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PLAINTIFF WAS ARRESTED AND CHARGED WITH MURDER IN 2002 AND ACQUITTED IN 2006, CHALLENGES TO THE PROBABLE CAUSE TO ARREST AND THE PROPRIETY OF THE PROSECUTION DEEMED SPECULATIVE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissenting opinion, determined defendants’ motion for summary judgment was properly granted. The opinion is fact-specific and cannot be fairly summarized here. Plaintiff was arrested and charged with murder in 2002 and was acquitted in 2006:

Certain facts pertinent to the shooting are undisputed. For the subsequent civil action, plaintiff’s strategy has focused on disputing the identification of him as the shooter. The record, including numerous police reports and statements by witnesses, reflects that the shooting outside of a well attended social event caused significant confusion as witnesses were alerted from various vantage points while many attendees remained inside. Some participants in a physical confrontation preceding the shooting apparently had not been invited and likely were unknown by attendees. Nevertheless, plaintiff’s various attempts to dispute his identification as well as disparage the credibility of police and identification witnesses do not withstand a close analysis with respect to establishing the requisite elements of the civil claims. When the speculative challenges to probable cause and the propriety of the prosecution are cleared away, we are left with a record of the criminal investigation and prosecution that is factually compelling, warranting dismissal of the civil claims relevant to this appeal. Roberts v City of New York, 2019 NY Slip Op 02177, First Dept 3-21-19

 

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DAMAGES AWARDED 69-YEAR-OLD PLAINTIFF FOR PAST AND FUTURE PAIN AND SUFFERING DEEMED EXCESSIVE (FIRST DEPT).

The First Department determined the damages awarded the 69-year-old plaintiff for past and future pain and suffering were too high:

Judgment … upon a jury verdict, which … awarded plaintiff $1.2 million for past pain and suffering, $1 million for future pain and suffering over 10 years, $255,582 for future medical expenses, and $250,000 for future loss of earnings … unanimously modified … to remand the matter for a new trial on damages for past pain and suffering and future pain and suffering, unless plaintiff stipulates … to reduce the awards for past pain and suffering to $1,000,000 and for future pain and suffering to $675,000 … . Dacaj v New York City Tr. Auth., 2019 NY Slip Op 02171, First Dept 3-21-19

 

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CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (FIRST DEPT).

Although the error was deemed harmless, the First Department determined the cross-racial identification jury instruction should have been given:

The trial court denied defendant’s request for a charge on cross-racial identification. Since then, the Court of Appeals decided People v Boone, which held that “when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, upon request, a party is entitled to a charge on cross-racial identification” and the trial court must give the charge if a party requests it (30 NY3d 521, 526 [2017]). Since identification was an issue in this case and the victim and defendant were of different races, the motion court should have granted the request for the charge on cross-racial identification. However, we find the error harmless given that the video supports the victim’s testimony about the incident and his familiarity with defendant. Further, the victim told police that the robber had an MTA connection, and defendant was arrested wearing an MTA jacket. The identification testimony was unusually strong and the evidence of defendant’s guilt was overwhelming … . Also, there is no significant probability that defendant would have been acquitted but for this charge error … . People v Patterson, 2019 NY Slip Op 02154, First Dept 3-21-19

 

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NOTES TAKEN BY AN OBSERVER HIRED BY PLAINTIFF’S ATTORNEY TO WITNESS AN INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BY DEFENDANTS’ DOCTOR ARE PRIVILEGED AS MATERIAL PREPARED FOR TRIAL, THE OBSERVER WAS ACTING AS AN AGENT OF PLAINTIFF’S ATTORNEY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, in a matter of first impression, determined that the notes taken by an observer at an independent medical exam (IME) of plaintiff by defendants’ doctor are protected by the privilege afforded materials prepared for litigation. The observer was hired by plaintiff’s attorney and was deemed to be acting as an agent of the attorney:

The IME observer, however, is an agent of the plaintiff’s attorney. Consequently, the requested notes and materials constitute materials prepared for trial, bringing them within the conditional or qualified privilege protections of CPLR 3101(d)(2). Materials prepared in anticipation of litigation and preparation for trial may be obtained only upon a showing that the requesting party has a “substantial need” for them in the preparation of the case and that without “undue hardship” the requesting party is unable to obtain the substantial equivalent by other means (CPLR 3101[d][2] …).

The IME observer was hired to assist plaintiff’s attorney in advancing the litigation and preparing for trial … . Although present, she was not involved in the doctor’s examination of the plaintiff. Her function was to serve as the attorney’s “eyes and ears,” observing what occurred during the IME, and then reporting that information back to plaintiff’s attorney.

Defendants have not shown, in response, any “substantial need” for the IME observer’s notes, etc., or why they are unable, without undue hardship, to obtain the “substantial equivalent” of the materials by other means … . Key to this analysis is that the defendants’ doctor conducted plaintiff’s examination and can provide defendants with any information concerning what generally occurred and what he did at the IME. Markel v Pure Power Boot Camp, Inc., 2019 NY Slip Op 02049, First Dept 3-19-19

 

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MOTION TO SUPPRESS SHOULD NOT HAVE BEEN DENIED ON THE GROUND THAT DEFENDANT LACKED STANDING, OTHER GROUNDS FOR SUPPRESSION NOT RAISED BELOW COULD NOT BE CONSIDERED ON APPEAL, DEFENSE COUNSEL SHOULD NOT HAVE BEEN PRECLUDED FROM CROSS-EXAMINING A POLICE OFFICER ABOUT A CIVIL SUIT AGAINST HIM (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that defendant’s motion to suppress the weapon he dropped should not have been denied on the ground defendant lacked standing and defense counsel should not have been precluded from cross-examining a police officer about allegations made in a federal civil suit against him.  The First Department noted it could not consider alternative grounds for suppression not raised below:

Two officers testified at the hearing to the effect that the pistol was recovered immediately after it fell from defendant’s person. Since this Court lacks jurisdiction to affirm the denial of defendant’s motion to suppress the pistol on the alternative ground that the police had reasonable suspicion to stop and frisk him, a ground upon which the hearing court did not rule, we “reverse the denial of suppression and remit the case to Supreme Court for further proceedings”… .

Defendant is also entitled to a new trial, because the trial court improperly precluded his counsel from cross-examining the only police officer who allegedly saw the pistol falling from his person about allegations raised in a federal civil action against the officer, which had settled. Counsel had a good faith basis for seeking to impeach the officer’s credibility by asking him about allegations that he and other officers approached and assaulted the plaintiff in that case without any basis for suspecting him of posing a danger and filed baseless criminal charges against him … . Although trial courts “retain broad discretion” over the admission of prior bad acts allegedly committed by a police witness or other witness … , the court improvidently exercised its discretion by entirely precluding any cross-examination about the allegations at issue here without any valid … . People v Holmes, 2019 NY Slip Op 02033, First Dept 3-19-19

 

INABILITY TO IMPOSE THE PROMISED SENTENCE REQUIRED THAT DEFENDANT’S GUILTY PLEA BE VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his plea because the promised sentence could not be imposed should have been granted:

… [D]efendant is entitled to vacatur of the plea because his negotiated plea included a promise of shock incarceration, and that promise cannot be honored because shock incarceration is only available for persons convicted of controlled substance or marijuana offenses … . Since the guilty plea was induced by an unfulfilled promise, we vacate the plea in its entirety. The SCI was part and parcel of the negotiated plea. Therefore, we restore defendant to his preplea status and reinstate the indictment … . People v Golden, 2019 NY Slip Op 02027, First Dept 3-19-19

 

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PLAINTIFF, WHO WAS ASSAULTED IN DEFENDANT’S BUILDING, DID NOT RAISE A QUESTION OF FACT ON WHETHER THE ASSAILANT WAS AN INTRUDER OR A TENANT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, over a two-justice dissent, reversing Supreme Court, determined that the NYC Housing Authority’s (NYCHA’s) motion for summary judgment in this third party assault case should have been granted. Plaintiff, who was assaulted in defendant’s building, did not raise a question of fact on whether the assailant was an intruder or a tenant. The defendant would only be liable if, due to negligence, an intruder entered the building and committed the assault:

NYCHA met its prima facie burden by demonstrating that plaintiff failed to raise an issue of fact as to whether the assailant was an intruder, as opposed to a tenant or invitee lawfully on the premises … . In support of its motion, NYCHA submitted plaintiff’s deposition testimony that she was not a resident and did not know any other tenants in the building aside from her two patients. Plaintiff also testified that she did not see her assailant’s face because he kept his face covered with the hood of his sweatshirt and that she did not know if her assailant was a tenant or guest.

We previously have held that the victim’s familiarity with building residents, a history of ongoing criminal activity, and the assailant’s failure to conceal his or her identity tend to demonstrate that the assailant was more likely than not an intruder … . Here, plaintiff’s testimony demonstrates that these important factors were not present. Thus, plaintiff “provided no evidence from which a jury could conclude, without pure speculation, that it was more likely than not that the assailant was an intruder” … . Laniox v City of New York, 2019 NY Slip Op 02026, First Dept 3-19-19

 

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CHILD’S INCOMPLETE TESTIMONY STRICKEN IN A FAMILY COURT ACT 1028 PROCEEDING MAY BE ADMITTED IN A FAMILY COURT ACT 1046 CHILD ABUSE PROCEEDING (FIRST DEPT).

The First Department determined that a child’s testimony stricken from a Family Court Act 1028 proceeding can be admitted in a Family Court Act 1046 (a)(vi) child abuse proceeding:

On the merits, this appeal raises the issue of whether a child’s testimony stricken from a hearing pursuant to Family Ct Act § 1028 may be considered in connection with a fact-finding hearing regarding abuse allegations, pursuant to Family Ct Act § 1046(a)(vi). We hold that it may be so used. Family Ct Act § 1046(a)(vi) sets forth, in relevant part, that “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence,” when corroborated, and “[t]he testimony of the child shall not be necessary to make a fact-finding of abuse or neglect.” Here, then 14-year-old Ashley refused to continue with her testimony at the FCA 1028 hearing regarding her allegations of sexual abuse after she already had been cross-examined for three days by respondent’s counsel. According to a letter from Ashley’s therapist submitted to the court, it would be detrimental for the child to return to testify. We agree with the Family Court that it could rely upon Ashley’s incomplete testimony for the purposes of the subsequent fact-finding hearing, subject to a statutory requirement of corroboration. The use of Ashley’s incomplete testimony was in accordance with the legislative intent of Family Ct Act § 1046(a)(vi) to address “the reluctance or inability of victims to testify” … . Matter of Jaylyn Z. (Jesus O.), 2019 NY Slip Op 01846, First Dept 3-14-19

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NO LONGER NEED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT (FIRST DEPT).

The First Department, reversing Supreme Court, noted the plaintiff in a traffic accident case no longer has to demonstrate freedom from comparative fault to warrant summary judgment:

Plaintiff made a prima facie showing of negligence on the part of defendants by submitting an affidavit stating that as she was driving through the intersection she noticed that defendant driver failed to stop at the stop sign when plaintiff had the right of way (see Vehicle and Traffic Law § 1142[a]). Plaintiff was not required to demonstrate her own freedom from comparative negligence to be entitled to summary judgment as to defendants’ liability … . Garcia v McCrea, 2019 NY Slip Op 01842, First Dept 3-14-19

 

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THE 30-DAY NOTICE PROVISION IN THE MORTGAGE DID NOT PRECLUDE ACCELERATING THE DEBT BY THE ALLEGATIONS IN THE FORECLOSURE COMPLAINT, SUPREME COURT SHOULD NOT HAVE NULLIFIED THE ACCELERATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined Supreme Court should not have nullified the acceleration of the mortgage in this foreclosure action. Because acceleration was optional, the 30-day notice provision in the mortgage did not preclude acceleration by the allegations in the foreclosure complaint:

Supreme Court erred in nullifying plaintiff’s assignor’s acceleration in the prior action based on Section 22 of the mortgage which provides that the lender may accelerate the mortgage only if, inter alia, it has served defendant with a proper 30-day notice of default. Where the acceleration is optional as here, some affirmative action must be taken to evince the note holder’s election to accelerate … . Affirmative action can be in the form of a letter … or the commencement of a foreclosure action … . Plaintiff’s assignor accelerated the mortgage debt by commencing the prior action and stating in its complaint that “plaintiff elects herein to call due the entire amount secured by the mortgage(s).” Capital One, N.A. v Saglimbeni, 2019 NY Slip Op 01837, First Dept 3-14-19

 

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