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QUESTION OF FACT WHETHER LEG OF A CLOTHING RACK IN A STORE WAS OPEN AND OBVIOUS, STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT).

In this slip and fall case, the First Department determined there was a question of fact whether the leg of a closing rack in a store was an open and obvious danger:

There is no duty to warn of an open and obvious danger that can be seen by an “observer reasonably using his or her senses” … . “Because of the factual nature of the inquiry, whether a danger is open and obvious is most often a jury question” … . Here, defendant failed to show that the leg of the clothing rack that caused the accident was open and obvious and not inherently dangerous as a matter of law. Plaintiff testified that she could only see two racks ahead of her as she pushed her way through clothes when she tripped on the leg from one of the racks and that she did not see it before she fell … . The photographs in the record are insufficient to establish defendant's burden to show that the leg of the clothing rack was an open obvious risk that was readily observable or that the premises was kept in a reasonably safe condition, because the deposition testimony establishes that none of them accurately depict the accident location as it appeared when plaintiff fell … .

Defendant further failed to meet its burden to establish that its employees did not cause or create the condition by placing the store's clothing racks too close together with enough merchandise on them to make it difficult for customers such as plaintiff to be able see the clothing rack's leg sticking out into the aisle. Its sales associate testified that it was defendant's employees who placed the racks at the accident location before plaintiff fell. Stadler v Lord & Taylor LLC, 2018 NY Slip Op 06861, First Dept 10-16-18

NEGLIGENCE (QUESTION OF FACT WHETHER LEG OF A CLOTHING RACK IN A STORE WAS OPEN AND OBVIOUS, STORE'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER LEG OF A CLOTHING RACK IN A STORE WAS OPEN AND OBVIOUS, STORE'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, QUESTION OF FACT WHETHER LEG OF A CLOTHING RACK IN A STORE WAS OPEN AND OBVIOUS, STORE'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT))

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FIREFIGHTER’S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined that the firefighter's rule did not preclude a suit by a police officer (Stockbower) who allegedly was injured stepping out of his van into a depressed area around a sewer grate. The court further determined defendant city did not demonstrate it did not have constructive notice of the depressed area:

The negligence cause of action is not barred by the firefighters' rule, because the risk of injury was not increased by Slockbower's performance of his official duties … . Slockbower had parked the van in order to direct traffic, but was not actually doing so when he fell … . Although Slockbower admitted that he did not see the depressed sewer grate because he was “[l]ooking to see if there were any cars going by,” and not at the ground, it is clear from the context of this statement that he was not looking at the cars for the purpose of directing traffic, but in order to exit the van safely.

Defendants established prima facie that they neither caused nor had actual notice of the depressed sewer grate. However, they failed to establish as a matter of law that they had no constructive notice of it … . They submitted no evidence of any prior inspections … . Moreover, they submitted photographs of the grate taken within weeks after the accident that Slockbower testified fairly and accurately depicted the site as it appeared on the day of the accident … . Because the nature of the defect, as depicted in the photographs, is not latent, and the defect would not have developed overnight, constructive notice may be inferred from its existence … . Genova v City of New York, 2018 NY Slip Op 06813, First Dept 10-11-18

NEGLIGENCE (MUNICIPAL LAW, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))/MUNICIPAL LAW (NEGLIGENCE, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))/FIREFIGHTER'S RULE (NEGLIGENCE, MUNICIPAL LAW, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))/POLICE OFFICERS (NEGLIGENCE, MUNICIPAL LAW, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))

PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT).

The First Department determined that defendants demonstrated they did not have notice of liquid on the stairs in this slip and fall case. But they did not meet their burden with respect to whether the handrail was loose:

Plaintiff alleges that she slipped and fell on a slippery liquid on the interior stairs of an apartment building … . Plaintiff testified that when she began to slip, she reached for the stairs' handrail, but it was loose, and she fell.

Defendants met their prima facie burden of showing that they neither created, nor had actual or constructive notice of, the alleged liquid on the stairway … . However, they failed to meet their burden with respect to plaintiff's alternative theory of liability, the allegedly defective handrail, given the superintendent's deposition testimony that he had previously repaired the handrail in the area where plaintiff fell by securing it with a clamp, but that one of the four screws needed to install the clamp was broken … . DeSuero v 1386 Assoc., LLC, 2018 NY Slip Op 06810, First Dept 10-11-18

NEGLIGENCE (SLIP AND FALL, PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT))/SLIP AND FALL (PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT))/HANDRAILS (SLIP AND FALL, PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT))/STAIRS (SLIP AND FALL, PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT))

QUESTIONS OF FACT ABOUT ASSUMPTION OF THE RISK AND THE LOCATION OF AN UNPADDED SNOW MACHINE POLE PRECLUDED SUMMARY JUDGMENT IN THIS SKIING ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the ski resort defendants were not entitled to summary judgment in this skiing accident case. Infant plaintiff allegedly ran into a metal snow machine pole that was not padded:

The motion court dismissed the complaint on the ground that plaintiff assumed the risks associated with the sport of skiing.

Such risks include the risk of injury resulting from “other persons using the facilities” and from “man-made objects that are incidental to the provision or maintenance of a ski facility,” such as snowmaking equipment (General Obligations Law § 18-101; see also id. § 18-106). However, an individual “will not be deemed to have assumed … unreasonably increased risks”… .

If, as plaintiffs maintain, the unpadded pole was located on the ski trail or in an area where skiing was permitted, then defendants could be found to have failed to maintain their property in a reasonably safe condition. General Obligations Law § 18-107 provides that, “[u]nless otherwise specifically provided in this article, the duties of skiers, passengers, and ski operators shall be governed by common law” … . The common law applies where, as here, plaintiffs are alleging inadequate padding of defendant's snowmaking pole, a condition not specifically addressed by the statute (id.). On the record before us, we cannot conclude, as a matter of law, that the pole was off-trail and that the pole did not need to be padded. Thus, defendants are not entitled to summary judgment.

Nor are defendants entitled to summary judgment on the ground that the failure to pad the pole did not cause the subject collision, because that failure may have caused or enhanced the infant's injuries … . Madsen v Catamount Ski Resort, 2018 NY Slip Op 06794, First Dept 10-11-18

NEGLIGENCE (QUESTIONS OF FACT ABOUT ASSUMPTION OF THE RISK AND THE LOCATION OF AN UNPADDED SNOW MACHINE POLE PRECLUDED SUMMARY JUDGMENT IN THIS SKIING ACCIDENT CASE (FIRST DEPT))/ASSUMPTION OF RISK (SKIING, QUESTIONS OF FACT ABOUT ASSUMPTION OF THE RISK AND THE LOCATION OF AN UNPADDED SNOW MACHINE POLE PRECLUDED SUMMARY JUDGMENT IN THIS SKIING ACCIDENT CASE (FIRST DEPT))/SKIING (QUESTIONS OF FACT ABOUT ASSUMPTION OF THE RISK AND THE LOCATION OF AN UNPADDED SNOW MACHINE POLE PRECLUDED SUMMARY JUDGMENT IN THIS SKIING ACCIDENT CASE (FIRST DEPT))

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ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF’S DECEDENT’S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT).

The First Department determined that defendant's motion for summary judgment in this walkway slip and fall case was properly denied. Although there was evidence suggesting the storm-in-progress doctrine applied, defendants did not demonstrate the condition of the walkway before the storm. The court noted the plaintiff's decedent's testimony was contradictory and strained credulity:

Defendant established, through an expert report and meteorological records, that on January 5, 2014, a freezing rain storm occurred before the decedent's alleged accident and ended after or shortly before the accident, implicating the storm-in-progress doctrine … . However, defendant failed to establish the condition of the walkway on which the decedent fell before the storm began. The meteorological records show that a snow storm had occurred on January 2 and 3, causing between six and seven inches of snow to fall. They also show that the snow melted and re-froze on January 4. Thus, defendant failed to eliminate the issues of fact whether there was ice on the walkway before the freezing rain storm began and whether it had been there long enough for defendant to discover and remedy the situation… .

We agree with defendant that the decedent's own testimony appears to contradict itself on numerous occasions, and strains credulity on others. However, we do not find the testimony incredible as a matter of law, and leave it to the trier of fact to evaluate. Thomas v New York City Hous. Auth., 2018 NY Slip Op 06789, First Dept 10-11-18

NEGLIGENCE (ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))/SLIP AND FALL (ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))/STORM IN PROGRESS (ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))/EVIDENCE (SLIP AND FALL, ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))

QUESTIONS OF FACT WHETHER THE GENERAL CONTRACTOR AND A STATUTORY AGENT OF THE PROJECT OWNER ARE LIABLE FOR THE INJURIES TO AN EMPLOYEE OF A SUBCONTRACTOR IN THIS LABOR LAW 240 (1) LADDER CASE (FIRST DEPT).

The First Department reversing (modifying) Supreme Court, determined that several causes of action in this Labor Law 240 (1) ladder-fall case should not have been dismissed. Plaintiff's employer (nonparty Capitol) was hired as a subcontractor by Ruggles, which had a contract for signage and awnings with the operator of the retail store for which the work was done (Express). Express had hired Russco to act as the general contractor for the renovation work. Russco had the authority to hire all subcontractors with the exception of the signage and awning work:

Russco's [the general contractor's] motion for summary judgment dismissing the Labor Law § 240(1) claim as against it on the ground that it is not a proper defendant under the Labor Law was correctly denied as there is an issue of fact as to whether its obligations as the general contractor on the project extended to the work performed by plaintiff. … … [T]he contract … provides that Russco is responsible for “taking all reasonable safety precautions to prevent injury or death to persons or damage to property” and that such responsibility extends “to the protection of all employees on the Project and all other persons who may be affected by the Work in any way” … . * * *

Ruggles is a proper Labor Law § 240(1) defendant because it was a statutory agent of Express, the owner of the project. It is undisputed that Express hired Ruggles as the sole contractor responsible for the manufacture and installation of all signage and awning work on the project, which was the work that plaintiff was performing when he sustained his injuries. Although Russco may be found liable based on its site safety obligations with regard to the signage and awning work, there is no question that, pursuant to the contract between Ruggles and Express, Ruggles was delegated the supervision and control over such work. Moreover, Ruggles may not escape liability under Labor Law § 240(1) based on its delegation of the signage and awning work to Capitol, plaintiff's employer. White v 31-01 Steinway, LLC, 2018 NY Slip Op 06685, First Dept 10-9-18

LABOR LAW-CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER THE GENERAL CONTRACTOR AND A STATUTORY AGENT OF THE PROJECT OWNER ARE LIABLE FOR THE INJURIES TO AN EMPLOYEE OF A SUBCONTRACTOR IN THIS LABOR LAW 240 (1) LADDER CASE (FIRST DEPT))/STATUTORY AGENTS (LABOR LAW-CONSTRUCTION LAW, QUESTIONS OF FACT WHETHER THE GENERAL CONTRACTOR AND A STATUTORY AGENT OF THE PROJECT OWNER ARE LIABLE FOR THE INJURIES TO AN EMPLOYEE OF A SUBCONTRACTOR IN THIS LABOR LAW 240 (1) LADDER CASE (FIRST DEPT))/AGENTS (LABOR LAW-CONSTRUCTION LAW, STATUTORY AGENTS, QUESTIONS OF FACT WHETHER THE GENERAL CONTRACTOR AND A STATUTORY AGENT OF THE PROJECT OWNER ARE LIABLE FOR THE INJURIES TO AN EMPLOYEE OF A SUBCONTRACTOR IN THIS LABOR LAW 240 (1) LADDER CASE (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, QUESTIONS OF FACT WHETHER THE GENERAL CONTRACTOR AND A STATUTORY AGENT OF THE PROJECT OWNER ARE LIABLE FOR THE INJURIES TO AN EMPLOYEE OF A SUBCONTRACTOR IN THIS LABOR LAW 240 (1) LADDER CASE (FIRST DEPT))

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FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER’S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT).

The First Department determined Family Court should not have ruled on mother's petition to modify custody without holding a hearing. In addition the First Department noted that Family Court improperly relied solely upon the child's wishes and unsworn documentary evidence:

Family Court improperly determined the mother's modification petition and the father's petitions for enforcement, parenting time modification, and sole custody by suspending all contact between the father and child without a hearing … . Modification of custody or visitation, even on a temporary basis, requires a hearing, except in cases of emergency … . We have held that a hearing may be “as abbreviated, in the court's broad discretion, as the particular allegations and known circumstances warrant” … . However, here, the court granted the drastic remedy of suspension of all contact between parent and child based solely upon its in camera interview with the child and its review of the motion papers and some portion of the court file, which included an unsworn and uncertified report by Family Court Mental Health Services (MHS) and unsworn letters from the child's treating therapist and from therapists who had seen the parties and child for family therapy … . Matter of Kenneth J. v Lesley B., 2018 NY Slip Op 06625, First Dept 10-4-18

FAMILY LAW (CUSTODY, FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER'S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT))/CUSTODY (FAMILY LAW, FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER'S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT))/EVIDENCE (FAMILY LAW, CUSTODY, FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER'S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT))

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PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF’S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT).

The First Department determined plaintiff's legal malpractice action based upon advice to plead guilty to an election law violation was not viable because he pled guilty without any assertion of innocence. However, the legal malpractice action based upon the advice that his travel abroad would not affect his immigration status was viable. Plaintiff, a legal resident, was detained for four months when he attempted to return to the US from abroad:

We affirm dismissal of part of the malpractice claim … . Plaintiff's claim that he pleaded guilty to criminal charges in reliance on defendants' negligent legal advice concerning the immigration consequences of the plea is barred by his guilty plea and lack of any claim of innocence (Carmel v Lunney, 70 NY2d 169, 173 [1987]… ).

However, the policy underlying the rule established in Carmel v Lunney, supra, does not require dismissal of the entirety of plaintiff's legal malpractice claim, because the remainder of his claim that defendants failed to advise him of the potential immigration consequences of traveling outside the United States as a result of entering a guilty plea does not dispute the validity of his conviction … . Further, plaintiff's allegations that he relied on defendants' faulty legal advice concerning the immigration consequences of his guilty plea in deciding to travel abroad after he pled guilty, resulting in his being detained and subjected to removal proceedings, state a valid cause of action for legal malpractice. Sehgal v DiRaimondo, 2018 NY Slip Op 06619, First Dept 10-4-18

LEGAL MALPRACTICE (PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/ATTORNEYS (MALPRACTICE, PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/IMMIGRATION LAW (ATTORNEYS, LEGAL MALPRACTICE, PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/ELECTION LAW (IMMIGRATION LAW, LEGAL MALPRACTICE, (PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))

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DEFENDANT’S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT’S TREATMENT-CIVIL CONFINEMENT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Tom, determined defendant did not receive effective assistance of counsel when counsel conceded that defendant had a dangerous mental disorder requiring civil confinement. There was no strategic justification for waiving a CPL 330.20 hearing to determine which treatment/confinement track was appropriate for defendant:

… [A]fter a court accepts a not responsible plea, it must issue an examination order for the defendant to be examined by two qualified psychiatric examiners (CPL 330.20[2]), who must submit to the court a report of their findings and evaluation regarding defendant's mental condition (CPL 330.20[5]).

Critical to this procedure is the requirement that the court conduct an initial hearing within 10 days after receipt of the psychiatric examination reports, in order to classify the defendant as “track one,” “track two,” or “track three” based on the defendant's mental condition (CPL 330.20[6]…).

The track is significant because it determines the level of the defendant's confinement and treatment. Track one is based on a finding of “dangerous mental disorder,” meaning that the defendant suffers from a “mental illness,” and that “because of such condition he currently constitutes a physical danger to himself or others” (CPL 330.20[1][c]; see Mental Hygiene Law § 1.03[20] [defining “mental illness”]). Track two is based on a finding of “mentally ill,” without a dangerous mental disorder (CPL 330.20[1][d]). Track three is based on a finding of not mentally ill (CPL 330.20[7]).

“The track designation places more dangerous acquittees under the purview of the Criminal Procedure Law, while less dangerous, though still mentally ill, acquittees are committed to the custody of the Commissioner of Mental Health and come under the supervision of the Mental Hygiene Law”… . Thus, track designation is “vitally important in determining the level of judicial and prosecutorial involvement in future decisions about an acquittee's confinement, transfer and release” … . People v Darryl T., 2018 NY Slip Op 06634, First Dept 10-4-18

CRIMINAL LAW (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/DANGEROUS MENTAL DISORDER (CRIMINAL LAW, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/MENTAL HYGIENE LAW (CRIMINAL LAW, DANGEROUS MENTAL DISORDER, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/CRIMINAL PROCEDURE LAW 330.20  (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/INEFFECTIVE ASSISTANCE OF COUNSEL (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))

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INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Singh, in a matter of first impression, determined that the insurer of a New York State driver (Country-Wide) did not have sufficient contacts with North Carolina, where a U-Haul vehicle driven by the New York driver rear-ended the injured parties, to provide New York with jurisdiction. The insurer of the U-Haul vehicle (Repwest) sought to recover, in New York, the amount of the settlement after Country-Wide failed to appear in North Carolina:

On this appeal we are asked to consider an issue that we have never directly addressed: whether an automobile liability policy's territory of coverage clause that covers any accident within the United States and the occurrence of the accident in the forum state are sufficient to confer personal jurisdiction over the primary insurer of the offending vehicle. We find that the connection is not sufficient to comport with federal due process, and that this renders the foreign judgment unenforceable. * * *

We find that minimum contacts has not been established on this record. Countrywide did not purposefully avail itself of conducting activities within North Carolina. It is undisputed that Countrywide has never been licensed or authorized to do business in any capacity in North Carolina. At all times relevant to this suit, Countrywide has only been licensed to issue insurance policies within New York State. Countrywide has never maintained an office or employees in North Carolina. It is a company incorporated under the laws of Delaware, with its principal place of business in New York. Countrywide has never conducted or solicited business in or from North Carolina. There is a qualitative distinction between contracting to cover an insured under a territory of coverage clause and the insurer of the policy being amenable to being haled into court anywhere in the United States in a dispute with another insurer. Countrywide cannot reasonably foresee being haled into court in a state where it did not purposefully direct its activities … . Repwest Ins. Co. v Country-Wide Ins. Co., 2018 NY Slip Op 06505, First Dept 10-2-18

INSURANCE LAW (INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/CIVIL PROCEDURE (INSURANCE LAW, LONG-ARM JURISDICTION, INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/LONG-ARM JURISDICTION (INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/CONSTITUTIONAL LAW (CIVIL PROCEDURE, LONG-ARM JURISDICTION, INSURANCE LAW, (INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/TERRITORY OF COVERAGE CLAUSE (INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/TRAFFIC ACCIDENTS (INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))

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