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ALTHOUGH IT WAS ERROR TO ALLOW THE PROSECUTION TO CROSS-EXAMINE A DEFENSE WITNESS ABOUT PRIOR UNCHARGED OFFENSES ALLEGEDLY INVOLVING THE DEFENDANT, THE ERROR WAS HARMLESS; THE DISSENTERS ARGUED THE ERROR WAS REVERSIBLE (FIRST DEPT).

The First Department, over a two-justice dissent, determined, although the trial court erred in allowing cross-examination of a defense witness (and co-defendant), Calderon, about prior uncharged offenses allegedly involving defendant, the error was harmless. The dissenters argued the error was reversible:

We agree with the dissent that the prosecutor improperly cross-examined Calderon concerning three other crimes in which he had left the scene in a dark SUV. Some of the questions included a partial or complete recitation of the license plate number of the SUV used in the instant crime. This was a clear attempt to associate defendant with uncharged crimes, and the court should have sustained defense counsel’s objections to this line of questioning. Similarly, the prosecutor should not have made two references in her summation to the use of this “getaway vehicle” in other crimes when discussing Calderon’s testimony. * * *

The evidence at trial demonstrates that there is no “significant probability, rather than only a rational possibility,” that the jury would have acquitted defendant had it not been for the references to the SUV’s connection with Calderon’s other crimes … . People v Vasquez, 2020 NY Slip Op 02237, First Dept 4-9-20

 

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NOTWITHSTANDING THE TENANT’S LEASE-OBLIGATION TO KEEP THE SIDEWALK FREE OF ICE AND SNOW, THE LANDLORD HAD THE NONDELEGABLE DUTY TO KEEP A RAMP LEADING TO THE SIDEWALK IN A SAFE CONDITION IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant owner of the property leased by a restaurant had a nondelegable duty to keep a metal ramp leading from the restaurant to the sidewalk (a special use of the sidewalk) in a safe condition, notwithstanding the restaurant’s lease-obligation to remove ice and snow from the sidewalk. Plaintiff, a restaurant employee, slipped and fell on snow and ice on the ramp:

Plaintiff, an employee of the restaurant owned by third-party defendant, slipped and fell on snow and ice on a metal ramp leading from the side door of the restaurant to the sidewalk. Third-party defendant leases the ground floor and basement space from defendant landowner. The evidence shows that the ramp was erected over the public sidewalk alongside defendant’s building, and is not included in the diagram of the leased space. Further, the director of leasing for defendant’s property manager testified that the ramp was built for use by people with disabilities.

Notwithstanding any lease provisions obligating the restaurant to remove snow and ice from the sidewalk, defendant, as owner of the property abutting the sidewalk, had a nondelegable duty to keep the sidewalk, and any special uses made of the sidewalk, in a safe condition, including the removal of snow and ice … . Dembele v 373-381 Pas Assoc., LLC, 2020 NY Slip Op 02256, First Dept 4-9-20

 

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THE ISSUES ADDRESSED IN THIS COMPREHENSIVE ASBESTOS-MESOTHELIOMA OPINION INCLUDE: GENERAL CAUSATION; SPECIFIC CAUSATION; WHETHER THE CLOSING PREJUDICED THE JURY; AND THE APPORTIONMENT OF DAMAGES (FIRST DEPT).

The First Department, in a comprehensive opinion by Justice Gische, over a dissent, determined there was sufficient evidence of causation to raise a jury question in this asbestos-mesothelioma action. The issues addressed included: (1) general causation; (2) specific causation; (3) whether plaintiff’s counsel’s closing required a new trial; and (4) the apportionment of damages. The opinion is far too detailed and comprehensive to fairly summarize here:

The Court of Appeals recognized that precise information and exact details are not always available in toxic tort cases and they may not be necessary so long as there is “evidence from which a reasonable person could conclude” that the defendant’s offending substance “has probably caused” the kind of harm of which the plaintiff complains … . * * *

After each sides’ attorney highlighted the weaknesses in the other sides’ expert’s scientific evidence and authorities, it then became the province of the jury to weigh the evidence and decide which opinion was more credible … . There is no legal basis to disturb the jury’s findings and verdict in favor of plaintiff … . * * *

There is no basis, in this record, for a finding that the weight of the evidence presented at trial preponderated in favor of finding no specific causation. * * *

Plaintiff’s counsel’s summation comments were isolated remarks during a very lengthy summation. They were not pervasive, egregious or an obdurate pattern of remarks that inflamed the jury into believing that the focus of plaintiff’s exposure to asbestos contaminated talc was other than airborne particulants that she had breathed in for many years … . * * *

Issues raised by plaintiff on its cross appeal regarding the court’s calculation of offsets for payments made by the settling defendants … do have merit. General Obligations Law § 15-108 requires that a judgment be adjusted by subtracting the greater of other tortfeasors’ equitable share of the damages or the amount actually paid by them. Nemeth v Brenntag N. Am., 2020 NY Slip Op 02261, First Dept 4-9-20

 

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DEFENDANT’S REPEATED REQUESTS TO REPRESENT HIMSELF SHOULD NOT HAVE BEEN DENIED; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversed defendant’s conviction and ordered a new trial, finding that defendant had been denied his right to represent himself. The opinion is basically a detailed rendition of the facts demonstrating that defendant repeatedly requested that he be allowed to represent himself and was repeatedly assigned new counsel after he repeatedly was found mentally fit for trial. There was no evidence defendant was seeking to delay the trial or otherwise interfere with the proceedings:

When a defendant desires to exercise the right to represent himself, “the court’s only function is to ensure that the defendant is acting knowingly and voluntarily, that is, that the defendant is aware of the disadvantages and risks of waiving his right to counsel” … . If the waiver is knowing and voluntary, the request must be granted … . * * *

The court’s belated finding … that defendant intended to “disrupt” the proceedings cannot be used as post-hoc justification of its earlier denials of repeated requests to proceed pro se. Defendant’s requests to proceed pro se were denied throughout 2008, 2009, and much of 2010, without mention of “disruption” as a basis.

It was hardly surprising that defendant expressed increasing frustration with the process, given that he had repeatedly been found fit to proceed, and yet the court continued to deny his requests to proceed pro se and to ignore his complaints regarding counsel. As the Court of Appeals has observed, in finding a defendant’s “outburst” insufficient to trump his right to self-representation,

“Just as the court may not rely on a postruling outburst to validate an erroneous denial, the court may not goad the defendant to disruptive behavior by conducting its inquiry in an abusive manner calculated to belittle a legitimate application. An outburst thus provoked will not justify the forfeiture of the right to self-representation” … .

That defendant on occasion agreed to the appointment of new lawyers does not render his requests to proceed pro se equivocal … . A defendant who elects to proceed pro se “is frequently motivated by dissatisfaction with trial strategy or a lack of confidence in counsel” … .

An erroneous denial of the right to defend onself is not subject to a harmless error analysis. We are therefore obliged to reverse the conviction and remand for a new trial. People v Trammell, 2020 NY Slip Op 02190, First Dept 4-2-20

 

PRIOR CONVICTION OF CRIMINAL POSSESSION OF A WEAPON DID NOT DISQUALIFY DEFENDANT FROM ELIGIBILITY FOR YOUTHFUL OFFENDER STATUS; IT IS NOT AN ‘ARMED FELONY’ (FIRST DEPT).

The First Department, vacating defendant’s sentence, determined the prior conviction of criminal possession of a weapon was not an “armed felony” did not render defendant ineligible for youthful offender status:

Defendant’s prior conviction of criminal possession of a weapon in the second degree, for “possess[ing] a loaded firearm” (Penal Law § 265.03[1][b]) was not an “armed felony” within the meaning of CPL 720.10(2)(a). As relevant here, CPL 1.20, which CPL 720.10(2)(a) incorporates, defines “armed felony” as “any violent felony offense defined in section 70.02 of the penal law that includes as an element . . . possession . . . of a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious physical injury may be discharged” … . The statutory definition of “loaded firearm” explicitly does not require that the firearm be “actually” loaded, because it includes within the definition a “firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm” (Penal Law § 265.00[15]). In contrast, the definition of “deadly weapon” contains no proviso indicating that an actually unloaded weapon is deemed “loaded,” and the definition is therefore met, where usable ammunition is readily available. Accordingly, “in order to be a deadly weapon, a gun must actually be loaded, as that term is commonly understood” … . Since a “loaded firearm” is therefore not always a “deadly weapon,” the crime to which defendant pleaded guilty did not “include[] as an element . . . possession . . . of a deadly weapon” (CPL 1.20[41][a]), and the court should not have found that defendant’s conviction rendered him presumptively ineligible. People v Ochoa, 2020 NY Slip Op 02156, First Dept 4-2-20

 

FALL AFTER STEPPING ON LOOSE PIPES NOT COVERED BY LABOR LAW 240 (1); LABOR LAW 200 AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 240 (1) cause of action based upon plaintiff’s fall when he stepped on a pile of loose pipes was properly dismissed. However the Labor Law 200 cause of action and the Labor Law 241 (6) cause of action against some of the defendants should not have been dismissed:

The court correctly dismissed the Labor Law § 240(1) claim, as that statute does not cover a fall allegedly caused by stepping on a pile of unsecured pipes on the floor of a construction site … . …

The Labor Law § 200 and common-law negligence claims should not be dismissed as against UA, Independent Mechanical, Intel Plumbing, and WeWork. The cause of plaintiff’s accident was not the manner in which his work was performed but a dangerous condition on the premises, i.e., the loose pipes that had been laid on the floor directly in front of a doorway … . …

… [T]he record does not support the summary dismissal of the Labor Law § 241(6) claim as against the UA and 401 Park defendants. Plaintiff’s testimony that his fall was caused by a pile of loose pipes obstructing the doorway presents an issue of fact as to whether the accident was caused by a tripping hazard in a passageway (Industrial Code [12 NYCRR] § 23-1.7[e][1] … ). There is also an issue of fact as to whether the accident was caused by a violation of 12 NYCRR 23-1.7(e)(2), since part of the floor where workers worked or passed was not kept free from scattered tools or materials … . In addition, there is an issue of fact as to whether the unsecured pipes, which were allegedly piled about two feet high directly in front of the doorway, were safely stored pursuant to 12 NYCRR 23-2.1(a)(1) … . Armental v 401 Park Ave. S. Assoc., LLC, 2020 NY Slip Op 02154, First Dept 4-2-20

 

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QUESTIONS OF FACT WHETHER PLAINTIFF-NURSE WHO WAS ASSAULTED BY A PATIENT WAS A THIRD-PARTY BENEFICIARY OF THE SECURITY-COMPANY CONTRACT AND WHETHER PLAINTIFF DETRIMENTALLY RELIED UPON A SECURITY GUARD’S PROMISE TO RESPOND TO HER CALL FOR HELP (FIRST DEPT).

The First Department determined defendant security company’s (Sera’s) motion for summary judgment in this patient-assault case was properly denied. Plaintiff, a nurse at a healthcare facility, was assaulted by a patient. Sera argued it was only responsible for providing protection against intruders, not patients. Because the contract with Sera was ambiguous the court properly considered extrinsic evidence (deposition testimony) which indicated Sera responded to staff’s calls for help dealing with patient “altercations” or “fighting.” There were questions of fact whether plaintiff was a third-party beneficiary of the Sera’s contract with the facility and whether plaintiff detrimentally relied on Sera to protect her from the assault. Questions of fact about Sera’s duty to plaintiff and the foreseeability of the assault were raised:

Given [the] testimony and the contractual language, the motion court properly denied summary judgment on the issue of whether defendant is liable to plaintiff as a third-party beneficiary of the contract.

Similarly, the motion court also properly concluded that plaintiff raised questions of fact sufficient to overcome summary judgment as to whether Sera is liable to plaintiff under a theory of detrimental reliance based on plaintiff’s allegation that the Sera security guard promised to respond to plaintiff’s call for assistance, but failed to do so in a timely manner or failed to call the police promptly or at all (see Espinal, 98 NY2d at 140). Defendant’s security guard testified that he could not recall when he received the call from his colleague directing him to go to the floor where plaintiff worked, whether he was advised of any details of what was occurring, or how long it took him to get there. He further testified that he was trained to investigate calls prior to determining whether to call the police, and that, if a staff member called the security station about an incident, it was the Sera security guards’ responsibility to call 911 or the police when warranted. Kuti v Sera Sec. Servs., 2020 NY Slip Op 02153, First Dept 4-2-20

 

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IN THIS DESIGN DEFECT PRODUCTS LIABILITY CASE, THE LOSS OF THE SPECIFIC PRODUCT WHICH CAUSED THE INJURY DID NOT PREVENT DEFENDANT-MANUFACTURER FROM PRESENTING A DEFENSE; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON SPOLIATION GROUNDS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant-manufacturer (Doka) of an allegedly defective ratchet was not entitled to dismissal of the complaint on the ground that plaintiff could not produce the ratchet (spoliation). The ratchet was used to move heavy concrete forms into place along a track. Allegedly the ratchets broke when extra pressure was placed on them when the forms became “bound” on the track. Plaintiff alleged he was injured when he used his foot to increase the pressure on the ratchet when the form became bound. Because this was a design-defect case, and because the ratchets allegedly had broken before under similar circumstance, the defendant-manufacturer could present a defense and, therefore, the loss of the ratchet did not warrant dismissal of the complaint:

In cases like this, where the claim is based on a design defect (as opposed to a manufacturing defect), the absence of the product is not necessarily fatal to the defendant. As this Court has observed, a product’s design “possibly might be evaluated and the defect proved circumstantially” … . Circumstantial evidence could, one would imagine, be the testimony of someone involved in the design process, and plans or photographs of the product before it entered the stream of commerce. It could also, assuming that the missing product was one of multiple units manufactured using the same design, be another one of those units. * * *

Doka does not, in any meaningful way, argue why its inability to inspect the exact ratchet that plaintiff was using would prevent it from defending against the products liability claim. Rossi v Doka USA, Ltd., 2020 NY Slip Op 02098, First Dept 3-26-20

 

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS WAS PROPERLY DENIED WITHOUT A HEARING; THE TWO DISSENTERS ARGUED THE PRO SE MOTION WAS SUFFICIENT TO WARRANT A HEARING, DESPITE THE TECHNICAL DEFECTS (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined defendant’s pro se motion to vacate his conviction by guilty plea, on ineffective assistance of counsel grounds, was properly denied without a hearing. The dissenters argued defendant raised the issue sufficiently to warrant a hearing:

Defendant contends that defense counsel was ineffective because he failed to advise defendant, prior to the guilty plea, of a potentially viable affirmative defense concerning the operability of the firearm used in the robberies … . Defendant did not submit, however, the statutorily-required “sworn allegations” of “the existence or occurrence of facts” in support of his motion to warrant such a hearing … . The rule that a CPL 440.10 motion must be predicated on sworn allegations is a fundamental statutory requirement that a defendant must satisfy to be entitled to a hearing … . Absent sworn allegations substantiating defendant’s contentions, the court did not abuse its discretion in summarily denying the motion … .

Specifically, defendant did not aver in his initial motion papers that he would have rejected the favorable plea deal and insisted on proceeding to trial had he been made aware of the potentially viable affirmative defense. Inasmuch as defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial”  … , his failure to swear that he would have done so is fatal to his motion, and thus the court did not err in denying it without a hearing … . People v Dogan, 2020 NY Slip Op 02021, Fourth Dept 3-20-20

 

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FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POST RELEASE SUPERVISION REQUIRED VACATION OF THE SENTENCE; PRESERVATION OF THE ERROR NOT NECESSARY (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined defendant should have been informed his sentence would include a period of post release supervision (PRS). Because defendant was not put on notice, there was not need to preserve the issue for appeal:

At the plea proceeding, the court advised defendant that under the plea agreement, he would plead guilty to third-degree possession, a class B felony, and fifth-degree possession, a class D felony, with the understanding that if he complied with the terms of the plea agreement, he would be allowed to withdraw his plea to the B felony, and be sentenced, solely on the D felony, to 3½ years in prison, followed by two years of postrelease supervision. The court stated that if defendant violated the terms of the plea agreement, he could be sentenced to up to 15 years in prison on the B felony, but it neglected to state that any enhanced sentence would include a period of PRS. Defendant violated the plea agreement by, among other things, failing to appear for sentencing, and the court imposed an enhanced sentence that included two years of post release supervision concurrent on the B and D felonies.

The court was required to advise defendant that his potential sentence in the event he violated the plea conditions would include PRS, and it was also required to specify the length of the term of PRS … . The prosecutor’s brief reference to PRS immediately before sentencing was not the type of notice under People v Murray (15 NY3d 725 [2010]) that would require defendant to preserve the issue … . People v Jamison, 2020 NY Slip Op 01955, First Dept 3-19-20

 

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