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DEFENSE COUNSEL’S FAILURE TO OBTAIN EXPERT OPINION EVIDENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, THE CASE TURNED ON WHETHER DEFENDANT WAS INTOXICATED, THE INTOXILYZER RESULTS WERE INCONSISTENT, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate the judgment of conviction on ineffective assistance grounds should have been granted:

This case turned on whether defendant was intoxicated at the time of the vehicular accident at issue, and there was a serious issue about the accuracy of the final Intoxilyzer reading, which conflicted with an earlier reading showing no intoxication. Defense counsel failed to take steps to consult with and produce an appropriate expert on breath and blood alcohol analysis to rebut the People’s proof … .

At the 440.10 hearing, trial counsel conceded that his only reason for not calling an expert was the inability of his client, who was also unable to pay counsel’s fee, to pay for an expert. He also conceded that he took no steps to obtain a court-appointed expert, and was unaware that this remedy might be available. This constituted constitutionally deficient performance … . As for the prejudice prong of an ineffective assistance claim, we find that there is a reasonable probability that calling an expert would have affected the outcome of the trial, and that the absence of expert testimony rendered the proceeding unfair under the facts of the case. People v Carter, 2018 NY Slip Op 08745, First Dept 12-20-18

 

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PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF’S LADDER SHIFTED AND HE FELL, HEARSAY IN A REPORT WHICH CONSTITUTED A MISTRANSLATION OF THE PLAINTIFF’S STATEMENT DID NOT RAISE A TRIABLE ISSUE OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action based upon his fall from a ladder which shifted. The hearsay evidence in a report which mistranslated plaintiff’s statement using the word “stairs” rather than “ladder” (the Spanish word means both) did not create an issue of fact. The court noted that the tenant who hired plaintiff’s employer and the property owner were liable:

Defendants … failed to raise a triable issue of fact. Hearsay, standing alone, is insufficient to defeat summary judgment. The mistranslated statement in the C-3 report (“while walking I fell down stairs”) does not qualify as a prior inconsistent statement or as a business record so as to fit within an exception to the hearsay rule … . The declaration against interest hearsay exception to the hearsay rule is likewise inapplicable inasmuch as, among other reasons, the declarant was indisputably unaware that the statement was adverse when made … .

Defendants, as the proponents of the evidence, were obligated to show that plaintiff was the source of the information recorded in the C-3 indicating that he fell from “stairs,” and that “the translation was provided by a competent, objective interpreter whose translation was accurate, a fact generally established by calling the translator to the stand” … . This defendants have failed to do. Nava-Juarez v Mosholu Fieldston Realty, LLC, 2018 NY Slip Op 08744, First Dept 12-20-18

ACCIDENT REPORTS

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COMPLAINT ALLEGED VALID CAUSES OF ACTION FOR AIDING AND ABETTING FRAUD AND AIDING AND ABETTING CONVERSION AGAINST A BANK WHICH PROVIDED A LETTER TO PLAINTIFF STATING DEFENDANT MAINTAINED ENOUGH IN HIS BANK ACCOUNTS TO COVER A POST-DATED CHECK FOR OVER $400,000 (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined that plaintiff auction house stated causes of action for aiding and abetting fraud and aiding and abetting conversion against defendant bank HSBC. Defendant Stettner bid over $425,000 for antique jewelry and sought to pay with a post-dated check. At plaintiff’s request HSBC provided a letter attesting to Stettner’s good standing at the bank and stating that Stettner maintained a balance of between $1 and $20 million. Stettner’s check bounced. The dissent argued that the complaint did not allege the bank’s knowledge of the fraud and conversion:

“A plaintiff alleging an aiding-and-abetting fraud claim must allege the existence of the underlying fraud, actual knowledge, and substantial assistance” … . In turn, the elements of an underlying fraud are “a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” … . …

Aiding and abetting conversion requires the existence of a conversion by the primary tortfeasor, actual knowledge, and substantial assistance… . “A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession” … . William Doyle Galleries, Inc. v Stettner, 2018 NY Slip Op 08743, First Dept 12-20-18

 

QUESTION OF FACT WHETHER PLAINTIFF’S SLIP AND FALL OCCURRED ON DEBRIS IN A WALKWAY WITHIN THE MEANING OF THE NYCRR IN THIS LABOR LAW 241(6) ACTION, HOWEVER, BECAUSE THE FALL OCCURRED OUTSIDE THE ENTRANCE TO A SHANTY, THE NYCRR PROVISION WHICH PERTAINS TO PASSAGEWAYS WAS NOT APPLICABLE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, modifying Supreme Court, determined there were questions of fact about the applicability of certain provisions of the New York Code Rules and Regulations (NYCRR) to plaintiff’s accident in this Labor Law 241(6), 200 and common law negligence action. Plaintiff slipped and fell on snow covered pipes near the entrance to the employer’s work site shanty. The Labor Law 241(6) cause of action predicated on a violation of 12 NYCRR 23-1,7(d) should not have dismissed because there is a question of fact whether the slip and fall occurred in a “walkway.” The Labor Law 241(6) cause of action predicated on a violation of 12 NYCRR 23-1.7(e)(1), which deals with “passageways” as opposed to “walkways,” was properly dismissed:

The Labor Law § 241(6) claim predicated on a violation of 12 NYCRR 23-1.7(d) should not have been dismissed because there was an issue of fact as to whether the accident occurred in a walkway. There were conflicting accounts of whether the pipes were located in a manner that impeded ingress and egress into the shanty. …

… .[I]n contrast to 12 NYCRR 23-1.7(d) which pertains to slipping hazards on a “floor, passageway, walkway, scaffold, platform or other elevated working surface,” 12 NYCRR 23-1.7(e)(1) is limited to passageways. A “passageway” is commonly defined and understood to be “a typically long narrow way connecting parts of a building” and synonyms include the words corridor or hallway … . In other words, it pertains to an interior or internal way of passage inside a building. Quigley v Port Auth. of N.Y. & N.J., 2018 NY Slip Op 08577, First Dept 12-13-18

 

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CUSTODY SHOULD NOT HAVE BEEN TRANSFERRED TO FATHER AND ALL CONTACT BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN SUSPENDED WITHOUT A HEARING, JUDGE, SUA SPONTE, SHOULD NOT HAVE PROHIBITED FUTURE PETITIONS FOR CUSTODY OR VISITATION BY MOTHER (FIRST DEPT).

The First Department, reversing Family Court, determined the court should not have transferred custody to father and suspended all contact between the child and mother for a year without conducting a hearing. The First Department further held that the judge should not have, sua sponte, prohibited mother from filing future petitions for custody or visitation without leave of court because no party requested that relief:

… [T]he court erred when, without holding an evidentiary hearing, it made a final order transferring physical and legal custody to the father and suspending all contact between the mother and the child for a year. Determination of the child’s best interests requires examination of the totality of the circumstances … . We have consistently held that “an evidentiary hearing is necessary before a court modifies a prior order of custody or visitation,” even where the court is familiar with the parties and child, and particularly where there are facts in dispute … . Furthermore, while we have stated that a hearing on modification of a custody arrangement in the child’s best interests “may be as abbreviated, in the court’s broad discretion, as the particular allegations and known circumstances warrant. . . ,’ it must include an opportunity for both sides, and the children’s attorney when there is one, to present their respective cases, and the factual underpinnings of any temporary order [must be] made clear on the record'” … .

Here, the court made a final determination without taking any testimony or entering any documents into evidence. The court’s reliance on statements made by the ACS caseworker during a court conference was inappropriate, since the mother’s attorney had requested, but was denied, a full hearing at which counsel could have cross-examined the caseworker. Matter of Michael G. v Katherine C., 2018 NY Slip Op 08568, First Dept 12-13-18

 

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QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF HAS STANDING IN THIS FORECLOSURE ACTION AND WHETHER THE RPAPL 1304 NOTICE WAS SERVED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT)

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. There exist questions of fact on whether plaintiff has standing and whether the RPAPL 1304 notice was served:

The borrower raised a meritorious standing defense based on questions as to the sufficiency of the content of the conclusory lost note affidavit, which does not state that a thorough and diligent search was made based on a review of the business records or anything else, does not state that any search was made or by whom, and does nothing to indicate when approximately the note was lost … .

The borrower also raised a plausible notice defense regarding plaintiff’s service of the requisite 90-day notice under RPAPL 1304 … . AS Helios LLC v Chauhan, 2018 NY Slip Op 08565, First Dept 12-13-18

 

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REMARKS ALLEGED TO BE DEFAMATORY REFLECTED THE RESULTS OF A JUDICIAL PROCEEDING AND WERE THEREFORE PRIVILEGED PURSUANT TO CIVIL RIGHTS LAW 74 (FIRST DEPT).

The First Department determination the complaint alleging defamation causes of action against attorneys who had been interviewed about litigation involving plaintiff and Elizabeth Etling, whom the defendant attorneys represented. The court held that the remarks alleged to be defamatory were either protected descriptions of judicial determinations in the case or were otherwise not actionable. With respect to the Civil Rights Law privilege, the court wrote:

Defendants’ comment about plaintiff’s “massive spoliation” or “spoliation in droves” is protected under Civil Rights Law § 74 as a fair and true report, even if the Delaware Chancery Court did not use defendants’ exact words in its decision… . The court concluded that plaintiff had intended and attempted to destroy “a substantial amount of information,” and detailed plaintiff’s responsibility for the deletion, in violation of court order, of approximately 41,000 files from his computer. Plaintiff argues that defendants overstated the matter, because his spoliation proved largely reversible. Indeed, of the 41,000 files deleted, 1,000 were permanently destroyed. However, plaintiff did not cause the recovery of the data; rather, it occurred in spite of him. Moreover, he lied under oath about his spoliating conduct. As the court observed, an unsuccessful spoliator is still a spoliator… .

Defendants’ comment that plaintiff was “holding Elting hostage” is protected under Civil Rights Law § 74. During the interviews at issue, defendants cited the section of the post-trial decision in which the court used similar language in summarizing Elting’s position … . Defendants’ statement that “no rational person would ever want to partner with [plaintiff],” which is nearly a verbatim quotation from the court’s decision, is protected under the statute. Shawe v Kramer Levin Naftalis & Frankel LLP, 2018 NY Slip Op 08550, First Dept 12-13-18

 

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PROOF THAT DEFENDANT WAS SERVED WITH THE RPAPL 1304 NOTICE IN THIS FORECLOSURE PROCEEDING WAS NOT SUFFICIENT, THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the bank’s motion for summary judgment in this foreclosure action should not have been granted. The proof of service of the RPAPL 1304 notice was deemed insufficient:

Plaintiff failed to establish a presumption that it properly served defendant with RPAPL 1304 notice through proof either of actual mailing or of a standard office practice or procedure for proper addressing and mailing … . Its business operations analyst testified at the hearing on this issue that she was familiar with plaintiff’s record keeping practices and procedures. However, she did not testify either that she was familiar with plaintiff’s mailing procedures or that she was personally aware that RPAPL 1304 notices had been mailed to defendant… . Nor does the fact that some of the RPAPL 1304 notices admitted into evidence at the hearing bear a certified mail number suffice to raise the presumption of proper service … . CitiMortgage, Inc. v Moran, 2018 NY Slip Op 08435, First Dept 12-11-18

 

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DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that defense counsel was ineffective for failing to request a jury instruction on petit larceny as a lesser included offense of robbery. The defense theory was that defendant did not use violence to take $20.00 from the victim but rather used trickery, claiming the victim had broken defendant’s liquor bottle. Defense counsel requested a jury charge on fraudulent accosting, which is not a lesser included offense of robbery:

… [P]etit larceny, which is defined as “steal[ing] property,” qualifies in the abstract as a lesser included offense of robbery in the third degree, which is defined as “forcibly steal[ing] property” … . There is no separate crime of petit larceny “by false pretenses,” and the fact that a nonforcible taking is committed by fraud does not disqualify it as a lesser included offense of robbery.

It is clear that defense counsel’s failure to seek a petit larceny charge was not strategic. The defense strategy was to concede that a nonforcible theft occurred and seek a misdemeanor conviction. There is no merit to the People’s suggestion that counsel may have had a strategic reason for requesting fraudulent accosting but not petit larceny.

We also find that counsel’s failure to request a petit larceny charge was prejudicial. There was plainly a reasonable view of the evidence to support petit larceny. Furthermore, the evidence that the theft was forcible rather than a scam was not so overwhelming as to render a request for petit larceny futile. The victims were tourists who returned to their home country and did not testify, and the sole eyewitness’s ability to establish the element of force was in question. People v Jones, 2018 NY Slip Op 08356, First Dept 12-4-18

CRIMINAL LAW (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/INEFFECTIVE ASSISTANCE  (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, LESSER INCLUDED OFFENSES, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/LESSER INCLUDED OFFENSES (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/ROBBERY (LESSER INCLUDED OFFENSE, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/PETIT LARCENY (LESSER INCLUDED OFFENSE, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))

28 MONTH DELAY DID NOT DEPRIVE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL, DELAY ATTRIBUTED TO PROSECUTION, HOWEVER, WAS CRITICIZED (FIRST DEPT).

The First Department, over a concurring decision, determined that the 28-month delay in prosecution did not rise to the level of a denial of defendant’s constitutional right to a speedy trial. The concurrence agreed but took pains to note that much of the delay attributable to the prosecution was inexcusable:

While the 28—month delay was substantial, it was attributable to both the prosecution and the defense. While most adjournments were either on consent or were otherwise satisfactorily explained, the People failed to provide an adequate reason for their delay in responding to defendant’s motion to compel production of certain medical records and in producing the records. Nevertheless, the charges were very serious and, although defendant was incarcerated the entire time, he has not demonstrated how his defense was impaired by the delay. This is not a case where the delay, and in particular the portion attributable to the People, was so egregious as to warrant dismissal regardless of prejudice … . People v Desselle, 2018 NY Slip Op 08252, First Dept 12-4-18

CRIMINAL LAW (SPEEDY TRIAL, 28 MONTH DELAY DID NOT DEPRIVE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL, DELAY ATTRIBUTED TO PROSECUTION, HOWEVER, WAS CRITICIZED (FIRST DEPT))/SPEEDY TRIAL (28 MONTH DELAY DID NOT DEPRIVE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL, DELAY ATTRIBUTED TO PROSECUTION, HOWEVER, WAS CRITICIZED (FIRST DEPT))

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