You are here: / First Department

Tag Archive for: First Department

THE ALLEGATION THAT PLAINTIFF STOPPED FOR A YELLOW LIGHT WAS NOT A NON-NEGLIGENT EXPLANATION FOR A REAR-END COLLISION; DEFENSE VERDICT SHOULD HAVE BEEN SET ASIDE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff’s motion to set aside the defense verdict in this rear-end traffic accident case should have been granted. Plaintiff was stopped when the collision occurred:

There is no valid line of reasoning and permissible inferences that could possibly support the jury’s verdict based on the evidence presented at trial … . Defendant Tracy Murphy acknowledged that plaintiff’s vehicle was stopped when she struck plaintiff’s vehicle in the rear. Murphy’s claim that plaintiff had stopped at a yellow light does not constitute a nonnegligent explanation for the accident … . Smyth v Murphy, 2019 NY Slip Op 08353, First Dept 11-19-19

 

SIDEWALK DEFECT WAS NOT TRIVIAL AS A MATTER OF LAW, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether the condition of the sidewalk was a trivial defect in this slip and fall case. The edge of the sidewalk was raised less than an inch. But there was evidence the defendants themselves considered the condition of the sidewalk dangerous:

Defendants moved for summary judgment, arguing that the condition was trivial, open and obvious, and not inherently dangerous. Defendants submitted an expert affidavit, photographs, and deposition testimony. The expert concluded that the height differential in the sidewalk caused by the raised flag ranged between 7/16 of an inch and 13/16 of an inch.

In opposition, plaintiff pointed to a map of the property, a budget report, her photographs, and deposition testimony. … Plaintiff noted that defendants’ maintenance manager had marked blue dots on a map during his inspection of the property months before her accident. The map appears to depict two blue dots in the vicinity of her fall. Plaintiff stressed that the maintenance manager testified that he marked the map with blue dots to indicate the areas where he expected that concrete repairs would be made. Plaintiff also pointed to the property’s budget report, which referred to, months before her fall, the “High” priority need to repair large deteriorated sections of “Concrete Walks and Curbs.” She further noted that some of her photographs depict a circle of white paint on the raised portion of the sidewalk, which she noticed immediately after her fall … . …

A finding that a condition is a trivial defect must “be based on all the specific facts and circumstances of the case, not size alone” … . The issue is generally a jury question because it is a fact-intensive inquiry … . McCabe v Avalon Bay Communities, Inc., 2019 NY Slip Op 08350, First Dept 11-19-19

 

, ,

DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE WHEN DEFENSE COUNSEL TOLD HIM HE “MOST LIKELY” WOULD BE DEPORTED WHEN DEPORTATION WAS MANDATORY; APPEAL HELD IN ABEYANCE TO ALLOW DEFENDANT TO MOVE TO VACATE HIS PLEA; ONE DISSENT (FIRST DEPT).

The First Department, over a dissent, determined defendant did not receive effective assistance of counsel because his attorney told him he would “most likely” be deported when deportation was mandatory. The dissenter argued the record was not sufficient to conclude, as a matter of law, defense counsel was ineffective and a CPL 440 motion should be brought to flesh out the facts:

Defendant was deprived of effective assistance when his counsel advised his client that because of his plea, he “will most likely be deported[“],since it is clear that defendant’s drug-related conviction would trigger mandatory deportation under 8 USC § 1227 (a)(2)(B)(i) … . The remarks made by counsel on the record to the judge, as to what he advised his client with regard to the immigration consequences of his plea, are sufficient to permit review on direct appeal … . Thus, we hold this matter in abeyance to afford defendant the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea. People v Johnson, 2019 NY Slip Op 08348, First Dept 11-19-19

 

IT IS THE ROLE OF THE COURT, NOT THE ARBITRATOR, TO DETERMINE WHETHER A NON-SIGNATORY IS BOUND BY AN ARBITRATION AGREEMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined it is the role of the court, not the arbitrator, to rule on whether a non-signatory is bound by an arbitration agreement:

The issue of whether a party is bound by an arbitration provision in an agreement it did not execute is a threshold issue for the court, not the arbitrator, to decide … . The case is remanded to the IAS court for an evidentiary hearing and further factual development on whether the non-signatory petitioners were bound to the arbitration clause … .

The cases respondent relies upon in opposition do not change the result. Respondent’s cases do not involve situations where there was a dispute as to whether the party sought to be bound to arbitrate had signed the agreement containing the arbitration clause … .

While respondent makes extensive arguments as to why the non-signatory petitioners were effectively parties to the agreement and thus bound by the arbitration clause, these arguments are not relevant. The IAS court did not come to a definitive ruling as to whether the non-signatory petitioners were bound by the arbitration agreement, and instead denied the petition without prejudice so that it could be decided by the arbitrator. Absent a ruling on the issue, the only question to be addressed by this Court is whether the IAS court properly declined to do so. Matter of 215-219 W. 28th St. Mazal Owner LLC v Citiscape Bldrs. Group Inc., 2019 NY Slip Op 08281, First Dept 11-14-19

 

, , , , , ,

WHETHER PLAINTIFFS WILL BE ABLE TO ESTABLISH THE CLAIMS IN A COMPLAINT IS NOT CONSIDERED ON A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; HERE THE DEFENDANTS’ ARGUMENT THAT PLAINTIFFS WILL NOT BE ABLE TO LEARN AN ESSENTIAL ASPECT OF THEIR CASE IN DISCOVERY BECAUSE OF STATUTORY IMMUNITY WAS NOT RELEVANT TO WHETHER THE COMPLAINT STATED CAUSES OF ACTION (FIRST DEPT).

The First Department determined defendant school’s motion to dismiss the complaint was properly denied. Plaintiffs alleged the school retaliated against them after they complained about race-related issues by making a false child neglect report to Child Protective Services (CPS). The school argued the plaintiffs will not be able to learn the identity of the person who reported the alleged neglect because of the immunity provided by the Social Services Law. The 2nd Department explained that the immunity question is not relevant to whether the complaint states causes of action:

… [P]laintiffs assert causes of action for intentional infliction of emotional distress, defamation, violations of the New York State and City Human Rights Laws, and negligent hiring, training and supervision … .

Defendants moved to dismiss all of these causes of action on the basis that plaintiffs would be unable to prove any of these claims because they did not know the identity of the CPS reporter and would be unable to learn it in discovery. …

… [I]n the context of this motion to dismiss, the Court does not assess the relative merits of the complaint’s allegations against defendant’s contrary assertions or to determine whether or not plaintiffs can produce evidence to support their claims … . Whether plaintiffs “can ultimately establish [their] allegations is not a part of the calculus in determining a motion to dismiss” … . Thus, regardless of whether plaintiffs will be able to obtain disclosure concerning the identity of the CPS reporter (Social Services Law § 422[4][A] …), defendants have not demonstrated entitlement to dismissal of the well-pleaded complaint for failure to state a cause of action … . M.H.B. v E.C.F.S., 2019 NY Slip Op 08276, First Dept 11-14-19

 

,

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED; PLAINTIFF FELL FROM A WALL UNDER CONSTRUCTION AND HAD NOT BEEN PROVIDED WITH A HARNESS; DEFENDANT’S EXPERT’S AFFIDAVIT WAS SPECULATIVE (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. Defendant’s expert’s affidavit was deemed speculative because it was not based upon record evidence. Defendant’s argument that further discovery might reveal defenses was rejected, in part, because defendant was not diligent in pursuing discovery:

Plaintiff established prima facie entitlement to partial summary judgment on his Labor Law § 240(1) claim with his deposition testimony, photographic exhibits and expert’s opinion, which showed that he fell from a 10-foot high sidewalk bridge that he was helping to assemble on defendant’s property, when a pile of heavy wooden planks shifted and struck him on the legs, causing him to lose his balance. Plaintiff testified that the side barriers for the sidewalk bridge were not yet built, and he was not supplied with a safety harness to protect him from gravity-related harm … . …

Defendant’s argument that plaintiff’s motion for partial summary judgment was premature where its expert opined that depositions of the contractor’s personnel yet to be taken might yield evidence that plaintiff was supplied with a fall-arrest safety harness, and that he was recalcitrant in not using it, lacks factual support in the record, and as such, the expert’s opinion in that regard is speculative and non-probative … . The mere hope that additional discovery may lead to sufficient evidence to defeat a summary judgment motion is insufficient to deny such a motion … . The record further shows that defendant had a reasonable opportunity to pursue discovery … , and defendant has not shown that it was diligent in pursuing discovery in this case … . Singh v New York City Hous. Auth., 2019 NY Slip Op 08272, First Dept 11-14-19

 

,

DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; DEFENSE COUNSEL PROBABLY COULD HAVE WORKED OUT A PLEA TO AN OFFENSE WHICH DID NOT MANDATE DEPORTATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant did not receive effective assistance of counsel because there was a reasonable possibility a plea to something less than an aggravated felony could have been worked, with no mandatory deportation consequences:

At the hearing, defense counsel candidly admitted that he did not know, at the time of defendant’s plea, what an aggravated felony was, and that he mistakenly believed that defendant’s prior youthful offender adjudication, which resulted in a violation of probation charge that was disposed of at the same time as the instant plea, already rendered him deportable. However, New York YO adjudications are not considered criminal convictions for purposes of immigration law … . …

Accordingly, he did not attempt to obtain a sentence of less than one year on the third-degree conviction, which would have prevented it from being an aggravated felony, subjecting defendant, who is in removal proceedings, to mandatory deportation … . Counsel admitted that he had no strategic reason for not doing so; he simply did not know that defendant’s negotiated sentence of one to three years rendered robbery in the third degree an aggravated felony, or that defendant’s youthful offender adjudication did not render him deportable. People v Richards, 2019 NY Slip Op 08268, First Dept 11-14-19

 

,

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION SHOULD HAVE BEEN GRANTED, DESPITE PLAINTIFF’S AFFIDAVIT WHICH, IN PART, CONTRADICTED HIS DEPOSITION TESTIMONY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) action should have been granted, despite an affidavit from the plaintiff which, in part, contradicted his deposition testimony. Plaintiff was struck from above by the chain in a chain hoist system:

Supreme Court correctly concluded that plaintiff Jose Goncalves’s affidavit submitted in support of the motion should not be considered to the extent that it averred that he was struck by the entire chain hoist system, which contradicted his deposition testimony that he was struck only by the chain itself … . However, the affidavit was consistent with his prior testimony that he was struck by the chain from above, and the record contains no evidence to the contrary. Accordingly, plaintiffs demonstrated that the chain hoist system at issue failed, causing Goncalves to be struck by an object – either the chain hoist system or just the chain itself – from above, and thereby established their prima facie entitlement to summary judgment on the Labor Law § 240(1) claim … . Goncalves v New 56th & Park (NY) Owner, LLC, 2019 NY Slip Op 08265, First Dept 11-14-19

 

,

JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED A MOTION TO AMEND THE COMPLAINT IN THE ABSENCE OF A MOTION AND PROPOSED PLEADINGS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judges should have, sua sponte, granted plaintiff leave to file a second amended complaint in the absence of a motion and a proposed pleading. The leave to amend was vacated:

The motion court should not have sua sponte granted plaintiff leave to file a second amended complaint to assert an unpleaded negligent misrepresentation claim in the absence of a cross motion and an accompanying proposed pleading (CPLR 3025[b]). The lack of a proposed pleading precludes meaningful review of the sufficiency of the allegations, including defendant’s contention that such a claim is time barred … . Sutton Animal Hosp. PLLC v D&D Dev., Inc.. 2019 NY Slip Op 08263, First Dept 11-12-19

 

,

A JUROR’S ATTEMPT TO DEVELOP A RELATIONSHIP WITH A JAILED COOPERATING PROSECUTION WITNESS DURING DELIBERATIONS EXHIBITED ACTUAL AND IMPLIED BIAS REQUIRING A NEW TRIAL; A HARMLESS ERROR ANALYSIS IS NOT APPLICABLE (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, in a full-fledged opinion by Justice Renwick, determined that a juror who attempted to develop a relationship with a jailed cooperating prosecution witness during deliberations exhibited actual and implied bias, thereby depriving defendant of a fair trial. Although the juror and the witness were not able to speak to each other during deliberations, there was a missed call. After the trial the juror developed a serious relationship with the witness through letters and phone calls and expressed a desire to marry the witness. The First Department noted that a harmless error analysis was not appropriate:

Juror misconduct includes both “actual bias” and “implied bias.” Despite its name, “actual” bias merely requires proof of “a state of mind” that is “likely” to preclude a juror from rendering an impartial verdict … . Under CPL 270.20(1)(b), “[a]ctual bias. . . is not limited . . . to situations where a prospective juror has formed an opinion as to the defendant’s guilt” … . It may be demonstrated where a prospective juror’s conduct indicates her inability to follow the court’s instructions.

“Implied bias” exists where a juror “bears some … relationship to any such person [defendant, witness, prosecution] of such nature that it is likely to preclude [the juror] from rendering an impartial verdict” (CPL 270.20[1][c] … ). “[T]he frequency of contact and nature of the parties’ relationship are to be considered in determining whether disqualification is necessary” … .

Implied bias “requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect [his or] her ability to be fair and impartial” … .

Here, there was both actual and implied bias. The misconduct by Juror No. 6 was willful and blatant – the juror was admittedly attracted to the witness, a cooperating witness testifying on behalf of the People, and sought to develop a relationship with him while jury deliberations were still underway – even though she knew this was not permitted. The juror knew during deliberations that the witness had tried to call her back, suggesting that the interest was mutual, and the juror is now in a very serious relationship with the witness and seeks to marry him. Although the juror denied that her feelings about the witness affected her thinking about defendant, she was at least arguably more likely to credit his testimony and could subconsciously have sought to aide the side with which the witness was aligned … . People v McGregor, 2019 NY Slip Op 08283, First Dept 11-14-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy