEFENDANT THREATENED TO KILL ANOTHER WITNESS UNDER THE “OPENING THE DOOR” THEORY BECAUSE THERE WAS NO MISLEADING TESTIMONY WHICH NEEDED TO BE CORRECTED (SECOND DEPT). 32

MURDER FIRST DEGREE ELEMENTS NOT PROVEN. 33

ALTHOUGH DEFENDANT COMMITTED A HEINOUS SECOND DEGREE MURDER, THE PROOF OF THE STATUTORY ELEMENTS OF FIRST DEGREE MURDER WAS LEGALLY INSUFFICIENT (FIRST DEPT). 33

OPEN THE DOOR. 35

INTRODUCTION OF DEFENDANT’S TWO-YEAR-OLD FIREARM CONVICTION UNDER THE THEORY THAT DEFENDANT “OPENED THE DOOR” WAS REVERSIBLE ERROR; DEFENDANT HAD NOT QUESTIONED THE PROPRIETY OF THE POLICE CONDUCT OR THE OFFICER’S CONCLUSION THE BULGE IN DEFENDANT’S POCKET WAS A FIREARM; THE JUDGE SHOULD HAVE APPLIED THE TWO-STEP MOLINEUX ANALYSIS, WHICH DOES NOT SUPPORT INTRODUCTION OF THE PRIOR CONVICTION (FIRST DEPT). 35

POLICE ENTRY INTO HOME. 36

THERE WAS NO EVIDENCE THE POLICE ANNOUNCED THEIR PURPOSE (ARREST WARRANT) BEFORE ENTERING THE APARTMENT; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT). 36

RESTITUTION. 37

DEFENDANT WAS CONVICTED OF GRAND LARCENY BASED UPON OVERCHARGING HER EMPLOYER; THE RESTITUTION SHOULD NOT HAVE INCLUDED THE LABOR COSTS INCURRED BY THE EMPLOYER FOR INVESTIGATING THE CRIME OR THE TRAVEL COSTS FOR WITNESSES TO TESTIFY AT TRIAL; THE FOURTH DEPARTMENT REFUSED TO FOLLOW A THIRD DEPARTMENT DECISION RE: TRAVEL EXPENSES AND LOST WORK ASSOCIATED WITH TESTIFYING AT TRIAL (FOURTH DEPT). 37

SENTENCING. 38

THE IMPOSITION OF TWO CONSECUTIVE PERIODS OF POSTRELEASE SUPERVISION WAS ILLEGAL (FOURTH DEPT). 38

SENTENCING. 39

THE PLEA-BARGAINED SENTENCE WAS BELOW THE STATUTORY MINIMUM, MATTER REMITTED FOR RESENTENCING OR WITHDRAWAL OF THE PLEA AGREEMENT (FOURTH DEPT). 39

SEX OFFENDER REGISTRATION ACT (SORA), RISK ASSESSMENT. 40

20 POINTS SHOULD NOT HAVE BEEN ASSESSED UNDER RISK FACTOR 7 (RELATIONSHIP WITH THE VICTIM) BECAUSE THE VICTIM WAS NOT A STRANGER; ALTHOUGH SUBTRACTING 20 POINTS WOULD RESULT IN A LEVEL TWO SEX OFFENDER CLASSIFICATION, THE MATTER WAS SENT BACK BECAUSE THE PEOPLE INDICATED IF DEFENDANT WAS NOT DESIGNATED A LEVEL THREE OFFENDER THEY WOULD SEEK AN UPWARD DEPARTURE (SECOND DEPT). 40

SPEEDY TRIAL. 41

ALTHOUGH THE READY-FOR-TRIAL ANNOUNCEMENT WAS TIMELY, IT WAS ILLUSORY BECAUSE THE CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS HAD NOT BEEN FILED; INDICTMENT PROPERLY DISMISSED (SECOND DEPT). 41

SPEEDY TRIAL. 42

IF A PREMATURE CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS WAS NOT FILED IN GOOD FAITH, THE STATEMENT OF READINESS FOR TRIAL IS ILLUSORY; MATTER REMITTED FOR A DETERMINATION WHETHER THE CERTIFICATE WAS FILED IN GOOD FAITH; THE JUDGE CONSIDERED ONLY WHETHER DEFENDANT WAS PREJUDICED BY THE POST-CERTIFICATE PRODUCTION OF DISCOVERY (FOURTH DEPT). 42

SPEEDY TRIAL. 43

THE UNEXPLAINED DELAY OF 38 MONTHS IN SEEKING A WARRANT FOR A DNA SAMPLE FROM THE DEFENDANT, WHO HAD BEEN IDENTIFIED AS THE RAPIST BY THE COMPLAINANT RIGHT AWAY, VIOLATED DEFENDANT’S RIGHT TO A SPEEDY TRIAL; CONVICTION REVERSED (CT APP). 43

STREET STOPS, FLIGHT. 44

FLIGHT ALONE DID NOT JUSTIFY THE PURSUIT AND SEARCH OF DEFENDANT IN A STREET STOP (FOURTH DEPT). 44

TRAFFIC STOPS.45

THE PEOPLE DID NOT DEMONSTRATE THE OFFICERS WHO MADE THE TRAFFIC STOP HAD THE TRAINING AND QUALIFICATIONS TO MAKE A VISUAL ESTIMATE OF THE SPEED OF A VEHICLE; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT), 45

 

Civil Procedure Update January February 2023

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

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 in January February 2023 which address issues in “Civil Procedure.”

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 CLE update courses. The links to the written materials for this course (“Civil Procedure Reversal Report January 2023” and “Civil Procedure Reversal Report February 2023” are 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 (“Civil Procedure Reversal Report January 2023” and “Civil Procedure Reversal Report February 2023”), 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 Reversal Report January 2023

Civil Procedure Reversal Report February 2023

Attorney Affirmation Civil Procedure Update January February 2023

Evaluation Survey Civil Procedure Update January February 2023

Topics Covered in the “Civil Procedure Update January February 2023” 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 Pages in the “Civil Procedure Reversal Report January 2023” and “Civil Procedure Reversal Report February 2023”

 

JANUARY 2023 CIVIL PROCEDURE REVERSAL REPORT

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

APPEALS, 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

CORPORATION LAW, PIERCE-THE-CORPORATE-VEIL ALLEGATIONS INSUFFICIENT 5

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). 5

DISCOVERY DISPUTE, ATTORNEYS, AFFIRMATION OF GOOD FAITH, NEGLIGENCE. 6

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). 6

EDUCATION-SCHOOL LAW, INFANCY TOLL, STATUTE OF LIMITATIONS, NEGLIGENCE. 7

THE ONE-YEAR-AND-NINETY-DAY TIME LIMIT FOR A SUIT AGAINST A SCHOOL DISTRICT IN GENERAL MUNICIPAL LAW 50-I(1)I IS SUBJECT TO THE INFANCY TOLL IN CPLR 208 (SECOND DEPT). 7

FORECLOSURE, MOTION TO RENEW. 8

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). 8

JURISDICTION OVER FOREIGN ELECTRONIC-CIGARETTE MANUFACTURER, CONSUMER LAW. 9

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). 9

JURISDICTION, TOXIC TORTS. 10

DEFENDANT MANUFACTURED VALVES CONTAINING ASBESTOS; ALTHOUGH DEFENDANT HAD A SMALL OFFICE IN NYC THE VALVES WERE MANUFACTURED AND SOLD IN CONNECTICUT, WHERE PLAINTIFF LIVED AND WORKED; THE RELATIONSHIP BETWEEN NEW YORK AND PLAINTIFF’S CLAIMS WAS NOT SUFFICIENT FOR NEW YORK JURISDICTION (FIRST DEPT). 10

MOTION TO DISMISS, DOCUMENTARY EVIDENCE. 11

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). 11

NEGLECT TO PROSECUTE, SIX-MONTH RECOMMENCEMENT OPTION (CPLR 205(A)). 12

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). 12

PRODUCTS LIABILITY, JURISDICTION, FOREIGN CORPORATIONS. 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). 13

VENUE, CORPORATION LAW, NEGLIGENCE. 14

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). 14

VERDICT SHEETS, JUROR CONFUSION. 15

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). 15

 

FEBRUARY 2023 CIVIL PROCEDURE REVERSAL REPORT

AMEND ANSWER, FORECLOSURE, JUDGES. 4

DEFENDANT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN ALLOWED TO AMEND THE ANSWER DESPITE THE FAILURE TO MAKE A PRE-ANSWER MOTION TO DISMISS; THE DEFENDANT GETS A SECOND CHANCE TO ADD AN AFFIRMATIVE DEFENSE IF THE COURT GRANT’S LEAVE TO AMEND (SECOND DEPT). 4

AMEND COMPLAINT, JOHN DOES, FORECLOSURE, TRUSTS AND ESTATES. 5

DEFENDANT WAS IMPROPERLY SUBSTITUTED AS A JOHN DOE IN THIS FORECLOSURE ACTION AND BECAUSE HE WAS SUED AS AN HEIR TO THE MORTGAGEE, AND NOT AS A REPRESENTATIVE OF THE MORTGAGEE’S ESTATE, THE ACTION WAS TIME BARRED (FOURTH DEPT). 5

AMEND COMPLAINT, JUDGES. 6

THE MOTION TO AMEND THE COMPLAINT SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE PROPOSED CHANGES WERE NOT “REDLINED” (FIRST DEPT). 6

AMEND COMPLAINT, RELATION-BACK, MEDICAL MALPRACTICE, EMPLOYMENT LAW. 7

PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION SOUGHT TO ADD TWO PHYSICIAN’S ASSISTANTS (PA’S) AS DEFENDANTS AFTER THE STATUTE OF LIMITATIONS HAD RUN; PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT DOCTORS WERE THE PA’S EMPLOYERS OR SUPERVISORS; PLAINTIFF DID NOT DEMONSTRATE THE PA’S HAD TIMELY KNOWLEDGE OF THE ACTION; THEREFORE THE RELATION-BACK DOCTRINE SHOULD NOT HAVE BEEN APPLIED (SECOND DEPT). 7

ANSWER, UNTIMELY ANSWER. 8

IF PLAINTIFF DOES NOT REJECT AN UNTIMELY ANSWER SUBMITTED WITHOUT LEAVE OF COURT OR STIPULATION, OBJECTION TO THE ANSWER AS UNTIMELY IS WAIVED (SECOND DEPT). 8

APPEALS, FAMILY LAW, JUDGES. 8

THE JUDGE’S FAILURE TO MAKE FINDINGS OF FACT IN THIS CUSTODY CASE PRECLUDED APPELLATE REVIEW; MATTER REMITTED (FOURTH DEPT), 8

ARBITRATION, JUDGES, CONTRACT LAW. 9

THE JUDGE CANNOT, SUA SPONTE, DIRECT ARBITRATION WITHOUT A REQUEST FROM A PARTY; NON-SIGNATORIES TO AN AGREEMENT CONTAINING A FORUM SELECTION PROVISION MAY BE BOUND BY THE PROVISION IF THEY ARE SIGNATORIES TO A RELATED AGREEMENT (SECOND DEPT). 9

BORROWING STATUTE, FRAUD. 10

MATTER REMITTED FOR CONSIDERATION OF EXPERT EVIDENCE ABOUT WHICH ECUADORIAN STATUTE IS MOST CLOSELY ANALOGOUS TO NEW YORK’S FRAUDULENT-CONVEYANCE CRITERIA FOR PURPOSES OF NEW YORK’S BORROWING STATUTE; HERE THE ACTION ACCRUED IN ECUADOR; THE SHORTER OF THE APPLICABLE ECUADORIAN AND NEW YORK STATUTES OF LIMITATIONS WILL APPLY (FIRST DEPT). 10

CHILD VICTIMS ACT, CONSTITUTIONAL LAW, EDUCATION-SCHOOL LAW, NEGLIGENCE. 11

THE REVIVED STATUTE OF LIMITATIONS FOR LAWSUITS ALLEGING SEXUAL ABUSE PURSUANT TO THE CHILD VICTIMS ACT (CVA) DOES NOT VIOLATE DUE PROCESS (FOURTH DEPT). 11

CONSOLIDATE ACTIONS, STATUTE OF LIMITATIONS, FORECLOSURE, JUDGES. 12

WHERE ONE OF TWO RELATED FORECLOSURE ACTIONS IS SUBJECT TO A MERITORIOUS MOTION TO DISMISS AS TIME-BARRED, IT IS AN ABUSE OF DISCRETION TO GRANT A MOTION TO CONSOLIDATE THE TIME-BARRED ACTION WITH THE TIMELY ACTION (SECOND DEPT). 12

CONVERSION, BREACH OF CONTRACT TO ARTICLE 78, ADMINISTRATIVE LAW, PUBLIC HEALTH LAW. 13

A BREACH OF CONTRACT ACTION IS NOT PROPERLY CONVERTED TO AN ARTICLE 78 PROCEEDING; HERE THE PHYSICIAN SUED THE HOSPITAL FOR FAILING TO HONOR A CONTRACTUAL COMMITMENT TO ADMIT PLAINTIFF TO A RESIDENCY PROGRAM; THE PHYSICIAN’S ACTION WAS PRECLUDED FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES UNDER THE PUBLIC HEALTH LAW (SECOND DEPT). 13

CONVERSION, SPECIAL PROCEEDING TO PLENARY ACTION. 15

WHEN A COURT DECIDES AN ACTION BROUGHT AS A SPECIAL PROCEEDING SHOULD HAVE BEEN BROUGHT AS A PLENARY ACTION, THE ACTION SHOULD NOT BE DISMISSED BECAUSE IT WAS BROUGHT IN THE WRONG FORM; THE PETITION SOULD BE DEEMED A COMPLAINT, NOT A MOTION FOR SUMMARY JUDGMENT (FIRST DEPT). 15

CRIMINAL LAW, PROVING OUT-OF-STATE CONVICTION. 16

THE PEOPLE DID NOT HAVE THE DOCUMENT OFFERED TO PROVE DEFENDANT’S MASSACHUSETTS CONVICTION CERTIFIED PURSUANT TO CPLR 4540; SECOND FELONY OFFENDER SENTENCE VACATED (THIRD DEPT). 16

DEFAULT JUDGMENT, COMPLAINT. 17

A JUDGE HAS DISCRETION TO DENY A MOTION FOR A DEFAULT JUDGMENT ON THE GROUND THE CAUSE OF ACTION HAS NOT BEEN SHOWN TO BE VIABLE; HERE THE ALLEGATIONS IN THE COMPLAINT, WHICH ARE DEEMED ADMITTED, STATED A VIABLE CAUSE OF ACTION AND THE MOTION FOR A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). 17

DEFAULT JUDGMENT, EVIDENCE, NEGLIGENCE. 18

THE ALLEGATIONS IN THE VERIFIED COMPLAINT IN THIS SLIP AND FALL CASE WERE SUFFICIENT TO SUPPORT PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT; THE DEFENDANT’S FAILURE TO ANSWER IS DEEMED TO BE AN ADMISSION TO THE ALLEGATIONS (FIRST DEPT). 18

DEPOSITIONS, INTERPRETERS, MEDICAL MALPRACTICE. 19

PLAINTIFF’S DAUGHTER SHOULD NOT HAVE BEEN APPOINTED TO SERVE AS THE INTERPRETER FOR HER MOTHER’S DEPOSITION IN THIS MEDICAL MALPRACTICE CASE; THE CRITERIA FOR ALLOWING A RELATIVE TO SERVE AS AN INTERPRETER ARE EXPLAINED (SECOND DEPT). 19

JURISDICTION, IN REM, REAL PROPERTY TAX LAW. 20

THE COUNTY HAD IN REM JURISDICTION IN THIS TAX FORECLOSURE PROCEEDING AND MADE ADEQUATE ATTEMPTS TO NOTIFY THE NECESSARY PARTIES (CT APP). 20

JURISDICTION, LONG-ARM, CONTRACT LAW. 21

NEW YORK HAS LONG-ARM JURISDICTION OVER THE MICHIGAN MANUFACTURER OF UNMANNED AERIAL VEHICLES (UAV’S) PURCHASED BY SUNY STONY BROOK FOR USE IN MADAGASCAR IN THIS BREACH OF CONTRACT ACTION (CT APP). 21

LANDLORD-TENANT, YELLOWSTONE INJUNCTION, CONTRACT LAW. 22

THE TENANT WAS NOT ENTITLED TO A YELLOWSTONE INJUNCTION BECAUSE THE RELIEF WAS SOUGHT AFTER THE DEADLINE IN THE NOTICE TO CURE; THAT DEADLINE WAS CONTROLLED BY THE LEASE AND THEREFORE WAS NOT EXTENDED BY THE COVID-RELATED EXECUTIVE ORDERS (SECOND DEPT). 22

LANDLORD-TENANT, YELLOWSTONE INJUNCTION. 23

THE TENANT MADE GOOD FAITH EFFORTS TO CURE THE DEFAULTS CITED BY THE LANDLORD AND WAS ENTITLED TO A YELLOWSTONE INJUNCTION TOLLING TENANT’S TIME TO CURE (FIRST DEPT). 23

LAW OFFICE FAILURE, MISSED DATE FOR SUBMISSIONS. 24

PLAINTIFF’S COUNSEL EXPLAINED THAT THE RETURN DATE FOR DEFENDANT’S SUMMARY JUDGMENT MOTION WAS MISCALEDARED AS THE DATE FOR SUBMISSION OF OPPOSITION PAPERS; IT WAS AN ABUSE OF DISCRETION TO DENY PLAINTIFF’S MOTION TO VACATE THE SUMMARY JUDGMENT ORDER (SECOND DEPT). 24

MOTION TO DISMISS, DOCUMENTARY EVIDENCE, REAL PROPERTY LAW. 25

IF PLAINTIFF MOVED FOR SUMMARY JUDGMENT IN THIS ACTION TO SET ASIDE A DEED PLAINTIFF WOULD HAVE HAD TO PROVE THE DEED WAS FORGED; TO WIN A MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE, HOWEVER, THE DEFENDANT MUST UTTERLY REFUTE PLAINTIFF’S ALLEGATION THE DEED WAS FORGED WHICH DEFENDANT FAILED TO DO HERE (SECOND DEPT). 25

NOTICE OF CLAIM, PORT AUTHORITY, NEGLIGENCE. 26

IN THIS SLIP AND FALL ACTION AGAINST THE PORT AUTHORITY, THE APPLICABLE STATUTE PROVIDES THAT THE NOTICE OF CLAIM MUST BE SERVED AT LEAST 60 DAYS BEFORE THE COMMENCEMENT OF THE ACTION (NOT 60 DAYS AFTER THE ACCRUAL OF THE ACTION); THEREFORE THE NOTICE OF CLAIM WAS TIMELY SERVED (SECOND DEPT). 26

SERVICE OF PROCESS, EXTENSION OF TIME, FORECLOSURE, JUDGES. 28

AN “INTEREST OF JUSTICE” EXTENSION OF TIME TO SERVE A DEFENDANT HAS DIFFERENT CRITERIA THAN A “GOOD CAUSE” EXTENSION; CRITERIA EXPLAINED (SECOND DEPT). 28

STANDNG, FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), UNIFORM COMMERCIAL CODE. 29

THE BANK IN THIS FORECLOSURE ACTION DID NOT SUBMIT SUFFICIENT PROOF OF STANDING OR COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT). 29

TRIAL WITNESS TAKEN ILL, TESTIMONY STRUCK, DEPOSITION ADMITTED, JUDGES. 31

AFTER AN IMPORTANT PLAINTIFFS’ WITNESS BECAME ILL DURING CROSS-EXAMINATION AND WAS TAKEN BY AMBULANCE TO THE HOSPITAL, THE JUDGE, SUA SPONTE, DECLARED THE WITNESS UNAVAILABLE, STRUCK HIS TESTIMONY AND ADMITTED HIS DEPOSITION TESTIMONY; THERE WAS NO SUPPORT IN THE RECORD FOR THE FINDING THE WITNESS WOULD BE UNABLE TO TESTIFY; JUDGMENT REVERSED (SECOND DEPT). 31

VENUE, UNTIMELY MOTION TO CHANGE. 32

THE MOTION TO CHANGE VENUE WAS MADE MORE THAN 15 DAYS AFTER THE DEMAND TO CHANGE VENUE; THE 15-DAY TIME-LIMIT IS STRICTLY ENFORCED AND THE MOTION SHOULD HAVE BEEN DENIED (FIRST DEPT). 32

 

 

Personal Injury Update April May 2023

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

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 in April and May 2023 which address issues in “Personal Injury.”

The “Personal Injury” 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 CLE update courses. Links to the written materials for this course (“Personal Injury Reversal Report April 2023” and “Personal Injury Reversal Report May 2023) are 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 (“Personal Injury Reversal Report April 2023” and “Personal Injury Reversal Report May 2023), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

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

Personal Injury Reversal Report April 2023

Personal Injury Reversal Report May 2023

Attorney Affirmation Personal Injury April May 2023

Evaluation Survey Personal Injury Update April May 2023

Topics Covered in the “Personal Injury Update April May 2023” 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 Pages in the “Personal Injury Reversal Report April 2023” and “Personal Injury Reversal Report May 2023”

 

APRIL 2023 PERSONAL INJURY REVERSAL REPORT

ASSUMPTION OF THE RISK, DEMOLITION DERBY. 4

ALTHOUGH PLAINTIFF SIGNED A RELEASE AND WAIVER OF LIABILITY BEFORE ATTENDING THE DEMOLITION DERBY, PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT UNREASONABLY INCREASED THE RISK BY FAILING TO INSTALL SUFFICIENT BARRIERS TO PROTECT SPECTATORS FROM THE VEHICLES IN THE DERBY (THIRD DEPT). 4

ASSUMPTION OF THE RISK, EDUCATION-SCHOOL LAW. 5

THE COURT OF APPEALS UPHELD THE VIABILITY OF THE ASSUMPTION OF THE RISK DOCTRINE AS IT APPLIES TO SCHOOL SPORTS; AN EXTENSIVE DISSENT ARGUED THE DOCTRINE SHOULD BE ABANDONED (CT APP). 5

CHILD VICTIMS ACE, CIVIL PROCEDURE, CIVIL RIGHTS LAW, FAMILY LAW. 6

THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT DOES NOT APPLY TO CIVIL RIGHTS CAUSES F ACTION PURSUANT TO 42 USC 1983; THE DUTY TO REPORT CHILD ABUSE UNDER THE SOCIAL SERVICES LAW APPLIES ONLY TO “PERSONS LEGALLY RESPONSIBLE” FOR THE CARE OF THE CHILD, WHICH DOES NOT INCLUDE TEACHERS (THIRD DEPT). 6

CHILD VICTIMS ACT, COURT OF CLAIMS. 8

ALTHOUGH THE REQUIREMENTS FOR THE CONTENTS OF A CLAIM AGAINST THE STATE IN COURT OF CLAIMS ACT SECTION 11 ARE STRICT AND JURISDICTIONAL, THE CLAIMANT IS NOT REQUIRED TO ALLEGE EVIDENTIARY FACTS (SECOND DEPT). 8

CHILD VICTIMS ACT, LONG-ARM JURISDICTION. 9

NEW YORK HAS LONG-ARM JURISDICTION OVER A SINGLE ALLEGED ACT OF SEXUAL ABUSE WHICH OCCURRED IN NEW YORK IN 1975 OR 1976 WHEN PLAINTIFF WAS ON A FIELD TRIP; THE ACTION WAS BROUGHT BY A CONNECTICUT RESIDENT AGAINST A CONNECTICUT DEFENDANT AND ALLEGED SEVERAL OTHER ACTS OF ABUSE WHICH TOOK PLACE IN CONNECTICUT; BECAUSE THE ALLEGED TORT TOOK PLACE IN NEW YORK, THE CONNECTICUT PLAINTIFF CAN TAKE ADVANTAGE OF THE EXTENDED STATUTE OF LIMITATIONS IN NEW YORK’S CHILD VICTIMS ACT (SECOND DEPT). 9

GENERAL MUNICIPAL LAW, EMPLOYMENT LAW. 10

PETITIONER, A CORRECTION OFFICER WHO WAS INJURED MOVING LAUNDRY BAGS BLOCKING A HALLWAY IN THE JAIL, WAS ENTITLED TO GENERAL MUNICIPAL LAW 207-C BENEFITS; ALTHOUGH SUPREME COURT SHOULD NOT HAVE TRANSFERRED THE ARTICLE 78 TO THE APPELLATE DIVISION, THE FOURTH DEPARTMENT CONSIDERED THE MERITS (FOURTH DEPT). 10

LABOR LAW-CONSTRUCTION LAW. 12

THE FIRST, THIRD AND FOURTH DEPARTMENTS HAVE HELD THAT THE VIOLATION OF THE INDUSTRIAL CODE PROVISION 12 NYCRR 23-4.2 (K) WILL NOT SUPPORT A LABOR LAW 241(6) CAUSE OF ACTION BECAUSE IT IS NOT SUFFICIENTLY SPECIFIC; THE SECOND DEPARTMENT HAS HELD THE VIOLATION OF THAT SAME PROVISION SUPPORTS A LABOR LAW 241(6) CAUSE OF ACTION (FOURTH DEPT). 12

MEDICAL MALPRACTICE, EVIDENCE. 13

THE MOTION TO SET ASIDE THE VERDICT APPORTIONING LIABILITY TO THE GYNECOLOGIST WHO NOTED IN HIS REPORT HE FOUND “NO ABNORMALITIES” SHOULD HAVE BEEN GRANTED; PLAINTIFF DID NOT PROVE THE NOTATION MISLED THE PRIMARY CARE PHYICIAN RESULTING IN A DELAY IN DIAGNOSING APPENDICITIS (FIRST DEPT). 13

MEDICAL MALPRACTICE, MUNICIPAL LAW. 14

MEDICAL RECORDS DEMONSTRATED THE NEGLIGENT FAILURE TO DIAGNOSE A SEVERED NERVE; THEREFORE THE MEDICAL FACILITY WAS DEEMED TO HAVE HAD TIMELY NOTICE OF THE NATURE OF THE MALPRACTICE CLAIM; THE PETITION FOR LEAVE TO FILE AND SERVE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT). 14

RETIREMENT AND SOCIAL SECURITY LAW, POLICE OFFICER INJURED AT WORK. 15

PETITIONER POLICE OFFICER WAS AWARE OF THE DEFECT IN THE FLOOR WHICH CAUSED HIS CHAIR TO START TO TIP OVER BACKWARDS WHEN THE WHEELS CAUGHT IN THE DEFECT; THEREFORE THE INCIDENT WAS NOT UNEXPECTED AND PETITIONER WAS NOT ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (THIRD DEPT). 15

SLIP AND FALL, LANDLORD-TENANT, CONTRACT LAW. 16

HERE THE LEASE MADE THE OUT-OF-POSSESSION LANDLORD RESPONSIBLE FOR STRUCTURAL REPAIRS AND MADE THE TENANT RESPONSIBLE FOR ALL NON-STRUCTURAL REPAIRS; THE CRACKED STEP WAS NOT A STRUCTURAL DEFECT; THE FACT THAT THE LANDLORD WAS AWARE OF THE DEFECT WAS IRRELEVANT (FIRST DEPT). 16

SLIP AND FALL, MUNICIPAL LAW. 17

ALTHOUGH THE VILLAGE ENGINEER SENT A LETTER TO THE ABUTTING PROPERTY OWNERS REQUIRING REPAIR OF THE SIDEWALK DEFECT WHERE PLAINTIFF SLIPPED AND FELL, THE MAJORITY CONCLUDED PLAINTIFF DID NOT DEMONSTRATE THE VILLAGE HAD WRITTEN NOTICE OF THE DEFECT; THE DISSENT DISAGREED (SECOND DEPT). 17

SLIP AND FALL. 18

PLAINTIFF’S INABILITY TO IDENTIFY THE WET SUBSTANCE ON THE STEP WHERE SHE ALLEGEDLY FELL WAS NOT AN INABILITY TO IDENTIFY THE CAUSE OF THE FALL (SECOND DEPT). 18

SLIP AND FALL. 19

THE DEFENDANT RESTAURANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL HAD LAST BEEN INSPECTED PRIOR TO THE FALL; THEREFORE THE RESTAURANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE ALLEGED WET CONDITION (SECOND DEPT). 19

TOXIC TORTS, MARITIME LAW, FEDERAL EMPLOYERS’ LIABILITY ACT (FELA), TRUSTS AND ESTATES. 19

UNDER THE JONES ACT OHIO HAD JURISDICTION TO APPOINT ADMINSTRATORS OF THE ESTATE OF DECEDENT WHO ALLEGEDLY DIED OF EXPOSURE TO ASBESTOS ON MERCHANT MARINE SHIPS; THE NEW YORK EXECUTOR OF THE ESTATE WAS TIMELY AND PROPERLY SUBSTITUTED FOR THE OHIO ADMINISTRATORS (FIRST DEPT). 19

TRAFFIC ACCIDENTS, LEASED CAR, GRAVES AMENDMANT. 21

THE LESSOR OF THE CAR INVOLVED IN THE TRAFFIC ACCIDENT DID NOT SUBMIT THE BUSINESS RECORDS DEMONSTRATING THE ASSIGNMENT OF THE LEASE; THEREFORE DISMISSAL OF THE COMPLAINT PURSUANT TO THE GRAVES AMENDMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 21

TRAFFIC ACCIDENTS, INSURANCE LAW, EXAMINATION UNDER OATH, ARBITRATION. 22

THE INSURER DID NOT EXPLAIN ITS FAILURE TO TIMELY REQUEST THAT THE INSURED UNDERGO A PHYSICAL EXAM AND AN EXAMINATION UNDER OATH; THE STAY OF ARBITRATION IN THIS UNINSURED MOTORIST BENEFITS DISPUTE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 22

TRAFFIC ACCIDENTS, INSURANCE LAW, NO-FAULT, EXAMINATION UNDER OATH. 23

THE DEFENDANTS’ FAILURE TO APPEAR AT THE SCHEDULED EXAMINATIONS UNDER OATH BREACHED A CONDITION PRECEDENT FOR INSURANCE COVERAGE ENTITLING THE INSURER TO SUMMARY JUDGMENT ON ITS CAUSE OF ACTION FOR A DECLARATORY JUDGMENT OF NONCOVERAGE (FIRST DEPT). 23

TRAFFIC ACCIDENTS, MUNICIPAL LAW, VEHICLE AND TRAFFIC LAW. 24

A FIRE DISTRICT CANNOT BE HELD VICARIOUSLY LIABLE UNDER A NEGLIGENCE STANDARD FOR THE ACTIONS OF A VOLUNTEER FIREFIGHTER DRIVING A FIRE TRUCK WHERE THE DRIVER DOES NOT VIOLATE THE RECKLESS-DISREGARD STANDARD FOR EMERGENCY VEHICLES (CT APP). 24

TRAFFIC ACCIDENTS, VEHICLE AND TRAFFIC LAW. 25

THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER MADE A LEFT TURN INTO TO THE PATH OF DEFENDANT’S ONCOMING CAR WITHOUT CHECKING FOR ONCOMING TRAFFIC; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (THIRD DEPT). 25

WORKERS’ COMPENSATION. 26

EXPOSURE TO AND CONTRACTION OF COVID-19 IN THE WORKPLACE IS AN UNUSUAL HAZARD WHICH IS COMPENSABLE UNDER THE WORKERS’ COMMPENSATION LAW; HOWEVER HERE THERE WAS NO PROOF DECEDENT CONTRACTED COVID-19 AT HIS WORKPLACE (THIRD DEPT). 26

WORKERS’ COMPENSATION LAW, INDEMNIFICATION, CONTRIBUTION. 27

IF THE WORKER’S COMPENSATION BOARD FINDS A DEFENDANT IN A CONSTRUCTION-ACCIDENT ACTION WAS PLAINTIFF’S EMPLOYER, PLAINTIFF’S RECOVERY AGAINST THE EMPLOYER IS RESTRICTED TO WORKER’S COMPENSATION BENEFITS AND OTHER DEFENDANTS CANNOT MAINTAIN ACTIONS FOR CONTRIBUTION OR INDEMNIFICATION AGAINST THAT EMPLOYER (SECOND DEPT). 27

 

MAY 2023 PERSONAL INJURY REVERSAL REPORT

BATTERY, EMPLOYMENT LAW, WORKERS’ COMPENSATION. 4

THE PERSON WHO ASSAULTED PLAINTIFF WAS THE OWNER OF THE LAW FIRM PLAINTIFF WORKED FOR; PLAINTIFF COULD RECOVER WORKERS’ COMPENSATION BENEFITS FROM THE LAW FIRM AND DAMAGES FOR ASSAULT AND BATTERY FROM THE OWNER, WHO WAS A COEMPLOYEE (SECOND DEPT). 4

BATTERY, MEDICAL RECORDS. 5

PLAINTIFF NURSE WAS ASSAULTED BY A PATIENT IN DEFENDANT’S HOSPITAL; SHE WAS ENTITLED TO DISCOVERY OF ANY NON-PRIVILEGED INFORMATION ABOUT THE PATIENT’S AGGRESSIVE BEHAVIOR IN HIS MEDICAL RECORDS (SECOND DEPT). 5

CHILD VICTIMS ACT, CIVIL PROCEDURE, COURT OF CLAIMS. 6

IN THIS CHILD VICTIMS ACT PROCEEDING, THE CLAIM SUFFICIENTLY ALLEGED THE TIME WHEN THE ALLEGED SEXUAL ASSAULT TOOK PLACE; LEGAL CRITERIA EXPLAINED (SECOND DEPT). 6

CHILD VICTIMS ACT, COURT OF CLAIMS. 7

IN THIS CHILD VICTIMS ACT PROCEEDING, THE CLAIM SUFFICIENTLY ALLEGED THE TIME WHEN THE ALLEGED SEXUAL ASSAULT TOOK PLACE; LEGAL CRITERIA EXPLAINED (SECOND DEPT). 7

DUTY OF CARE, INJURED POLICE OFFICER. 8

WALMART DID NOT OWE A DUTY OF CARE TO PLAINTIFF, AN OFF-DUTY POLICE OFFICER INJURED BY ANOTHER POLICE OFFICER AFTER RESPONDING TO A THEFT AT A WALMART STORE (FOURTH DEPT). 8

GATE FELL ON PLAINTIFF, CONSTRUCTIVE NOTICE, CREATION OF DANGEROUS CONDITION. 9

DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION OR DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 9

LABOR LAW-CONSTRUCTION LAW. 10

AN OPEN MANHOLE IS NOT AN ELEVATION-RELATED HAZARD COVERED BY LABOR LAW 240(1) (SECOND DEPT). 10

LABOR LAW-CONSTRUCTION LAW. 11

PLAINTIFF WAS MOVING A HEAVY COMPRESSOR ON A PLANK OVER A TWO-FOOT-DEEP TRENCH WHEN THE PLANK BROKE; THE INJURY WAS COVERED BY LABOR LAW 240(1) AS AN ELEVATION-RELATED INCIDENT (SECOND DEPT). 11

LABOR LAW-CONSTRUCTION LAW. 12

THE FACT THAT PLAINTIFF WAS USING HIS OWN LADDER WHEN IT FELL DID NOT PRECLUDE RECOVERY UNDER LABOR LAW 240(1); AS THERE WAS NO EVIDENCE OF MEASURES TAKEN TO PREVENT THE LADDER FROM FALLING, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (THIRD DEPT). 12

LANDLORD-TENANT, CRIMES BY INTRUDERS. 13

IN THESE TWO CASES, INTRUDERS ENTERED AN APARTMENT BUILDING THROUGH EXTERIOR DOORS WHICH, ALLEGEDLY, WERE UNLOCKED AND MURDERED VICTIMS WHO WERE SPECIFICALLY TARGETED; THE FACT THAT THE VICTIMS WERE TARGETED WAS NOT AN “INTERVENING ACT” WHICH RELIEVED THE LANDLORD OF LIABILITY AS A MATTER OF LAW (CT APP). 13

MUNICIPAL LAW, SPECIAL RELATIONASHIP, CHILD VICTIMS ACT. 14

THE FOURTH DEPARTMENT, NOTING A SPLIT OF AUTHORITY, DETERMINED THE PLAINTIFF DID NOT SET FORTH ALLEGATIONS WHICH DEMONSTRATED A SPECIAL RELATIONSHIP BETWEEN HER AND THE COUNTY; THEREFORE THE COUNTY COULD NOT BE HELD LIABLE FOR SEXUAL ABUSE ALLEGEDLY SUFFERED BY THE PLAINTIFF WHILE IN FOSTER CARE (FOURTH DEPT). 14

MUNICIPAL LAW, NOTICE OF CLAIM. 15

CAUSES OF ACTION IN THE COMPLAINT BASED UPON ALLEGATIONS NOT INCLUDED IN THE NOTICE OF CLAIM MUST BE DISMISSED (SECOND DEPT). 15

RELEASES. 16

THE RELEASE SIGNED BY PLAINTIFF BEFORE TAKING A MANDATORY COLLEGE FITNESS-EDUCATION COURSE PRECLUDED HER LAWSUIT AGAINST THE COLLEGE ALLEGING INJURIES SUSTAINED TAKING THE COURSE (SECOND DEPT). 16

SLIP AND FALL, CONSTRUCTICE NOTICE, WARNINGS. 17

DEFENDANTS IN THIS WET-FLOOR SLIP AND FALL CASE WERE NOT ENTITLED TO SUMMARY JUDGMENT; DEFENDANTS DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED BEFORE THE FALL AND THERE WAS EVIDENCE THE MAT AND WARNING SIGN PLACED IN THE AREA WERE INADEQUATE (FIRST DEPT). 17

SLIP AND FALL, CONSTRUCTIVE NOTICE. 18

DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL WAS LAST INSPECTED PRIOR TO FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE DEFECTIVE CONDITION (THIRD DEPT). 18

SLIP AND FALL, CONTRACTORS, CONSTRUCTIVE NOTICE. 19

IN THIS PARKING-LOT-ICE SLIP AND FALL CASE, THE SNOW REMOVAL CONTRACTOR DID NOT DEMONSTRATE IT DID NOT LAUNCH AN INSTRUMENT OF HARM AND THE PROPERTY OWNERS DID NOT DEMONSTRATE THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION; THE DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 19

SLIP AND FALL, CREATION OF SIDEWALK DEFECT. 20

THERE WAS EVIDENCE DEFENDANTS’ EMPLOYEES DIRECTED TRUCKS TO DRIVE OVER THE DEFECTIVE SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL, RAISING A QUESTION OF FACT WHETHER DEFENDANTS CREATED THE SIDEWALK DEFECT (SECOND DEPT). 20

TRAFFIC ACCIDENTS, STRIKING A PEDESTRIAN, VEHICLE AND TRAFFIC LAW. 21

STRIKING A PEDESTRIAN IS NEGLIGENCE PER SE; FAILING TO SEE WHAT THERE IS TO SEE IS NEGLIGENCE; ANY COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART IS NOT TO BE CONSIDERED; PLAINTIFF PEDESTRIAN’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT). 21

TRAFFIC ACCIDENTS, VICARIOUS LIABILITY, CORPORATION LAW, EMPLOYMENT LAW. 22

THE FRANCHISOR, TOYOTA, DID NOT EXERCISE CONTROL OVER THE FRANCHISEE’S, PLAZA TOYOTA’S, DAILY OPERATIONS; THEREFORE TOYOTA COULD NOT BE HELD VICARIOUSLY LIABLE FOR PLAZA TOYOTA’S NEGLIGENCE; HERE A WHEEL FELL OFF PLAINTIFF’S CAR AFTER IT WAS SERVICED AT PLAZA TOYOTA (SECOND DEPT). 22

TRAFFIC ACCIDENTS, VIDEO SURVEILLANCE. 23

IN THIS TRAFFIC ACCIDENT CASE WHERE “SERIOUS INJURY” WAS AN ISSUE, VIDEO SURVEILLANCE OF PLAINTIFF TAKEN BEFORE THE DEPOSITION AND AFTER A DISCOVERY ORDER WAS PRECLUDED FROM BOTH THE SUMMARY JUDGMENT STAGE AND TRIAL; THERE IS NO SPECIFIC DEADLINE FOR PROVIDING VIDEO SURVEILLANCE GATHERED AFTER THE DEPOSITION; THE POST-DEPOSITION VIDEO SURVEILLANCE WAS NOT PRECLUDED (SECOND DEPT). 23

TRAFFIC ACCIDENTS, WORKERS’ COMPENSATION. 24

ALTHOUGH INJURY IN A TRAFFIC ACCIDENT ON THE WAY TO WORK IS USUALLY NOT COVERED BY WORKERS’ COMPENSATION, HERE THE “SPECIAL ERRAND” EXCEPTION APPLIED BECAUSE CLAIMANT, A POLICE OFFICER, WAS ENGAGED IN AN INVESTIGATION AND ON HIS WAY TO PICK UP A POLICE VEHICLE WHEN THE ACCIDENT OCCURRED (THIRD DEPT). 24

TRAFFIC ACCIDENTS. 26

ALTHOUGH MRNACAJ GESTURED THAT SALIAN COULD PULL OUT OF A DRIVEWAY INTO MRNACAJ’S LANE, MRNACAJ COULD NOT HAVE FORESEEN THAT SALIAN WOULD CONTINUE INTO THE OTHER LANE WHERE SHE WAS STRUCK, MRNACAJ’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT). 26

WORKERS’ COMPENSATION, SPECIAL EMPLOYEE. 27

DEFENDANT COULD NOT SEEK INDEMNIFICATION FOR PLAINTIFF’S DAMAGES FROM THIRD-PARTY DEFENDANT BECAUSE PLAINTIFF WAS THE THIRD-PARTY DEFENDANT’S SPECIAL EMPLOYEE FOR WHOM WORKERS’ COMPENSATION WAS THE EXCLUSIVE REMEDY (FIRST DEPT). 27

WORKERS’ COMPENSATION, STRESS, HEART ATTACK. 28

THE EVIDENCE SUPPORTED A CAUSAL CONNECTION BETWEEN THE STRESS CAUSED BY INTERACTION WITH CLAIMANT’S SUPERVISOR AND CLAIMANT’S HEART ATTACK (THIRD DEPT). 28

Personal Injury Update January 2023

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

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 in January 2023 which address issues in “Personal Injury.”

The “Personal Injury” 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 CLE update courses. A link to the written materials for this course (“Personal Injury Reversal Report January 2023”) 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 (“Personal Injury Reversal Report January 2023”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

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

Personal Injury Reversal Report January 2023

Attorney Affirmation Personal Injury Update January 2023

Evaluation Survey Personal Injury Update January 2023

Topics Covered in the “Personal Injury Update January 2023” 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 Pages in the “Personal Injury Reversal Report January 2023”

 

JANUARY 2023 PERSONAL INJURY REVERSAL REPORT

BATTERY, INMATES, CORRECTIONS OFFICERS, EMPLOYMENT LAW, RESPONDEAT SUPERIOR. 6

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). 6

DISCOVERY DISPUTE, ATTORNEYS, 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

EDUCATION-SCHOOL LAW, MUNICIPAL LAW, NEGLIGENCE, INFANCY TOLL, STATUTE OF LIMITATIONS. 8

THE ONE-YEAR-AND-NINETY-DAY TIME LIMIT FOR A SUIT AGAINST A SCHOOL DISTRICT IN GENERAL MUNICIPAL LAW 50-I(1)I IS SUBJECT TO THE INFANCY TOLL IN CPLR 208 (SECOND DEPT). 8

EDUCATION-SCHOOL LAW, MUNICIPAL LAW, NEGLIGENCE. 9

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). 9

LABOR LAW-CONSTRUCTION LAW. 10

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). 10

LABOR LAW-CONSTRUCTION LAW. 11

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 I N PLAINTIFF’S FAVOR ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). 11

LABOR LAW-CONSTRUCTION LAW. 12

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). 12

LABOR LAW-CONSTRUCTION LAW. 13

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). 13

LABOR LAW-CONSTRUCTION LAW. 14

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). 14

MEDICAL MALPRACTICE, INFORMED CONSENT. 15

A SIGNED CONSENT FORM ALONE DOES NOT PRECLUDE A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION IN A MEDICAL MALPRACTICE CASE (SECOND DEPT). 15

MEDICAL MALPRACTICE, VICARIOUS LIABILITY. 16

ATTENDING PHYSICIAN NOT VICARIOUSLY LIABLE FOR NEGLIGENCE OF PHYSICIAN’S ASSISTANT BASED UPON THE PHYSICIAN’S STATUS AS A SHAREHOLDER IN THE P ROFESSIONAL SERVICE CORPORATION WHICH EMPLOYED THE PHYSICIAN’S ASSISTANT; $3 MILLION VERDICT EXCESSIVE (FIRST DEPT). 16

PRODUCTS LIABILITY, JURISDICTION, FOREIGN CORPORATIONS. 17

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). 17

PRODUCTS LIABILITY, UNIFORM COMMERCIAL CODE, IMPLIED WARRANTIES. 18

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). 18

RETIREMENT AND SOCIAL SECURITY LAW. 19

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). 19

SLIP AND FALL, APPEALS, SUMMARY JUDGMENT, SEARCH THE RECORD. 20

THE SECOND DEPARTMENT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO A NONAPPEALING PARTY IN THIS SLIP AND FALL CASE (SECOND DEPT). 20

SLIP AND FALL, CIVIL PROCEDURE, WORKERS’ COMPENSATION. 21

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). 21

SLIP AND FALL, CONSTRUCTIVE NOTICE. 22

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). 22
SLIP AND FALL, ESPINAL EXCEPTIONS. 23

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). 23

SLIP AND FALL, INDEPENDENT MEDICAL EXAMINATION. 24

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). 24

SLIP AND FALL, LANDLORD-TENANT, DANGEROUS CONDICTION. 26

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). 26

SLIP AND FALL, MUNICIPAL LAW. 27

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). 27

SLIP AND FALL, OUT-OF-POSSESSION LANDLORD. 28

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). 28

SLIP AND FALL, PROXIMATE CAUSE. 29

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). 29

TOXIC TORTS, ASBESTOS EXPOSURE, SUMMARY-JUDGMENT EVIDENCE REQUIREMENTS. 30

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). 30

TOXIC TORTS, JURISDICTION. 31

DEFENDANT MANUFACTURED VALVES CONTAINING ASBESTOS; ALTHOUGH DEFENDANT HAD A SMALL OFFICE IN NYC THE VALVES WERE MANUFACTURED AND SOLD IN CONNECTICUT, WHERE PLAINTIFF LIVED AND WORKED; THE RELATIONSHIP BETWEEN NEW YORK AND PLAINTIFF’S CLAIMS WAS NOT SUFFICIENT FOR NEW YORK JURISDICTION (FIRST DEPT). 31

TRAFFIC ACCIDENTS, LEGAL MALPRACTICE, FAILURE TO SEEK DAMAGES FROM TORTFEASOR PERSONALLY. 32

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). 32

TRAFFIC ACCIDENTS, CORPORATION LAW, VENUE. 34

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). 34

TRAFFIC ACCIDENTS, DAMAGES, EVIDENCE, PRIOR INJURY. 35

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). 35

TRAFFIC ACCIDENTS, MOTION TO DISMISS, DOCUMENTARY EVIDENCE. 36

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). 36

TRAFFIC ACCIDENTS, MUNICIPAL LAW, IMMUNITY. 37

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). 37

VERDICT SHEETS, JUROR CONFUSION. 38

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). 38