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MOTION FOR DIRECTED VERDICT MADE BEFORE PLAINTIFF CLOSED ITS CASE SHOULD NOT HAVE BEEN GRANTED, MOTION FOR DIRECTED VERDICT BASED UPON PLAINTIFF’S ADMISSIONS PROPERLY GRANTED, INDEMNIFICATION AGREEMENT VOID UNDER GENERAL OBLIGATIONS LAW (FIRST DEPT).

The First Department, reversing (in part) Supreme Court, determined one of defendant’s motions for a directed verdict was premature because plaintiff had not finished presenting proof, a second motion for a directed verdict was properly granted based upon admissions made by plaintiff’s witness, and a cross-claim based upon an indemnification agreement failed because the agreement purported to indemnify a party for its own negligence (in violation of the General Obligations Law). With respect to the premature motion for a directed verdict, the court wrote:

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“Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions.”

In interpreting this provision, this Court has held that the requirement that a party opposing a directed verdict motion must have closed its presentation of evidence “must be strictly enforced” (Griffin v Clinton Green S., LLC, 98 AD3d 41, 46 [1st Dept 2012]). Further, we have held that “the grant of a dismissal [pursuant to CPLR 4401] prior to the close of the opposing party’s case will be reversed as premature, even if the ultimate success of the opposing party in the action is improbable” … . This Court in Griffin emphasized the importance of each party being “afford[ed] . . . a day in court” … . * * *

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[Defendant] essentially asks us to endorse a system whereby a party can make a directed verdict motion at any time during trial, so long as the party opposing the motion has put in some unspecified quantum of evidence that, though it may not have been everything the opposing party intended to put in, was sufficient for the trial court to determine that there were no issues of fact and it could decide for the movant as a matter of law. We decline to do so. 11 Essex St. Corp. v Tower Ins. Co. of N.Y., 2017 NY Slip Op 06709, First Dept 9-28-17

 

CIVIL PROCEDURE (MOTION FOR DIRECTED VERDICT MADE BEFORE PLAINTIFF CLOSED ITS CASE SHOULD NOT HAVE BEEN GRANTED, MOTION FOR DIRECTED VERDICT BASED UPON PLAINTIFF’S ADMISSIONS PROPERLY GRANTED (FIRST DEPT))/DIRECTED VERDICT, MOTION FOR  (MOTION FOR DIRECTED VERDICT MADE BEFORE PLAINTIFF CLOSED ITS CASE SHOULD NOT HAVE BEEN GRANTED, MOTION FOR DIRECTED VERDICT BASED UPON PLAINTIFF’S ADMISSIONS PROPERLY GRANTED (FIRST DEPT))CONTRACT LAW (INDEMNIFICATION AGREEMENT VOID UNDER GENERAL OBLIGATIONS LAW (FIRST DEPT))/GENERAL OBLIGATIONS LAW (INDEMNIFICATION AGREEMENT VOID UNDER GENERAL OBLIGATIONS LAW (FIRST DEPT))/INDEMNIFICATION AGREEMENT  (INDEMNIFICATION AGREEMENT VOID UNDER GENERAL OBLIGATIONS LAW (FIRST DEPT))/EVIDENCE  (MOTION FOR DIRECTED VERDICT MADE BEFORE PLAINTIFF CLOSED ITS CASE SHOULD NOT HAVE BEEN GRANTED, MOTION FOR DIRECTED VERDICT BASED UPON PLAINTIFF’S ADMISSIONS PROPERLY GRANTED (FIRST DEPT))

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POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT). 

The First Department, reversing Supreme Court, determined the action against a police officer whose police car struck plaintiff should have been dismissed. Plaintiff was standing in the road at the double yellow lines when the officer, responding to an emergency call, moved over the double yellow line:

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Defendants demonstrated that defendant police officer was engaged in an “emergency operation” within the meaning of Vehicle and Traffic Law § 1104, by submitting evidence that the officer was responding to a radio call about a “man with a gun” when her police vehicle struck plaintiff … . Defendants’ evidence also showed that the officer was engaged in conduct privileged under the statute at the time of the accident, since her vehicle straddled and then crossed the double yellow lines, in disregard of regulations “governing directions of movement” (VTL § 1104[b][4]). Accordingly, defendants demonstrated that the officer’s conduct is to be assessed under the statute’s “reckless disregard” standard… .

Defendants further demonstrated that the officer did not operate the police vehicle in reckless disregard for the safety of others … . The officer testified that traffic warranted moving her vehicle left and operating it on the double yellow lines to avoid the stopped vehicles to her right and ahead of her. The officer had no duty to engage her sirens or lights, as she was operating a police vehicle, and her failure to do so was not evidence of recklessness …. Moreover, the officer testified that she attempted to avoid plaintiff, who was standing on the double yellow lines, by swerving behind her, an assertion that plaintiff supported with her own testimony … .

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In opposition, plaintiff failed to present evidence showing that there was no emergency, and failed to raise an issue of fact as to whether the officer acted in reckless disregard for the safety of others. Green v Zarella, 2017 NY Slip Op 06599, First Dept 9-26-1

 

NEGLIGENCE (POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/MUNICIPAL LAW (POLICE OFFICERS, POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (POLICE OFFICERS, RECKLESS DISREGARD, POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/RECKLESS DISREGARD (VEHICLE AND TRAFFIC LAW, POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, (POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))

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DEFENDANT BICYCLIST WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE STRUCK AND KILLED PLAINTIFF, EMPLOYER NOT VICARIOUSLY OR DIRECTLY LIABLE (FIRST DEPT).

The First Department determined defendant-bicyclist’s (Cook’s) employer (AGI) was not vicariously liable for the bicyclist’s actions. Cook was riding his own bicycle on his own time when he struck and killed plaintiff. Cook worked as a bicycling coach for AGI. The court also found that the negligent hiring and retention cause of action was properly dismissed:

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The motion court correctly determined that AGI could not be held vicariously liable for Cook’s alleged negligence, as Cook was acting outside the scope of his employment. At the time of the accident, Cook was engaged in a weekend bicycle ride, in a public park, using a bicycle that he purchased and equipped, was alone and was not coaching anyone, and was not acting in furtherance of any duties owed to AGI … .

Cook’s unsupported belief, as set forth in an affirmative defense, that his bicycle riding had a work component to it, and his unsworn Response to the Notice to Admit (see CPLR 3123[a]), which improperly sought admissions as to employment status, a contested issue central to the action … , do not create triable issues of fact as to whether Cook was acting in the scope of employment … . …[T]here is no indication that AGI was exercising any control over Cook at the time of the accident … .

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The motion court correctly dismissed plaintiff’s direct negligence claim against AGI. There is no evidence that AGI knew or should have known of Cook’s alleged propensity to dangerously ride his bicycle in Central Park, an element necessary to support the claim for negligent hiring and retention … , and plaintiff’s conclusory allegations of deficient training are insufficient to defeat summary judgment … . Fein v Cook, 2017 NY Slip Op 06603, First Dept 9-26-17

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NEGLIGENCE (DEFENDANT BICYCLIST WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE STRUCK AND KILLED PLAINTIFF, EMPLOYER NOT VICARIOUSLY OR DIRECTLY LIABLE (FIRST DEPT))/EMPLOYMENT LAW (VICARIOUS LIABILITY, DEFENDANT BICYCLIST WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE STRUCK AND KILLED PLAINTIFF, EMPLOYER NOT VICARIOUSLY OR DIRECTLY LIABLE (FIRST DEPT))

DEFENDANT DEMONSTRATED IT TOOK ADEQUATE MEASURES TO KEEP THE FLOOR DRY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant demonstrated it took adequate measures to keep the floor free of water and the area where plaintiff fell was inspected ten minutes before the slip and fall. Defendant Roza 14W’s motion for summary judgment should have been granted:

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Plaintiff Frank Kelly was allegedly injured when he slipped and fell on water on the marble floor in the lobby of Roza 14W’s building. It was snowing lightly at the time of the accident and the floor had mats in various locations, but not in the area where plaintiff slipped.

Roza 14W made a prima facie showing that a reasonable cleaning routine was followed on the day of the accident … . Roza 14W submitted evidence that, in addition to the mats, wet floor warning signs were placed in the lobby, two porters were assigned to walk around the lobby to dry mop wet areas, and the area where plaintiff fell was found to be clean and dry 10 minutes before the fall.

Plaintiffs failed to submit evidence sufficient to raise a triable issue of fact. Roza 14W was not obligated to either continuously mop up moisture tracked onto its floor… or to cover the entire floor with mats … . In addition, the affidavit of plaintiffs’ expert failed to cite any violation of an accepted industry practice, standard, code, or regulation …. . Kelly v Roza 14W LLC, 2017 NY Slip Op 06630, First Dept 9-26-17

 

NEGLIGENCE (DEFENDANT DEMONSTRATED IT TOOK ADEQUATE MEASURES TO KEEP THE FLOOR DRY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (DEFENDANT DEMONSTRATED IT TOOK ADEQUATE MEASURES TO KEEP THE FLOOR DRY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT))/TRACKED IN WATER (SLIP AND FALL, DEFENDANT DEMONSTRATED IT TOOK ADEQUATE MEASURES TO KEEP THE FLOOR DRY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT))

PLAINTIFF ALLEGED HE WAS NOT PROVIDED WITH A LADDER AND WAS INSTRUCTED TO CLIMB UP THE SIDE OF A BRIDGE FROM WHICH HE FELL, SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY GRANTED, COMPARATIVE FAULT IS NOT A DEFENSE (FIRST DEPT).

The First Department determined plaintiff was properly granted summary judgment on his Labor Law 240 (1) cause of action. Plaintiff alleged he was not provided with a ladder and was instructed to climb up the side of a bridge, from which he fell. The defendants’ claim that plaintiff was at fault because of his size is of no consequence because comparative fault is not a defense:

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Plaintiff made a prima facie showing that Labor Law § 240(1) was violated, and that the violation was a proximate cause of his injury … . He testified that onsite supervisors gave him a work assignment requiring him to work from the top of a sidewalk bridge, thereby exposing him to elevation-related risks covered under Labor Law § 240(1). He further stated that he was not provided with a ladder or any other safety device; was instructed to access the top of the bridge by climbing up its side; and that, while attempting to do so, he lost his grip, slipped, and fell to the ground. * * *

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Defendants’ recalcitrant worker defense fails, since there is no indication that they instructed plaintiff to use a ladder or informed him that a ladder or other safety device was located at the sidewalk bridge … .

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Defendants’ contention that plaintiff fell from the sidewalk bridge as a result of his “carelessness” and “bad decisions,” and because of his size, is unavailing. Any comparative negligence by plaintiff is not a defense to his Labor Law § 240(1) claim … . Cardona v New York City Hous. Auth., 2017 NY Slip Op 06620, First Dept 9-26-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ALLEGED HE WAS NOT PROVIDED WITH A LADDER AND WAS INSTRUCTED TO CLIMB UP THE SIDE OF A BRIDGE FROM WHICH HE FELL, SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY GRANTED, COMPARATIVE FAULT IS NOT A DEFENSE (FIRST DEPT))

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INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL DETERMINE WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT).

The First Department, reversing Supreme Court, determined an attorney who worked for defendant insurer must be deposed to ascertain his role in an investigation of a fire at plaintiffs’ property and the denial of coverage. Based on the deposition, Supreme Court will address what portions of the insurer’s files, including the attorney’s, are discoverable by plaintiffs:

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“[T]he CPLR establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery (CPLR 3101[b]); attorney’s work product, also absolutely immune (CPLR 3101[c]); and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means CPLR 3101 [d][2]” … . “[I]n order for attorney-client communications to be privileged, the document must be primarily or predominantly a communication of a legal character” … . …

“Reports of insurance investigators or adjusters, prepared during the processing of a claim, are discoverable as made in the regular course of the insurance company’s business” … . “Furthermore, attorney work product applies only to documents prepared by counsel acting as such, and to materials uniquely the product of a lawyer’s learning and professional skills, such as those reflecting an attorney’s legal research, analysis, conclusions, legal theory or strategy” … . “Documents prepared in the ordinary course of an insurance company’s investigation to determine whether to accept or reject coverage and to evaluate the extent of a claimant’s loss are not privileged and are, therefore, discoverable. In addition, such documents do not become privileged merely because an investigation was conducted by an attorney” … . Venture v Preferred Mut. Ins. Co., 2017 NY Slip Op 06594, First Dept 9-26-17

 

INSURANCE LAW (INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL INFORM WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT))/ATTORNEYS  (INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL INFORM WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT))/CIVIL PROCEDURE (DISCOVERY, ATTORNEYS, INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL INFORM WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT))/DISCOVERY (INSURANCE LAW, ATTORNEYS, (INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL INFORM WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT))

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PLAINTIFF’S AGE DISCRIMINATION AND BREACH OF CONTRACT CAUSES OF ACTION DISMISSED (FIRST DEPT).

The First Department, in an extensive opinion by Justice Friedman, determined plaintiff’s age discrimination and breach of contract causes of action should be dismissed. Plaintiff’s position at a medical school was eliminated as part of a phasing out of her department and her age was not demonstrated to be a factor in the decision-making process. In addition, the breach of contract cause of action was based on a provision in the faculty handbook which did not apply to plaintiff:

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In this action for age discrimination in violation of the New York City Human Rights Law (NYCHRL) … and for breach of contract, plaintiff, a former member of the radiology department of defendant medical school and hospital, challenges defendant’s decision not to renew her employment at the expiration of the term of her last appointment. Although Supreme Court assumed (as do we) that plaintiff carried her “de minimis” burden of establishing a prima facie case of age discrimination … , the court correctly determined that plaintiff, in response to defendant’s evidence of legitimate, nondiscriminatory reasons for the challenged employment action, failed to present any evidence raising a triable issue as to whether bias against employees of her age played a role in that decision … .

… [D]efendant established that the non-specialized section of the radiology department in which plaintiff worked, which produced no research, was phased out as part of a restructuring of the department, at a time of financial constraint, to achieve greater focus on the specialized, research-producing sections of the department. Defendant further established that, as part of this restructuring, it retained three physicians from plaintiff’s section, each of whom was of approximately the same age as plaintiff (60), and reassigned them to specialized departments. Plaintiff, however, was reasonably deemed to lack the specialized expertise and the proclivity for research that defendant deemed necessary to maintain its status as a top-tier academic radiology department. Not only did plaintiff fail to present any evidence casting doubt on this explanation, she failed to present any evidence, either direct or circumstantial, suggesting that bias against employees of her age was even a partial motive for the ending of her employment. Hamburg v New York Univ. Sch. of Medicine, 2017 NY Slip Op 06635, First Dept 9-26-17

 

EMPLOYMENT LAW (PLAINTIFF’S AGE DISCRIMINATION AND BREACH OF CONTRACT CAUSES OF ACTION DISMISSED (FIRST DEPT))/HUMAN RIGHTS LAW (PLAINTIFF’S AGE DISCRIMINATION AND BREACH OF CONTRACT CAUSES OF ACTION DISMISSED (FIRST DEPT))/AGE DISCRIMINATION (PLAINTIFF’S AGE DISCRIMINATION AND BREACH OF CONTRACT CAUSES OF ACTION DISMISSED (FIRST DEPT))

JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s arson second conviction, determined the jury should have been instructed on the lesser included offense of arson fourth:

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The relevant difference between these crimes in this case is that second-degree arson involves intentionally damaging a building by starting a fire, while fourth-degree arson involves recklessly damaging a building by intentionally starting a fire … . Viewed in the light most favorable to defendant, there was a reasonable view of the evidence that he did not intend to damage his apartment, or any other part of the building, by setting a fire to a video game console, and that his sole object in doing so was to kill himself through smoke inhalation. It cannot be said that the only interpretation of defendant’s actions was that he intended to damage the building by fire. Although a natural and probable consequence of setting the fire was that the fire would damage the building, this did not conclusively establish such an intent, which was for the jury to decide … . On these facts, the jury could have found that, rather than actually intending to cause damage, defendant was “aware of and consciously disregard[ed] a substantial and unjustifiable risk that [damage would] occur” … . People v Acevedo, 2017 NY Slip Op 06626, First Dept 9-26-17

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, ARSON, JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT))/LESSER INCLUDED OFFENSE (ARSON, JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT))/ARSON (JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT))

FOR CAUSE CHALLENGE TO JUROR WHO EXPRESSED BIAS IN FAVOR OF THE CREDIBILITY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the for cause challenge to a jury should have been granted. The juror exhibited a bias in favor of the credibility of police officers:

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The court should have granted defendant’s challenge for cause to a prospective juror, a police officer who stated on voir dire that he believed that the testimony of police witnesses would be accurate, except insofar as they were relaying inaccurate information provided by a victim or other witness. Pressed by defense counsel on whether he thought it was possible for a police witness to lie, exaggerate, or be mistaken, the prospective juror allowed that there was “a little room” for this and stated that he “suppose[d]” it was possible.

“[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial” … . Bias expressed by a prospective juror is purged only when, in response to additional inquiry, the juror is able to “voice[] with conviction” that he or she will be able to render an impartial verdict based solely on the evidence and the court’s instructions … . The link between the biased state of mind previously indicated by the prospective juror’s statements and the assurance of the ability to render an impartial verdict “must be evident” … . “Where there remains any doubt in the wake of such statements, . . . the prospective jurors should be discharged for cause” … .

The panelist clearly showed a predisposition to believe that police officers testify truthfully … . Viewed as a whole, his responses to followup questions did not “expressly state that his prior state of mind . . . [would] not influence his verdict” … . People v Whitefield, 2017 NY Slip Op 06618, First Dept 9-26-17

 

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR WHO EXPRESSED BIAS IN FAVOR OF THE CREDIBILITY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED (FIRST DEPT))/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR WHO EXPRESSED BIAS IN FAVOR OF THE CREDIBILITY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED (FIRST DEPT))/FOR CAUSE JUROR CHALLENGE  (FOR CAUSE CHALLENGE TO JUROR WHO EXPRESSED BIAS IN FAVOR OF THE CREDIBILITY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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EMAILS DID NOT EXPLICITLY WAIVE THE INITIAL AGREEMENT THAT THE PARTIES WOULD NOT BE BOUND UNTIL A FORMAL AGREEMENT WAS EXECUTED, NO CONTRACT WAS CREATED (FIRST DEPT).

The First Department determined the complaint in this employment contract action was properly dismissed. The term sheet relied upon by plaintiff included a clause indicating neither party would be bound until a more formal agreement was executed. Subsequent emails including the phrase “firm and binding” did not waive the formal agreement required by the term sheet:

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Plaintiff’s allegations that his agent requested that any offer be “firm and binding,” that defendant’s agent acknowledged this request, that internal communications between defendant and its agents reveal an intention to make a firm offer, that the cover email transmitting the term sheet labeled the offer “firm and binding,” and that defendant later offered a fee to “kill” the contract are not sufficient to negate or demonstrate a waiver of the provision that the parties would not be bound until they executed a formal written agreement … .Morever, waiver of a contractual provision “should not be lightly presumed,” “must be unmistakably manifested, and is not to be inferred from a doubtful or equivocal act” … . Plaintiff’s agent’s demand for a firm offer and defendant’s agent’s acknowledgment of this request, before consulting with her client, prove nothing about what was ultimately agreed. Nor do defendant and its agents’ internal communications preceding the offer, to which plaintiff was not privy, prove what was ultimately agreed. Keitel v E*TRADE Fin. Corp., 2017 NY Slip Op 06624, First Dept 9-26-17

CONTRACT LAW (EMAILS DID NOT EXPLICITLY WAIVE THE INITIAL AGREEMENT THAT THE PARTIES WOULD NOT BE BOUND UNTIL A FORMAL AGREEMENT WAS EXECUTED, NO CONTRACT WAS CREATED (FIRST DEPT))/EMPLOYMENT LAW (CONTRACT LAW, EMAILS DID NOT EXPLICITLY WAIVE THE INITIAL AGREEMENT THAT THE PARTIES WOULD NOT BE BOUND UNTIL A FORMAL AGREEMENT WAS EXECUTED, NO CONTRACT WAS CREATED (FIRST DEPT))

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