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ALTHOUGH THE POLICE RECEIVED AN ANONYMOUS TIP THAT A MAN MATCHING DEFENDANT’S DESCRIPTION HAD A GUN, THE POLICE SAW NO SIGN OF CRIMINAL ACTIVITY WHEN THEY APPROACHED AND QUESTIONED THE DEFENDANT, THE SUBSEQUENT SEIZURE AND FRISK OF THE DEFENDANT WAS ILLEGAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing defendant’s conviction, determined the police illegally seized and frisked the defendant when they had only a level two right to inquire. The police were given an anonymous tip that a black man in a bodega wearing a black coat with a fur hood had a gun. The defendant matched the description, but he was seized and frisked in the absence of any sign of criminal activity. The fact that the anonymous tip tended to identify a specific person was not enough to justify the seizure. The handgun should have been suppressed:

The police may not stop and frisk a person based solely on information furnished by an anonymous source that the person is carrying a gun … . Since an anonymous tip “seldom demonstrates the informant’s basis of knowledge or veracity,” it can only give rise to reasonable suspicion if accompanied by sufficient indicia of reliability … . The tip must “be reliable in its assertion of illegality, not just in its tendency to identify a determinate person” .​.. . …

One of the officers asked defendant if everything was okay, and he replied in the affirmative. Defendant then attempted to pass by the officers and exit the store. He was prevented from exiting when one of the officers “sidestepped to [his] right,” in order to “prevent [defendant] from leaving the store.” The officer testified at the hearing that they “decided to frisk [defendant] for [their] safety, since it came over as male with a firearm and he fit the description.” They walked defendant to the counter, which was 5 to 10 feet away. Defendant put his hands on the counter, and the officers proceeded to frisk him. The officer testified that defendant placed his hand inside his jacket pocket, whereupon he used force to pull defendant’s wrist from the pocket. The officer testified that when he grabbed defendant’s wrist a silver firearm fell to the ground.

The People argue that defendant’s action in putting his hand in his pocket gave rise to reasonable suspicion. The problem with this argument is that defendant was already seized prior to this point.  People v Brown, 2019 NY Slip Op 03305, First Dept 4-30-19

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QUESTIONS OF FACT IN THIS ATTORNEY’S FEES DISPUTE WHETHER THERE WAS AN ORAL AGREEMENT TO RETURN THE UNEXHAUSTED PORTION OF THE RETAINER PAID BY PLAINTIFF AND WHETHER THE VOLUNTARY PAYMENT DOCTRINE APPLIED (FIRST DEPT).

The First Department determined defendant-attorneys failed to eliminate questions of fact about whether there was an oral agreement to return the unexhausted portion of the $176,500 retainer plaintiff paid for representation in an employment discrimination case, and whether the voluntary payment doctrine applied:

It is undisputed that defendants never provided plaintiff with a written agreement, as required under 22 NYCRR 1215.1. In addition, [defendant-attorney] Herman, in his deposition testimony, admitted that he never provided any itemization of the time spent working on plaintiff’s case, even when plaintiff’s counsel requested it. Thus, defendants failed to show that the amount of plaintiff’s payments was fair and reasonably related to the value of services rendered … .

Defendants also failed to establish that plaintiff’s claim is barred by the voluntary payment doctrine, which “bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law” … . While defendants assert that plaintiff voluntarily made payments to compensate them for their services, rather than any “deposits” towards a retainer, they failed to establish that plaintiff had full knowledge of the relevant facts, such as the number of hours spent by defendants in connection with their representation of him  … . Plaintiff also averred that defendants told him that part of the payments would be used towards a trial and an appeal, which never occurred. Since defendants allegedly intended to keep the payments, regardless of any trial or appeal, there are material issues of fact whether plaintiff made the payments “with full knowledge of the facts”… or based on a mistake of material fact … . Dubrow v Herman & Beinin, 2019 NY Slip Op 03297, First Dept 4-30-19

 

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CITY AGENCY FAILED TO DEMONSTRATE THE REPORT SOUGHT BY PETITIONERS WAS SUBJECT TO THE INTRA-AGENCY EXEMPTION FROM THE FREEDOM OF INFORMATION LAW (FOIL) BECAUSE THE AGENCY DID NOT PRESENT PROOF THE PREPARER OF THE REPORT WAS RETAINED BY THE AGENCY, SUPREME COURT SHOULD HAVE CONSIDERED PETITIONERS’ REQUEST FOR ATTORNEY’S FEES AS MANDATED BY A 2017 AMENDMENT TO FOIL (FIRST DEPT).

The First Department determined Supreme Court correctly held that the respondent, NYC Dept of Parks & Recreation, was not entitled to the intra-agency materials exemption from the Freedom of Information Law (FOIL) because the respondent did not demonstrate that it retained a third party, “Owens Studio,” to prepare the report sought by petitioners. The First Department went on to find that the statute obligated Supreme Court to address their request for attorney’s fees:

… [R]espondent failed to establish that it retained Owens Studio for purposes of preparing the report, a necessary prerequisite for invocation of the intra-agency materials exemption for documents prepared by an outside consultant … . The affidavit submitted by respondent on this point is on its face conclusory. The fragmentary documents to which respondent’s affiant points demonstrate only that Owens Studio was retained to perform some work. They do not on their face establish that respondent retained Owens Studio to prepare the subject study and report, nor establish what Owens Studio was retained to do, nor, in particular, establish that respondent itself, as opposed to some other entity, retained Owens Studio to prepare the report … . …

The attorneys’ fees provision of FOIL was amended, effective December 13, 2017, to provide that the court “shall” award counsel fees where the agency has no basis for denying access to the material sought. The legislative history of the recent amendment notes that “[o]ften, people simply cannot afford to take a government agency to trial to exercise their right to access public information,” and that an award of attorney’s fees is intended to “encourage compliance with FOIL and to minimize the burdens of cost and time from bringing a judicial proceeding” … . Matter of Reiburn v New York City Dept. of Parks & Recreation, 2019 NY Slip Op 03295, First Dept 4-30-19

 

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THE COMPLAINT ALLEGED THE ICY CONDITION EXISTED BEFORE 10 INCHES OF SNOW FELL, DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE NOTICE OF THE ICE, 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 defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff alleged the icy condition existed before the snow fell and defendants didn’t demonstrate a lack of notice of the icy condition:

Although it is undisputed that about 10 inches of snow fell about two hours before the … accident, Supreme Court should have denied [defendants’] summary judgment because their submissions failed to address the complaint’s allegations that the ice was on the sidewalk before that storm and that they received notice that it was there. Specifically, they failed to present evidence from someone with knowledge as to whether either entity received a complaint about the location before the storm commenced and the area’s condition before the new precipitation fell. Wolf v St. Vincent’s Catholic Med. Ctrs. of N.Y., 2019 NY Slip Op 03293, First Dept 4-30-19

 

QUESTIONS OF FACT WHETHER DEFENDANT WAS A GENERAL CONTRACTOR AND WHETHER DEFENDANT HAD SUPERVISORY AUTHORITY OVER SAFETY CONDITIONS IN THIS LABOR LAW 240 (1) LADDER-FALL CASE (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) ladder-fall action was properly denied as against the alleged genera contractor, Edler. There was a question of fact whether Edler was a general contractor and whether Edler had the authority to supervise safety conditions:

To be found a “general contractor” for purposes of establishing liability pursuant to Labor Law § 240(1), plaintiffs must show that Edler had the ability to control the activity bringing about the injury and the authority to correct unsafe conditions … . Here, plaintiffs failed to establish, as a matter of law, that Edler had the ability to control [plaintiff’s employer’s] work at the premises or stop the work. The record reflects that although Edler was hired to “supervise” the project, Edler did not hire, retain or pay any of the contractors working at the premises … . Moreover, the homeowner testified that he “assume[d]” that Edler had safety responsibilities and that it was his understanding that Edler had the authority to stop work on the job site if an unsafe condition arose. However, Edler’s principal denies that he had the authority to stop the work at the premises, and the agreement between Edler and the homeowner does not specifically confer upon Edler the authority to stop the work if an unsafe condition was observed … . Rather, it provides that part of Edler’s “site supervision” responsibilities included supervising “day to day operations” of the site and trade. An issue of fact remains as to whether this includes supervision of the safety conditions. Uzeyiroglu v Edler Estate Care Inc., 2019 NY Slip Op 03285, First Dept 4-30-19

 

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REPORT OF FIRE MARSHAL, WHO HAD NO INDEPENDENT RECOLLECTION OF HIS INVESTIGATION INTO THE CAUSE OF THE FIRE, WAS ADMISSIBLE PURSUANT TO THE BUSINESS RECORD EXCEPTION TO THE HEARSAY RULE, COURT SHOULD NOT HAVE CONSIDERED A NEW THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff could not defeat a summary judgment motion by raising a new theory of liability in the opposing papers:

The report established that the fire marshal conducted an investigation at the subject premises and concluded that the fire in defendants’ building was caused by combustible clothing left in a dryer for too long, rather than any defect in the premises or dryer … . Although the fire marshal did not have an independent recollection of his investigation, his report was admissible under the business record exception to the hearsay rule, and was sufficient to satisfy defendants’ prima facie burden, since it noted that he independently inspected the premises and concluded that the accident was not due to defendants’ negligence … .

In opposition, plaintiff failed to raise a triable issue of fact. Her expert failed to address the theories of liability raised in the complaint and bill of particulars and failed to rebut defendants’ showing. Instead, plaintiff’s expert raised a new theory, namely that plaintiff’s injuries from smoke inhalation were caused by the absence of a self-closing door in the laundry room where the fire occurred, which caused smoke to permeate into plaintiff’s apartment. A plaintiff cannot defeat a summary judgment motion by asserting a new theory of liability for the first time in opposition papers … . Mirdita v Musovic Realty Corp., 2019 NY Slip Op 03284, First Dept 4-30-19

 

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PURSUANT TO MILITARY LAW, PETITIONER SHOULD HAVE BEEN DEEMED TO HAVE SUCCESSFULLY COMPLETED HER NYC POLICE-OFFICER PROBATIONARY PERIOD BY VIRTUE OF HER DEPLOYMENT ON MILITARY DUTY DURING THE PROBATIONARY PERIOD (FIRST DEPT).

The First Department, reversing Supreme Court, determined that Military Law controlled and petitioner, a probationary NYC police officer, must be deemed to have satisfactorily completed her probation by virtue of her military deployment while on probationary status:

Under New York City personnel rules, “[s]ubject to the provisions of the [M]ilitary [L]aw,” the computation of a probationary period is based on time the employee is “on the job in a pay status” (55 RCNY 5.2.2[b]). The personnel rules further provide that, notwithstanding rule 5.2.2, the probationary period will be extended while a probationer “does not perform the duties of the position” (55 RCNY 5.2.8[b]) for instance, while on limited duty status … . These rules are expressly subject to Military Law § 243(9), which provides, in pertinent part, that if a probationary employee is deployed on military duty before the expiration of his or her probationary period, “the time [she] is absent on military duty shall be credited as satisfactory service during such probationary period.”

Military Law § 243(9) is unambiguous in providing that respondents are required to credit the period that probationary officers spend in military service as “satisfactory service” towards completion of the probationary period. The statute does not distinguish between probationers on restricted or modified duty and those on full duty status at the time of deployment, or give respondents discretion to distinguish between types of probationers … . Matter of Aroca v Bratton, 2019 NY Slip Op 03277, First Dept 4-30-19

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LAW OFFICE FAILURE WAS A REASONABLE EXCUSE FOR FAILING TO ANSWER, DEFENDANT’S MOTION TO EXTEND THE TIME TO APPEAR SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined low office failure was a legitimate excuse for failing to serve an answer. Defendant had made a pre-answer motion to dismiss, thereby demonstrating defendant did not intend to abandon the action:

Defendants satisfied the requirements of CPLR 3012(d), which authorizes an extension of time to appear or plead “upon such terms as may be just and upon a showing of reasonable excuse for delay or default.” Here, the delay in filing an answer was occasioned by law office failure, which can constitute a reasonable excuse … . Defendants’ counsel explained that its failure to file its answer was due to an error in its office’s case management system, which, upon the entry of a pre-answer motion to dismiss, marked the complaint answered. Notably, service of the pre-answer motion to dismiss revealed that defendants did not intend to abandon the action. Plaintiff does not argue that it has been prejudiced as a result of defendants’ three month delay in submitting its answer … , and our determination comports with New York’s strong public policy in favor of litigating matters on the merits … . Hertz Vehicles, LLC v Mollo, 2019 NY Slip Op 03270, First Dept 4-30-19

 

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THE AFFIDAVIT WHICH PURPORTED TO DEMONSTRATE PLAINTIFF HAD STANDING TO BRING THE FORECLOSURE ACTION REFERRED TO UNIDENTIFIED AND UNPRODUCED RECORDS AND THEREFORE LACKED ANY PROBATIVE VALUE (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined plaintiff failed to demonstrate standing to bring the foreclosure proceedings:

Plaintiff cannot establish that the note was assigned to it by a written assignment prior to commencement of foreclosure proceedings. Therefore, it must “adequately prove[] that it did, indeed, have possession of the note prior to commencement of this action” … , and where an affiant’s knowledge is based on unidentified and unproduced records, “the affidavit lacks any probative value” and cannot be the basis for an award of summary judgment … . Since plaintiff has failed to establish that it had physical possession of the note prior to commencement of this action, we reverse the motion court’s award of summary judgment to plaintiff. Residential Credit Solutions, Inc. v Gould, 2019 NY Slip Op 03266, First Dept 4-30-19​

 

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POLICE BODY-WORN-CAMERA FOOTAGE DOES NOT CONSTITUTE A PERSONNEL RECORD AND IS NOT THEREFORE PROTECTED FROM RELEASE TO THE PUBLIC BY CIVIL RIGHTS LAW 50-a (FIRST DEPT).

The First Department determined police officers’ body-worn-camera footage did not constitute a personnel record within the meaning of Civil Rights Law 50-a. Therefore the Patrolmen’s Benevolent Assn. of the City of N.Y.’s petition for a preliminary injunction prohibiting release of the footage was properly denied:

We find that given its nature and use, the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of § 50-a … . The purpose of body-worn-camera footage is for use in the service of other key objectives of the program, such as transparency, accountability, and public trust-building.

Although the body-worn-camera program was designed, in part, for performance evaluation purposes, and supervisors are required, at times, to review such footage for the purpose of evaluating performance, the footage being released here is not primarily generated for, nor used in connection with, any pending disciplinary charges or promotional processes. New York Civil Liberties Union v New York City Police Department (__NY3d__, 2018 NY Slip Op 8423 [2018]), which involved disciplinary matters, does not constrain this analysis. The footage, here, rather, is more akin to arrest or stop reports, and not records primarily generated for disciplinary and promotional purposes. To hold otherwise would defeat the purpose of the body-worn-camera program to promote increased transparency and public accountability. Matter of Patrolmen’s Benevolent Assn. of the City of N.Y. v De Blasio, 2019 NY Slip Op 03265, First Dept, 4-30-19

 

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