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LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT).

The First Department, as an exception to the mootness doctrine, determined a letter written by petitioner should have been interpreted as a demand to contest his involuntary confinement pursuant to the Mental Hygiene Law:

In light of petitioner’s release from involuntary confinement pursuant to Mental Hygiene Law (MHL) article 9, this appeal is moot, as petitioner concedes. However, we reach the merits because the appeal raises a substantial and novel issue that is likely to recur yet typically evades review … .We reject respondent’s argument that the issue raised in this proceeding is unlikely to recur … .

As respondent now concedes, the letter submitted by petitioner on the day he was involuntary admitted to Lincoln Hospital reasonably conveyed that he sought a “hearing on the question of need for involuntary care and treatment” (MHL § 9.31[a]), and should have been forwarded to the appropriate court “forthwith”… . The handwritten letter says, “I am falsely imprisoned and deprived of liberty,” in violation of certain United States Supreme Court decisions, “I demand a jury trial immediately,” and “I demand my lawyer.” To the extent the court found the request in this letter insufficiently clear or formal, because there were other, unrelated complaints raised in the letter or for any other reason, this was error. The letter should have been interpreted reasonably to effectuate the statute’s purpose of allowing patients to challenge their involuntary confinement on an expedited basis, as required by MHL § 9.31. Matter of State of N.Y. ex rel. Giffen v Hoffman, 2018 NY Slip Op 03462, First Dept 5-10-18

​MENTAL HYGIENE LAW (INVOLUNTARY CONFINEMENT, LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT))/INVOLUNTARY CONFINEMENT (MENTAL HYGIENE LAW, LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT))/APPEALS (MOOTNESS, EXCEPTION TO, MENTAL HYGIENE LAW, (INVOLUNTARY CONFINEMENT, LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT))/MOOTNESS (APPEALS, MENTAL HYGIENE LAW, (INVOLUNTARY CONFINEMENT, LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT))/CONSTITUTIONAL LAW (HABEAS CORPUS, MENTAL HYGIENE LAW, (INVOLUNTARY CONFINEMENT, LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT))/HABEAS CORPUS (MENTAL HYGIENE LAW, INVOLUNTARY CONFINEMENT, LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT))

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POLICE ENTRY INTO A SINGLE USE BATHROOM IN A COMMERCIAL ESTABLISHMENT CONSTITUTED A SEARCH, DEFENDANT’S SUPPRESSION MOTION SHOULD NOT HAVE BEEN DENIED BASED UPON THE CONCLUSION THE DEFENDANT DID NOT HAVE AN EXPECTATION OF PRIVACY, MATTER REMITTED FOR CONSIDERATION OF ANOTHER ISSUE WHICH SUPREME COURT DID NOT RULE ON (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the defendant had an expectation of privacy in a single-use bathroom in an adult bookstore, His suppression motion should not, therefore, have been denied on the ground the police entry into the bathroom was not a search. The matter was remitted for consideration of the issue raised by the People at the suppression hearing which was not ruled on by Supreme Court:

The court erred in denying defendant’s suppression motion on the ground that the police entrance into a single-use restroom located in an adult film and novelty store was not a “search” for purposes of the Fourth Amendment. We conclude that, once he closed the door, defendant had a reasonable expectation of privacy while using the small, single-use restroom because at that point he was “entitled to assume that while inside he … will not be viewed by others” … . The closed door of the restroom was comparable to closed bathroom stalls in public restrooms, where a reasonable expectation of privacy exists … . This expectation of privacy was not negated by the facts that the restroom was located in a commercial establishment and was unlocked … .

In the alternative, the People argue, as they did at the hearing, that the police entrance into the restroom was reasonable because it was based on probable cause to suspect that there was drug use occurring inside. However, because “the hearing court did not rule on this issue in denying the suppression motion, and therefore did not rule adversely against defendant on this point, we may not reach it on this appeal” … . Accordingly, we hold the appeal in abeyance and remand for determination, based on the hearing minutes, of the issue raised at the hearing, but not decided … . People v Vinson, 2018 NY Slip Op 03437, First Dept 5-10-18

​CRIMINAL LAW (SEARCH AND SEIZURE, EXPECTATION OF PRIVACY, POLICE ENTRY INTO A SINGLE USE BATHROOM IN A COMMERCIAL ESTABLISHMENT CONSTITUTED A SEARCH, DEFENDANT’S SUPPRESSION MOTION SHOULD NOT HAVE BEEN DENIED BASED UPON THE CONCLUSION THE DEFENDANT DID NOT HAVE AN EXPECTATION OF PRIVACY, MATTER REMITTED FOR CONSIDERATION OF ANOTHER ISSUE WHICH SUPREME COURT DID NOT RULE ON (FIRST DEPT))/SEARCH AND SEIZURE (EXPECTATION OF PRIVACY, POLICE ENTRY INTO A SINGLE USE BATHROOM IN A COMMERCIAL ESTABLISHMENT CONSTITUTED A SEARCH, DEFENDANT’S SUPPRESSION MOTION SHOULD NOT HAVE BEEN DENIED BASED UPON THE CONCLUSION THE DEFENDANT DID NOT HAVE AN EXPECTATION OF PRIVACY, MATTER REMITTED FOR CONSIDERATION OF ANOTHER ISSUE WHICH SUPREME COURT DID NOT RULE ON (FIRST DEPT))/SUPPRESSION (SEARCH AND SEIZURE, EXPECTATION OF PRIVACY, POLICE ENTRY INTO A SINGLE USE BATHROOM IN A COMMERCIAL ESTABLISHMENT CONSTITUTED A SEARCH, DEFENDANT’S SUPPRESSION MOTION SHOULD NOT HAVE BEEN DENIED BASED UPON THE CONCLUSION THE DEFENDANT DID NOT HAVE AN EXPECTATION OF PRIVACY, MATTER REMITTED FOR CONSIDERATION OF ANOTHER ISSUE WHICH SUPREME COURT DID NOT RULE ON (FIRST DEPT))/EXPECTATION OF PRIVACY (SEARCH AND SEIZURE, POLICE ENTRY INTO A SINGLE USE BATHROOM IN A COMMERCIAL ESTABLISHMENT CONSTITUTED A SEARCH, DEFENDANT’S SUPPRESSION MOTION SHOULD NOT HAVE BEEN DENIED BASED UPON THE CONCLUSION THE DEFENDANT DID NOT HAVE AN EXPECTATION OF PRIVACY, MATTER REMITTED FOR CONSIDERATION OF ANOTHER ISSUE WHICH SUPREME COURT DID NOT RULE ON (FIRST DEPT))/APPEALS (CRIMINAL LAW, MATTER REMITTED FOR CONSIDERATION OF AN ISSUE WHICH SUPREME COURT DID NOT RULE ON (FIRST DEPT))

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INDICTMENT COUNT CHARGING 20 INDIVIDUAL INSTANCES OF CONTEMPT WAS DUPLICITOUS, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the indictment which charged 20 individual crimes (contempt) in a single count was duplicitous:

The criminal contempt count was duplicitous because defendant’s acts of violating an order of protection by regularly but briefly showing up at the victim’s apartment, over the course of about a month and 20 days, constituted distinct crimes that were required to be alleged in separate counts … .

Defendant preserved this argument by moving to dismiss that count on the same ground in his omnibus motion, which the court denied … and we find the People’s arguments on the issue of preservation unavailing. The defect was in the language of the indictment itself, and it did not depend on the trial evidence or the court’s charge. People v Villalon, 2018 NY Slip Op 03431, First Dept 5-10-18

​CRIMINAL LAW (INDICTMENT COUNT CHARGING 20 INDIVIDUAL INSTANCES OF CONTEMPT WAS DUPLICITOUS, CONVICTION REVERSED (FIRST DEPT))/DUPLICITOUS (CRIMINAL LAW, INDICTMENT COUNT CHARGING 20 INDIVIDUAL INSTANCES OF CONTEMPT WAS DUPLICITOUS, CONVICTION REVERSED (FIRST DEPT))/INDICTMENTS (DUPLICITOUS, INDICTMENT COUNT CHARGING 20 INDIVIDUAL INSTANCES OF CONTEMPT WAS DUPLICITOUS, CONVICTION REVERSED (FIRST DEPT))

DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT).

The First Department determined the defendant’s (Target’s) motion to change venue in this traffic accident case was properly granted:

Supreme Court did not improvidently exercise its discretion in granting Target’s motion to change venue to Suffolk County even though plaintiff properly placed venue in New York County based upon Target’s principal place of business at the time the action was commenced (see CPLR 503[a], [c]). The motor vehicle accident happened in Suffolk County, plaintiffs and codefendants live in that county, the decedent received her medical treatment there … . Target also submitted the affidavits of two Suffolk County police officers, who averred that they were involved in the investigation including interviewing witnesses at the accident location and that they would be inconvenienced by having to travel to New York County because it would cause them to be absent from their police duties for a full day … .

That the police officers signed affidavits in favor of the motion to change venue establishes that they were aware of the action and demonstrates that they are willing to testify at trial. It was proper for the motion court to consider the police officers’ convenience, because their testimony regarding their investigation as to how the accident happened bears on liability… . Furthermore, the police officers’ affidavits are not insufficient because they do not set forth their home addresses, since it is undisputed that they work in Suffolk County … . Kochan v Target Corp., 2018 NY Slip Op 03445, First Dept 5-10-18

​CIVIL PROCEDURE (VENUE, DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT))/VENUE (DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT))/TRAFFIC ACCIDENTS (CIVIL PROCEDURE, VENUE, DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT))/CPLR 503 (VENUE, DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT))

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RES IPSA LOQUITUR DOCTRINE APPLIES IN THIS ELEVATOR-DOOR INJURY CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the defendant’s motion for summary judgment in this elevator-door injury case should not have been granted. The doctrine of res ipsa loquitur applied and the plaintiff presented evidence the elevators doors had been malfunctioning for months:

… [P]laintiff was injured when the elevator door in defendant’s building unexpectedly closed on him as he attempted to enter the elevator. Contrary to the finding of the motion court, the evidentiary doctrine of res ipsa loquitur is applicable under the circumstances presented since plaintiff testified that the elevator door, which was closed by electronic sensors and did not have rubber safety bumpers, suddenly and unexpectedly closed … .

In addition, plaintiff testified that the elevator door was malfunctioning for several months and proferred an affidavit by a tenant who averred to the elevator doors malfunctioning. This is sufficient evidence of constructive notice to defeat defendant’s showing that the elevator was regularly maintained … . Lilly v City of New York, 2018 NY Slip Op 03314, First Dept 5-8-18

​NEGLIGENCE (ELEVATORS, RES IPSA LOQUITUR DOCTRINE APPLIES IN THIS ELEVATOR-DOOR INJURY CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/ELEVATORS (NEGLIGENCE, RES IPSA LOQUITUR DOCTRINE APPLIES IN THIS ELEVATOR-DOOR INJURY CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/RES IPSA LOQUITUR (NEGLIGENCE, ELEVATORS, RES IPSA LOQUITUR DOCTRINE APPLIES IN THIS ELEVATOR-DOOR INJURY CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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DEFENDANT DRIVER ADMITTED IN THE ACCIDENT REPORT HE WAS AWARE THE ROADS WERE WET AND SLIPPERY AT THE TIME THE DEFENDANT’S BUS SKIDDED INTO PLAINTIFF’S BUS AFTER HITTING A PUDDLE, PLAINTIFF ALLEGED DEFENDANT DRIVER WAS GOING TOO FAST FOR CONDITIONS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, DESPITE DEFENDANT’S DENIAL OF HIS ADMISSION IN HIS AFFIDAVIT OPPOSING THE MOTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this traffic accident case should have been granted. The plaintiff’s affidavit and the accident report indicated that, after traveling through a puddle of water, the defendant’s bus slid, hit a wall and then rolled into the middle lane, striking plaintiff’s bus.  The complaint alleged the driver of defendant’s bus was travelling too fast for the conditions. The court noted that a plaintiff no longer needs to demonstrate the absence of comparative negligence to be awarded summary judgment on liability. The court rejected the emergency defense because defendant driver had acknowledged in the accident report he was aware the roads were wet and slippery. The court further found that the defendant’s affidavit, in which he stated he did not observe any wet or slippery conditions before the accident ,”appears to have been submitted to avoid the consequences of his prior admission . . . and, thus, is insufficient to defeat plaintiff’s motion for partial summary judgment:

… [P]laintiff submitted an affidavit in which he swore that the road was wet and slippery, that puddles had formed, and that the driver of defendants’ bus was traveling at too fast a rate of speed under these circumstances, lost control, and struck plaintiff’s bus in the neighboring lane. In defendants’ accident report, relied on by plaintiff before the motion court and by defendants in their appellate brief, the driver of defendants’ bus stated that, as he drove over a puddle of water, the back wheels “beg[a]n to slide and the bus hit the wall and rolled into the middle lane,” striking plaintiff’s bus. Together, plaintiff’s affidavit, and defendants’ accident report, the authenticity and accuracy of which are not disputed, established plaintiff’s prima facie entitlement to judgment as a matter of law on the issue of liability … .

In opposition, defendants failed to raise a triable issue of fact. Defendant driver submitted an affidavit in which he claimed that he was operating his bus at a reasonable speed “considering the conditions then existing.” At the same time, he did not deny that the roads were wet and slippery, but claimed that he did not “observe any accumulation of water or other slippery roadway condition,” even though in his accident report he admitted to having driven over a puddle. Martinez v WE Transp. Inc., 2018 NY Slip Op 03311, First Dept 5-8-18

​NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT DRIVER ADMITTED IN THE ACCIDENT REPORT HE WAS AWARE THE ROADS WERE WET AND SLIPPERY AT THE TIME THE DEFENDANT’S BUS SKIDDED INTO PLAINTIFF’S BUS AFTER HITTING A PUDDLE, PLAINTIFF ALLEGED DEFENDANT DRIVER WAS GOING TOO FAST FOR CONDITIONS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, DESPITE DEFENDANT’S DENIAL OF HIS ADMISSION IN HIS AFFIDAVIT OPPOSING THE MOTION (FIRST DEPT))/TRAFFIC ACCIDENTS DEFENDANT DRIVER ADMITTED IN THE ACCIDENT REPORT HE WAS AWARE THE ROADS WERE WET AND SLIPPERY AT THE TIME THE DEFENDANT’S BUS SKIDDED INTO PLAINTIFF’S BUS AFTER HITTING A PUDDLE, PLAINTIFF ALLEGED DEFENDANT DRIVER WAS GOING TOO FAST FOR CONDITIONS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, DESPITE DEFENDANT’S DENIAL OF HIS ADMISSION IN HIS AFFIDAVIT OPPOSING THE MOTION (FIRST DEPT))/EVIDENCE (TRAFFIC ACCIDENTS, SUMMARY JUDGMENT, DEFENDANT DRIVER ADMITTED IN THE ACCIDENT REPORT HE WAS AWARE THE ROADS WERE WET AND SLIPPERY AT THE TIME THE DEFENDANT’S BUS SKIDDED INTO PLAINTIFF’S BUS AFTER HITTING A PUDDLE, PLAINTIFF ALLEGED DEFENDANT DRIVER WAS GOING TOO FAST FOR CONDITIONS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, DESPITE DEFENDANT’S DENIAL OF HIS ADMISSION IN HIS AFFIDAVIT OPPOSING THE MOTION (FIRST DEPT))/SUMMARY JUDGMENT (EVIDENCE, TRAFFIC ACCIDENTS, DEFENDANT DRIVER ADMITTED IN THE ACCIDENT REPORT HE WAS AWARE THE ROADS WERE WET AND SLIPPERY AT THE TIME THE DEFENDANT’S BUS SKIDDED INTO PLAINTIFF’S BUS AFTER HITTING A PUDDLE, PLAINTIFF ALLEGED DEFENDANT DRIVER WAS GOING TOO FAST FOR CONDITIONS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, DESPITE DEFENDANT’S DENIAL OF HIS ADMISSION IN HIS AFFIDAVIT OPPOSING THE MOTION (FIRST DEPT))/ACCIDENT REPORTS (TRAFFIC ACCIDENTS, DEFENDANT DRIVER ADMITTED IN THE ACCIDENT REPORT HE WAS AWARE THE ROADS WERE WET AND SLIPPERY AT THE TIME THE DEFENDANT’S BUS SKIDDED INTO PLAINTIFF’S BUS AFTER HITTING A PUDDLE, PLAINTIFF ALLEGED DEFENDANT DRIVER WAS GOING TOO FAST FOR CONDITIONS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, DESPITE DEFENDANT’S DENIAL OF HIS ADMISSION IN HIS AFFIDAVIT OPPOSING THE MOTION (FIRST DEPT))

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ALTHOUGH DEFENDANT DID NOT, UNDER THE ADMINISTRATIVE CODE, HAVE A DUTY TO REMOVE ICE AND SNOW FROM THE AREA OF THE SLIP AND FALL, SINCE DEFENDANT UNDERTOOK TO DO SO IT MUST DEMONSTRATE IT DID NOT CREATE OR EXACERBATE THE DANGEROUS CONDITION TO BE ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this ice and snow slip and fall case was properly denied. Although the defendant, under the administrative code of NYC, did not have a duty to remove ice and snow from the site of the fall, it did undertake to do so. Therefore, to be entitled to summary judgment, the defendant must present proof it did not create or exacerbate the dangerous condition:

… [Defendant] failed to demonstrate, as a matter of law, that it did not cause, create, or exacerbate the icy condition after it undertook to clean the sidewalk during the winter storm. Neither the testimony of the property’s caretaker nor the affidavit of the supervisor of caretakers’s indicates that they inspected the location before the accident and saw that it was properly treated with salt or sand … . Maynard-Keeler v New York City Hous. Auth., 2018 NY Slip Op 03322, First Dept 5-8-18

​NEGLIGENCE (SLIP AND FALL, ALTHOUGH DEFENDANT DID NOT, UNDER THE ADMINISTRATIVE CODE, HAVE A DUTY TO REMOVE ICE AND SNOW FROM THE AREA OF THE SLIP AND FALL, SINCE DEFENDANT UNDERTOOK TO DO SO IT MUST DEMONSTRATE IT DID NOT CREATE OR EXACERBATE THE DANGEROUS CONDITION TO BE ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT))/SLIP AND FALL ( ALTHOUGH DEFENDANT DID NOT, UNDER THE ADMINISTRATIVE CODE, HAVE A DUTY TO REMOVE ICE AND SNOW FROM THE AREA OF THE SLIP AND FALL, SINCE DEFENDANT UNDERTOOK TO DO SO IT MUST DEMONSTRATE IT DID NOT CREATE OR EXACERBATE THE DANGEROUS CONDITION TO BE ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT))/EVIDENCE (SLIP AND FALL, ICE AND SNOW, ALTHOUGH DEFENDANT DID NOT, UNDER THE ADMINISTRATIVE CODE, HAVE A DUTY TO REMOVE ICE AND SNOW FROM THE AREA OF THE SLIP AND FALL, SINCE DEFENDANT UNDERTOOK TO DO SO IT MUST DEMONSTRATE IT DID NOT CREATE OR EXACERBATE THE DANGEROUS CONDITION TO BE ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT))/ICE AND SNOW (SLIP AND FALL,  ALTHOUGH DEFENDANT DID NOT, UNDER THE ADMINISTRATIVE CODE, HAVE A DUTY TO REMOVE ICE AND SNOW FROM THE AREA OF THE SLIP AND FALL, SINCE DEFENDANT UNDERTOOK TO DO SO IT MUST DEMONSTRATE IT DID NOT CREATE OR EXACERBATE THE DANGEROUS CONDITION TO BE ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT))

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PLAINTIFF PHYSICIAN SUFFICIENTLY ALLEGED HE WAS TERMINATED IN VIOLATION OF LABOR LAW 741, PLAINTIFF EXPRESSED HIS DISAGREEMENT WITH DEFENDANT HOSPITAL CORPORATION’S POLICY THAT THE RESIDENTIAL DRINKING WATER OF PATIENTS DIAGNOSED WITH LEGIONNAIRE’S DISEASE SHOULD NOT BE TESTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff physician’s complaint alleging he was terminated in retaliation for his disagreement with defendant hospital corporation’s policy concerning the testing of residential drinking water for patients diagnosed with Legionnaire’s disease stated a cause of action pursuant to Labor Law 741:

[Plaintiff] disagrees with the public position taken by the New York City Department of Health and Mental Hygiene that the bacteria was found only in cooling towers and not in residential drinking water, and reasonably believes that the practice of not testing the residential drinking water of the patients constituted “improper quality of patient care.

Plaintiff has sufficiently pleaded the notice requirement set forth in Labor Law § 741(3). Under that provision, an employee may not bring an action “unless the employee has brought the improper quality of patient care to the attention of a supervisor and has afforded the employer a reasonable opportunity to correct such activity, policy or practice”… . Although the statutory language expressly contemplates an affirmative act of objection to a policy or practice, strict compliance with the requirement here “would not serve the purpose of the statute” … . In view of the allegations that plaintiff’s supervisors had directed him to stop testing residential drinking water of the patients, and to not associate himself with the hospital if he insisted on continuing to do so, any express objections to the practice or policy would have been futile. Further, the fact that plaintiff insisted on testing the water despite directives to stop shows that his supervisors were aware, and therefore had notice, of his objection. Skelly v New York City Health & Hosps. Corp., 2018 NY Slip Op 03329, First Dept 5-8-18

​EMPLOYMENT LAW (LABOR LAW 741, PLAINTIFF PHYSICIAN SUFFICIENTLY ALLEGED HE WAS TERMINATED IN VIOLATION OF LABOR LAW 741, PLAINTIFF EXPRESSED HIS DISAGREEMENT WITH DEFENDANT HOSPITAL CORPORATION’S POLICY THAT THE RESIDENTIAL DRINKING WATER OF PATIENTS DIAGNOSED WITH LEGIONNAIRE’S DISEASE SHOULD NOT BE TESTED (FIRST DEPT))/LABOR LAW (PATIENT CARE, PLAINTIFF PHYSICIAN SUFFICIENTLY ALLEGED HE WAS TERMINATED IN VIOLATION OF LABOR LAW 741, PLAINTIFF EXPRESSED HIS DISAGREEMENT WITH DEFENDANT HOSPITAL CORPORATION’S POLICY THAT THE RESIDENTIAL DRINKING WATER OF PATIENTS DIAGNOSED WITH LEGIONNAIRE’S DISEASE SHOULD NOT BE TESTED (FIRST DEPT))/PATIENT CARE (LABOR LAW 741, PLAINTIFF PHYSICIAN SUFFICIENTLY ALLEGED HE WAS TERMINATED IN VIOLATION OF LABOR LAW 741, PLAINTIFF EXPRESSED HIS DISAGREEMENT WITH DEFENDANT HOSPITAL CORPORATION’S POLICY THAT THE RESIDENTIAL DRINKING WATER OF PATIENTS DIAGNOSED WITH LEGIONNAIRE’S DISEASE SHOULD NOT BE TESTED (FIRST DEPT))/LABOR LAW 741 (PATIENT CARE, PLAINTIFF PHYSICIAN SUFFICIENTLY ALLEGED HE WAS TERMINATED IN VIOLATION OF LABOR LAW 741, PLAINTIFF EXPRESSED HIS DISAGREEMENT WITH DEFENDANT HOSPITAL CORPORATION’S POLICY THAT THE RESIDENTIAL DRINKING WATER OF PATIENTS DIAGNOSED WITH LEGIONNAIRE’S DISEASE SHOULD NOT BE TESTED (FIRST DEPT))/RETALIATION (EMPLOYMENT LAW, LABOR LAW 741, PLAINTIFF PHYSICIAN SUFFICIENTLY ALLEGED HE WAS TERMINATED IN VIOLATION OF LABOR LAW 741, PLAINTIFF EXPRESSED HIS DISAGREEMENT WITH DEFENDANT HOSPITAL CORPORATION’S POLICY THAT THE RESIDENTIAL DRINKING WATER OF PATIENTS DIAGNOSED WITH LEGIONNAIRE’S DISEASE SHOULD NOT BE TESTED (FIRST DEPT))/DRINKING WATER (LEGIONNAIRE’S DISEASE, PLAINTIFF PHYSICIAN SUFFICIENTLY ALLEGED HE WAS TERMINATED IN VIOLATION OF LABOR LAW 741, PLAINTIFF EXPRESSED HIS DISAGREEMENT WITH DEFENDANT HOSPITAL CORPORATION’S POLICY THAT THE RESIDENTIAL DRINKING WATER OF PATIENTS DIAGNOSED WITH LEGIONNAIRE’S DISEASE SHOULD NOT BE TESTED (FIRST DEPT))/LEGIONNAIRE’S DISEASE (PLAINTIFF PHYSICIAN SUFFICIENTLY ALLEGED HE WAS TERMINATED IN VIOLATION OF LABOR LAW 741, PLAINTIFF EXPRESSED HIS DISAGREEMENT WITH DEFENDANT HOSPITAL CORPORATION’S POLICY THAT THE RESIDENTIAL DRINKING WATER OF PATIENTS DIAGNOSED WITH LEGIONNAIRE’S DISEASE SHOULD NOT BE TESTED (FIRST DEPT))

SUPREME COURT SHOULD HAVE PLACED DEFENDANT IN A JUDICIAL DIVERSION PROGRAM IN THIS COCAINE-SALE CASE, CRITERIA AND PURPOSE EXPLAINED (FIRST DEPT).

The First Department determined Supreme Court should have placed defendant in a judicial diversion program in this cocaine-sale case. Defendant’s need for money to support his marijuana use qualified him for diversion, despite his prior completion of a drug treatment program:

The court improvidently exercised its discretion in denying defendant’s request to participate in the judicial diversion program. The court based this determination on the erroneous ground that defendant had failed to establish that his “substance abuse or dependence [wa]s a contributing factor to [his] criminal behavior” (CPL 216.05[3][b][iii]). “The statute does not require that a defendant’s . . . substance abuse or dependence be the exclusive or primary cause of the defendant’s criminal behavior,” but “only requires that it be a contributing factor” … . In this case, defendant pleaded guilty to selling cocaine to an undercover police officer for $300, and was found carrying that amount in prerecorded buy money, an additional $880 in cash, and three cell phones. Defendant reported that his heavy use of marijuana cost him about $50 to $60 per day. In light of these facts and other particular circumstances of this case, defendant’s need for enough money to fund that habit evidently contributed to his criminal behavior of selling cocaine.

Accordingly, the court should order judicial diversion pursuant to CPL article 216, giving due recognition to the drug treatment program defendant has already completed. This result is consistent with one of the purposes of judicial diversion, which is to permit a defendant to achieve a disposition other than a felony conviction, where appropriate. People v Alston, 2018 NY Slip Op 03324, First Dept 5-8-18

CRIMINAL LAW (DIVERSION, SUPREME COURT SHOULD HAVE PLACED DEFENDANT IN A JUDICIAL DIVERSION PROGRAM IN THIS COCAINE-SALE CASE, CRITERIA AND PURPOSE EXPLAINED (FIRST DEPT))/JUDICIAL DIVERSION (CRIMINAL LAW, SUPREME COURT SHOULD HAVE PLACED DEFENDANT IN A JUDICIAL DIVERSION PROGRAM IN THIS COCAINE-SALE CASE, CRITERIA AND PURPOSE EXPLAINED (FIRST DEPT))/DIVERSION (CRIMINAL LAW, SUPREME COURT SHOULD HAVE PLACED DEFENDANT IN A JUDICIAL DIVERSION PROGRAM IN THIS COCAINE-SALE CASE, CRITERIA AND PURPOSE EXPLAINED (FIRST DEPT))/SENTENCING (JUDICIAL DIVERSION, SUPREME COURT SHOULD HAVE PLACED DEFENDANT IN A JUDICIAL DIVERSION PROGRAM IN THIS COCAINE-SALE CASE, CRITERIA AND PURPOSE EXPLAINED (FIRST DEPT))

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DEFENDANT CANADIAN INSURANCE COMPANY’S TIES TO NEW YORK WERE NOT SUFFICIENT TO ALLOW THE EXERCISE OF LONG-ARM JURISDICTION OVER THE COMPANY (FIRST DEPT).

The First Department determined defendant insurance company’s connections to New York were insufficient to support long-arm jurisdiction:

[D]efendant … is incorporated in Canada, has its principal place of business in Canada, and is not authorized to do business in New York. Defendant issued a $10 million life insurance policy to a trust, designated on the policy application as the policy owner and beneficiary, which the record shows has its situs in New Jersey. The policy application was signed in New Jersey, and the receipt reflecting delivery of the policy identifies New Jersey as the place of execution. While the trustee may be a New York resident, he is neither the designated owner nor a beneficiary of the policy.

Plaintiff cites no authority to support its argument that New York courts may exercise jurisdiction over defendant because the policy insured the life of a New York resident. Nor do defendant’s purported ties to New York suffice. Plaintiff points out that the medical portion of the application was signed in New York by the insured and the medical examiner and that, before it was delivered to the trustee, the policy passed through two New York intermediaries. These transactions are not only too fleeting to provide a jurisdictional foundation, but are also not the acts from which plaintiff’s claims arise … . Even assuming, as the record suggests, that defendant assured plaintiff (which acquired ownership of the policy) of the incontestability of the policy by a letter faxed to a New York number, this is not sufficient to establish New York jurisdiction over defendant … . AMT Capital Holdings, S.A. v Sun Life Assur. Co. of Can., 2018 NY Slip Op 03318, First Dept 5-8-18

​CIVIL PROCEDURE (LONG ARM JURISDICTION, DEFENDANT CANADIAN INSURANCE COMPANY’S TIES TO NEW YORK WERE NOT SUFFICIENT TO ALLOW THE EXERCISE OF LONG-ARM JURISDICTION OVER THE COMPANY (FIRST DEPT))/LONG ARM JURISDICTION ( DEFENDANT CANADIAN INSURANCE COMPANY’S TIES TO NEW YORK WERE NOT SUFFICIENT TO ALLOW THE EXERCISE OF LONG-ARM JURISDICTION OVER THE COMPANY (FIRST DEPT))/INSURANCE LAW (LONG ARM JURISDICTION, DEFENDANT CANADIAN INSURANCE COMPANY’S TIES TO NEW YORK WERE NOT SUFFICIENT TO ALLOW THE EXERCISE OF LONG-ARM JURISDICTION OVER THE COMPANY (FIRST DEPT))/CPLR 302 (LONG ARM JURISDICTION, DEFENDANT CANADIAN INSURANCE COMPANY’S TIES TO NEW YORK WERE NOT SUFFICIENT TO ALLOW THE EXERCISE OF LONG-ARM JURISDICTION OVER THE COMPANY (FIRST DEPT))

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