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DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant property owner’s (Reda’s) motion for summary judgment in this sidewalk slip and fall case should not have been granted. There was a question of fact whether the area where plaintiff fell was in a designated bus stop, where the city would be responsible, or in an area the NYC Administrative Code requires that defendant maintain:

Plaintiff alleges that she tripped and fell over a gap between flagstones on a public sidewalk abutting property owned by Reda, and south of a bus shelter maintained by defendant City. Under Administrative Code of City of NY § 7-210, an abutting property owner has a duty to maintain the public sidewalk … , but the City continues to be responsible for maintaining any part of the sidewalk that is “within a designated bus stop location” … .

In support of her motion for summary judgment, Reda submitted evidence, including photographs showing where plaintiff fell near a bus shelter and next to a yellow-marked curb, and the City’s admission that it owns the bus stop pole shown in a photograph. However, absent any applicable statute or any evidence defining the parameters of a bus stop, a triable issue of fact exists as to whether the part of the sidewalk where plaintiff fell is within a designated bus stop that the City is required to maintain … . McCormick v City of New York, 2018 NY Slip Op 07175, First Dept 10-25-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/MUNICIPAL LAW (SIDEWALKS, BUS STOP, SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/SLIP AND FALL (MUNICIPAL LAW, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/BUS STOPS (MUNICIPAL LAW, SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))

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UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant homeowner was entitled to summary judgment in this sidewalk slip and fall case. Defendant was exempt from liability under the NYC Administrative Code and that defendant’s fence with a gate did not constitute a special use of the sidewalk:

In this trip and fall case involving an uneven sidewalk, defendant Ortiz’s testimony that she lived in a one-family home adjacent to the sidewalk was sufficient competent evidence to make a prima facie showing that she qualified for the exemption provided at Administrative Code of City of NY § 7-210(b) … .

In opposition, plaintiff offers no evidence to the contrary, and no authority for her proposition that a party seeking to demonstrate that their home is a one-, two- or three-family home exempt from § 7-210 must produce a deed.

Nor is defendant Ortiz liable based on a theory that her fence, containing a gate, constituted a special-use. “The principle of special use, a narrow exception to the general rule, imposes an obligation on the abutting landowner, where he puts part of a public way to a special use for his own benefit and the part used is subject to his control, to maintain the part so used in a reasonably safe condition to avoid injury to others. . . . Special use cases usually involve the installation of some object in the sidewalk or street or some variance in the construction thereof” … . There is no evidence in the record that defendant’s fence is built on or in the sidewalk. That the gate, which defendant testified is “almost never” used, would permit herself and others to enter her property does not constitute a special use, as those using it would merely walk across the sidewalk, a use not “unrelated to the public use” … . Moreover, as the defect in the sidewalk is adjacent to defendant’s gate, not in front of it, it was plaintiff’s burden to demonstrate that this alleged “special use” caused or contributed to the defect … . Plaintiff offered no such evidence. Hernandez v Ortiz, 2018 NY Slip Op 07075, First Dept 10-23-18

NEGLIGENCE (SLIP AND FALL, UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))/MUNICIPAL LAW (SLIP AND FALL, UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))/SLIP AND FALL (UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))

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DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT).

The First Department determined that defendant should be given the opportunity to move to vacate his guilty plea on ineffective assistance grounds. Although deportation was mandatory, defendant was told only that he may be deported:

Defendant was deprived of effective assistance of counsel when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation, and instead merely advised him that his plea would have “immigration consequences,” would “impact his ability to stay in the country” and “will probably very well end up with [defendant] being deported from this country” … .

Defendant should be afforded 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 … , and we hold this appeal in abeyance for that purpose. People v Johnson, 2018 NY Slip Op 07072, First Dept 10-23-18

CRIMINAL LAW (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/IMMIGRATION (CRIMINAL LAW, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/GUILTY PLEA, MOTION TO VACATE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))

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LANDLORD’S SUMMARY JUDGMENT MOTION PROPERLY DENIED IN THIS THIRD PARTY ASSAULT CASE, PLAINTIFF TENANT WAS ASSAULTED IN AN ALLEYWAY WHERE TENANTS LEFT THEIR TRASH (FIRST DEPT). ​

The First Department determined defendant landlord’s motion for summary judgment in this third party assault case was properly denied. Infant plaintiff was assaulted in an alleyway outside the building where tenants left their trash. There was a question of fact whether the assault was foreseeable. The alternative theory of liability, that defendant failed to maintain safety measures voluntarily undertaken in the alleyway, was rejected because plaintiff did not demonstrate reliance on those measures:

Contrary to defendant’s contention, the alleyway, in which tenants of the building deposited their trash, was not a public area where defendant had no duty to maintain minimal security precautions … . Issues of fact as to the foreseeability of the assault are presented by the record evidence of previous criminal activity in or at the building, including drug dealing, multiple burglaries, including one at gunpoint, and gunshots and the discovery of empty shell casings outside the building . Issues of fact exist as to whether the gate to the alleyway was maintained in a closed and locked condition and whether there was sufficient lighting in the alleyway. Issues of fact also exist as to whether the open gate or any insufficiency in the lighting was a proximate cause of the assault … . Accordingly, considering the neighborhood’s susceptibility to incidents of violent crime, we are unable to hold as a matter of law that defendant upheld its common law duty to maintain the premises in a safe and secure manner.

However, we reject plaintiff’s alternative theory that defendant is liable to the extent that it voluntarily provided a locked gate, lighting, or video monitoring for the alleyway, and then negligently maintained those items. Even were we to conclude that defendant created a duty by introducing such security measures, plaintiff failed to demonstrate that she was lulled into a false sense of security such that she neglected to take precautions that she would have otherwise taken in the absence of those measure … . Sanchez v Morris Ave. Equities Corp., 2018 NY Slip Op 07071, First Dept 10-23-18

NEGLIGENCE (LANDLORD-TENANT, THIRD PARTY ASSAULT, LANDLORD’S SUMMARY JUDGMENT MOTION PROPERLY DENIED IN THIS THIRD PARTY ASSAULT CASE, PLAINTIFF TENANT WAS ASSAULTED IN AN ALLEYWAY WHERE TENANTS LEFT THEIR TRASH (FIRST DEPT))/LANDLORD-TENANT (NEGLIGENCE, THIRD PARTY ASSAULT, LANDLORD’S SUMMARY JUDGMENT MOTION PROPERLY DENIED IN THIS THIRD PARTY ASSAULT CASE, PLAINTIFF TENANT WAS ASSAULTED IN AN ALLEYWAY WHERE TENANTS LEFT THEIR TRASH (FIRST DEPT))/THIRD PARTY ASSAULT (LANDLORD-TENANT, NEGLIGENCE, LANDLORD’S SUMMARY JUDGMENT MOTION PROPERLY DENIED IN THIS THIRD PARTY ASSAULT CASE, PLAINTIFF TENANT WAS ASSAULTED IN AN ALLEYWAY WHERE TENANTS LEFT THEIR TRASH (FIRST DEPT))

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PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiffs (the Rothchilds) were entitled to summary judgment in this rear-end collision case:

The record shows that the accident occurred in heavy, stop-and-go traffic, and DeSouza [defendant] testified to driving three-to-five miles per hour for at least 10 minutes prior to the accident, that he observed cars immediately in front of the Rothchilds’ vehicle, and that he did not place his foot on his brake until his moving vehicle was two feet from the Rothchilds’ back bumper. A driver is supposed to make reasonable use of his or her senses … , and maintain a safe distance from other motor vehicles (see Vehicle and Traffic Law § 1129[a]…), which was not done in this case. Miller v DeSouza, 2018 NY Slip Op 07065, First Dept 10-23-18

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT))/TRAFFIC ACCIDENTS (PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT))/REAR END COLLISIONS (PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW  (TRAFFIC ACCIDENTS, REAR END COLLISIONS, PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT))

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DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT).

The First Department determined defendant should be given the opportunity to move to vacate his guilty plea on ineffective assistance grounds because he was not adequately warned of the deportation consequences:

Defendant was deprived of effective assistance when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation, and instead merely advised him that deportation was a possibility … .

Defendant should be afforded 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 (see id.), and we hold the appeal in abeyance for that purpose. People v Rodriguez, 2018 NY Slip Op 07061, First Dept 10-23-18

CRIMINAL LAW (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/IMMIGRATION (CRIMINAL LAW, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/GUILTY PLEA, MOTION TO VACATE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))

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ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER’S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the complaint stated causes of action for promissory estoppel and a constructive trust. Plaintiff alleged that his mother removed him from her will, not to disinherit him, but to prevent his former wife from sharing in the estate.  Plaintiff and defendant are brother and sister. The agreement regarding the disposition of the estate made between plaintiff and defendant violated the statute of frauds. However promissory estoppel may be applicable:

The amended complaint alleges that, both before the mother’s death and subsequent to it, plaintiff and defendant entered into an oral agreement whereby, essentially, defendant would be the sole heir to the estate, and would, among other things, give plaintiff his 50% share after completion of plaintiff’s divorce, and, until the final transfer of his share of the estate, defendant would maintain a life insurance policy of at least $5 million, with plaintiff as the sole beneficiary. Giving the complaint “the benefit of every possible favorable inference” … , it may be inferred that this oral agreement was in furtherance of the mother’s wishes, as her decision to remove plaintiff from the will was for the sole purpose of denying the former wife any access to the estate, and not an affirmative wish to disinherit plaintiff. In furtherance of the oral agreement, following the mother’s death, plaintiff paid the estate tax from his share of the mother’s life insurance policy.

… “[W]here the elements of promissory estoppel are established, and the injury to the party who acted in reliance on the oral promise is so great that enforcement of the statute of frauds would be unconscionable, the promisor should be estopped from reliance on the statute of frauds” … .

Plaintiff here has also sufficiently alleged the elements of his constructive trust claim … . Castellotti v Free, 2018 NY Slip Op 07045, First Dept 10-23-18

CONTRACT LAW (PROMISSORY ESTOPPEL, ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER’S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))/PROMISSORY ESTOPPEL (ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER’S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))/CONSTRUCTIVE TRUST (ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER’S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))/TRUSTS AND ESTATES (PROMISSORY ESTOPPEL, CONSTRUCTIVE TRUST, ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER’S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))/STATUTE OF FRAUDS (PROMISSORY ESTOPPEL, CONSTRUCTIVE TRUST, ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER’S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))

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THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT).

he First Department, reversing Supreme Court, determined defendant’s petition requesting a de novo jury trial on whether defendant is mentally ill should have been granted. The First Department held that the exception to the mootness doctrine applied to allow appeal, the denial of the petition was appealable as of right, and the remarks of defense counsel and the testimony of the defense expert at the hearing to the effect defendant is mentally ill did not waive defendant’s right to a trial de novo:

This case satisfies the exception to the mootness doctrine because there is “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . Commitment and retention proceedings generally involve orders of short duration, which typically evade review … . Moreover, the issue before us is substantial, as it requires us to decide whether statements by defendant’s counsel and his expert could operate to deprive a defendant of his statutory right to demand a jury trial de novo on the “basic liberty issue” of whether he can be confined … . …

… [T]there can be no serious dispute that the order of the motion court, which denied defendant the opportunity to present his case before a jury, as provided for under CPL 330.20(16), affected a substantial right. * * * Since the motion court’s order affected a substantial right of defendant, we hold that his appeal is properly before us as one taken as of right under CPLR 5701(a)(2)(v). * * *

Here, defendant timely expressed his dissatisfaction with a recommitment order that was based on a threshold finding that he had a mental illness. Once defendant met those core requirements, he was entitled to a de novo trial at which a jury would decide whether he was mentally ill based on the evidence then existing. Matter of New York State Off. of Mental Health v Marco G., 2018 NY Slip Op 06998, First Dept 10-18-18

CRIMINAL LAW (CPL 330.20, MENTAL ILLNESS, THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT))/APPEALS (CRIMINAL LAW, MENTAL ILLNESS, THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT))/MENTAL HYGIENE LAW (CRIMINAL LAW, MENTAL ILLNESS, THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT))/MOOTNESS DOCTRINE (APPEALS, CRIMINAL LAW, CPL 330.20, MENTAL ILLNESS, THE DENIAL OF DEFENDANT’S PETITION FOR A DE NOVO JURY TRIAL TO DETERMINE WHETHER HE IS MENTALLY ILL IS APPEALABLE AS OF RIGHT AND THE PETITION SHOULD HAVE BEEN GRANTED, AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED AND DEFENSE COUNSEL’S STATEMENTS AND THE DEFENSE EXPERT’S TESTIMONY AT THE HEARING TO THE EFFECT DEFENDANT WAS MENTALLY ILL DID NOT CONSTITUTE A WAIVER OF THE DEFENDANT’S RIGHT TO A DE NOVO TRIAL (FIRST DEPT))

NO EVIDENCE ROBBERY VICTIM SAW A FIREARM, ROBBERY FIRST CONVICTION VACATED (FIRST DEPT).

The First Department, reversing the robbery first conviction, over a partial dissent, determined that there was no evidence the victim saw a firearm:

… [T]he evidence did not establish the element of display of what appeared to be a firearm … . The robbery was accomplished by assaulting the victim and taking his wallet. Although an eyewitness saw the display of what appeared to be a firearm, there was no evidence that the victim ever saw it … . People v Allende, 2018 NY Slip Op 06967, First Dept 10-18-18

CRIMINAL LAW (NO EVIDENCE ROBBERY VICTIM SAW A FIREARM, ROBBERY FIRST CONVICTION VACATED (FIRST DEPT))/ROBBERY (NO EVIDENCE ROBBERY VICTIM SAW A FIREARM, ROBBERY FIRST CONVICTION VACATED (FIRST DEPT))

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ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, reversing Supreme Court, over a dissent, determined that the NYC “open space” zoning resolution (ZR) requirements can not be satisfied on a building by building basis. The permit allowing the construction of a nursing home facility on a parking  lot, therefore, should not have been issued. The open space on the roof of the proposed building would not be accessible to all who resided on the zoning lot. Such access is part of the definition of “open space:

The language in ZR § 12-10 is “clear and unambiguous” … . ZR § 12-10 has always defined “open space” as being “accessible to and usable by all persons occupying a #dwelling unit# or a #rooming unit# on the #zoning lot#” … . That language unambiguously requires open space to be accessible to all residents of any residential building on the zoning lot, not only the building containing the open space in question. To further bolster our finding that this language is clear and unambiguous, the 2011 amendments to ZR §§ 23-14 and 23-142 eliminated all references to “building” and replaced it with “zoning lot.” Equally dispositive is the identical change in the definition of “open space ratio” in ZR § 12-10. Of course, the impracticality of allowing the residents of one building on a zoning lot to have access to, and use of, open space located on the rooftop of another building on the zoning lot is obvious. Yet, respondents’ apparent contention concerning ZR § 12-10’s open space requirement — that any rooftop that may be considered open space for the purposes of the open space requirement shall or must be considered open space irrespective of access — gives credence to the impracticality. That is not what ZR § 12-10 says.

ZR § 12-10 unambiguously provides that “[o]pen space may be provided on the roof of . . . [a] building containing residences” and that “[a]ll such roof areas used for open space shall meet the requirements set forth in this definition.” Thus, any rooftop space that is to be considered open space for the purposes of satisfying the open space requirement under the Zoning Resolution must be accessible and usable by all residents on a zoning lot. Lest there be any doubt, we find that the 2011 amendments now preclude the use of the building-by-building methodology, which had been an exception to this clear statutory import. Matter of Peyton v New York City Bd. of Stds. & Appeals, 2018 NY Slip Op 06870, First Dept 10-16-18

ZONING (ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/MUNICIPAL LAW (NYC OPEN SPACE, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/ADMINISTRATIVE LAW (NYC OPEN SPACE, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/OPEN SPACE (NYC ZONING, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))

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