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HYPERLINK TO A 2007 ALLEGEDLY DEFAMATORY ARTICLE IS NOT A REPUPLICATION OF THE ARTICLE WHICH WOULD START THE STATUTE OF LIMITATIONS RUNNING AGAIN, THE DEFAMATION ACTION WAS THEREFORE TIME-BARRED (FIRST DEPT),

The First Department determined a hyperlink in an email to an allegedly defamatory article is not a republication of the article which would start the statute of limitations running again. The defamation action was therefore time-barred:

… [t]he email sent by defendant to New Yorker magazine subscribers in April 2017 containing a hyperlink to an article published in the magazine in July 2010 does not constitute republication of the article … . The article was unmodified and had been continuously archived on the same website since the printed version was first published. Moreover, it is not alleged that the 2017 email, which included the link to the article in controversy, contained any defamatory statements about plaintiff. A reference to an article that does not restate the defamatory material is not a republication of the material … . Biro v Condé Nast, 2019 NY Slip Op 02615 [171 AD3d 463], First Dept 4-4-19

 

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PROSECUTION FOR CONSPIRACY TO MURDER AFTER MURDER TRIAL RESULTED IN MANSLAUGHTER AND GANG ASSAULT CONVICTIONS DID NOT VIOLATE THE PROHIBITION AGAINST DOUBLE JEOPARDY (FIRST DEPT).

The First Department determined prosecuting defendant for conspiracy to commit murder, after a trial for the murder resulted in a conviction for manslaughter and gang assault, did not violate the prohibition against double jeopardy:

Defendant’s prosecution for conspiracy to commit murder, after a prior prosecution for the actual murder resulted in a trial conviction for manslaughter and gang assault, did not violate the federal or state double jeopardy prohibitions, because conspiracy is not the same offense, for double jeopardy purposes, as murder, manslaughter, or gang assault … . “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not” (Blockburger v United States, 284 US 299, 304 [1932] [citations omitted]). Neither the fact that the evidence at the homicide trial would have also supported a conspiracy charge, nor the fact that defendant had been alleged to have acted in concert with other persons, has any relevance under the Blockburger test. People v Herrera, 2019 NY Slip Op 02631, First Dept 4-4-19

 

PLAINTIFF WAS NOT ABLE TO DEMONSTRATE DEFENDANTS-HOMEOWNERS DIRECTED HIM TO REMOVE HIS BOOTS WHILE WORKING, PLAINTIFF SLIPPED AND FELL ON STAIRS BECAUSE HE WAS WEARING ONLY SOCKS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants-homeowners’ motion for summary judgment should have been granted in this Labor Law 200 action. Someone told plaintiff to take off his boots while working in the home and he slipped and fell on the stairs. Plaintiff did not demonstrate that it was the defendants who told him to remove his boots:

Plaintiff claims that he was injured after slipping and falling on slippery stairs because he was directed to remove his boots while working. Defendants established prima facie that they did not exercise supervisory control over the means and methods of plaintiff’s work … . Their principals, the homeowners, testified that they were not home on the day of the accident and that they never asked any workers to remove their boots. In opposition, plaintiff failed to raise an issue of fact as to whether the man from whom he received the instruction to remove his boots had apparent authority to direct his work … . Plaintiff was unable to identify the man, the man’s employer, or the man’s relationship to the homeowners. Moreover, plaintiff testified that at first he refused to take his boots off. Plaintiff called his supervisor who warned him that if he did not remove his boots he would be fired. As such, plaintiff’s supervisor gave the ultimate direction to remove his boots, which establishes that the employer exercised supervisory control over the injury-producing work.

The record also shows that the stairs were not in a dangerous condition … . Plaintiff himself testified that there were no observable defects on the stairs, that they were not wet, and that they were free of chips and cracks. He admitted that he slipped solely because he was wearing socks with no boots … . Antonio v West 70th Owners Corp., 2019 NY Slip Op 02626, First Dept 4-4-19

 

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JURY INSTRUCTIONS ALLOWED DEFENDANT TO BE CONVICTED ON A THEORY THAT WAS NOT INCLUDED IN THE INDICTMENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE IN THIS ANIMAL CRUELTY CASE, NEW TRIAL ORDERED DESPITE DEFENDANT’S HAVING COMPLETED HIS SENTENCE (FIRST DEPT).

The First Department, reversing Supreme Court in the interest of justice, determined the jury instructions in this animal cruelty case allowed a conviction on a theory that was not included in the indictment. A new trial was ordered, despite defendant’s having served his sentence:

As the People essentially concede, the court’s jury charge constructively amended the indictment … . The indictment was limited to a theory that defendant personally mistreated his dog. However, the court read Agriculture & Markets Law § 353 to the jury almost in its entirety, including a provision that would allow the jury to convict defendant if he merely permitted another person to mistreat his dog. Unlike ordinary accessorial liability under Penal Law § 20.00, this theory of “permitting” is an entirely different way of committing the crime from personally mistreating the animal. This error was not harmless, because there was evidence from which a reasonable jury could have inferred that defendant took the blame for his dog’s condition to cover for his uncle, who lived with defendant and made inconsistent statements about whether he witnessed defendant beating the dog.

However, the fact that defendant has completed his sentence does not warrant dismissal of the indictment. That approach is suitable only in cases of “relatively minor crimes”  … , and this case involves “serious” allegations  …of abusing an animal. Accordingly, we remand for a new trial. People v Gentles, 2019 NY Slip Op 02623, First Dept 4-4-19

 

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DEFENDANT STATED VALID COUNTERCLAIMS FOR FRAUDULENT INDUCEMENT, BREACH OF FIDUCIARY DUTY AND NEGLIGENT MISREPRESENTATION IN THIS BREACH OF CONTRACT ACTION, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant had stated counterclaims for fraudulent inducement, breach of a fiduciary duty, and negligent misrepresentation in this breach of contract action:

Sharbat’s [plaintiff’s] statements that he had “massive investors” who were prepared to invest in defendant and that he “had obtained high-value investors for [defendant] in Israel,” while partially hyperbolic, make concrete factual representations that go beyond mere puffery. Simply stated, Sharbat asserted that he had investors lined up and ready to go, when in fact he had none. Since plaintiffs were retained by defendant to bring investors in, these statements constitute misrepresentations of material facts for purposes of the fraudulent inducement counterclaim … . …

[The] allegations plead a broker-principal relationship sufficient to impose a fiduciary duty on plaintiffs vis-a-vis defendant … . Plaintiffs’ fiduciary role carried with it a duty to disclose material facts … . …

Defendant alleges that plaintiffs negligently misrepresented that they were able to represent it in obtaining investors and facilitating the issuance of securities to raise capital for it, that they were skilled in obtaining financing from “high-value investors,” that they “had qualified, high-value investors who were to invest in [defendant],” and that plaintiffs themselves were qualified to invest in defendant. … These allegations state a counterclaim for negligent misrepresentation … . Solomon Capital, LLC v Lion Biotechnologies, Inc., 2019 NY Slip Op 02621, First Dept 4-4-19

 

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LEGAL MALPRACTICE COUNTERCLAIM SHOULD HAVE BEEN DISMISSED, SPECULATION ABOUT THE RESULT OF A HEARING HAD THE LAW FIRM APPEARED IS NOT ENOUGH TO SUSTAIN A CLAIM FOR LEGAL MALPRACTICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff law firm’s motion for summary judgment dismissing the legal malpractice counterclaim should have been granted. Apparently plaintiff failed to appear at a hearing on a temporary restraining order (TRO):

… [P]laintiff demonstrated prima facie entitlement to judgment in the legal malpractice counterclaim by showing that defendants could not prove that but for plaintiff’s failure to appear at the TRO hearing the hearing court would have denied the TRO or set a shorter return date … . Defendants speculate that had plaintiff appeared at the TRO hearing, injunctive relief may have been denied or the hearing court may have adjourned the case to an earlier date. Such speculation is insufficient to sustain a claim for legal malpractice … . Salans LLP v VBH Props. S.R.L., 2019 NY Slip Op 02611, First Dept 4-4-19

 

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DEFENDANT WAS HANDCUFFED WHEN THE POLICE SEARCHED A BAG ON THE FLOOR NEAR HIM, THE KNIFE IN THE BAG SHOULD HAVE BEEN SUPPRESSED, JUDGE PROPERLY PROCEEDED TO TRIAL WITHOUT A COMPETENCY EXAM ORDERED BY ANOTHER JUDGE AFTER DEFENDANT REFUSED TO BE EXAMINED (FIRST DEPT).

The First Department determined the warrantless search of a bag next to defendant was not justified as a search of the “grabbable” area because defendant was handcuffed. Admitting the knife in evidence was harmless error, however. Another judge had ordered a sixth CPL article 730 competency exam, but, after the defendant refused to be examined, the trial judge properly commenced the trial without the ordered examination. The defendant had a long history of psychiatric problems, but the most recent exam deemed him competent:

In the circumstances presented, the court did not err when it determined that defendant’s trial would commence notwithstanding that a different judge had ordered a sixth CPL article 730 examination, which had not yet been conducted because the defendant refused to be examined … . The court acted within its discretion to decline to repeatedly issue force orders to compel defendant’s submission to the extant competency examination order. Furthermore, the court considered the long history of examinations in this case and its own observations of defendant over its prolonged history. We find nothing in People v Armlin (37 NY2d 167 [1975]) that prohibits a court from considering changed or extraordinary circumstances in denying a previously granted examination, particularly given defendant’s profound lack of cooperation and a recent examination finding him competent.

We find that the trial court should have suppressed the 12 inch knife recovered by the police during a warrantless search of defendant’s bag. Although at the time of the search the bag was on the floor within the “grabbable area” next to defendant, he was standing with his arms handcuffed behind his back … . These circumstances do not support a reasonable belief that the defendant could have either gained possession of a weapon or destroyed evidence located in the bag. Police did not show any exigency to justify the warrantless search of the bag … . People v Washington, 2019 NY Slip Op 02610, First Dept 4-4-19

 

GIVING A SECOND ALLEN CHARGE AND ALLOWING THE JURY TO CONTINUE DELIBERATING TO 5 OR 6 PM ON A FRIDAY, KNOWING THAT THREE JURORS HAD TRAVEL PLANS FOR MONDAY, DID NOT CONSTITUTE COERCING THE VERDICT, PROVIDING BOTH WRITTEN AND ORAL JURY INSTRUCTIONS WAS NOT IMPROPER (FIRST DEPT).

The First Department, over an extensive two-justice dissent, determined (1) the trial judge’s giving two Allen charges and allowing the jury to continue deliberations to 5 or 6 pm, at the jury’s request, on a Friday, knowing that three jurors could not continue deliberating on Monday because of travel plans, did not constitute coercing a verdict, and (2) providing the jurors with both written and oral jury instructions, without objection, was not improper:

The substance of an Allen charge is not coercive if it is “appropriately balanced and inform[s] the jurors that they [do] not have to reach a verdict and that none of them should surrender a conscientiously held position in order to reach a unanimous verdict” … . Here, the trial court’s repeated Allen charge included an instruction that the jurors were to “make every possible effort to arrive at a just verdict,” thereby implicitly instructing the jurors that they were not required to reach a verdict if they did not all agree that the verdict was just. Further, the trial court advised the jury that it “was not asking any juror to violate his or her conscience or to abandon his or her best judgment.” …

Defendant … contends that the trial court coerced the verdict by acceding to the request made in Court Exhibit XIII for more time to deliberate on the day of the verdict without immediately addressing the scheduling conflicts set forth in the same jury note in which the request was made. … As the record reflects, the trial court construed Court Exhibit XIII as meaning that the jurors thought that they could quickly resolve any remaining differences among them and agree upon a verdict within hours that same day, and therefore permitted them to do so. Thus, there was no need for the court to address the traveling plans of some jurors for the following week because this did not appear to be a problem at the time. People v Muhammad, 2019 NY Slip Op 02609, First Dept 4-4-19

 

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IT WAS (HARMLESS) ERROR TO ALLOW THE ARRESTING OFFICER TO TESTIFY THAT DEFENDANT WAS DEPICTED IN THE VIDEOTAPE WHICH WAS BEING PLAYED (FIRST DEPT).

The First Department determined it was (harmless) error to fail to sustain defense counsel’s objection to the arresting officer’s unprompted identification testimony that the defendant was depicted in the videotape that was being played:

The officer was not previously familiar with defendant, and there was no basis to conclude he was “more likely to correctly identify the defendant from the [videotape] than [was] the jury” … . However, this isolated instance of apparent lay opinion was plainly harmless. After the overruled objection, the prosecutor immediately elicited that the officer could not “make out the face of the person” in the video whom he had said was defendant. The officer’s testimony as a whole made clear that he did not claim to recognize defendant in the video, but that he was testifying about similarities between the appearance and distinctive clothing of the man in the video and that of defendant when he was arrested. People v Calderon, 2019 NY Slip Op 02468, First Dept 4-2-19

 

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ABUTTING PROPERTY OWNER NOT RESPONSIBLE FOR TRIP AND FALL IN TREE WELL NEAR THE SIDEWALK, THE TREE WELL IS NOT UNDER THE PROPERTY OWNER’S CONTROL (FIRST DEPT).

The First Department determined defendant property owner’s (Val-Mac’s) motion for summary judgment in this sidewalk slip and fall case was properly granted. Plaintiff fell in a tree well near the sidewalk abutting defendant’s property:

Plaintiff tripped and fell in a tree well as he walked on the sidewalk in front of Val-Mac’s property, which was undergoing repairs to a sewer line running to the street. Absent evidence that Val-Mac controlled the construction or made special use of the sidewalk, there is no issue of fact as to whether it proximately caused the accident, rather than “merely furnish[ing] the condition or occasion for the occurrence of the event” … . As the tree well is not part of the sidewalk under Val-Mac’s control, the court properly granted summary judgment … . Schwartz v City of New York, 2019 NY Slip Op 02465, First Dept 4-2-19

 

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