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FALL ON THE SURFACE OF SCAFFOLDING NOT COVERED BY LABOR LAW 240(1), OVERSIGHT OF SITE SAFETY NOT ENOUGH FOR LABOR LAW 200 LIABILITY, SLIP AND FALL ON DUST ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON LABOR LAW 241(6) CAUSE OF ACTION.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 241(6) cause of action. Plaintiff slipped on accumulated dust and fell to the scaffolding surface (he did not fall off the scaffolding). The Labor Law 240(1) cause of action was properly dismissed because the fall was not related to the failure to provide a safety device. The Labor Law 200 cause of action was properly dismissed because the defendant’s general oversight of the worksite did not amount to supervisory control over the means or methods of plaintiff’s work:

The Labor Law § 240(1) claim was correctly dismissed since plaintiff’s injuries “result[ed] from a separate hazard wholly unrelated to the danger that brought about the need for the safety device[s] in the first instance” … . Plaintiff does not point to any evidence that he was injured as a result of any attempts to avoid falling off the scaffold … . The accumulation of paint chips and dust on the platform on which plaintiff was working “was one of the usual and ordinary dangers at a construction site[,] to which the extraordinary protections of Labor Law § 240(1) [do not] extend” … .

The Labor Law § 200 and common-law negligence claims were correctly dismissed since the evidence that defendant’s safety officer instructed plaintiff and his coworkers on safety rules, exercised general oversight over site safety, and conducted site walk-throughs does not establish that defendant exercised supervisory control over the means or methods of plaintiff’s work … . Serrano v Consolidated Edison Co. of N.Y. Inc., 2017 NY Slip Op 00003, 1st Dept 1-3-17

 

LABOR LAW-CONSTRUCTION LAW (FALL ON THE SURFACE OF SCAFFOLDING NOT COVERED BY LABOR LAW 240(1), OVERSIGHT OF SITE SAFETY NOT ENOUGH FOR LABOR LAW 200 LIABILITY, SLIP AND FALL ON DUST ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON LABOR LAW 241(6) CAUSE OF ACTION)/DUST (LABOR LAW-CONSTRUCTION LAW, SLIP AND FALL ON DUST ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON LABOR LAW 241(6) CAUSE OF ACTION)

PLAINTIFF ALLEGED HE WAS PROVIDED WITH A DEFECTIVE LADDER, QUESTION OF FACT WHETHER THE LADDER WAS A DANGEROUS CONDITION CREATED BY DEFENDANT OR OF WHICH DEFENDANT HAD NOTICE, LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 200 claims should not have been dismissed. Plaintiff alleged defendant provided him with a defective ladder (proper footing missing) and he was injured when the ladder slipped from under him. The court explained that the proper analysis, where the accident did not arise from the means or methods of work, is whether defendant created or had notice of the dangerous condition:

Where, as here, plaintiff alleged that defendants — the premises owners — provided him with the defective ladder, “the legal standard that governs claims under Labor Law § 200 is whether the owner created the dangerous or defective condition or had actual or constructive notice thereof,” not whether the accident arose out of the means and methods of plaintiff’s work … .

The conflicting deposition testimony submitted by the parties shows that there is a triable issue as to whether defendants provided plaintiff with the allegedly defective ladder. Moreover, plaintiff’s testimony that the ladder was missing its feet was sufficient to raise an issue of fact as to whether defendants had constructive notice of the defect because of its visible and apparent nature … . Jaycoxe v VNO Bruckner Plaza, LLC, 2017 NY Slip Op 00012, 1st Dept 1-3-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ALLEGED HE WAS PROVIDED WITH A DEFECTIVE LADDER, QUESTION OF FACT WHETHER THE LADDER WAS A DANGEROUS CONDITION CREATED BY DEFENDANT OR OF WHICH DEFENDANT HAD NOTICE, LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ALLEGED HE WAS PROVIDED WITH A DEFECTIVE LADDER, QUESTION OF FACT WHETHER THE LADDER WAS A DANGEROUS CONDITION CREATED BY DEFENDANT OR OF WHICH DEFENDANT HAD NOTICE, LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED)

NEW YORK CITY LOCAL LAW BANNING E-CIGARETTES DOES NOT VIOLATE THE ONE SUBJECT RULE OF THE NEW YORK STATE CONSTITUTION, THE MUNICIPAL HOME RULE LAW OR THE NEW YORK CITY CHARTER.

The First Department, in a full-fledged opinion by Justice Saxe, determined a New York City Local Law (Local Law 152), which included electronic or e-cigarettes in the law’s smoking ban, did not violate the “one subject” rule in the New York State Constitution. Although the court found that the constitutional prohibition only applies to state statutes, it noted that the Municipal Home Rule Law and the New York City Charter have a similar prohibition. The idea behind the “one subject” rule is to prevent a statute which ostensibly relates to a particular subject from including “hidden” provisions which address another unrelated subject:

Municipal Home Rule Law § 20(3) states that “[e]very such local law shall embrace only one subject. The title shall briefly refer to the subject matter”; the New York City Charter provides that “[e]very local law shall embrace only one subject. The title shall briefly refer to the subject-matter” (NY City Charter § 32).

Local Law 152 does not violate those requirements. It was titled “A Local Law to amend the administrative code …, in relation to the regulation of electronic cigarettes.” The regulation of electronic cigarettes was the only subject of the bill and that subject was clearly stated in its title. Therefore, the bill met the transparency requirement of the one-subject rule and adequately apprised the City Council and members of the public of its contents and purpose … . NYC C.L.A.S.H. v City of New York, 2017 NY Slip Op 00042, 1st Dept 1-3-17

 

MUNICIPAL LAW (E-CIGARETTE BAN, NEW YORK CITY LOCAL LAW BANNING E-CIGARETTES DOES NOT VIOLATE THE ONE SUBJECT RULE OF THE NEW YORK STATE CONSTITUTION, THE MUNICIPAL HOME RULE LAW  OR THE NEW YORK CITY CHARTER)/ONE SUBJECT RULE (E-CIGARETTE BAN, NEW YORK CITY LOCAL LAW BANNING E-CIGARETTES DOES NOT VIOLATE THE ONE SUBJECT RULE OF THE NEW YORK STATE CONSTITUTION, THE MUNICIPAL HOME RULE LAW OR THE NEW YORK CITY CHARTER)/E-CIGARETTES (NEW YORK CITY LOCAL LAW BANNING E-CIGARETTES DOES NOT VIOLATE THE ONE SUBJECT RULE OF THE NEW YORK STATE CONSTITUTION, THE MUNICIPAL HOME RULE LAW OR THE NEW YORK CITY CHARTER)

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BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE.

The First Department determined the city’s (NYC’s) motion for summary judgment in this sidewalk slip and fall case should not have been granted. There was a question of fact whether the Big Apple Map gave the city notice of the defect:

The affidavit of Ralph Gentles, an associate production manager of Sanborn Map Co., Inc. responsible for the legend on Big Apple Maps, wherein he averred that the symbol for a “raised or uneven portion of the side walk,” which appears on the Big Apple Map in the area where plaintiff tripped over a raised manhole cover, also applied to the manhole cover which would have been considered part of the sidewalk, was competent evidence of the business or professional custom or practice of the designations used by the company … . As such, it raised a triable issue of fact as to whether the Big Apple Map gave the City prior written notice of the defect, and the court should have denied the City’s motion for summary judgment predicated on the lack of such notice. Hennessey-Diaz v City of New York, 2017 NY Slip Op 00025, 1st Dept 1-3-17

NEGLIGENCE (BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/MUNICIPAL LAW (SLIP AND FALL, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/SIDEWALKS (SLIP AND FALL, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/SLIP AND FALL (MUNICIPAL LAW, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/WRITTEN NOTICE (MUNICIPAL LAW, SIDEWALKS, SLIP AND FALL, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)/BIG APPLE MAPS (MUNICIPAL LAW, SIDEWALKS, SLIP AND FALL, BIG APPLE MAP RAISED QUESTION OF FACT WHETHER THE CITY WAS AWARE OF MANHOLE-SIDEWALK DEFECT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE CITY IN THIS SLIP AND FALL CASE)

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RE TIMELINESS OF CLAIMS ALLEGING DEFECTIVE MORTGAGES UNDERLYING RESIDENTIAL MORTGAGE BACKED SECURITIES, WHERE THE CONTRACT CALLS FOR TIMELY NOTICES OF BREACH, NO NOTICE OF BREACH REQUIRED WHERE DEFENDANT ITSELF DISCOVERS THE DEFECTIVE MORTGAGE.

The First Department, in a full-fledged opinion by Justice Gische, over a dissent, ruled on the timeliness of claims that defendant, GreenPoint Mortgage Funding, had breached representations and warranties regarding the quality of mortgages underlying residential mortgage backed securities (RMBS). The court determined the claims were timely with regard to defective mortgages discovered by the defendant itself, despite the absence of notices of breach. But the claims were not timely with respect to the defective mortgages discovered by the plaintiff but for which no timely notices of breach were provided:

The issues before us are related to the contractual requirement and sufficiency of notices of breach (breach notice). We consider whether a breach notice is required when the underlying contract claim is based upon a defendant’s independent discovery or knowledge of the nonconforming mortgages. We also consider whether an otherwise late breach notice can relate back in time to the commencement of the underlying action in order to avoid dismissal. … [W]e hold that the breach of contract claims based upon defendant’s alleged independent discovery or likely knowledge of nonconforming mortgage loans do not require breach notices to be sent before an action may be brought. We further hold that the doctrine of relation back does not save claims that do require that a breach notice be sent as a precondition to bringing an action. U.S. Bank N.A. v GreenPoint Mtge. Funding, Inc., 2016 NY Slip Op 08968, 1st Dept 12-29-16

SECURITIES (RE TIMELINESS OF CLAIMS ALLEGING DEFECTIVE MORTGAGES UNDERLYING RESIDENTIAL MORTGAGE BACKED SECURITIES, WHERE THE CONTRACT CALLS FOR TIMELY NOTICES OF BREACH, NO NOTICE OF BREACH REQUIRED WHERE DEFENDANT ITSELF DISCOVERS THE DEFECTIVE MORTGAGE)/RESIDENTIAL MORTGAGE BACKED SECURITIES (RE TIMELINESS OF CLAIMS ALLEGING DEFECTIVE MORTGAGES UNDERLYING RESIDENTIAL MORTGAGE BACKED SECURITIES, WHERE THE CONTRACT CALLS FOR TIMELY NOTICES OF BREACH, NO NOTICE OF BREACH REQUIRED WHERE DEFENDANT ITSELF DISCOVERS THE DEFECTIVE MORTGAGE)/CONTRACT LAW (RESIDENTIAL MORTGAGE BACKED SECURITIES, RE TIMELINESS OF CLAIMS ALLEGING DEFECTIVE MORTGAGES UNDERLYING RESIDENTIAL MORTGAGE BACKED SECURITIES, WHERE THE CONTRACT CALLS FOR TIMELY NOTICES OF BREACH, NO NOTICE OF BREACH REQUIRED WHERE DEFENDANT ITSELF DISCOVERS THE DEFECTIVE MORTGAGE)

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INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES.

INSURANCE LAW, MUNICIPAL LAW, NEGLIGENCE.

In a decision too lengthy and fact-specific to fairly summarize here, the First Department determined whether the insurance company which insured a company that maintained street lighting and traffic control devices under a contract with the Bronx had a duty to defend against personal injury suits brought against New York City.  The city was named an additional insured in the policies. . The personal injury suits alleged improper street lighting, malfunctioning traffic control devices, and, in one case, injury from a falling traffic control device. A duty to defend was found in four of the five lawsuits. The court explained the applicable law as follows:

On a summary judgment motion in a case involving an insurance contract or policy, “[t]he evidence will be construed in the light most favorable to the one moved against” … . The insured, however, has the burden of showing that an insurance contract covers the loss for which the claim is made … .

The applicable standard holds that the duty to defend arises when at least one of two alternate criteria are met. “A duty to defend exists whenever the allegations in the complaint in the underlying action, construed liberally, suggest a reasonable possibility of coverage, or where the insurer has actual knowledge of facts establishing such a reasonable possibility” … . City of New York v Wausau Underwriters Ins. Co., 2016 NY Slip Op 08932, 1st Dept 12-29-16

 

INSURANCE LAW (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/MUNICIPAL LAW (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/NEGLIGENCE (INSURANCE LAW, MUNICPAL LAW, NSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/DUTY TO DEFEND (INSURANCE LAW, INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/STREET LIGHTING (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/TRAFFIC CONTROL DEVICES  (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)/HIGHWAYS AND ROADS  (INSURER OF COMPANY UNDER CONTRACT TO MAINTAIN STREET LIGHTING AND TRAFFIC CONTROL DEVICES HAD A DUTY TO DEFEND THE CITY IN PERSONAL INJURY SUITS ALLEGING INADEQUATE LIGHTING AND MALFUNCTIONING TRAFFIC CONTROL DEVICES)

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DAMAGES UNDER THE FAIR CREDIT REPORTING ACT ARE NOT PENALTIES, INSURANCE POLICY EXCLUSION OF COVERAGE FOR PENALTIES DID NOT APPLY.

The First Department rejected plaintiff insurer’s argument that it was not required to pay the cost of its insured’s settlement of a class action claim under the Fair Credit Reporting Act (FCRA) because the settlement constituted a penalty (not covered by the policy) rather than compensatory damages:

To make out a claim under the FCRA (15 USC § 1681 et seq. ), the complaint must allege, inter alia, injury in fact, a “concrete and particularized” and “actual or imminent” “invasion of a legally protected interest,” i.e., the statutory right to the fair handling of the plaintiff consumer’s credit information … . The remedy for “willful” failure to comply with a requirement of the statute is “any actual damages sustained by the consumer by the failure or damages of not less than $100 and not more than $1,000,” and “such amount of punitive damages as the court may allow,” as well as costs and reasonable attorneys’ fees … . Since the consumer must elect the option of either actual or statutory damages, and may also recover punitive damages, it is reasonable to infer, as the motion court did, that the actual and the statutory damages serve the same purpose … . Moreover, the statute provides separately for a civil penalty (recoverable by the Federal Trade Commission) … . Plaintiff argues that the limitation of damages to a “willful” violation of the statute evinces a legislative intent to penalize intentional misconduct, rather than compensate for actual damages sustained, but this is not so, since willfulness as a statutory condition of civil liability “cover[s] not only knowing violations of a standard, but reckless ones as well” … . Thus, it is clear that Congress intended the statutory damages provided for by the FCRA to be compensatory and not a penalty … . Navigators Ins. Co. v Sterling Infosystems, Inc., 2016 NY Slip Op 08941, 1st Dept 12-29-16

INSURANCE LAW (DAMAGES UNDER THE FAIR CREDIT REPORTING ACT IS NOT A PENALTY, INSURANCE POLICY EXCLUSION OF COVERAGE OF PENALTIES DID NOT APPLY)/FAIR CREDIT REPORTING ACT (FRCA) (INSURANCE LAW, DAMAGES UNDER THE FAIR CREDIT REPORTING ACT IS NOT A PENALTY, INSURANCE POLICY EXCLUSION OF COVERAGE OF PENALTIES DID NOT APPLY)

LOADING LADDERS ONTO A TRUCK DID NOT CREATE AN ELEVATION-RELATED RISK, PLAINTIFF’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY.

The First Department determined loading ladders onto a truck did not create an elevation-related risk contemplated by Labor Law 240(1). The ladders slid into plaintiff when plaintiff released a bungee cord. The court further determined plaintiff’s negligence (releasing the bungee cord) was the sole proximate cause of his injury:

The work that plaintiff was engaged in when he was injured, i.e., retrieving ladders that his employer had used in its work at the site, was a construction-related activity covered by Labor Law §§ 240(1) and 241(6) … . However, it did not present an elevation-related risk contemplated by Labor Law § 240(1) … . Moreover, in view of plaintiff’s testimony that he did not notice the tilt of the truck onto which he was loading the ladders, any elevation differential resulting from the tilt was de minimis. Nor is Industrial Code (12 NYCRR) § 23-1.7(e), which requires that passageways and working areas be kept free of accumulations of dirt and debris, a proper predicate for plaintiff’s Labor Law § 241(6) claim, since the area outside the gate to the loading dock where plaintiff parked his truck was not a passageway or working area … . * * *

… [T]he record demonstrates as a matter of law that plaintiff was the sole proximate cause of his accident … . Although the first ladder that he loaded onto the rack atop the truck slid toward the end of the rack as he loaded it, after plaintiff had secured it with a bungee cord and loaded the second ladder, instead of taking another of the several bungee cords available to him, he unhooked the bungee cord securing the first ladder, intending to wrap it around both ladders, and the ladders slid into him and knocked him off the truck. Guido v Dormitory Auth. of the State of N.Y., 2016 NY Slip Op 08600, 1st Dept 12-22-16

 

LABOR LAW-CONSTRUCTION LAW (LOADING LADDERS ONTO A TRUCK DID NOT CREATE AN ELEVATION-RELATED RISK, PLAINTIFF’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY)/TRUCKS (LABOR LAW-CONSTRUCTION LAW, LOADING LADDERS ONTO A TRUCK DID NOT CREATE AN ELEVATION-RELATED RISK, PLAINTIFF’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY)/ELEVATION-RELATED RISK (LABOR LAW-CONSTRUCTION LAW, LOADING LADDERS ONTO A TRUCK DID NOT CREATE AN ELEVATION-RELATED RISK, PLAINTIFF’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY)/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, LOADING LADDERS ONTO A TRUCK DID NOT CREATE AN ELEVATION-RELATED RISK, PLAINTIFF’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY)

CEREMONIAL MARRIAGE SUFFICIENTLY PROVEN, CHILD ENTITLED TO SUPPORT.

The First Department, in a full-fledged opinion by Justice Acosta, affirmed the support magistrate’s finding that a ceremonial marriage had taken place and, therefore, the child of the marriage was entitled to support from the father. The mother described the Islamic marriage ceremony, and presented some additional proof (photos and a daughter’s testimony). Father acknowledged living with mother and relying on her to raise his children, but denied the marriage:

The presumption of legitimacy has since been codified in the Family Court Act, which provides, “A child born of parents who at any time prior or subsequent to the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both parents for all purposes of [support proceedings] regardless of the validity of such marriage” … . A ceremonial marriage need not take any particular form, provided that the parties solemnly declare in the presence of a clergyman or magistrate, and at least one witness, that they intend to be married … .

… New York courts … treat the presumption as a rebuttable one … . To rebut the presumption, the challenger must disprove legitimacy by clear and convincing evidence … . The court’s determination after a hearing that respondent and [mother] entered into a ceremonial marriage is supported by the evidence and the court’s credibility determinations, which “are entitled to great weight, since the nisi prius court is in a better position to evaluate the witnesses” … . Therefore, we affirm the court’s factual determination that a ceremonial marriage took place. Matter of Commissioner of Social Servs. v B.C., 2016 NY Slip Op 08613, 1st Dept 12-22-16

 

FAMILY LAW (CEREMONIAL MARRIAGE SUFFICIENTLY PROVEN, CHILD ENTITLED TO SUPPORT)/SUPPORT (FAMILY LAW, CEREMONIAL MARRIAGE SUFFICIENTLY PROVEN, CHILD ENTITLED TO SUPPORT)/CEREMONIAL MARRIAGE (FAMILY LAW, CHILD SUPPORT, CEREMONIAL MARRIAGE SUFFICIENTLY PROVEN, CHILD ENTITLED TO SUPPORT)/CHILD SUPPORT (CEREMONIAL MARRIAGE SUFFICIENTLY PROVEN, CHILD ENTITLED TO SUPPORT)/LEGITIMACY, PRESUMPTION OF (CEREMONIAL MARRIAGE SUFFICIENTLY PROVEN, CHILD ENTITLED TO SUPPORT)

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FLAWED JURY INSTRUCTIONS ON THE JUSTIFICATION DEFENSE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The First Department reversed defendant’s conviction in the interest of justice because of flaws in the jury instructions. The court did not make clear that acquittal on the top count based upon the justification defense required acquittal on the other counts. Also the court’s charge on the use of excessive force was incomplete:

… [T]he court’s charge on the use of excessive force contained a significant omission. Even if a defendant is initially justified in using deadly physical force in self-defense, he or she may not continue to use deadly physical force after the assailant no longer poses a threat … . However, in such a situation the People must prove that it was the unnecessary additional force that caused the alleged harm … , which in this case was serious physical injury. The court’s charge on excessive force omitted the latter principle and thus impermissibly permitted the jury to convict defendant based upon a finding that although he was justified when he initially stabbed the complainant in the abdomen, defendant was not justified in inflicting subsequent wounds on the fleeing complainant, even if these additional wounds did not constitute serious physical injury. Although the parties dispute whether the additional wounds were serious, the jury could reasonably have concluded that they were not. It cannot be determined whether the jury found that defendant’s conduct was not justified because he was the initial aggressor or because, although not the initial aggressor, he subsequently used unnecessary physical force.  People v Delin, 2016 NY Slip Op 08465, 1st Dept 12-15-16

CRIMINAL LAW (FLAWED JURY INSTRUCTIONS REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/EVIDENCE (JUSTIFICATION DEFENSE, JURY INSTRUCTION INCOMPLETE)/JUSTIFICATION DEFENSE (JURY INSTRUCTION INCOMPLETE)/EXCESSIVE FORCE (JUSTIFICATION DEFENSE, JURY INSTRUCTION INCOMPLETE)

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