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QUESTION OF FACT WHETHER DEFENDANT IN THIS SLIP AND FALL CASE HAD CONSTRUCTIVE KNOWLEDGE OF MELTED ICE CREAM ON THE STAIRS, THERE WAS EVIDENCE THE ICE CREAM HAD BEEN THERE FOR AT LEAST THREE HOURS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether defendant had constructive notice of melted ice cream which had spilled onto interior stairs in this slip and fall case. There was evidence the ice cream was on the step for at least three hours:

Although defendants’ superintendent testified that he complied with his regular maintenance routine on the day of the accident and never observed the cup of ice cream on the stairs, plaintiff testified that she observed the cup of ice cream in an upright position approximately three hours before her fall when she had returned home from work. Such conflicting testimony, along with a photograph showing a tipped over cup of melted ice cream taken moments after plaintiff’s fall, creates a triable issue as to whether defendants had constructive notice of the condition … . Cruz v Perspolis Realty LLC, 2019 NY Slip Op 01531, First Dept 3-5-19

 

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PEOPLE DEMONSTRATED THE RAPE KIT AND BLOOD AND SALIVA EVIDENCE RELATED TO A 1988 PROSECUTION HAD BEEN DESTROYED AND DEFENDANT DID NOT DEMONSTRATE THE AVAILABILITY OF THE EVIDENCE WOULD HAVE CHANGED THE VERDICT, MOTION FOR DNA TESTING AND MOTION TO VACATE THE CONVICTION PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant’s motion for DNA testing and his motion to vacate his conviction were properly denied. Defendant had been convicted of sodomy in 1988. After a successful habeas corpus petition, a second trial was held and defendant was again convicted. After the habeas corpus petition had been filed, but before it was docketed, the NYPD destroyed the rape kit and blood and saliva samples. No DNA testing had been done on the evidence:

Any defendant, regardless of the date of conviction, may move for DNA testing on specified evidence. The court shall grant the application if it determines that had a DNA test been conducted on the evidence and had the results of that evidence been admitted at trial, “there exists a reasonable probability that the verdict would have been more favorable to the defendant” (CPL 440.30[1-a][a][1]). Defendant bears the burden of making the “reasonable probability” showing … . Where the People assert that the evidence to be tested has been destroyed or cannot be located, the statute provides that the people must make “a representation to that effect” and submit “information and documentary evidence in the possession of the people concerning the last known physical location of such specified evidence” (CPL 440.30[1-b][b]). It is the People’s burden to show that the evidence could no longer be located and was thus no longer available for testing … .

We find that the People met their burden. …

… .[W]e find that defendant has not carried his burden of establishing that, even had he been able to secure the original evidence and perform DNA testing on it, there is a reasonable probability that the verdict would have been different … . People v Dorsey, 2019 NY Slip Op 01526, First Dept 3-5-19

 

PLAINTIFF WAS DOING ROUTINE MAINTENANCE WHEN HE FELL FROM A LADDER, NOT COVERED BY LABOR LAW 240 (1) (FIRST DEPT). ​

The First Department determined plaintiff was not engaged in work covered by Labor Law 240 (1) when he fell from a ladder:

Although plaintiff injured his elbow when the ladder he was using in defendant’s building fell over, he is not entitled to relief under Labor Law § 240(1) since he was not engaged in construction-related activity at the time of his accident … . Plaintiff’s actions of opening a splice box affixed to the wall and splicing telephone wires therein while on a service call for a customer of his employer did not constitute an alteration of the building, but rather routine maintenance … . Spencer v 322 Partners, L.L.C., 2019 NY Slip Op 01523, First Dept 3-5-19

 

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THE EXCLUSIONARY LANGUAGE IN THE NYC ADMINISTRATIVE CODE PROVISION WHICH CRIMINALIZES POSSESSION OF AMMUNITION IS AN EXCEPTION THAT MUST BE AFFIRMATIVELY PLED, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction of unlawful possession of ammunition pursuant to New York City Administrative Code § 10-131(i)(3), determined that the exclusionary language in the code provision is an exception which must be affirmatively pled in the accusatory instrument:

We find that the relevant language in section 10-131(i)(3), which makes it a crime to possess pistol or revolver ammunition unless authorized to possess a pistol or revolver, constitutes an exception and not a proviso. Consequently, it was the People’s burden to prove that the defendant was not authorized to possess a pistol or revolver within the City of New York. As the People failed to do so, defendant’s conviction under section 10-131(i)(3) must be vacated and that count dismissed.

In order to determine whether a statute defining a crime contains “an exception that must be affirmatively pleaded as an element in the accusatory instrument” or “a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial,” one must look to the language of the statute itself … . Indeed, “[i]f the defining statute contains an exception, the indictment must allege that the crime is not within the exception. But when the exception is found outside the statute,” it is termed a proviso and “generally is a matter for the defendant to raise in defense” … . “Legislative intent to create an exception [whose existence must be negated by the prosecution] has generally been found when the language of exclusion is contained entirely within” the statute itself … . In contrast, where the language of the exclusion depends on a source outside the statute, courts will infer that the language functions as a proviso … . People v Tatis, 2019 NY Slip Op 01507, First Dept 2-28-19

 

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APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE ABSENCE OF A REASONABLE EXCUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim should have been granted. Petitioner alleged he was injured by the malfunction of weightlifting equipment at a city recreation center:

Assuming that the law firm’s clerical error was not a reasonable excuse, ” [t]he absence of a reasonable excuse is not, standing alone, fatal to the application,'” where the municipal respondent had actual notice of the essential facts constituting the claim and was not prejudiced by the delay … . Here, petitioner’s affidavit stating that he signed an incident report prepared by respondent’s employee shortly after the accident, and that the weightlifting equipment was repaired a few months later, demonstrate prima facie that respondent received actual notice of the pertinent facts underlying his claim, if not the negligence claim itself, which supports a “plausible argument” that the City will not be substantially prejudiced in investigating and defending the claim … . Matter of Mercedes v City of New York, 2019 NY Slip Op 01487, First Dept 2-28-19

 

PROSECUTION’S REVERSE-BATSON CHALLENGE TO PEREMPTORY JUROR CHALLENGES BY THE DEFENSE SHOULD NOT HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that the prosecution’s reverse-Batson challenge to defense peremptory juror challenges should not have been granted:

“[A]lthough appellate courts accord great deference to trial judges’ step three determinations, . . . there is no record support for Supreme Court’s rejection of defense counsel’s race-neutral reasons for striking [two panelists]. The People simply failed to meet their burden that racial discrimination was the motivating factor” … . Defense counsel presented facially race-neutral reasons for challenging the panelists at issue based on their having been crime victims or relatives of crime victims … , and there was no evidence of disparate treatment by defense counsel of similarly situated panelists … . The record otherwise fails to support the court’s finding that the race-neutral reasons given for these challenges were pretextual. People v Bloise, 2019 NY Slip Op 01363, First Dept 2-26-19

 

MOTION TO DISMISS SUIT SEEKING RETURN OF A PAINTING ALLEGEDLY LOOTED BY THE NAZI-OCCUPIED FRENCH GOVERNMENT DURING WORLD WAR II PROPERLY DENIED (FIRST DEPT).

The First Department determined defendants’ motion to dismiss on forum non conveniens grounds was properly denied. The suit seeks the return of a painting allegedly looted by the Nazi-occupied French government:

In weighing the relevant factors, the court correctly observed that plaintiff and several defendants maintained residences in New York … . Although defendants suggest that France is the more appropriate forum, they also argued below, and submitted expert affidavits in support of the position, that this action would be time-barred in that jurisdiction, an important factor to consider … . This Court observes that retaining this action would not be particularly burdensome; New York has previously entertained actions concerning Nazi looting of art during World War II … . That the originals of some documents are located abroad does not require dismissal, and it is noted that the key documents have already been translated for the court… . In light of the foregoing, defendants failed to meet their heavy burden of establishing that the action should be dismissed on forum non conveniens grounds … . Gowen v Helly Nahmad Gallery, Inc., 2019 NY Slip Op 01350, First Dept 2-26-19

 

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QUESTION OF FACT WHETHER THE RECKLESS STANDARD APPLIED IN THIS PEDESTRIAN-POLICE CAR ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether the reckless standard applied in this pedestrian-police car traffic accident case. The court noted that the governmental function immunity doctrine does not apply to this scenario:

The governmental function immunity doctrine does not apply in this case where plaintiff pedestrian was injured when she was struck by a police vehicle that was allegedly pursuing a vehicle that had committed a traffic infraction … . Instead, where a plaintiff alleges that a municipality and/or its employees were negligent in the ownership or operation of an authorized emergency vehicle while engaged in one of the activities protected by Vehicle and Traffic Law § 1104(b), the “reckless disregard” standard set forth in Vehicle and Traffic Law § 1104(e) applies … .

Here, a factual issue exists as to whether defendants were engaged in a protected activity under Vehicle and Traffic Law § 1104(b), namely, proceeding past a steady red signal (see Vehicle and Traffic Law § 1104[b][2]), while pursuing a vehicle for a traffic violation so as to apply the reckless standard of care as opposed to ordinary negligence principles … . Santana v City of New York, 2019 NY Slip Op 01348, First Dept 2-26-19

 

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$1 MILLION ATTORNEY’S FEE REQUEST CUT IN HALF BY SURROGATE’S COURT AND REDUCED A FURTHER $100,000 BY THE FIRST DEPT CITING EXCESSIVE CHARGES FOR IN-FIRM DISCUSSIONS AND UNNECESSARY WORK (FIRST DEPT).

The First Department determined Surrogate’s Court properly reduced by half the $1 million attorney’s-fees request, which represented 1/3 of the estate and trust assets. First Department further reduced the fees by another $100,000:

Respondent’s counsel sought approval for legal fees in the amount of $1,037,183 for their representation of respondent. The amount requested represented 33.7% of the estate and trust assets. The Surrogate noted that the fees were far in excess of a typical fee for the services performed by respondent’s counsel, concluded that the fees were excessive, and fixed the fees in the total amount of $520,000.

Although the Surrogate reduced the fees from the exorbitant amount originally requested, we conclude that the fees as reduced are still excessive given the size of the estate … . While there is no set formula for fee awards, upon our review of counsel’s time records and in the exercise of discretion, we conclude that a further reduction in the amount of $100,000 is warranted. This additional reduction is necessary to properly account for excessive charges for inter-office communications and discussions amongst members of the firm, and unnecessary work performed … . Matter of SR, 2019 NY Slip Op 01343, First Dept 2-26-19

 

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PHOTOGRAPH OF DEFENDANT WITH A WEAPON PROPERLY ADMITTED DESPITE THE ABSENCE OF EVIDENCE THE DEPICTED WEAPON WAS USED IN THE CHARGED OFFENSE, JURY WAS PROPERLY INSTRUCTED ON ACCESSORIAL LIABILITY DESPITE THE ABSENCE OF AN ALLEGATION OF ACCESSORIAL LIABILITY IN THE INDICTMENT AND DESPITE THE PEOPLE’S THEORY THAT DEFENDANT WAS THE SHOOTER (FIRST DEPT).

The First Department determined a photograph depicting defendant with a weapon was properly admitted into evidence despite the absence of evidence that the weapon in the photograph was the weapon used in the offense. The trial court properly instructed the jury on accessorial liability despite the absence of an allegation of accessorial liability in the indictment and the People’s theory that defendant shot the victim:

The court providently exercised its discretion in admitting in evidence a photograph, taken less than two months before the shooting, showing a person, sufficiently established to be defendant, holding a revolver of the type used in the crime. This evidence was relevant to show that defendant had access to such a weapon, thus tending to establish his identity as the perpetrator, and there was no requirement of proof that the revolver in the photograph was the actual weapon used in the crime … . …

The court properly instructed the jury on accessorial liability, notwithstanding that no such language appeared in the indictment and the People’s main theory was that defendant personally shot the victim. There was no improper amendment of the indictment, because an indictment charging a defendant as a principal is “not unlawfully amended by the admission of proof and instruction to the jury that a defendant is additionally charged with acting-in-concert to commit the same crime, nor does it impermissibly broaden a defendant’s basis of liability, as there is no legal distinction between liability as a principal or criminal culpability as an accomplice” … . A theory that defendant intentionally aided a particular other person, who did the actual shooting, was supported by defendant’s own testimony. Although defendant claimed he had not shared the gunman’s intent, such intent could be inferred from the totality of the evidence. We reject defendant’s claim of unfair surprise, particularly because the theory of accessorial liability arose from defendant’s own testimony … . People v Alexander, 2019 NY Slip Op 01341, First Dept 2-26-19

 

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