You are here: / First Department

Tag Archive for: First Department

PLAINTIFF, WHO TRIPPED ON AN EXTENSION CORD AND FELL DOWN A STAIRWELL, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff was entitled summary judgment on his Labor Law 240(1) cause of action. He was working in a stairwell and tripped over an extension cord:

Because the stairway was an elevated surface on which plaintiff was required to work, and also the sole means of access to his work area, it constituted a safety device within the meaning of the statute … , as well as an elevated work platform that required provision of an adequate safety device … . Under either theory, it is clear that plaintiff’s fall was the direct result of absence of an adequate safety device, and thus, plaintiffs are entitled to partial summary judgment on the section 240(1) cause of action. That plaintiff tripped on an extension cord does not take the case out of the ambit of Labor Law § 240(1)… , and the fact that the staircase from which plaintiff fell was a permanent structure of the building does not remove this case from the coverage of Labor Law § 240(1) … . Conlon v Carnegie Hall Socy., Inc., 2018 NY Slip Op 02268, First Dept 3-29-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF, WHO TRIPPED ON AN EXTENSION CORD AND FELL DOWN A STAIRWELL, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT))/STAIRS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF, WHO TRIPPED ON AN EXTENSION CORD AND FELL DOWN A STAIRWELL, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT))

, ,

BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, determined defendant did not receive effective assistance of counsel  because counsel, after defendant pled not responsible by reason of mental disease or defect, conceded defendant suffered from a dangerous mental disorder and thereby waived the required “track” hearing pursuant to Criminal Procedure Law (CPL) 330.20 (a “critical stage” of the proceedings):

… [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 … , who must submit to the court a report of their findings and evaluation regarding defendant’s mental condition … .

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 … . …

“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” … . …

At the initial hearing, the People bear the burden of proving “to the satisfaction of the court,” i.e., by a fair preponderance of the credible evidence, that the defendant has a dangerous mental disorder or is mentally ill … .

The initial hearing under CPL 330.20(6) is “a critical stage” of proceedings at which the defendant is entitled to the effective assistance of counsel … . …

… [C]ounsel rendered ineffective assistance when he conceded at the plea proceeding that defendant was a danger to himself and society, and waived defendant’s right to an initial hearing before reviewing the psychiatric examination reports which had not yet been prepared for the court. Further, at the proceeding that followed the issuance of the reports, counsel simply relied on the psychiatrists’ reports and deferred to the court’s discretion. He did not call any witnesses or seek to cross-examine the psychiatrists who prepared the reports. Nor did counsel consult an expert on defendant’s behalf who might have offered a contrasting opinion. People v Darryl T., 2018 NY Slip Op 02280, First Dept 3-29-18

CRIMINAL LAW (DANGEROUS MENTAL CONDITION, INEFFECTIVE ASSISTANCE, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DANGEROUS MENTAL CONDITION, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OR MENTAL DISEASE OF DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DANGEROUS MENTAL CONDITION, INEFFECTIVE ASSISTANCE, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OR MENTAL DISEASE OF DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))/DANGEROUS MENTAL CONDITION (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))/MENTAL HYGIENE LAW (CRIMINAL LAW, DANGEROUS MENTAL CONDITION, INEFFECTIVE ASSISTANCE, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))

, ,

ALLOWING IN EVIDENCE DEFENDANT’S TEXT THAT HE MAY NEED MONEY FOR AN ATTORNEY WAS (HARMLESS) ERROR BECAUSE IT WAS AN INFRINGEMENT ON THE RIGHT TO COUNSEL (FIRST DEPT).

The First Department noted that a text message from defendant indicating he needed money “just in case for a lawyer” should not have been admitted in evidence in this homicide case. The error was deemed harmless however:

The People should not have been permitted to introduce, as evidence of defendant’s consciousness of guilt, a text exchange the day after the crime in which defendant indicated that he needed money “just in case for a lawyer.” This evidence was an improper infringement of defendant’s right to counsel … . However, under all the circumstances, including the overwhelming evidence of defendant’s guilt, which included the testimony of one of the victims, any error in the admission of the text exchange and related summation comment on it was harmless beyond a reasonable doubt … . The circumstantial evidence was compelling, and it led to an inescapable inference that the deceased and surviving victims were shot by defendant, the only other occupant of the car in which the shootings took place. People v Suero, 2018 NY Slip Op 02269, First Dept 3-29-18

CRIMINAL LAW (EVIDENCE, ALLOWING IN EVIDENCE DEFENDANT’S TEXT THAT HE MAY NEED MONEY FOR AN ATTORNEY WAS (HARMLESS) ERROR BECAUSE IT WAS AN INFRINGEMENT ON THE RIGHT TO COUNSEL (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, ALLOWING IN EVIDENCE DEFENDANT’S TEXT THAT HE MAY NEED MONEY FOR AN ATTORNEY WAS (HARMLESS) ERROR BECAUSE IT WAS AN INFRINGEMENT ON THE RIGHT TO COUNSEL (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ALLOWING IN EVIDENCE DEFENDANT’S TEXT THAT HE MAY NEED MONEY FOR AN ATTORNEY WAS (HARMLESS) ERROR BECAUSE IT WAS AN INFRINGEMENT ON THE RIGHT TO COUNSEL (FIRST DEPT))

THE TERMS ‘EVENT OF DEFAULT’ AND ‘DEFAULT’ WHICH APPEARED IN TWO DIFFERENT SECTIONS OF THE CONTRACT WERE DEEMED TO MEAN THE SAME THING, BECAUSE THE TERMS WERE DEEMED SYNONYMOUS PLAINTIFF DID NOT MEET ALL THE CONDITIONS PRECEDENT FOR STANDING TO SUE, COMPLAINT PROPERLY DISMISSED (FIRST DEPT).

The First Department determined the derivative action for breach of an Amended and Restated Pooling and Servicing Agreement (PSA) was properly dismissed because plaintiffs did not fulfill all of the conditions precedent for bringing the suit, which alleged the defendants’ failure to determine the fair value of a loan. Whether the contractual conditions precedent were met turned on whether the term “event of default” in one provision was synonymous with the term “default” in another provision. Because the two terms were deemed to mean the same thing, a condition precedent for the suit was not met:

Because the uncontroverted and unambiguous documentary evidence demonstrates that plaintiff failed to satisfy the terms of section 7.01(a)(iii) defining the Event of Default here at issue, plaintiff’s compliance with the conditions precedent of section 12.03(c) does not suffice to afford it standing to sue, as it has failed to demonstrate an actionable Event of Default under the PSA. Thus, KeyBank and Berkadia have conclusively established a defense to plaintiff’s asserted claims as a matter of law … and the motion court correctly granted both defendants’ CPLR 3211(a)(1) motions to dismiss. Alden Global Value Recovery Master Fund, L.P. v KeyBank N.A., 2018 NY Slip Op 02241, First Dept 3-29-18

CONTRACT LAW (THE TERMS ‘EVENT OF DEFAULT’ AND ‘DEFAULT’ WHICH APPEARED IN TWO DIFFERENT SECTIONS OF THE CONTRACT WERE DEEMED TO MEAN THE SAME THING, BECAUSE THE TERMS WERE DEEMED SYNONYMOUS PLAINTIFF DID NOT MEET ALL THE CONDITIONS PRECEDENT FOR STANDING TO SUE, COMPLAINT PROPERLY DISMISSED (FIRST DEPT))/DEFAULT (CONTRACT LAW, THE TERMS ‘EVENT OF DEFAULT’ AND ‘DEFAULT’ WHICH APPEARED IN TWO DIFFERENT SECTIONS OF THE CONTRACT WERE DEEMED TO MEAN THE SAME THING, BECAUSE THE TERMS WERE DEEMED SYNONYMOUS PLAINTIFF DID NOT MEET ALL THE CONDITIONS PRECEDENT FOR STANDING TO SUE, COMPLAINT PROPERLY DISMISSED (FIRST DEPT))/EVENT OF DEFAULT (CONTRACT LAW, THE TERMS ‘EVENT OF DEFAULT’ AND ‘DEFAULT’ WHICH APPEARED IN TWO DIFFERENT SECTIONS OF THE CONTRACT WERE DEEMED TO MEAN THE SAME THING, BECAUSE THE TERMS WERE DEEMED SYNONYMOUS PLAINTIFF DID NOT MEET ALL THE CONDITIONS PRECEDENT FOR STANDING TO SUE, COMPLAINT PROPERLY DISMISSED (FIRST DEPT))

, ,

APPLYING THE CLEAR AND CONVINCING EVIDENTIARY STANDARD, THE DEPARTMENT OF MOTOR VEHICLES’ (DMV’S) SUSPENSION OF PETITIONER BUS DRIVER’S LICENSE BASED UPON STRIKING A PEDESTRIAN WAS NOT SUPPORTED BY EVIDENCE OF THE EXTENT OF THE INJURY OR ANY CONNECTION BETWEEN THE INJURY AND THE PEDESTRIAN’S DEATH A MONTH LATER, DETERMINATION ANNULLED AND LICENSE REINSTATED (FIRST DEPT).

The First Department, annulling the determination of the Department of Motor Vehicles (DMV), over a two-justice dissenting opinion, determined the record did not support the suspension of petitioner-bus-driver’s license for a violation of Vehicle and Traffic Law 1146. The court noted that the standard of proof in the DMV hearing is “clear and convincing” and the standard of proof in the instant Article 78 proceeding is “substantial evidence.” Effectively, therefore, the “clear and convincing” standard applies to the Article 78. Here, on a dark and rainy night, an 88-year-old pedestrian apparently came into contact with the bus in the crosswalk when the bus was turning. The man died a month later. In the opinion of the majority, the hearing evidence did not demonstrate how seriously the man was injured by the bus, or a connection between any injury and the man’s death a month later:

Here, DMV was required to establish that petitioner violated Vehicle and Traffic Law § 1146(c)(1), which imposes liability on “[a] driver of a motor vehicle who causes serious physical injury as defined in article ten of the penal law to a pedestrian or bicyclist while failing to exercise due care.” The referenced definition of “serious physical injury” includes “physical injury . . . which causes death,” … which is presumably the basis for the charge against petitioner since he was not issued a summons until after the pedestrian died in the hospital. Thus, DMV was required to present clear and convincing evidence of both failure to exercise care and that such failure led to the pedestrian’s demise. * * *

To be sure, one could speculate, as does the dissent, that the pedestrian suffered a “serious physical injury.” But to engage in speculation would be to ignore the underlying standard of clear and convincing evidence, which even the dissent agrees applied in the administrative proceeding and is relevant to our review. “Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened . . . and it is evidence that is neither equivocal nor open to opposing presumptions”… . Given that standard, and the remarkable lack of compelling evidence before us, we would be abdicating our role were we simply to defer to the conclusions drawn by the Administrative Law Judge, and raising a serious question as to the very purpose of having any appellate review in this matter. Matter of Seon v New York State Dept. of Motor Vehs., 2018 NY Slip Op 02240, First Dept 3-29-18

 

EGREGIOUS CIRCUMSTANCES JUSTIFIED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT DRIVER PURSUANT TO THE EMERGENCY DOCTRINE (FIRST DEPT).

The First Department determined defendant Dominguez’s motion for summary judgment pursuant to the emergency doctrine was properly granted. The court noted that the emergency doctrine usually presents a question of fact but the egregious circumstances warranted summary judgment here. Plaintiff was a passenger in Chuquillanqui’s vehicle which was struck by a car driven by Dominguez:

Dominguez submitted evidence showing that the accident occurred when Chuquillanqui attempted an illegal U-turn from the far-right lane of a two-way road that had two lanes traveling in each direction. Dominguez was operating a vehicle traveling in the same direction as Chuquillanqui’s vehicle, but in the left lane at some distance back from Chuquillanqui’s vehicle. Dominguez testified that he had only had a couple of seconds to react when Chuquillanqui abruptly began the U-turn across his right of way in the left lane, and that he unsuccessfully attempted to avoid the collision by turning his vehicle to the left … .

Plaintiff’s opposition was insufficient to raise factual issues as to whether an emergency situation existed prior to the collision, and as to whether Dominguez’s actions before the accident were reasonable under the circumstances. While the “reasonableness of a defendant driver’s reaction to an emergency is normally left to the trier of fact,” in “egregious circumstances,” as here, the issue may be resolved on summary judgment … . Morales v Chuquillanqui, 2018 NY Slip Op 02139, First Dept 3-27-18

NEGLIGENCE (EGREGIOUS CIRCUMSTANCES JUSTIFIED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT DRIVER PURSUANT TO THE EMERGENCY DOCTRINE (FIRST DEPT))/ TRAFFIC ACCIDENTS (EGREGIOUS CIRCUMSTANCES JUSTIFIED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT DRIVER PURSUANT TO THE EMERGENCY DOCTRINE (FIRST DEPT))/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, EGREGIOUS CIRCUMSTANCES JUSTIFIED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT DRIVER PURSUANT TO THE EMERGENCY DOCTRINE (FIRST DEPT))

ALTHOUGH RESPONDENT WAS NOT MARRIED TO THE TENANT OF RECORD, THEIR RELATIONSHIP EXHIBITED THE CARE AND SELF-SACRIFICE OF A FAMILY RELATIONSHIP, HOUSING COURT SHOULD HAVE FOUND THAT RESPONDENT WAS A FAMILY MEMBER ENTITLED TO SUCCESSION RIGHTS IN THE RENT-STABILIZED APARTMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Housing Court, determined that the relationship between the tenant of record (Montgomery) in a rent-stabilized apartment and respondent (Zenker) justified the finding that Zenker was a “family member” entitled to succession rights. Although Zenker and Montgomery were not married, their relationship exhibited the care and sacrifice sufficient to meet the definition of a “family member” in this context:

The fact that Zenker moved back into the apartment in 2003 because of her own housing problems, and the couple’s lack of sexual intimacy, does not diminish their relationship to that of roommates. The unrefuted evidence establishes that this couple shared decades of dedication, caring and self-sacrifice. Consideration of the factual record in light of the factors listed in the Rent Stabilization Code demonstrates that Zenker was family to Montgomery. Matter of 530 Second Ave. Co., LLC v Zenker, 2018 NY Slip Op 02143, First Dept 3-27-18

LANDLORD-TENANT (RENT STABILIZED APARTMENT, SUCCESSION RIGHTS, ALTHOUGH RESPONDENT WAS NOT MARRIED TO THE TENANT OF RECORD, THEIR RELATIONSHIP EXHIBITED THE CARE AND SELF-SACRIFICE OF A FAMILY RELATIONSHIP, HOUSING COURT SHOULD HAVE FOUND THAT RESPONDENT WAS A FAMILY MEMBER ENTITLED TO SUCCESSION RIGHTS IN THE RENT-STABILIZED APARTMENT (FIRST DEPT))/RENT STABILIZED APARTMENT (SUCCESSION RIGHTS, ALTHOUGH RESPONDENT WAS NOT MARRIED TO THE TENANT OF RECORD, THEIR RELATIONSHIP EXHIBITED THE CARE AND SELF-SACRIFICE OF A FAMILY RELATIONSHIP, HOUSING COURT SHOULD HAVE FOUND THAT RESPONDENT WAS A FAMILY MEMBER ENTITLED TO SUCCESSION RIGHTS IN THE RENT-STABILIZED APARTMENT (FIRST DEPT))/SUCCESSION RIGHTS (RENT STABILIZED APARTMENT, ALTHOUGH RESPONDENT WAS NOT MARRIED TO THE TENANT OF RECORD, THEIR RELATIONSHIP EXHIBITED THE CARE AND SELF-SACRIFICE OF A FAMILY RELATIONSHIP, HOUSING COURT SHOULD HAVE FOUND THAT RESPONDENT WAS A FAMILY MEMBER ENTITLED TO SUCCESSION RIGHTS IN THE RENT-STABILIZED APARTMENT (FIRST DEPT))/FAMILY MEMBER (LANDLORD-TENANT, RENT STABILIZED APARTMENT, SUCCESSION RIGHTS, ALTHOUGH RESPONDENT WAS NOT MARRIED TO THE TENANT OF RECORD, THEIR RELATIONSHIP EXHIBITED THE CARE AND SELF-SACRIFICE OF A FAMILY RELATIONSHIP, HOUSING COURT SHOULD HAVE FOUND THAT RESPONDENT WAS A FAMILY MEMBER ENTITLED TO SUCCESSION RIGHTS IN THE RENT-STABILIZED APARTMENT (FIRST DEPT))

PROPERTY OWNER, AS AN ADDITIONAL INSURED UNDER THE SECURITY COMPANY’S POLICY, WAS NOT ENTITLED TO COVERAGE FOR A SECURITY GUARD’S SLIP AND FALL ON A RECENTLY MOPPED FLOOR, THE ADDITIONAL INSURED WAS THE SOLE PROXIMATE CAUSE OF THE INJURY (FIRST DEPT).

The First Department, reversing Supreme Court, determined coverage for a slip and fall of a security company (Protection Plus) employer was not available to the property owner (Manhattan School) as an additional insured on the security company’s policy. the security guard slipped and fell on a recently mopped floor at the school:

Plaintiff Manhattan School is an additional named insured under a policy issued by defendant to nonparty Protection Plus Security Corporation. In an additional insured endorsement, the policy provides that the Manhattan School is an additional named insured “only with respect to liability for bodily injury’. . . caused, in whole or in part, by” the acts or omissions of Protection Plus in the performance of its operations for the Manhattan School.

When “an insurance policy is restricted to liability for any bodily injury caused, in whole or in part,’ by the acts or omissions’ of the named insured, the coverage applies to injury proximately caused by the named insured” … . Such language in a policy does not equate to “but for” causation and is not the same as policies containing the phrase, “arising out of” … . Fundamentally, ” arising out of’ is not the functional equivalent of proximately caused by'”… . Thus, it is not enough to merely establish a causal link to the injury.

Notably, the language in the endorsement was “intended to provide coverage for an additional insured’s vicarious or contributory negligence, and to prevent coverage for the additional insured’s sole negligence” … .

Accordingly, when a policy limits coverage to an injury “caused, in whole or part” by the “acts or omissions” of the named insured, coverage is extended to an additional insured only when the damages are the result of the named insured’s negligence or some other act or omission … .

Here, the acts or omissions of Protection Plus were not a proximate cause of the security guard’s injury. Rather, the sole proximate cause of the injury was the additional insured, and thus coverage is not available to the Manhattan School under defendant’s policy … . Hanover Ins. Co. v Philadelphia Indem. Ins. Co., 2018 NY Slip Op 02121, First Dept 3-27-18

INSURANCE LAW (PROPERTY OWNER, AS AN ADDITIONAL INSURED UNDER THE SECURITY COMPANY’S POLICY, WAS NOT ENTITLED TO COVERAGE FOR A SECURITY GUARD’S SLIP AND FALL ON A RECENTLY MOPPED FLOOR, THE ADDITIONAL INSURED WAS THE SOLE PROXIMATE CAUSE OF THE INJURY (FIRST DEPT))/ADDITIONAL INSURED (INSURANCE LAW, PROPERTY OWNER, AS AN ADDITIONAL INSURED UNDER THE SECURITY COMPANY’S POLICY, WAS NOT ENTITLED TO COVERAGE FOR A SECURITY GUARD’S SLIP AND FALL ON A RECENTLY MOPPED FLOOR, THE ADDITIONAL INSURED WAS THE SOLE PROXIMATE CAUSE OF THE INJURY (FIRST DEPT))

PLACING DEFENDANT IN HANDCUFFS ELEVATED THE INVESTIGATORY STOP TO AN ILLEGAL ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined placing the defendant in handcuffs improperly elevated an investigatory detention to an illegal arrest and the suppression motion should have been granted. The court noted that Supreme Court explicitly found that the detective did not have probable cause to arrest at the time of the handcuffing so the appellate court could not consider the People’s argument to the contrary:

During a buy and bust operation, the police made what the suppression court found to be an investigatory stop of defendant, based on reasonable suspicion, followed by a confirmatory identification that provided probable cause to arrest defendant for selling drugs. However, during the stop, but before the identification, the police handcuffed defendant because defendant was “a little irate” and the officer wanted to “make sure nothing escalated.

“Although the use of handcuffs is not dispositive of whether an investigatory detention on reasonable suspicion has been elevated to an arrest, handcuffing is permissible in such a detention only when justified by the circumstances”… . Here, defendant was not suspected of anything more than a street-level drug sale, the police had no reason to believe that he was armed, dangerous or likely to flee, and there was no indication on the record that defendant offered any resistance before he was handcuffed. That defendant was “a little irate” does not establish dangerousness or resistance that would justify the use of handcuffs during an investigatory stop … . People v Steinbergin, 2018 NY Slip Op 02123, First Dept 3-27-18

CRIMINAL LAW (PLACING DEFENDANT IN HANDCUFFS ELEVATED THE INVESTIGATORY STOP TO AN ILLEGAL ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT))/STREET STOPS  (PLACING DEFENDANT IN HANDCUFFS ELEVATED THE INVESTIGATORY STOP TO AN ILLEGAL ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT))/INVESTIGATORY STOP (PLACING DEFENDANT IN HANDCUFFS ELEVATED THE INVESTIGATORY STOP TO AN ILLEGAL ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SEARCH AND SEIZURE  (PLACING DEFENDANT IN HANDCUFFS ELEVATED THE INVESTIGATORY STOP TO AN ILLEGAL ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SUPPRESS, MOTION TO  (PLACING DEFENDANT IN HANDCUFFS ELEVATED THE INVESTIGATORY STOP TO AN ILLEGAL ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT))

THE PROMISE TO REPAY THE LOAN WAS NOT UNCONDITIONAL BUT RATHER THE DEFENDANT’S HAVING AVAILABLE CASH TO REPAY THE LOAN WAS A CONDITION PRECEDENT, BECAUSE PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT HAD AVAILABLE CASH, ITS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that summary judgment should not have been awarded to the plaintiff (Related) in this breach of contract action. The agreement provided that loan payments be made to plaintiff by the defendant (Tesla) from available cash. The existence of available cash was deemed a condition precedent. Because plaintiff could not show defendant had available case, summary judgment was not an available remedy:

A condition precedent is “an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises” … . The term sheet does not contain an unconditional promise by Tesla to repay the cash advances, distinguishing the transactions from the typical loan arrangement, which involves an unconditional promise to repay the amount advanced. Rather, pursuant to the waterfall provision, Tesla was to repay the cash advances from cash that was available for distribution after the payment of taxes. Related failed to establish that this condition precedent was satisfied, and its motion for summary judgment should have therefore been denied once the court determined that Tesla presently had no “available cash” to repay Related … . Related Cos., L.P. v Tesla Wall Sys., LLC, 2018 NY Slip Op 02122, First Dept 3-27-18

CONTRACT LAW (CONDITION PRECEDENT, THE PROMISE TO REPAY THE LOAN WAS NOT UNCONDITIONAL BUT RATHER THE DEFENDANT’S HAVING AVAILABLE CASH TO REPAY THE LOAN WAS A CONDITION PRECEDENT, BECAUSE PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT HAD AVAILABLE CASH, ITS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/CONDITION PRECEDENT (CONTRACT LAW, THE PROMISE TO REPAY THE LOAN WAS NOT UNCONDITIONAL BUT RATHER THE DEFENDANT’S HAVING AVAILABLE CASH TO REPAY THE LOAN WAS A CONDITION PRECEDENT, BECAUSE PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT HAD AVAILABLE CASH, ITS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy