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THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE IN THIS ASSAULT AND RESISTING ARREST CASE; DEFENDANT KICKED AND FLAILED AS HE WAS SUBDUED BY MORE THAN EIGHT POLICE OFFICERS (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the jury should have been instructed on the justification defense:

Defendant’s request to charge justification, with regard to his kicking and flailing as officers tried to subdue and arrest him, should have been granted … . Penal Law § 35.27 permits a defendant to claim justification where there is a reasonable view of the evidence that he or she is the victim of excessive police force … . When a defendant requests such a charge, the trial court “must view the record in the light most favorable to the defendant and determine whether any reasonable view of the evidence would permit the factfinder to conclude that the defendant’s conduct was justified.” … Viewed in the light most favorable to the defense, the testimony and video evidence show that after defendant resisted police efforts to handcuff him, approximately eight additional officers joined in a struggle, punching and tazing defendant, and the police lieutenant used a baton to roll defendant’s Achilles tendon. These facts warranted a justification charge. People v Banyan, 2020 NY Slip Op 06060, First Dept 10-27-20

 

COURSE OF SEXUAL CONDUCT COUNT VACATED AS AN INCLUSORY CONCURRENT COUNT OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD (FIRST DEPT).

The First Department noted that the course of sexual conduct conviction must be vacated as an inclusory concurrent count of predatory sexual assault against a child. People v Encarnacion, 2020 NY Slip Op 06067, First Dept 10-27-20

 

PLAINTIFF WAS STRUCK BY A FALLING OBJECT; COMPARATIVE NEGLIGENCE IS NOT A DEFENSE TO A LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1), 200 AND COMMON LAW NEGLIGENCE CLAIMS SHOULD HAVE BEEN GRANTED; THERE WAS A QUESTION OF FACT ABOUT WHETHER ONE OF THE DEFENDANT’S EXERCISED SUPERVISORY CONTROL OVER THE SITE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action stemming from his being struck with a falling object. The allegation plaintiff should not have been where he was is an allegation of comparative negligence which is not a defense. Plaintiff also should have been awarded summary judgment on the Labor Law 200 and common law negligence causes of action against the statutory agent of the general contractor on the ground the agent caused the dangerous condition:

Plaintiff should have been awarded summary judgment on the issue of liability on his Labor Law § 240(1) claim as against Sweeney and Structure Tech. Sweeney, as general contractor, and Structure Tech, as subcontractor and statutory agent of Sweeney, may be held strictly liable for failing to provide overhead protection to plaintiff … . Thus even if, as Structure Tech’s superintendent testified, plaintiff was in an area of the worksite where he was not supposed to be at the time of his accident, this would at most constitute comparative negligence which is not a defense to a Labor Law § 240(1) claim … . Accordingly, the issue of their liability under Labor Law § 241(6) is academic … .

Plaintiff also should have been awarded summary judgment on his Labor Law § 200 and common-law negligence claims as against Structure Tech. As the statutory agent of the general contractor, Structure Tech may be held liable pursuant to Labor Law § 200 and under common-law negligence for injuries caused by a dangerous condition that it caused or created or of which it had actual or constructive notice … . Since no party disputes that a Structure Tech employee was responsible for dislodging the baluster and allowing it to fall and strike plaintiff, Structure Tech is liable to plaintiff under Labor Law § 200 and common-law negligence.

However, an issue of fact exists as to Sweeney’s liability to plaintiff under these claims based on the testimony of Structure Tech’s superintendent that it was, in fact, Sweeney’s superintendent who instructed Structure Tech to cut the baluster that ultimately struck plaintiff. If credited, this testimony could support a finding that Sweeney actually exercised supervisory control over the worksite so as to trigger liability under these claims … . Hewitt v NY 70th St. LLC, 2020 NY Slip Op 05853, First Dept 10-20-20

 

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DEFENDANTS DID NOT DEMONSTRATE AS A MATTER OF LAW THAT THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST FOR THE CHARGED CRIMES OR FOR ANY UNCHARGED CRIMES; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this false arrest, false imprisonment, malicious prosecution, assault and battery action should not have been granted because defendants did not demonstrate as a matter of law that there was probable cause for plaintiff’s arrest. When plaintiff flagged down the police he told the police he had been shot and had the drug dealer’s weapon on his person which he immediately surrendered:

… [D]efendants failed to establish prima facie that they had probable cause to arrest plaintiff for criminal possession of a weapon or firearm … , which is the lynchpin to plaintiff’s claims for false arrest, false imprisonment, malicious prosecution, assault and battery … , as well as the arresting officer’s entitlement to qualified immunity … . While “the police are not obligated to pursue every lead that may yield evidence beneficial to the accused, even though they had knowledge of the lead and the capacity to investigate it” … , plaintiff’s claim that he temporarily lawfully possessed the gun at issue after an alleged altercation with a drug dealer who attempted to rob him was not merely a lead. Rather, as soon as plaintiff flagged down the officers, he told them that he had been shot and volunteered that he had the drug dealer’s gun on his person, which he immediately surrendered.

Assuming, without deciding, that defendants could meet their prima facie burden by identifying probable cause to arrest plaintiff for an uncharged crime or offense … , they failed to do so. Specifically, defendants have not established probable cause to arrest plaintiff for trespass … , since there is no evidence that plaintiff knowingly entered or remained unlawfully in the basement where his altercation with the drug dealer took place. Nor did they establish probable cause to arrest plaintiff for attempted criminal possession of marijuana … or attempted unlawful possession of marijuana in the first degree … , since there is no evidence as to the quantity of marijuana that plaintiff allegedly attempted to possess. Finally, defendants failed to establish prima facie probable cause to arrest and detain plaintiff to the extent that they did for attempted unlawful possession of marijuana in the second degree … , since, had they so charged him, they only would have been permitted to issue a desk appearance ticket … . Idelfonso v City of New York, 2020 NY Slip Op 05854, First Dept 10-20-20

 

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RES IPSA LOQUITUR NEEDN’T BE ALLEGED IN THE NOTICE OF CLAIM OR THE COMPLAINT BECAUSE IT IS NOT A THEORY OF LIABILITY, IT IS AN EVIDENTIARY RULE; NOTICE OF A DANGEROUS CONDITION CAN BE INFERRED UNDER THE RES IPSA LOQUITUR DOCTRINE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff properly raised res ipsa loquitur in opposition to defendant’s motion for summary judgment even though the notice of claim and the complaint did not allege it. Res ipsa loquitur is not a theory of liability, it is a rule of evidence:

Plaintiff investigated a hissing sound coming from the electrical circuit box in her apartment and as she drew close to the circuit box, it suddenly burst into flame, burning her right arm. Plaintiff may raise res ipsa loquitur in opposition to defendant’s motion without having alleged the doctrine in her notice of claim or complaint, as it is not a separate theory of liability, but rather, an evidentiary rule that involves “‘a common sense application of the probative value of circumstantial evidence'” … . Plaintiff’s evidence raised triable issues as to application of the doctrine, as it showed that she had resided in the apartment for nearly 19 years, she would contact defendant’s employees to remedy any issues with the circuit box, and defendant’s employees handled the inspection, maintenance, and repair of the circuit box … . To the extent defendant argues its lack of notice of the alleged dangerous condition, a triable issue of fact exists here regarding the applicability of the res ipsa doctrine, and proof of notice of a dangerous condition may be inferred under the doctrine … . Townsend v New York City Hous. Auth., 2020 NY Slip Op 05874, First Dept 10-20-20

 

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REFEREE’S REPORT IN THIS FORECLOSURE ACTION RELIED UPON HEARSAY AND SHOULD NOT HAVE BEEN CONFIRMED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the referee’s report should not have been relied upon in this foreclosure action because the report was based on hearsay:

The referee relied on an affidavit sworn to October 2, 2018 by an assistant vice president of plaintiff’s loan servicer, who asserted that, according to the books and records of plaintiff pertaining to defendant’s loan and payment history, defendant had been in default since March 1, 2009, and owed plaintiff the amount stated. However, because the books and records themselves were not submitted to the court, the affiant’s assertions are inadmissible hearsay … . Nor did the affiant lay a foundation for the introduction of the books and records as a business record (see CPLR 4518[a]). Deutsche Bank Natl. Trust Co. v Kirschenbaum, 2020 NY Slip Op 05849, First Dept 10-20-20

 

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THE CURB AND TREE WELL ARE NOT AREAS OF A SIDEWALK WHICH ARE THE RESPONSIBILITY OF THE ABUTTING PROPERTY OWNER; THE PROPERTY OWNER’S/MANAGER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the areas near the sidewalk where plaintiff slipped and fell were the curb and a tree well. Both the curb and the tree well, according to the NYC Administrative Code, are not the responsibility of the abutting property owner (Gore/UA):

The owner of premises abutting the public sidewalk has a nondelegable duty to maintain and repair the sidewalk abutting the premises (Administrative Code of the City of New York § 7—210 …). The sidewalk includes “the intersection quadrant for corner property” (Admin Code § 7-210[a]). “Although section 7-210 does not define the term ‘sidewalk,’ Administrative Code § 19-101 (d) defines sidewalk as ‘that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians'” … . In the absence of a definition in section 7-210, this Court has held that the definition in section 19-101(d) should govern … .

We find that Gore/UA’s motion for summary judgment should have been granted. Review of the photographs clearly show that the area where plaintiff fell is a curb, intended for the use of pedestrians. Therefore, the definition of the term sidewalk in section 19-101(d) shows that Gore and UA did not have a duty to maintain or repair the area where plaintiff fell. Further, to the extent that plaintiff’s injuries were caused by the tree well, Administrative Code § 7-210 “does not impose civil liability on property owners for injuries that occur in city-owned tree wells” … . Brown v New York City Dept. of Transp., 2020 NY Slip Op 05807, First Dept 10-15-20

 

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EVIDENCE DID NOT SUPPORT A NEGLECT FINDING BASED UPON THE CONDITION OF THE HOME (FIRST DEPT),

The First Department, in affirming neglect findings based upon leaving the children unattended in a car and in the bathtub, determined that the evidence did not support the neglect finding based upon the condition of the home:

The only evidence that respondents failed to maintain the home in a sanitary condition was the caseworker’s testimony about her observations during a single visit, which is insufficient to support the finding of neglect on that basis … . Matter of Dream F. (Phillystina R.), 2020 NY Slip Op 05832, First Dept 10-15-20

 

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DEFENDANT DID NOT DEMONSTRATE WHEN THE STAIRWAY HAD LAST BEEN CLEANED OR INSPECTED IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant was not entitled to summary judgment in this slip and fall case because it did not demonstrate when the stairway where plaintiff slipped and fell was last cleaned or inspected:

Defendant did not demonstrate that it lacked constructive notice of the grease as it failed to show when the stairwell was last cleaned or inspected … . Proof of a regular maintenance schedule “does not suffice for purposes of showing that it was followed” … , and since the superintendent was due to clean the hallways and stairs on the day of the accident, plaintiff’s observation of debris on the stairs shows that no such maintenance was done prior to her fall. White v MP 40 Realty Mgt. LLC, 2020 NY Slip Op 05838, First Dept 10-15-20

 

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THE EVIDENCE DID NOT SUPPORT A FINDING OF NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER (FIRST DEPT).

The First Department, reversing Family Court, determined the neglect finding based upon an alleged failure to provide adequate shelter was not supported by the evidence:

While the apartment was in a deteriorated condition, there is no evidence that the child, age thirteen, was in danger or imminent danger of impairment due to the condition of the apartment; indeed, the caseworker testified that she observed the child to be healthy and appropriately groomed, the child was at the appropriate grade level, and the child denied any concerns about the father … . The strong inference drawn by the court against the father for failing to testify is insufficient by itself to provide the necessary link between the conditions in the apartment and any imminent harm to the child … . Matter of Angelica M. (Joe M.), 2020 NY Slip Op 05685, First Dept 10-13-20

 

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