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ELEVATOR MAINTENANCE COMPANY DID NOT DISPLACE THE BUILDING OWNER’S AND MANAGER’S DUTY TO KEEP THE ELEVATORS SAFE AND DID NOT LAUNCH AN INSTRUMENT OF HARM; IT’S MOTION FOR SUMMARY JUDGMENT IN THIS ELEVATOR ACCIDENT CASE SHOULD HAVE BEEN GRANTED; A VIOLATION OF THE NYC BUILDING CODE IS NOT NEGLIGENCE PER SE (FIRST DEPT). ​

The First Department, modifying Supreme Court in this elevator accident case, noted that violation of the NYC Building Code is some evidence of negligence but not negligence per se, and held that Dunwell’s (the elevator maintenance company’s) motion for summary judgment should have been granted. Dunwell had demonstrated two Espinal factors did not apply (it did not displace the building defendants’ obligation to keep the elevators safe and it did not launch an instrument of harm, i.e., it did not exacerbate or create the defects in the elevator):

Dunwell’s motion for summary judgment dismissing all claims against it should be granted. Dunwell cannot be held liable to plaintiff, because it did not owe the decedent any duty. There is no evidence in the record that Dunwell created or exacerbated any of the alleged elevator defects, including the missing door rollers and link arms, even if it were found to have wrongfully failed to diagnose or correct them (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140, 142-143 [2002] … ). Moreover, Dunwell in fact did recommend that these parts be replaced, but its proposal was not accepted by the Building Defendants, and the governing maintenance agreement did not allow Dunwell to replace them without authorization … . The maintenance agreement was not comprehensive and exclusive and therefore did not displace the Building Defendants’ obligations to maintain the elevators in a safe condition … . Plaintiff does not argue that the decedent detrimentally relied on Dunwell’s continued performance of its duties … . Baez v 1749 Grand Concourse LLC, 2019 NY Slip Op 08948, First Dept 12-12-19

 

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POLICIES DID NOT REQUIRE THE INSURER TO DEFEND THE INSURED, BUT DID REQUIRE THE INSURER TO PAY THE INSURED’S DEFENSE COSTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, determined that the terms of the policies at issue did not obligate the insurer to defend the insured, but do require the insurer to pay the insured’s defense costs. The opinion is too fact-specific and too comprehensive to fairly summarize here:

In this insurance coverage action brought by a putative additional insured, the liability insurance policies at issue do not impose on the insurers a duty to defend the insured in a covered action. The policies do, however, require the insurers to reimburse the insured for defense costs incurred in an action “in which damages . . . to which this insurance applies are alleged.” The ultimate factual determination in the underlying personal injury actions was that the loss was actually outside the scope of the additional insured coverage. This determination, while it means that the insurers have no duty to indemnify the putative additional insured for its liability to pay damages, is not conclusive of a different question posed to us, which is whether the putative additional insured is entitled reimbursement of its defense costs. * * *

Under the terms of the … policy, the timing of the Port Authority’s demand for reimbursement does not defeat its claim for reimbursement of its defense costs through the time its liability was adjudicated in the underlying actions. … [The] policy entitles the insured to coverage of the costs it incurred in defending “any . . . suit’ to which this policy applies,” and the policy defines the term “suit” to mean an action “in which damages because of bodily injury’ . . . to which this insurance applies are alleged” … . … [U]ntil the jury rendered the verdict adverse to the Port Authority, each of the underlying actions remained a ” suit’ to which th[e] … policy applie[d]” … . Port Auth. of N.Y. & N.J. v Brickman Group Ltd., LLC, 2019 NY Slip Op 08958, First Dept 12-12-19

 

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ELEVATOR MAINTENANCE COMPANY DID NOT DISPLACE THE BUILDING OWNER’S AND MANAGER’S DUTY TO KEEP THE ELEVATORS SAFE AND DID NOT LAUNCH AN INSTRUMENT OF HARM; IT’S MOTION FOR SUMMARY JUDGMENT IN THIS ELEVATOR ACCIDENT CASE SHOULD HAVE BEEN GRANTED; A VIOLATION OF THE NYC BUILDING CODE IS NOT NEGLIGENCE PER SE (FIRST DEPT).

The First Department, modifying Supreme Court in this elevator accident case, noted that violation of the NYC Building Code is some evidence of negligence but not negligence per se, and held that Dunwell’s (the elevator maintenance company’s) motion for summary judgment should have been granted. Dunwell had demonstrated two Espinal factors did not apply (it did not displace the building defendants’ obligation to keep the elevators safe and it did not launch an instrument of harm, i.e., it did not exacerbate or create the defects in the elevator):

Dunwell’s motion for summary judgment dismissing all claims against it should be granted. Dunwell cannot be held liable to plaintiff, because it did not owe the decedent any duty. There is no evidence in the record that Dunwell created or exacerbated any of the alleged elevator defects, including the missing door rollers and link arms, even if it were found to have wrongfully failed to diagnose or correct them (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140, 142-143 [2002] … ). Moreover, Dunwell in fact did recommend that these parts be replaced, but its proposal was not accepted by the Building Defendants, and the governing maintenance agreement did not allow Dunwell to replace them without authorization … . The maintenance agreement was not comprehensive and exclusive and therefore did not displace the Building Defendants’ obligations to maintain the elevators in a safe condition … . Plaintiff does not argue that the decedent detrimentally relied on Dunwell’s continued performance of its duties … . Baez v 1749 Grand Concourse LLC, 2019 NY Slip Op 08948, First Dept 12-12-19

 

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IN THIS ELEVATOR ACCIDENT CASE, ONE DEFENDANT FAILED TO DEMONSTRATE IT HAD NOT DISPLACED THE BUILDING OWNER’S DUTY TO KEEP THE PREMISES SAFE, AND ANOTHER DEFENDANT DEMONSTRATED IT DID NOT LAUNCH AN INSTRUMENT OF HARM; FAILING TO MAKE DANGEROUS CONDITION SAFER DOES NOT EQUATE WITH LAUNCHING AN INSTRUMENT OF HARM (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that one defendant in this elevator accident case, Cooper Square, did not demonstrate that it did not displace the building owner’s duty to keep the premises safe, and another defendant, PS Marcato [elevator company] , sufficiently demonstrated it did not launch an instrument of harm.  The court noted that PS Marcato’s failure to make the elevator safer did not equate to launching and instrument of harm:

Cooper Square failed to establish prima facie that it did not displace [the building owner’s] duty to maintain the premises in a reasonably safe condition. Its management agreement with [the owner] authorized Cooper Square to make repairs or alterations to the premises and to purchase supplies and materials for the building. Cooper Square also agreed to “directly supervise the work of, hire and discharge all maintenance and security personnel,” and was “clothed with such general authority and powers as may be necessary or advisable to carry out the spirit and intent of th[e] Agreement.” An amendment to the management agreement recognized that Cooper Square “ha[d] been delegated significant authority and discretion in the operation of the Building under th[e] Agreement.” * * *

PS Marcato, which inspected and made repairs to the elevator before plaintiff was injured by it, established prima facie that it did not create or exacerbate the dilapidated condition of the elevator, and therefore did not launch a force or instrument of harm (see Espinal, 98 NY2d at 142-143 …). While the record suggests that PS Marcato knew that the elevator was in disrepair and being tampered with, it “did nothing more than neglect to make the [elevator] safer — as opposed to less safe — than it was before” the inspection and repairs were made … . Ileiwat v PS Marcato El. Co., Inc., 2019 NY Slip Op 08946, First Dept 12-12-19

 

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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE ON THE LESSER INCLUDED OFFENSE OF PETIT LARCENY; THE VALUE OF THE STOLEN CELL PHONES SHOULD NOT HAVE BEEN ADDED TOGETHER BECAUSE THERE WAS NO PROOF THE CELL PHONES WERE OWNED BY THE SAME OWNER (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined: (1) defense counsel was ineffective for failing to request the jury be charged with the lesser included offense of petit larceny in this robbery case involving the theft of cell phones: and (2), the value of the cell phones should not have been added together because there was no proof the phones were owned by the same owner:

Defendant was charged with thefts of cell phones from four wireless phone stores. As to one incident, it was alleged defendant forcibly stole a cell phone in that his showing of a knife to the store employee constituted a threat of force and was perceived by the employee as a threat. While the defense conceded that defendant stole a cell phone, it denied any force was used. Nevertheless, at the charge conference prior to jury deliberations, defense counsel failed to ask for submission of the charge of petit larceny. Since the existing record clearly establishes that this was a mistake, rather than a strategic decision, no CPL 440.10 motion is necessary. When counsel asked for submission of the lesser included offense in the midst of jury deliberations, he expressly admitted that he had been “remiss” in not making a timely request. In any event, counsel could not have been employing an all-or-nothing strategy as to the robbery as argued by the People. This strategy would have made no sense, because the defense was conceding that defendant was guilty of petit larceny as to the other incidents and was already inviting convictions of several misdemeanors. …

Defendant is also entitled to dismissal of the grand larceny charge, which was based upon the improper aggregation of the value of phones taken from two separate AT & T stores on two different days. The People failed to prove that the stores, and the phones located therein, had the same “owner” for the purpose of aggregating multiple thefts … . There was no evidence that these stores were owned by the same corporation, as opposed to, for example, dealerships separately owned and authorized to sell AT & T wireless products and services ,,, , People v Camacho, 2019 NY Slip Op 08944, First Dept 12-12-19

 

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QUESTION OF FACT WHETHER DEFENDANT NEUROLOGIST AND DEFENDANT CARDIOLOGIST WERE JOINTLY DIAGNOSING AND TREATING PLAINTIFF FOR HER STROKE; QUESTION OF FACT WHETHER THE NEUROLOGIST SHOULD HAVE ENSURED THAT A TEST ORDERED BY THE NEUROLOGIST, BUT TO BE PERFORMED BY THE CARDIOLOGIST, WAS DONE WITHIN 48 HOURS (FIRST DEPT),

The First Department, reversing Supreme Court, determined the defendant doctors’ motions for summary judgment in this medical malpractice case should not have been granted. There was a question of fact whether defendants were jointly diagnosing and treating the plaintiff. Defendant neurologist ordered a trans-esophageal electrocardiogram (TEE), to be done by a cardiologist, to determine the origin of plaintiff’s stroke. Plaintiff alleged defendant neurologist should have made sure the TEE was performed immediately. The TEE was performed more than two week’s after plaintiff’s initial stroke:

Plaintiffs allege that defendants were negligent for scheduling a TEE, the definitive diagnostic tool to detect the presence of atrial clots, more than two weeks after the patient’s initial stroke was confirmed and she was referred to the cardiology defendants. Plaintiffs allege that defendants should have scheduled the TEE to take place within 48 hours, or, alternatively, placed the patient on anticoagulants as a prophylactic measure.

The expert affidavit submitted by plaintiff raises an issue of fact whether the neurology defendants retained a duty to ensure that the patient received a timely TEE insofar as Dr. Xie referred her to the cardiology defendants as part of his overall neurological assessment, and he continued to manage her condition throughout. Under these circumstances, questions exist whether defendants were engaged in “joint action in diagnosis or treatment” so as to make it appropriate to impose liability on one for the negligence of the other … . Lin v Yi Xie, 2019 NY Slip Op 08943, First Dept 12-12-19

 

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TESTIMONY OF A DEFENSE WITNESS WHO IDENTIFIED PLAINTIFF AS THE PERSON FLEEING THE SCENE OF A CRIME SHOULD NOT HAVE BEEN PRECLUDED IN THIS FALSE ARREST AND MALICIOUS PROSECUTION ACTION; THE JURY WAS NOT INSTRUCTED ON THE CRITERIA FOR A TERRY STOP; PLAINTIFF’S JUDGMENT VACATED AND NEW TRIAL ORDERED (FIRST DEPT).

The First Department, vacating the plaintiff’s judgment and ordering a new trial in this false arrest and malicious prosecution action, determined that the testimony of the defense witness who identified plaintiff as fleeing the scene of a crime should not have been precluded. The name and address of the witness had been provided to plaintiff four years before the trial and the fact that she had since moved and did not want to disclose her new address to any party was not something the defense could control. In addition, the jury was given no guidance on the criteria for an alleged wrongful stop of the plaintiff by police (reasonable suspicion, not probable cause), despite the questions concerning the stop on the special verdict sheet:

The trial court improvidently exercised its discretion in precluding testimony from the witness who identified plaintiff to the police as an individual she had seen fleeing the scene of a crime. Defendants satisfied their discovery obligation by providing the witness’s last known address and telephone number during discovery, more than four years before trial. Thus, there could have been no surprise or prejudice warranting the preclusion … . While the witness subsequently moved, she declined to disclose her new address to any parties to the suit, a factor defendants could not control … . As defendants did not know her new address, they had no obligation under CPLR 3101(h). Nor should defendants have been sanctioned for the fact that the wtness did not wish to discuss the case with plaintiff’s counsel when counsel called her. Notably, plaintiff’s counsel did not attempt to contact the witness until two months before trial and did not attempt to obtain a nonparty deposition of the witness during discovery. Defendant offered to have the witness further confirm these facts, under oath and outside the presence of the jury. Under these circumstances, the trial court improvidently exercised its discretion in ordering a hearing at which defendants’ trial attorney would be subject to questioning by plaintiff’s trial attorney, and precluding the witness’s testimony when defense counsel declined to participate in such a hearing. Given that the witness would have offered highly relevant and non-cumulative trial testimony, the error was not harmless … .

It was error to include on the special verdict sheet a questions as to a wrongful stop (Terry v Ohio, 392 US 1 [1968]), because there was no charge given instructing the jury on the legal standard that must be applied in resolving those claims. The jury was never told that a stop is improper if the detaining officer does not have “reasonable suspicion” that the detainee committed a crime, which is less demanding than the “probable cause” standard applicable to the malicious prosecution claims … . That the jury sent a note requesting clarification on the question indicated its awareness of the lack of guidance …. .  Onilude v City of New York, 2019 NY Slip Op 08925, First Dept 12-12-19

 

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION IN THIS FALLING OBJECT CASE; QUESTION OF FACT ON HIS LABOR LAW 241 (6) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1)  “falling object” cause of action:

The record reflects that plaintiff was on a temporary exterior platform on the 21st floor of a building under construction, when he was struck and injured by a falling piece of DensGlass, an exterior sheetrock material, which matched the size of a missing piece of sheetrock one floor above. Plaintiff was in the process of dismantling the bridge that was linked to the exterior hoist elevator.

Plaintiff established his entitlement to judgment as a matter of law on the issue of liability on his Labor Law § 240(1) claim based on the record evidence that a piece of the exterior facade of the building still under construction fell on him, that workers were performing patch work to the DensGlass on the floors above plaintiff, and that the exterior facade was not complete … . Furthermore, defendants’ cross motions for summary judgment dismissing the § 241(6) claim should have been denied because there is a triable issue of fact as to whether the area where the accident occurred was “normally exposed to falling material or objects” requiring that plaintiff be provided with “suitable overhead protection” (see 12 NYCRR 23-1.7[a][1] …). Garcia v SMJ 210 W. 18 LLC, 2019 NY Slip Op 08791, First Dept 12-10-19

 

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SEARCH WARRANT FOR DEFENDANT’S CELL PHONE WAS OVERLY BROAD; GUILTY PLEA VACATED (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined that the search warrant issued for defendant’s cell phone was  overly broad in that it authorized a search going back eight months before the conduct alleged in the warrant:

The search warrant for defendant’s phones was overbroad. The application alleged that, on September 1, 2016, defendant sent texts to a 13 year old making indecent proposals, and called her on the same day. The warrant authorized examination of defendant’s internet usage from January 1 to September 13, 2016, and also authorized, without a time limitation, examination of essentially all the other data on defendant’s phones. This failed to satisfy the particularity requirement of both the Fourth Amendment and Article 1, § 12 of New York’s Constitution … .

The pivotal question here is whether there was probable cause that evidence of the crimes specified in the warrant would be found in the broad areas specified. Notably, the warrant application alleged two discrete crimes and specified conduct that “began” on September 1, 2016, and, as far as the available information indicated, occurred entirely on that date. While it was of course possible that defendant’s phone contained evidence of the specified offenses that predated September 1, there were no specific allegations to that effect. …

The information available to the warrant-issuing court did not support a reasonable belief that evidence of the crimes specified in the warrant would be found in all of the “locations” within defendant’s cell phone to which the warrant authorized access — for example, in defendant’s browsing history six or seven months before September 1, 2016, or in his emails, the examination of which was authorized without any time restriction … . People v Thompson, 2019 NY Slip Op 08772, First Dept 12-5-19

 

COURTROOM SHOULD NOT HAVE BEEN CLOSED TO FAMILY MEMBERS DURING THE UNDERCOVER OFFICER’S TESTIMONY, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, ordering an new trial, determined the defendant’s family members should not have been excluded from the courtroom duing the undercover officer’s testimony:

The People concede that the trial court erred in excluding defendant’s family members from some parts of the trial … . Here, the People failed to show specifically that defendant’s family posed a threat to the undercover officer’s safety. The court’s error requires reversal of the conviction … .

The People acknowledge that a harmless error/lack of prejudice analysis does not apply to courtroom closure errors. Nevertheless, relying on nonbinding Second Circuit case law, they argue that reversal is not warranted because the exclusion of defendant’s family was so trivial as not to implicate defendant’s right to a public trial (see e.g. Smith v Hollins, 448 F3d 533 [2d Cir 2006]). We need not decide whether a triviality exception exists under State law, because even applying that standard, the closure here cannot be characterized as trivial. Defendant’s family was kept out of the courtroom during the entirety of the direct examination, and part of the cross-examination, of an undercover officer who was one of the People’s key witnesses. That undercover was one of the officers involved in the narcotics operation that formed the basis of the charge against defendant. He set up the meeting to purchase the drugs, gave the buy money to defendant’s accomplice, and received crack cocaine in return. Thus, the exclusion of defendant’s family members “from the crux of the [People’s] case” was not trivial … . People v Ruffin, 2019 NY Slip Op 08771, First Dept 12-5-19

 

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