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THE ELEMENT OF THE UNLAWFUL POSSESSION OF AMMUNITION STATUTE WHICH REQUIRES PROOF THE DEFENDANT WAS NOT AUTHORIZED TO POSSESS A PISTOL OR REVOLVER IS AN EXCEPTION, NOT A PROVISO; CONVICTION VACATED IN THE INTEREST OF JUSTICE DESPITE LACK OF PRESERVATION (FIRST DEPT).

The First Department, vacating defendant’s conviction of unlawful possession of ammunition pursuant to NYC Administrative Code 10-131[i][3], determined the language of the statute required that the People prove defendant was not authorized to possess a pistol or a revolver, which was not established by the evidence:

… [T]he language of the ammunition possession statute (Administrative Code § 10-131[i][3]) concerning authorization to possess a pistol or revolver within the City is an exception, not a proviso (Tatis, 170 AD3d at 48). Therefore, the People were required to prove, as an element of the offense, that defendant was not authorized to possess a pistol or revolver, regardless of whether defendant raised the issue in the first instance (id.). The evidence at trial did not establish that fact. Accordingly, we exercise our interest of justice jurisdiction to vacate that conviction. People v Anonymous, 2020 NY Slip Op 05689, First Dept 10-13-20

 

BOTH A FEDERAL HOBBS ACT ROBBERY CONVICTION AND A NORTH CAROLINA BREAKING AND ENTERING CONVICTION ARE EQUIVALENT TO NEW YORK FELONIES; DEFENDANT PROPERLY SENTENCED AS A SECOND FELONY DRUG OFFENDER (FIRST DEPT).

The First Department, in detailed analyses, determined a federal Hobbs Act robbery conviction, as well as a North Carolina breaking and entering conviction, constituted equivalents of New York felonies and therefore supported defendant’s status as a second felony drug offender:

As this Court held in People v Robles, (115 AD3d 420, 421 [1st Dept 2014], lv denied 23 NY3d 1066 [2014]), a Hobbs Act robbery is equivalent to the crime of larceny by extortion in New York (Penal Law 155.05), and a Hobbs Act robbery does not encompass a broader range of behavior than larceny by extortion. Contrary to defendant’s contention, the intent elements of each crime require proof that a defendant intended to commit a larceny, but do not require a specific intent that defendant intended to instill fear in order to extort; it is sufficient to show that the actus reus occurred in tandem with a defendant’s intent to commit a larceny … . …

The North Carolina statute, entitled “Breaking or Entering Buildings Generally,” independently qualifies as a predicate felony offense to justify enhanced sentencing in New York because it is equivalent to third-degree burglary. The North Carolina statute provides that a person is guilty of this crime when he “breaks or enters any building with intent to commit any felony or larceny therein” (see N.C.G.S.A. § 14-54[a]). New York’s third-degree burglary statute provides that a person is guilty of a class D felony if a person “knowingly enters or remains unlawfully in a building with intent to commit a crime” (PL 140.20). “A person . . . remains unlawfully in or upon premises when he is not licensed or privileged to do so” (PL 140.00[5]). People v Sylvester,2020 NY Slip Op 05702, First Dept 10-13-20

 

NO NEED TO SHOW THE LADDER WAS DEFECTIVE IN THIS LABOR LAW 240 (1) ACTION; IT WAS SUFFICIENT TO SHOW THE LADDER WAS UNSECURED AND FELL WHEN PLAINTIFF WAS STRUCK BY DEBRIS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was using an unsecured ladder when he was struck by debris causing him and the ladder to fall. There was no need to show the ladder was defective. It was sufficient to show the ladder was not secured:

The undisputed facts show prima facie that defendants violated Labor Law § 240(1) by failing to provide adequate safety devices to plaintiff, who was injured doing demolition work when the unsecured ladder he was using to remove a ceiling was struck by a piece of falling metal debris, causing him and the ladder to fall to the ground … . The record lacks any conflicting evidence relevant to the issue of whether Labor Law 240 (1) was violated, sufficient to raise a material issue of fact. The issues of fact relied upon by the motion court in denying partial summary judgment are immaterial to the issue of whether defendants’ violation of section 240(1) was a proximate cause of plaintiff’s injuries. Plaintiff was not required to show that the ladder he was using was defective, where testimony established prima facie that defendant failed to provide a safety device to insure the ladder would remain upright while plaintiff used it … . Avila v Saint David’s Sch., 2020 NY Slip Op 05571, First Dept 10-8-20

 

QUESTION OF FACT WHETHER THE PRESUMPTION A CERTIFICATE OF DEPOSIT (CD) HAS BEEN PAID OUT WITHIN 20 YEARS OF WHEN IT CAME DUE APPLIED TO CD’S IN PLAINTIFF’S DECEASED HUSBAND’S IRA WHICH WERE RENEWED AUTOMATICALLY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant bank’s motion for summary judgment in this action seeking the payment of certificates of deposit (CD’s) held in an independent retirement account (IRA) should not have been granted. The presumption that a CD has been paid out within 20 years of when it came due may not apply to these CD’s which were in plaintiff’s deceased husband’s IRA and were renewed automatically:

Defendant [bank] relied upon the common law rebuttable presumption of payment to establish its prima facie case. It presumes that payment on a CD has occurred within 20 years after the time it came due … . In opposition, plaintiff has raised issues of fact with respect to whether the presumption applies because the CD, held by an IRA, renewed automatically each year. Plaintiff has also provided an affidavit stating that she never presented the CD to defendant for payment and explaining the delay. Plaintiff’s affidavit was sufficient to warrant denial of summary judgment … . Friedfeld v Citibank, N.A., 2020 NY Slip Op 05575, First Dept 10-8-20

 

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HEARSAY STATEMENTS OF THE ALLEGED VICTIM WERE NOT CORROBORATED, NEGLECT FINDING REVERSED (FIRST DEPT).

The First Department, reversing the neglect finding, determined the hearsay statements of the alleged victim were not corroborated:

The finding of neglect was not supported by a preponderance of the evidence. “Unsworn out-of-court statements of the victim may be received and, if properly corroborated, will support a finding of abuse or neglect” … . Here, the child’s out-of-court statement made during his videotaped interview with an investigator from the the Child Advocacy Center, that respondent bit him on the right shoulder during a January 2017 incident, was not sufficiently corroborated … . Although medical findings confirmed that the child sustained injuries that were consistent with a bite mark, those findings in no way connected those marks to respondent. Further, there is no dispute that the child told respondent that he was going to make false allegations against her to the Administration for Children’s Services while the fact-finding hearing was pending, rendering his overall credibility quite impaired. Matter of Jaylin S. (Jasmine E.T.), 2020 NY Slip Op 05606, First Dept 10-8-20

 

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SUPREME COURT SHOULD NOT HAVE SEALED THE ENTIRE COURT RECORD, REDACTION IS APPROPRIATE FOR TRADE SECRETS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the entire court record should not have been sealed. The facts were not discussed, but the court noted redaction is appropriate to protect trade secrets, confidential business information or proprietary information:

We reverse the order of the motion court for two reasons. First, the motion court erred by sealing the entire court file. As we have previously explained, “We recognize that it may be easier for the parties and the motion court to seal an entire court record, rather than make a determination on a document by document basis about sealing, but administrative convenience is not a compelling reason to justify sealing” … . Indeed, “In camera review and appropriate redaction is a valid method of protecting trade secrets” …

Second, defendants failed to meet their burden of showing grounds for protecting from public access any or all of the information in Exhibit A to the complaint, let alone the entire court record. They failed to show that Exhibit A, or any other document likely to become part of the record, contains trade secrets, confidential business information, or proprietary information … . Vergara v Mission Capital Advisors, LLC, 2020 NY Slip Op 05610,First Dept 10-8-20

 

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ALTHOUGH THE INCONSISTENT VERDICT ARGUMENT WAS NOT PRESERVED, THE FAILURE TO AWARD DAMAGES FOR FUTURE PAIN AND SUFFERING, IN THE FACE OF AWARDING DAMAGES FOR PAST PAIN AND SUFFERING AND FUTURE MEDICAL EXPENSES, REQUIRED A NEW TRIAL ON THAT ISSUE (FIRST DEPT).

The First Department, setting aside the verdict for future damages and ordering a new trial on that issue, determined the awards for past pain and suffering and future medical expenses rendered the failure to award damages for future pain and suffering a material deviation from reasonable compensation:

Plaintiff failed to preserve for appellate review his claim that the verdict was inconsistent because the claim was raised after the jury had been discharged. However, where the jury verdict awards plaintiff damages for past pain and suffering and future medical expenses, but declines to award damages for future pain and suffering, the verdict on future pain and suffering is contrary to a fair interpretation of the evidence and constitutes a material deviation from what would be reasonable compensation … . Paucay v D.P. Group Gen. Contrs./Devs., Inc., 2020 NY Slip Op 05611, First Dept 10-8-20

 

SALARIES OF UNDERCOVER POLICE OFFICERS NOT SUBJECT TO DISCLOSURE PURSUANT TO A FREEDOM OF INFORMATION LAW REQUEST (FIRST DEPT).

he First Department, reversing (modifying) Supreme Court, determined the salary of undercover police officers should not be disclosed:

FOIL provides that “[n]othing in [the statute] shall be construed to require any entity to prepare any record not possessed or maintained by such entity” (Public Officers Law § 89[3][a]), with exceptions not raised here. Accordingly, respondent is not obligated to compile “aggregate data” “from the documents or records in its possession” … .

In any event, the information sought as to the salaries of undercover police officers, whether aggregated or individualized, is exempt from disclosure under FOIL’s public safety exemption (Public Officers Law § 87[2][f]). Respondent met its burden of making a particularized showing that publicly releasing this information would create “a possibility of endangerment” to the public’s safety … . Respondent submitted an affidavit of the Undercover Coordinator of the New York City Police Department (NYPD) establishing that this information could be used to estimate the total number of undercover officers employed by NYPD. The analysis of petitioner’s request must consider not only the instant FOIL request for information as to fiscal year 2017, but also future requests which could be made for equivalent information as to other years. Such information would allow members of the public to estimate the increases or decreases in the overall number of undercover officers, which could “undermine their deterrent effect, hamper NYPD’s counterterrorism operations, and increase the likelihood of another terrorist attack” … . Respondent’s past disclosure of salary and other information as to certain public employees not employed by NYPD is not dispositive. Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 2020 NY Slip Op 05449, First Dept 10-6-20

 

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ALTHOUGH COUNSEL’S FAILURE TO IDENTIFY THE PROPER PARTY TO SUE WAS ARGUABLY NOT EXCUSABLE, THE DEFENDANT HAD TIMELY KNOWLEDGE OF THE NATURE OF THE ACTION AND WAS NOT PREJUDICED BY THE DELAY; THE APPLICATION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s application to file a late notice of claim in this slip and fall case should have been granted. Although the excuse for not filing on time was not a good one, counsel’s failure to identify the proper party to sue, the defendant had timely knowledge of the nature of the action:

Although counsel’s error in identifying the proper party was arguably not excusable, the error was not due to any fault or delay on the part of petitioner, and “[t]he failure to set forth a reasonable excuse is not, by itself, fatal to the application” … . This is particularly true where, as here, the record shows that respondents received timely and actual notice of the essential facts underlying plaintiff’s claim … .

Here, the incident report gave respondents actual knowledge of the pertinent facts constituting the claim. The report makes clear that petitioner fell on the sidewalk, and the photographs contained in the report show that the sidewalk is cracked and raised, presenting a tripping hazard … . Furthermore, according to petitioner’s 50-h testimony, her fall was notable enough that a security guard immediately called his supervisor to the scene, and there is no indication that respondents are prejudiced by the delay … . English v Board of Trustees of the Fashion Inst. of Tech., 2020 NY Slip Op 05450, First Dept 10-6-20

 

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ACTION TO ENFORCE A FOREIGN JUDGMENT AGAINST A DELAWARE DISSOLVED LIMITED LIABILITY COMPANY COULD NOT BE MAINTAINED BECAUSE THE CERTIFICATE OF CANCELLATION HAS NOT BEEN NULLIFIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the action to domesticate and enforce a foreign judgment after defendant corporation had been dissolved could not be maintained:

Plaintiff commenced this action against defendant, a Delaware limited liability company, to domesticate and enforce a foreign judgment in its favor several months after defendant had been dissolved and a certificate of cancellation filed (see 6 Del C § 18-203[a]). As the certificate of cancellation has not been nullified and plaintiff does not seek nullification, plaintiff cannot maintain this action (6 Del C § 18-803[b]) … . Epie v Herakles Farms, LLC, 2020 NY Slip Op 05283, First Dept 10-1-20

 

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