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DEFENDANT’S MOTION TO COMPEL THE PRODUCTION OF TAX RETURNS AFTER THE PARTIES’ FAILURE TO RESPOND TO THE DEMAND FOR PRODUCTION SHOULD HAVE BEEN DENIED; THE FAILURE TO RESPOND TO A PALPABLY IMPROPER DEMAND FOR PRODUCTION, I.E. A DEMAND FOR TAX RETURNS, DOES NOT WAIVE THE ABILITY TO OBJECT TO THE DEMAND ON APPEAL; DEFENDANT MAY RENEW THE MOTION TO COMPEL PRODUCTION OF THE TAX RETURNS IF THE REQUIRED SHOWINGS ARE MADE (FIRST DEPT).

The First Department noted that the failure to respond to defendant-Mazal’s demands for production waived any objections to the demands. Mazal’s motion to compel discovery therefore was properly granted. However objections to demands which are palpably improper are not waived by a failure to respond and Mazal’s demand for tax returns may be in the palpably-improper category. Mazal’s motion to compel the production of tax returns should therefore have been denied. But the First Department denied that portion of the motion to compel without prejudice and granted leave to renew if Mazal can make the required showing of need:

The motion court providently deemed the appealing parties’ objections waived under CPLR 3122 as a result of their failure to respond timely to Mazal’s demands for production … . We modify, however, with respect to Mazal’s demands for the appealing parties’ tax returns, as objections to “palpably improper” demands are not waived … .

A demand for the production of tax returns is disfavored and requires “a strong showing of necessity,” and the inability to obtain the information from other sources … . Here, the failure “to identify the particular information the tax returns . . . will contain and its relevance to the claims made” … should have been sufficient to deny Mazal’s motion to compel. Indeed, the tax returns were not necessary to determine whether plaintiffs acquired an interest in the properties in 1994 or retained it thereafter — the reason the motion court gave for granting the motion. However, Mazal argues that the tax returns could be relevant to its affirmative defenses of laches, estoppel, waiver, ratification, and consent, and the motion court did not pass on this issue. As a result, although Mazal did not sufficiently show the inability to obtain the information sought from other sources or, indeed, what specific information the appealing parties’ tax returns will show, we grant leave to renew upon a proper showing … . Demurjian v Demurjian, 2020 NY Slip Op 03479, First Dept 6-18-20

 

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SELF-EXECUTING CONDITIONAL DISCOVERY ORDER BECAME ABSOLUTE UPON NON-COMPLIANCE; A MOTION TO VACATE, NOT AN APPEAL, IS THE PROPER PROCEDURE TO CONTEST THE ORDER ON THE GROUND OF EXCUSABLE DEFAULT; DEFENDANTS TOOK NO ACTION TO AVOID THE DEFAULT (FIRST DEPT).

The First Department noted that defendants’ failure to comply with a self-executing, conditional order striking the answer became absolute. The proper way to contest such an order is to move to vacate, not appeal:

When defendants failed to comply with the self-executing, conditional order striking their answer if they did not produce a witness for deposition by a date certain, the order became absolute ( … CPLR 3126[3]). Defendants’ proper recourse was to move to vacate the conditional order on the ground of excusable default (… CPLR 5015[a]). They did not seek that relief. In any event, the excuses for failing to comply with the court’s order that defendants asserted in opposition to plaintiff’s motion were not reasonable, and defendants failed to seek an adjournment from the court or take any other action to avoid their knowing default. Humble Monkey, LLC v Rice Sec., LLC, 2020 NY Slip Op 03470, First Dept 6-18-20

 

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THE ORDER WAS NOT ENTERED ON CONSENT AND THEREFORE WAS APPEALABLE; GRANDPARENTS’ PETITIONS FOR VISITATION SHOULD NOT HAVE BEEN GRANTED ABSENT A FULL TRIAL (FIRST DEPT).

The First Department, after noting the order was not entered on consent and was therefore appealable, determined the grandparents should not have been awarded visitation absent a full trial:

In the absence of consent, Family Court should not have awarded the paternal grandparents visitation without conducting a full trial. The decision was based only on the grandmother’s partial testimony. The separately petitioning grandfather did not testify. The mother was not present due to a medical procedure she was undergoing in North Carolina. Even if the court was justified in drawing a negative inference from her failure to give testimony … , the court failed to afford the attorney for the child (AFC) an opportunity to ascertain the seven-year-old child’s position … . Although the Family Court appropriately appointed an AFC, he did not let her do her job. The child’s position in this case was particularly important because of the mother’s representations that the child did not want to see the grandparents so soon following her father’s death and would be traumatized by such visitation. In addition, each of the grandparents brought separate petitions and each was separately represented in this matter. Although there is some indication that the grandparents are separated, because of the truncated record, there is insufficient information to support the court’s having jointly awarded jointly awarded them visitation with the child. Without a full hearing, the record is insufficient to determine whether visitation with the paternal grandparents is in the child’s best interests … . If after a full hearing upon remand the Family Court determines that grandparental visitation is in the child’s best interest, it should also clarify the award of visitation rights vis-a-vis each grandparent, given that they filed separate petitions and were not jointly represented by counsel, and thus in fact may be separated. Matter of Donna F.T., 2020 NY Slip Op 03469, First Dept 6-18-20

 

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

The First Department upheld the defendant’s sentence as a youthful offender to 60 days in jail and five years probation. Defendant stole a breakfast sandwich from a restaurant after throwing a banana at an employee, jumping over the counter, saying he had gun, and leaving the restaurant with the sandwich. This decision is significant because of the extensive dissent arguing the sentence was too harsh. People v Guilermo P., 2020 NY Slip Op 03464, First Dept 6-18-20

 

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JURY SHOULD HAVE BEEN CHARGED ON THE RES IPSA LOQUITUR DOCTRINE AND INSTRUCTED THAT THE VIOLATION OF THE NYC ADMINISTRATIVE CODE IS SOME EVIDENCE OF NEGLIGENCE IN THIS FALLING OBJECT CASE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing Supreme Court and ordering a new trial, determined the jury should have been instructed on the res ipsa loquitur doctrine and the violation of the NYC Administrative Code was some evidence of negligence. Plaintiff was allegedly injured when a towel dispenser/trash receptacle (TD/TR) fell out of the wall:

… [W]e find that the trial court improvidently exercised its discretion in declining to charge the jury on res ipsa loquitur. A res ipsa charge “merely permits the jury to infer negligence from the circumstances of the occurrence” … . The doctrine does not require “sole physical access to the instrumentality causing the injury” … . The trial court should also have charged that a violation of Administrative Code of the City of New York § 28-301.1, which requires property owners to maintain their buildings in a safe condition, constitutes “some evidence of negligence” … . To the extent that the TD/TR unit allegedly fell out of the wall eight months after installation by defendant John Spaccarelli, the court erred by failing to allow plaintiff to fully question the credentials of Mr. Spaccarelli and his qualifications as an expert … . Galue v Independence 270 Madison LLC, 2020 NY Slip Op 03463, First Dept 6-18-20

 

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

The First Department, affirming defendant’s murder, assault and weapon-possession convictions, and affirming the denial of defendant’s motion to vacate the convictions, determined: (1) the issue re: the warrantless procurement of cell site location data was not preserved, and preservation was necessary despite the fact that the US Supreme Court case requiring warrants was not decided at the time of trial; (2) the defendant was properly indicted, by different grand juries, for both depraved indifference and intentional murder; and (3) consecutive sentences for possession of a weapon and the shootings were appropriate:

At trial, defendant did not preserve any claim relating to cell site location information obtained without a warrant, and the motion court providently exercised its discretion under CPL 440.10(2)(b) when it rejected defendant’s attempt to raise this issue by way of a postconviction motion. Defendant asserts that it would have been futile for trial counsel to raise the issue because the Supreme Court of the United States had not yet decided Carpenter v United States (585 US __, 138 S Ct 2206 [2018]), a case that we assume, without deciding, applies here because defendant’s direct appeal was pending at the time that case was decided. We conclude that defendant should not be permitted to avoid the consequences of the lack of preservation. Although Carpenter had not yet been decided, and trial counsel may have reasonably declined to challenge the cell site information, defendant had the same opportunity to advocate for a change in the law as did the litigant who ultimately succeeded in doing so … . In the closely related context of preservation, the Court of Appeals has expressly rejected the argument that an “appellant should not be penalized for his failure to anticipate the shape of things to come” … . * * *

A grand jury’s indictment of defendant for depraved indifference murder, after a prior grand jury had indicted him for intentional murder, did not violate CPL 170.95(3). The second presentation did not require permission from the court, because the first indictment cannot be deemed a dismissal of the depraved indifference count in the absence of any indication that the first grand jury was aware of or considered that charge … . The rule that a person may not be convicted of both intentional and depraved indifference murder … applies to verdicts after trial, not indictments. These charges may be presented to a trial jury in the alternative (as occurred in this case, where defendant was acquitted of depraved murder but nevertheless claims a spillover effect). Furthermore, the People were not required to present both charges to the same grand jury … . People v Crum, 2020 NY Slip Op 03282, First Dept 6-11-20

 

VENUE WAS IMPROPER; DEFENDANTS FOLLOWED THE STATUTORY PROCEDURE AND MOVED FOR A CHANGE OF VENUE; NO OTHER PARTY MOVED FOR A CHANGE OF VENUE; THE MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendants’ (Transit Authorities’) motion to change venue should have been granted. Venue was improper, the Transit Authorities followed the correct procedure, and no other party made a motion to change venue:

After plaintiffs commenced this action in Bronx County, the Transit Authorities timely served a demand for a change of venue as of right to New York County, where one of them has its principal office (see CPLR 505[a]; 511). Plaintiffs did not respond to the demand, and the Transit Authorities timely moved to change venue (see CPLR 510[1]; 511[b]). In opposition to the motion, plaintiffs did not dispute that their choice of venue was improper, but requested that venue be placed in Kings County, where the accident occurred. No other defendant timely appeared in opposition to the motion, although the City defendants submitted a belated affirmation asserting that venue should be placed in Kings County under CPLR 504(3).

By failing to respond to the Transit Authorities’ demand to change venue to a proper forum, plaintiffs forfeited their right to select venue … . Further, no party moved to transfer venue to an alternate county … . Thus, once the Transit Authorities had followed the procedure set forth in CPLR 511 and established that the county chosen by plaintiffs was improper, their motion to change venue to New York County as of right should have been granted … . Richardson v City of New York, 2020 NY Slip Op 03281, First Dept 6-11-20

 

PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT ON LABOR LAW 240 (1), LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION IN THIS FALLING OBJECT CASE, EVEN IF PLAINTIFF SHOULD NOT HAVE BEEN WHERE HE WAS AT THE TIME OF THE ACCIDENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment against the general contractor (Sweeney) on his Labor Law 240 (1) cause of action in this falling object case, even if plaintiff was not supposed to be in the area when he was struck (comparative negligence is inapplicable). Plaintiff was also entitled to summary judgment on his Labor Law 200 and common-law negligence claims against the subcontractor (Structure Tech) whose employee caused the object to fall. There was a question of fact whether the Structure Tech employee was instructed by Sweeney to cut the object which fell, which would make Sweeney liable for the Labor Law 200 and negligence causes of action as well:

Plaintiff should have been awarded summary judgment on the issue of liability on his Labor Law § 240(1) claim as against Sweeney because there was no overhead protection provided 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 … . …

Plaintiff also should have been awarded summary judgment on his Labor Law § 200 and common-law negligence claims as against Structure Tech. As a subcontractor and, therefore, 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 03280, First Dept 6-11-20

 

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ASBESTOS-INJURY CASE SHOULD NOT HAVE BEEN GRANTED, PROPER BURDEN OF PROOF EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this asbestos -injury case should not have been granted and, alternatively, even if the motion were properly granted, leave to renew should have been granted based on additional evidence:

In connection with a motion for summary judgment in an action based on exposure to asbestos, defendant has the initial burden of showing “unequivocally” that its product could not have contributed to the causation of decedent’s asbestos-related injury … .

Defendant Burnham failed to sustain its initial burden of demonstrating that its products could not have contributed to decedent’s mesothelioma. Decedent’s testimony identified defendant as the manufacturer of greenhouses in which he worked and cited three possible sources of asbestos: transite benches in the greenhouses, window glazing and the greenhouse boiler. Burnham provided no evidence demonstrating that its products could not have been the source of the asbestos that caused decedent’s illness. It only pointed to gaps in plaintiffs’ proof, which was insufficient to meet its burden … . Even if the burden had shifted, plaintiffs’ evidence in opposition raised an issue of fact as to whether Burnham had sold, distributed, and recommended asbestos-containing products such as those used in plaintiffs’ family’s gardening business. While hearsay, that evidence could be considered by the court since it was not the sole basis of the opposition … .

Alternatively, even if the summary judgment motion had been properly granted, the court should have granted leave to renew in the interests of fairness and justice since plaintiffs presented an affidavit of decedent’s estranged brother, which supplied crucial evidence linking decedent’s illness to Burnham’s products. Fischer v American Biltrite, Inc., 2020 NY Slip Op 03277, First Dept 6-11-20

 

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MOTION FOR CLASS CERTIFICATION BASED UPON ALLEGEDLY ADULTERATED FUEL OIL SHOULD NOT HAVE BEEN GRANTED BECAUSE THE NUMEROSITY REQUIREMENT WAS NOT SUPPORTED BY ADMISSIBLE EVIDENCE; DISMISSAL WAS WITHOUT PREJUDICE AND LEAVE TO RENEW WAS GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion for class certification should have been denied because the proof of the numerosity prerequisite was not in admissible form. The dismissal was without prejudice because it appeared the evidence could be properly presented:

The gravamen of plaintiffs’ claim, and that for which they seek class certification, is that defendant provided them and others similarly situated “with inferior, adulterated heating oil, i.e. that the fuel oil that was delivered to them contained oils of lesser value mixed into the ordered grade of fuel oil, so that the delivered product did not meet the standards of the parties’ contracts” … . Contrary to defendant’s contention, this is the predominant question of law and fact in this case, and it is common among the class. In any event, “the fact that questions peculiar to each individual may remain after resolution of the common questions is not fatal to the class action” … . Moreover, “CPLR article 9 affords the trial court considerable flexibility in overseeing a class action,” and the court could even “decertify the class at any time before a decision on the merits if it becomes apparent that class treatment is inappropriate” … . Supreme Court is more than able to recognize if its class certification becomes unduly cumbersome, and, if so, how best to fashion a remedy.

Nevertheless, “[t]he proponent of class certification bears the burden of establishing the criteria promulgated by CPLR 901(a) and must do so by tender of evidence in admissible form” … . Here, plaintiffs failed to submit admissible evidence demonstrating that the numerosity prerequisite to class certification was satisfied. However, the record suggests that such evidence is in plaintiffs’ possession but simply was not submitted in connection with their motion. Accordingly, plaintiffs are given leave to renew their motion for class certification, upon admissible evidence providing a sufficient basis for determining the size of the potential class. Mid Is. LP v Hess Corp., 2020 NY Slip Op 03270, First Dept 6-11-20

 

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