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INSURER OF A BUS OBLIGATED TO DEFEND AND INDEMNIFY THE BUS COMPANY IN AN ACTION BROUGHT BY A PASSENGER WHO FELL ATTEMPTING TO PICK UP HER LUGGAGE OUTSIDE THE BUS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the insurer of a Peter Pan bus was obligated to defend and indemnify the bus company in an action brought by a passenger who fell attempting to pick up her luggage outside the bus:

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The insurance policy issued by defendant to Peter Pan provides coverage for damages owed because of, inter alia, ” bodily injury’ … caused by an accident’ and resulting from the ownership, maintenance or use of a covered auto.'” Regardless of whether the plaintiff in the underlying action, having arrived at her destination on a Peter Pan bus and seen the driver unloading the passengers’ luggage, tripped over a suitcase while approaching her own suitcase or tripped on the curb while looking for her suitcase, her accident resulted from Peter Pan’s use of the bus, a covered auto, and defendant is obligated to defend and indemnify Peter Pan in the underlying action … . Peter Pan Bus Lines, Inc. v Hanover Ins. Co., 2018 NY Slip Op 00467, First Dept 1-25-18

INSURANCE LAW (INSURER OF A BUS OBLIGATED TO DEFEND AND INDEMNIFY THE BUS COMPANY IN AN ACTION BROUGHT BY A PASSENGER WHO FELL ATTEMPTING TO PICK UP HER LUGGAGE OUTSIDE THE BUS (FIRST DEPT))/BUSES (INSURANCE LAW, INSURER OF A BUS OBLIGATED TO DEFEND AND INDEMNIFY THE BUS COMPANY IN AN ACTION BROUGHT BY A PASSENGER WHO FELL ATTEMPTING TO PICK UP HER LUGGAGE OUTSIDE THE BUS (FIRST DEPT))/SLIP AND FALL (BUSES, INSURANCE LAW, INSURER OF A BUS OBLIGATED TO DEFEND AND INDEMNIFY THE BUS COMPANY IN AN ACTION BROUGHT BY A PASSENGER WHO FELL ATTEMPTING TO PICK UP HER LUGGAGE OUTSIDE THE BUS (FIRST DEPT))

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PLAINTIFF’S SEXUAL ORIENTATION DISCRIMINATION AND RETALIATION CAUSES OF ACTION AGAINST THE NYPD SHOULD NOT HAVE BEEN DISMISSED, ALTHOUGH PLAINTIFF HAD ROUTINELY PASSED PSYCHOLOGICAL EXAMS IN THE PAST, THE NYPD FOUND HIM PSYCHOLOGICALLY UNFIT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the sexual-orientation-based employment discrimination and retaliation causes of action (pursuant to the NYS and NYC Human Rights Law) should not have been dismissed. Plaintiff had once worked as an NYPD police officer and subsequently for several other law enforcement entitles, and had always passed the psychological tests. Plaintiff’s application to work once again for the NYPD was denied, based on a finding plaintiff was psychologically unfit. Plaintiff had, in 2007, brought a discrimination action against the NYPD and that prior action was cited by the NYPD as evidence of plaintiff’s inability to deal with stress (which supported the retaliation cause of action):

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The parties do not dispute that plaintiff has sufficiently pleaded the first three elements of discrimination, to wit, plaintiff is part of a protected class due to his sexual orientation, he was qualified for the position of police officer, having previously served for seven years before voluntarily resigning, and he was treated adversely by having a psychological hold placed on his application and then being found to have failed the evaluation. … Plaintiff alleged that he had passed six prior law enforcement psychological evaluations, in New York, California, Arizona, and Missouri, before defendants deemed him psychologically unfit for a position with the NYPD, and that in finding others psychologically fit defendants had given preferential treatment to similarly situated heterosexual applicants. Plaintiff further alleged that he was the only applicant whose application had been placed on a psychological review for over 15 months.

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… [Plaintiff] submitted the psychological report of his independent clinical psychologist demonstrating his fitness to serve. …

The foregoing, taken together, and affording plaintiff the benefit of every favorable inference, establishes prima facie that defendants discriminated against plaintiff on account of his sexual orientation in finding him psychologically unfit to serve. Harrington v City of New York, 2018 NY Slip Op 00381, First Dept 1-23-18

EMPLOYMENT LAW (DISCRIMINATION, PLAINTIFF’S SEXUAL ORIENTATION DISCRIMINATION AND RETALIATION CAUSES OF ACTION AGAINST THE NYPD SHOULD NOT HAVE BEEN DISMISSED, ALTHOUGH PLAINTIFF HAD ROUTINELY PASSED PSYCHOLOGICAL EXAMS IN THE PAST, THE NYPD FOUND HIM PSYCHOLOGICALLY UNFIT (FIRST DEPT))/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION, PLAINTIFF’S SEXUAL ORIENTATION DISCRIMINATION AND RETALIATION CAUSES OF ACTION AGAINST THE NYPD SHOULD NOT HAVE BEEN DISMISSED, ALTHOUGH PLAINTIFF HAD ROUTINELY PASSED PSYCHOLOGICAL EXAMS IN THE PAST, THE NYPD FOUND HIM PSYCHOLOGICALLY UNFIT (FIRST DEPT))/SEXUAL ORIENTATION (EMPLOYMENT DISCRIMINATION, PLAINTIFF’S SEXUAL ORIENTATION DISCRIMINATION AND RETALIATION CAUSES OF ACTION AGAINST THE NYPD SHOULD NOT HAVE BEEN DISMISSED, ALTHOUGH PLAINTIFF HAD ROUTINELY PASSED PSYCHOLOGICAL EXAMS IN THE PAST, THE NYPD FOUND HIM PSYCHOLOGICALLY UNFIT (FIRST DEPT))/EMPLOYMENT DISCRIMINATION (SEXUAL ORIENTATION, HUMAN RIGHTS LAW, PLAINTIFF’S SEXUAL ORIENTATION DISCRIMINATION AND RETALIATION CAUSES OF ACTION AGAINST THE NYPD SHOULD NOT HAVE BEEN DISMISSED, ALTHOUGH PLAINTIFF HAD ROUTINELY PASSED PSYCHOLOGICAL EXAMS IN THE PAST, THE NYPD FOUND HIM PSYCHOLOGICALLY UNFIT (FIRST DEPT))/RETALIATION (EMPLOYMENT DISCRIMINATION, HUMAN RIGHTS LAW, PLAINTIFF’S SEXUAL ORIENTATION DISCRIMINATION AND RETALIATION CAUSES OF ACTION AGAINST THE NYPD SHOULD NOT HAVE BEEN DISMISSED, ALTHOUGH PLAINTIFF HAD ROUTINELY PASSED PSYCHOLOGICAL EXAMS IN THE PAST, THE NYPD FOUND HIM PSYCHOLOGICALLY UNFIT (FIRST DEPT))

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OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant out-of-possession landlords’ motion for summary judgment should have been granted in this sidewalk slip and fall case:

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Defendants cannot be held liable for injuries allegedly sustained by plaintiff when he slipped on snow and ice on the sidewalk adjacent to their property, because they were out-of-possession landlords with no contractual obligation to keep the sidewalks clear of snow and ice, and the presence of snow and ice does not constitute a significant structural or design defect … . Xiang Fu He v Troon Mgt., Inc., 2018 NY Slip Op 00382, First Dept 1-23-18

NEGLIGENCE (OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))/SLIP AND FALL (OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))/OUT OF POSSESSION LANDLORD (NEGLIGENCE, SLIP AND FALL, OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))

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QUESTION OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS IN THIS SLIP AND FALL CASE, AND QUESTION OF FACT WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT).

The First Department, over an extensive, substantive, two-justice partial dissent, determined there were questions of fact whether an opening in the floor constituted an open and obvious condition and whether the contractor (Harbour) which removed an obsolete tank, exposing the opening, was liable to plaintiff for “launching an instrument of harm.” Plaintiff was working near the opening, facing away from it, when he stepped back into the opening and fell. Plaintiff had taken a picture of the opening months before and shown it to the property owner’s manager. The dissenting justices argued that the contract between Harbour and the property owner did not obligate it to repair the opening which was revealed when the tank was removed and, therefore, Harbour did not breach a duty of care owed to plaintiff:

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Even if Harbour’s contract did not require that it cover, remediate, fill in or repair any of the floor openings resulting from its work, Harbour did not take even minimal corrective measures to protect the exposed opening in the floor after it removed the obsolete oil tank. Thus, while its removal of the tank was in fulfillment of its contractual obligation, a reasonable jury could find that Harbour’s leaving an exposed and unprotected opening in the floor exposed, caused or created a dangerous condition even if previously the metal plate containing the opening was not unsafe. The dissent’s view relies on cases where the defendant did not owe a duty of care because the condition the plaintiff complained of was precisely what was called for in the defendant’s contract … .  … There is a view of the facts that Harbour, by leaving the exposed opening without any kind of warning or minimal protection, created or caused an unsafe condition, or made the previously obscured opening in the metal plate “less safe” than before Harbour did its work … . Thus the issue is not whether Harbour had a contractual obligation to protect the opening, but whether by leaving the opening in the metal plate exposed it created an unreasonable risk of harm to the plaintiff. Farrugia v 1440 Broadway Assoc., 2018 NY Slip Op 00347, First Dept 1-18-18

NEGLIGENCE (SLIP AND FALL, QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/SLIP AND FALL (QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/CONTRACT LAW (ESPINAL, TORT LIABILITY TO THIRD PARTY,  QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/LAUNCH INSTRUMENT OF HARM (TORT LIABILITY TO THIRD PARTY BASED UPON CONTRACT, ESPINAL EXCEPTIONS, QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/ESPINAL EXCEPTIONS  (TORT LIABILITY TO THIRD PARTY BASED UPON CONTRACT, QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))

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APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs’ apartments, which received tax benefits pursuant to Real Property Tax Law 421-g are subject to the luxury vacancy decontrol provisions of the NYC Rent Stabilization Law. Therefore plaintiffs’ apartments were properly deregulated and were not subject to rent stabilization:

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Except for condominiums and cooperatives, dwellings in buildings that receive tax benefits pursuant to Real Property Tax Law § 421-g are subject to rent stabilization for the entire period the building is receiving 421-g benefits (Real Property Tax Law § 421-g[6]). However, 421-g buildings are subject to the luxury vacancy decontrol provisions of Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-504.2(a), unlike buildings that receive tax benefits pursuant to Real Property Tax Law §§ 421-a and 489.

Real Property Tax Law § 421-g does not create another exemption to Rent Stabilization Law § 26-504.2(a). Supreme Court essentially interpreted Real Property Tax Law § 421-g(6)’s prefatory phrase “Notwithstanding the provisions of any local law for [rent stabilization]” to mean “Notwithstanding [the luxury decontrol] provisions of any local law.” However, “[a] statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent”… .Accordingly, the prefatory phrase, which also appears identically in RPTL 421-a(2)(f), must be read in tandem with the coverage clause of that section. The prefatory phrase and the coverage clause were both necessary to extend rent stabilization to certain dwellings in buildings receiving 421-g benefits. Kuzmich v 50 Murray St. Acquisition LLC, 2018 NY Slip Op 00336, First Dept 1-18-18

MUNICIPAL LAW (NYC) (RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/LANDLORD-TENANT (NYC, RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/REAL PROPERTY TAX LAW  (NYC, RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/RENT STABILIZATION LAW (NYC) (APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/APARTMENTS (NYC) (RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/LUXURY VACANCY DECONTROL (NYC, RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))

PLANKS AND CRIBBING COVERING AN OPENING WERE SAFETY DEVICES WITHIN THE MEANING OF LABOR LAW 240 (1), FAILURE TO SECURE THE CRIBBING WAS A PROXIMATE CAUSE OF THE ACCIDENT (FIRST DEPT).

The First Department determined defendants’ motion for summary judgment in this Labor Law 240 (1) action was properly denied. Plaintiff was attempting to remove planks covering an opening over an elevator shaft. His foot slipped on oil and he was injured trying to maintain control of a blank. Cribbing under the planks should have been secured but was not. The court held that the planks and cribbing were safety devices within the meaning of the Labor Law. And even if slipping on the oil was a proximate cause of the injury, there can be more than one proximate cause:

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… [T]he cribbing and planking together constituted a safety device designed to protect the workers on the project from falling into the opening in the construction floor … . Further, it is undisputed that the cribbing was not secured at the time of plaintiff’s accident, which allowed the plank plaintiff was holding to fall into the opening, dragging plaintiff toward the opening, causing his injuries.

To the extent defendants assert that they cannot be held liable under Labor Law § 240(1), on the ground that plaintiff’s accident was not caused by the inadequacy of a safety device but rather by him slipping on an oily substance, this does not support granting summary judgment to the defendants. Although plaintiff testified that he slipped due to the oily substance on the floor, the safety device comprised of the cribbing and planking, which was installed to prevent workers from falling into the opening in the floor, could be found by a trier of fact to be a proximate cause of plaintiff’s injuries. Even if the oily substance on the floor was a proximate cause of plaintiff’s accident, “[t]here may be more than one proximate cause of a workplace accident” … . Wiscovitch v Lend Lease (U.S.) Constr. LMB Inc., 2018 NY Slip Op 00350, First Dept 1-18-18

LABOR LAW-CONSTRUCTION LAW (PLANKS AND CRIBBING COVERING AN OPENING WERE SAFETY DEVICES WITHIN THE MEANING OF LABOR LAW 240 (1), FAILURE TO SECURE THE CRIBBING WAS A PROXIMATE CAUSE OF THE ACCIDENT (FIRST DEPT))/SAFETY DEVICES (LABOR LAW-CONSTRUCTION LAW, , PLANKS AND CRIBBING COVERING AN OPENING WERE SAFETY DEVICES WITHIN THE MEANING OF LABOR LAW 240 (1), FAILURE TO SECURE THE CRIBBING WAS A PROXIMATE CAUSE OF THE ACCIDENT (FIRST DEPT))

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CLAIM AGAINST THE BANKRUPT’S INSURER IS NOT BARRED BY THE INSURED’S DISCHARGE IN BANKRUPTCY (FIRST DEPT).

The First Department determined that a claim against the bankrupt’s (Daffy’s) insurer is not barred by the insured’s (Daffy’s) discharge in bankruptcy:

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The court correctly determined that this third-party action against Daffy’s Inc. is not barred by the “Stipulated Order” in Daffy’s bankruptcy proceeding, in which third-party plaintiff [property owner] , waived and released any claims or causes of action relating to or arising under its lease with Daffy’s, and the lease was “rejected and terminated.” The motion papers make it clear that [the property owner] seeks to establish Daffy’s liability in the underlying personal injury action for the sole purpose of recovering under Daffy’s insurance policy in effect at the time of the accident. Because the policy would not inure to Daffy’s pecuniary benefit, it was not part of the bankruptcy estate, and thus it is not covered by the Stipulated Order … . Moreover, this Court has recognized that “a claim asserted for the sole purpose of establishing the liability of a party’s insurer is not barred by that party’s discharge in bankruptcy” … . Calleja v AI 229 W. 42nd St. Prop. Owner, LLC, 2018 NY Slip Op 00338, First Dept 1-18-18

INSURANCE LAW (CLAIM AGAINST THE BANKRUPT’S INSURER IS NOT BARRED BY THE INSURED’S DISCHARGE IN BANKRUPTCY (FIRST DEPT))/BANKRUPTCY (INSURANCE LAW, CLAIM AGAINST THE BANKRUPT’S INSURER IS NOT BARRED BY THE INSURED’S DISCHARGE IN BANKRUPTCY (FIRST DEPT))

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THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s false arrest, false imprisonment and malicious prosecution causes of action should have been dismissed. Drugs were found in her apartment when a search warrant was executed in her absence. Her children’s father pleaded guilt to possession of the drugs. The First Department determined there was probable cause for her arrest under the theory of constructive possession of the drugs:

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The evidence shows that plaintiff resided in and was the leaseholder of an apartment where contraband was discovered pursuant to a search warrant. Plaintiff’s residence and tenancy established her dominion and control over the apartment, and thus placed her in constructive possession of the contraband found therein … . This is so despite the fact that her children’s father had access to the apartment and also admitted and was charged with possession of the same contraband, since “[p]ossession if joint is no less possession” … . This is also true despite the fact that plaintiff was not in the apartment when the search warrant was executed and the contraband discovered … . Plaintiff’s possession of the contraband, in turn, gave rise to probable cause for her arrest. Nor does the record show that there were any material changes in fact to undermine the probable cause between her arrest and the filing of charges against her … . There is no evidence in the record sufficient to overcome the presumption of validity in the search warrant which led to the discovery of the contraband … .

The existence of probable cause constitutes a complete defense to plaintiff’s state claims …  and federal claims for false arrest, false imprisonment, and malicious prosecution … . Phin v City of New York, 2018 NY Slip Op 00333, First Dept 1-18-18

FALSE ARREST (THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/FALSE IMPRISONMENT  (THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/MALICIOUS PROSECUTION (THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/MUNICIPAL LAW (FALSE ARREST, FALSE IMPRISONMENT, MALICIOUS PROSECUTION  (THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))

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DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, reversing defendant’s conviction, determined defendant should have been allowed to present reverse Molineux evidence (evidence that defendant did not commit other robberies committed close in time to the charged robberies with a similar modus operandi) as well as a fingerprint card which would show the absence of a blemish on defendant’s palm which was described by one of the robbery victims. Defendant was denied his right to present a defense. With regard to the reverse Molineux evidence, the court wrote:

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Given defendant’s right to use reverse Molineux evidence, defense counsel sought to introduce two categories of evidence. First, counsel wanted to introduce the surveillance videos from the three robberies for which defendant was not on trial to show that he was not depicted in them: the jury was entitled to make its own assessment that the person sitting before them in the courtroom did not match the person shown in the three videos. There was no evidentiary rule that would have excluded the surveillance videos.

Second, defense counsel sought to introduce evidence that three witnesses from uncharged robberies had viewed lineups in which defendant participated, but had not identified him as the man who had robbed them. Had defense counsel presented the failure-to-identify testimony directly through each eyewitness, no evidentiary bar could have been raised: each eyewitness would have been qualified to say that he or she had viewed defendant in a lineup and that defendant was not the man who had robbed him or her. Had defense counsel been unable to find each of the eyewitnesses, or been otherwise unavailable to testify, and had instead sought only to introduce one or more of the failures to identify through the detective who had supervised the lineup, the detective’s testimony would have been hearsay. Counsel could have overcome the hearsay objection by showing that the identifications were admissible on constitutional grounds because they were reliable … . People v Montgomery, 2018 NY Slip Op 00351, First Dept 1-18-18

CRIMINAL LAW (EVIDENCE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/MOLINEUX (CRIMINAL LAW, EVIDENCE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/REVERSE MOLINEUX (CRIMINAL LAW, EVIDENCE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/THIRD PARTY CULPABILITY (CRIMINAL LAW, EVIDENCE,  DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, RIGHT TO PRESENT A DEFENSE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/DEFENSE, RIGHT TO PRESENT (CRIMINAL LAW, CONSTITUTIONAL LAW, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))

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THE COMPLAINT, STEMMING FROM A FALL OFF A STRETCHER WHILE BEING POSITIONED FOR AN X-RAY, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE UNTIMELY, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE (FIRST DEPT).

The First Department determined the complaint sounded in medical malpractice, not common law negligence, and was therefore untimely. Plaintiff alleged she fell off a stretcher as she was being positioned for a chest X-ray. The attempt to amend the complaint to allege a negligent hiring cause of action failed because the facts underlying negligent hiring were not the same as the facts underlying the original complaint. Therefore the relation-back doctrine did not apply:

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As described by plaintiff in her affidavit, the technician’s conduct in placing plaintiff’s body in a certain position, so as to obtain accurate imaging in an Xray directed by a physician at defendant hospital, bore a “substantial relationship to the rendition of medical treatment by a licensed physician” … . Accordingly, plaintiff’s complaint sounds in medical malpractice and was correctly dismissed as untimely (see CPLR 214-a). …

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CPLR 203(f) provides, “A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading” … .

The original complaint asserts one cause of action that arose from plaintiff’s Xray on July 5, 2012. The proposed negligent hiring and failure to promulgate regulations claims arise from different facts and implicate different duties based on conduct preceding, and separate and different from, the alleged negligence of the Xray technician on that date. Thus, the relation back doctrine is inapplicable because the facts alleged in the original complaint failed to give notice of the facts necessary to support the amended pleading … . Lang-Salgado v Mount Sinai Med. Ctr., Inc., 2018 NY Slip Op 00248, First Dept 1-16-18

NEGLIGENCE (MEDICAL MALPRACTICE, THE COMPLAINT, STEMMING FROM A FALL OFF A STRETCHER WHILE BEING POSITIONED FOR AN X-RAY, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE UNTIMELY, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE (FIRST DEPT))/MEDICAL MALPRACTICE ( THE COMPLAINT, STEMMING FROM A FALL OFF A STRETCHER WHILE BEING POSITIONED FOR AN X-RAY, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE UNTIMELY, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE (FIRST DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE STATUTE OF LIMITATIONS, RELATION BACK DOCTRINE, THE COMPLAINT, STEMMING FROM A FALL OFF A STRETCHER WHILE BEING POSITIONED FOR AN X-RAY, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE UNTIMELY, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE (FIRST DEPT))/RELATION BACK DOCTRINE (CIVIL PROCEDURE, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE IN THIS MEDICAL MALPRACTICE ACTION (FIRST DEPT))/CPLR 214-a (MEDICAL MALPRACTICE, THE COMPLAINT, STEMMING FROM A FALL OFF A STRETCHER WHILE BEING POSITIONED FOR AN X-RAY, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE UNTIMELY, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE (FIRST DEPT))/CPLR 203 (MEDICAL MALPRACTICE, THE COMPLAINT, STEMMING FROM A FALL OFF A STRETCHER WHILE BEING POSITIONED FOR AN X-RAY, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE UNTIMELY, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE (FIRST DEPT))

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