You are here: / First Department

Tag Archive for: First Department

DEFENDANT WAS NOT PRESENT AT AN OFF-THE-RECORD DISCUSSION OF THE ADMISSIBILITY OF PRIOR UNCHARGED OFFENSES; DEFENDANT WAS THEREFORE DEPRIVED OF HIS RIGHT TO BE PRESENT AT A MATERIAL STAGE OF HIS TRIAL.

The First Department, in a full-fledged opinion by Justice Feinman, determined defendant was deprived of his right to be present during a material stage of the trial and he was therefore entitled to a new trial and a new Molineux/Ventimiglia hearing concerning the admissibility of prior bad acts and uncharged offenses allegedly committed against his girlfriend. Defendant was charged with assaulting his girlfriend. A year before trial, a Molineux/Ventimiglia hearing was held in the defendant’s presence, but the judge never ruled on the admissibility of prior uncharged offenses. The trial was held before a different judge who conducted an off-the-record conference about the uncharged offenses at which defendant was not present. Although a written summary of the off-the-record conference was drawn up, the judge’s reasoning for allowing evidence of uncharged offenses was not stated in the summary. The First Department held defendant’s right to be present at a material stage of his trial had been violated:

…[T]he arguments on admissibility were conducted before two different judges, a year apart, and defendant was not present the second time, when the attorneys conferred with the judge who considered their arguments and made rulings. Furthermore, some of the discussions were not even recorded, occurring as they did in the trial judge’s chambers or robing room without a court reporter. … It is not clear, for instance, that the papers originally submitted to the hearing court were also submitted to the trial court, or whether the trial court considered them. Nor is it clear whether the trial court read the hearing transcript or conducted its own de novo hearing. Even if the trial court considered the same papers and read the hearing transcript, the record is silent as to what particular facts were emphasized at the hearing before the trial court, what the court’s concerns were, and its reasons for making its rulings. The informal pretrial hearing was not, therefore, a sort of reargument of purely legal issues at which defendant could have nothing to contribute … . Thus, it cannot be said with any degree of certainty that defendant’s presence at the pretrial Molineux/Ventimiglia hearing before the trial court would have been “useless, or the benefit but a shadow” … . People v Hoey, 2016 NY Slip Op 07150, 1st Dept 11-1-16

CRIMINAL LAW (DEFENDANT WAS NOT PRESENT AT AN OFF-THE-RECORD DISCUSSION OF THE ADMISSIBILITY OF PRIOR UNCHARGED OFFENSES; DEFENDANT WAS THEREFORE DEPRIVED OF HIS RIGHT TO BE PRESENT AT A MATERIAL STAGE OF HIS TRIAL)/MOLINEUX/VENTIMIGLIA HEARING (DEFENDANT WAS NOT PRESENT AT AN OFF-THE-RECORD DISCUSSION OF THE ADMISSIBILITY OF PRIOR UNCHARGED OFFENSES; DEFENDANT WAS THEREFORE DEPRIVED OF HIS RIGHT TO BE PRESENT AT A MATERIAL STAGE OF HIS TRIAL)MATERIAL STAGE OF TRIAL (CRIMINAL LAW, DEFENDANT WAS NOT PRESENT AT AN OFF-THE-RECORD DISCUSSION OF THE ADMISSIBILITY OF PRIOR UNCHARGED OFFENSES; DEFENDANT WAS THEREFORE DEPRIVED OF HIS RIGHT TO BE PRESENT AT A MATERIAL STAGE OF HIS TRIAL)

ELEVATOR NOT A SAFETY DEVICE, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED.

The First Department determined plaintiff’s Labor Law 240(1) cause of action, which was based upon injury incurred in an elevator, was properly dismissed. Under the circumstances (not explained in the decision) the elevator could not be considered a safety device. Plaintiff’s Labor Law 241(6) cause of action, alleging debris as a slipping hazard, should not have been dismissed:

Dismissal was properly granted with respect to plaintiff’s Labor Law § 240(1) cause of action in that plaintiff alleged that he was injured while riding in one of the building’s elevators. In this case, the passenger elevator was not a safety device for protecting a construction worker from a risk posed by elevation as contemplated by Labor Law § 240(1) … .

The court erred, however, in dismissing that portion of plaintiff’s Labor Law § 241(6) claim to the extent the claim was predicated on violations of Industrial Code … . While there were no facts alleged to support a claim that plaintiff was injured as the result of a slipping hazard, plaintiff’s complaint, as supplemented by his affidavit in opposition to defendant’s motion, sufficiently alleged that debris was one of the causes of his fall … . Smith v Extell W. 45th St. LLC, 2016 NY Slip Op 07089, 1st Dept 10-27-16

 

LABOR LAW-CONSTRUCTION LAW (ELEVATOR NOT A SAFETY DEVICE, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED)/ELEVATORS (LABOR LAW, ELEVATOR NOT A SAFETY DEVICE, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED)

,

AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN.

The First Department, in a case remitted by the Court of Appeals, in a full-fledged opinion by Justice Tom, over a two-justice dissent, determined defendant’s challenge to the legality of his sentence would not be reviewed in the interest of justice. Defendant had been promised a three-year sentence, but was not eligible for a sentence less than six years. In violation of his plea agreement, defendant committed a crime while awaiting sentence. As a result the three-year promise was properly withdrawn and a six year sentence imposed. The Court of Appeals held that defendant’s failure to object based upon the illegal three-year sentence promise precluded appeal to the Court of Appeals. However, upon remittal, the Appellate Division could consider the question if it exercised its interest of justice jurisdiction (which the majority declined to do):

… [T]here is nothing rare or unusual about this case or this defendant. The plea proceedings do not raise a concern about defendant’s guilt. Defendant was advised of the rights he was waiving by pleading guilty and affirmed he was pleading guilty of his own free will. Defendant was represented by counsel and received a favorable sentence. Finally, defendant violated the plea agreement by committing another crime and the final sentence imposed was both legal and within the range announced by the court. Nor has defendant presented anything to demonstrate that his case is extraordinary. These facts, coupled with defendant’s failure to preserve the issue for review, fail to support the exercise of our discretion to review in the interest of justice, and militate against such exercise. People v Williams, 2016 NY Slip Op 07102, 1st Dept 10-27-16

CRIMINAL LAW (AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)/SENTENCING (AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)/APPEALS (AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)/INTEREST OF JUSTICE JURISDICTION (CRIMINAL APPEALS, AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)

, ,

PLAINTIFFS’ EXPERTS PRESENTED SUFFICIENT PROOF TO WARRANT A FRYE HEARING ON WHETHER A TUMOR MAY HAVE BEEN DETECTABLE BEFORE BIRTH.

The First Department, over a two justice dissent, determined plaintiffs’ experts had presented sufficient evidence to warrant a Frye hearing in this medical malpractice case. The plaintiffs’ baby suffered neurological damage caused by a rapidly growing tumor. The question tackled by the experts was whether the tumor was detectable prior to birth (ultrasound). The majority concluded plaintiffs’ experts had presented sufficient evidence that the tumor may have been detectable to warrant a hearing. The dissent argued the evidence presented by the plaintiffs’ experts was not sufficient to raise a question of fact:

Defendant’s experts established a prima facie case that the ultrasound studies were properly interpreted and that none of defendant’s acts or omissions caused the infant plaintiff’s alleged injuries. In light of plaintiffs’ expert opinions to the contrary, however, we cannot hold on the record presented to us that the opinions of plaintiffs’ experts are not generally accepted within the medical and scientific communities. Accordingly, the motion court properly set the matter down for a Frye hearing … to determine (1) whether it is generally accepted in the medical and scientific communities that a physician may offer an opinion to a reasonable degree of medical certainty as to when a tumor such as the infant plaintiff’s tumor would have been detectable by ultrasound examination; and (2) whether it was possible to use any formula, including a doubling formula, to assess whether a neuroblastoma would have been detectable at the ultrasound of the infant plaintiff performed at 30.9 weeks … .

The dissent’s assertion that the opinions of plaintiffs’ experts were “speculative” and “unsupported by the record” puts the cart before the horse. As noted above, plaintiffs’ experts based their opinions partially on peer-reviewed, published articles stating that routine prenatal sonography had detected fetal neuroblastomas. Whether the information conveyed in these articles has gained general acceptance in the medical community, and thus provides support for the opinions of plaintiffs’ experts, is precisely the topic of a Frye hearing. Sepulveda v Dayal, 2016 NY Slip Op 06949, 1st Dept 10-25-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ EXPERTS PRESENTED SUFFICIENT PROOF TO WARRANT A FRYE HEARING ON WHETHER A TUMOR MAY HAVE BEEN DETECTABLE BEFORE BIRTH)/MEDICAL MALPRACTICE (PLAINTIFFS’ EXPERTS PRESENTED SUFFICIENT PROOF TO WARRANT A FRYE HEARING ON WHETHER A TUMOR MAY HAVE BEEN DETECTABLE BEFORE BIRTH)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ EXPERTS PRESENTED SUFFICIENT PROOF TO WARRANT A FRYE HEARING ON WHETHER A TUMOR MAY HAVE BEEN DETECTABLE BEFORE BIRTH)

STANDING ON THE TOP STEP OF AN A FRAME LADDER WAS NOT THE SOLE PROXIMATE CAUSE OF THE PLAINTIFF’S FALL; SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED.

he First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was injured when he fell descending from the top step of a six-foot A frame ladder. Plaintiff used the six-foot ladder because debris prevented the use of an eight-foot ladder (the eight-foot ladder could not opened due to the debris). Standing on the top step was not the sole proximate cause of the accident:

Denial of summary judgment on plaintiff’s claim pursuant to Labor Law § 240(1) was in error where plaintiff electrician was injured when he fell from an A-frame ladder as he was attempting to descend it. Plaintiff’s use of a six-foot ladder that required him to stand on the top step did not make him the sole proximate cause of his accident where the eight-foot ladder could not be opened in the space due to the presence of construction debris … . Defendants’ reliance on the affidavit of the high-rise superintendent is misplaced. Although the superintendent speculated that there was sufficient space to open an eight-foot ladder, this was inconsistent with his prior deposition testimony and was thus calculated to create a feigned issue of fact … .

Nor was plaintiff a recalcitrant worker … . While the site safety manager who worked for a subcontractor of defendants testified that she told plaintiff that he should not work in the room because it was unsafe due to all the debris, she explicitly denied that she directed plaintiff to stop work, explaining that she had no such authority. Saavedra v 89 Park Ave. LLC, 2016 NY Slip Op 06974, 1st Dept 10-25-16

 

LABOR LAW-CONSTRUCTION LAW (STANDING ON THE TOP STEP OF AN A FRAME LADDER WAS NOT THE SOLE PROXIMATE CAUSE OF THE PLAINTIFF’S FALL; SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED)/LADDERS (STANDING ON THE TOP STEP OF AN A FRAME LADDER WAS NOT THE SOLE PROXIMATE CAUSE OF THE PLAINTIFF’S FALL; SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED)

,

FATHER DEPRIVED OF HIS STATUTORY RIGHT TO ASSIGNED COUNSEL, REVERSAL REQUIRED.

The First Department, reversing Family Court, determined, inter alia, father had been deprived of his right to counsel:

Reversal is required because the father was deprived of his statutory right to assigned counsel … . The record shows that after Family Court dismissed the father’s assigned counsel, it conducted several hearings in this custody matter, and granted a final order of custody to the mother, without the father’s presence and without reassigning him counsel. Matter of Melinda M. v Anthony J.H., 2016 NY Slip Op 06978, 1st Dept 10-25-16

FAMILY LAW (FATHER DEPRIVED OF HIS STATUTORY RIGHT TO ASSIGNED COUNSEL, REVERSAL REQUIRED)/ATTORNEYS (FAMILY LAW, FATHER DEPRIVED OF HIS STATUTORY RIGHT TO ASSIGNED COUNSEL, REVERSAL REQUIRED)

MEETINGS OF NYC SCHOOL LEADERSHIP TEAMS ARE SUBJECT TO THE OPEN MEETINGS LAW.

The First Department, in a full-fledged opinion by Justice Kapnick, determined the exclusion of a retired teacher from meetings of New York City School Leadership Teams (SLT’s} violated the Open Meetings Law:

By regulation, respondent New York City Department of Education (DOE) has implemented this mandate through the establishment of SLTs in every school … . SLTs have between 10 and 17 members, made up of school parents, teachers, staff, and administrators, and may also include “representatives of Community Based Organizations” … . The school principal, president of the parent association, and chapter leader of the teachers’ union must be members. At least two student members are also required for each high school … . SLTs must meet at least once a month “at a time that is convenient for the parent representatives” … . Notice of this meeting must be provided in a manner “consistent with the open meetings law” … . * * *

As the IAS court properly found … SLTs qualify as a public body performing governmental functions, and, therefore, are subject to the Open Meetings Law. Matter of Thomas v New York City Dept. of Educ., 2016 NY Slip Op 06989, 1st Dept 10-25-16

 

EDUCATION-SCHOOL LAW (MEETINGS OF NYC SCHOOL LEADERSHIP TEAMS ARE SUBJECT TO THE OPEN MEETINGS LAW)/SCHOOL LEADERSHIP TEAMS (MEETINGS OF NYC SCHOOL LEADERSHIP TEAMS ARE SUBJECT TO THE OPEN MEETINGS LAW)/OPEN MEETINGS LAW (MEETINGS OF NYC SCHOOL LEADERSHIP TEAMS ARE SUBJECT TO THE OPEN MEETINGS LAW)

,

LIEN LAW DID NOT REQUIRE A BOND FOR A $170,000,000 PRIVATE CONSTRUCTION PROJECT ON PUBLIC LAND; CONTRACTUAL GUARANTEE SATISFIED THE STATUTE.

The First Department, in a full-fledged opinion by Justice Acosta, over a two-justice partial dissent, determined the requirements of section 5 of the Lien Law, which concerns private development on public land, was satisfied by a contractual guarantee, as opposed to the posting of a bond. The nearly $170,000,000 construction project ultimately collapsed. The opinion, which addresses the substance of the contracts, piercing the corporate veil, as well as a motion to disqualify a law firm on conflict grounds, is too complex to summarize here. With respect to the Lien Law issue, the court wrote:

The crux of plaintiff’s position is that the guarantee provided in this case does not comply with the law because it is not equivalent to a bond or “other form of undertaking” under the statute.

A statute, however, is to be construed so as to give meaning to each word … . Black’s Law Dictionary defines an “undertaking” first as “[a] promise, pledge, or engagement,” and second as “[a] bail bond” … . Similarly, the CPLR defines “Undertaking” first as “[a]ny obligation, whether or not the principal is a party thereto, which contains a covenant by a surety to pay the required amount, as specified therein, if any required condition . . . is not fulfilled” … . Hence, an “undertaking,” as distinct from a “bond,” is simply a “formal promise [or] guarantee” … .

That the legislature intended the term “undertaking” in Lien Law § 5 to mean a “guarantee” is strongly supported by the statute’s legislative history, which indicates that the Governor vetoed an earlier version of the 2004 amendment that added the above quoted language because the earlier version would have required the posting of a bond in every instance, disallowing “other forms of security designed to guarantee payment” … . The senate sponsor of the amendment clarified that the phrase “or some other form of undertaking” was added to meet the Governor’s concerns by providing “an alternative to posting a bond” … . Skanska USA Bldg. Inc. v Atlantic Yards B2 Owner, LLC, 2016 NY Slip Op 06903, 1st Dept 10-20-16

LIEN LAW (LIEN LAW DID NOT REQUIRE A BOND FOR A $170,000,000 PRIVATE CONSTRUCTION PROJECT ON PUBLIC LAND; CONTRACTUAL GUARANTEE SATISFIED THE STATUTE)/BONDS (CONSTRUCTION) (LIEN LAW DID NOT REQUIRE A BOND FOR A $170,000,000 PRIVATE CONSTRUCTION PROJECT ON PUBLIC LAND; CONTRACTUAL GUARANTEE SATISFIED THE STATUTE)/GUARANTEE (LIEN LAW DID NOT REQUIRE A BOND FOR A $170,000,000 PRIVATE CONSTRUCTION PROJECT ON PUBLIC LAND; CONTRACTUAL GUARANTEE SATISFIED THE STATUTE)/CONTRACT LAW (LIEN LAW DID NOT REQUIRE A BOND FOR A $170,000,000 PRIVATE CONSTRUCTION PROJECT ON PUBLIC LAND; CONTRACTUAL GUARANTEE SATISFIED THE STATUTE)

FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION FOR CUSTODY MODIFICATION WITHOUT HOLDING A HEARING AND INTERVIEWING THE CHILD.

The First Department, reversing Family Court, determined mother’s petition for a modification of custody should not have been dismissed without a hearing and without interviewing the 13-year-old child:

… [P]etitioner submitted evidence of the younger child’s preference, his growing apprehension about staying with respondent [father], and respondent’s maltreatment of the child. She submitted evidence that she was addressing the mental health concerns that had led to her initial consent to relinquish custody to respondent and evidence that she had sought treatment for issues relating to a history of domestic violence and that she had obtained new living quarters for herself and the younger child. The child supported the petition and asked for an in camera hearing … .

Without meeting with the child or considering the sworn allegations of domestic abuse (see Domestic Relations Law § 240[1]), the court granted the motion to dismiss. This was error.

Petitioner presented sufficient evidence to warrant a plenary hearing to determine whether the totality of the circumstances warrants a modification of the custody order, including its limited visitation provisions and the grant of complete decision-making authority to respondent, and whether such a change is in the best interests of the child … . The child’s wishes, to be discerned from an interview, should be considered in making the determination … . Matter of Athena H.M. v Samuel M., 2016 NY Slip Op 06865, 1st Dept 10-20-16

FAMILY LAW (FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION FOR CUSTODY MODIFICATION WITHOUT HOLDING A HEARING AND INTERVIEWING THE CHILD)/CUSTODY (FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION FOR CUSTODY MODIFICATION WITHOUT HOLDING A HEARING AND INTERVIEWING THE CHILD)

, ,

JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL.

The First Department, reversing Supreme Court, determined a reporter (Robles) who interviewed defendant could not be compelled to testify at the defendant’s murder trial and could not be compelled to turn over her interview notes. The information gathered by the reporter was not “critical or necessary” to the People’s case:

In People v Bonie (141 AD3d 401 [1st Dept 2016], lv dismissed 28 NY3d 956 [2016]), a murder case based on circumstantial evidence, we found that the outtakes of an interview of the defendant taken at a detention center in which he discussed, inter alia, the charges against him and his relationship with the victim were ” critical or necessary’ to the People’s effort to prove motive, intent, and consciousness of guilt, since they contradict[ed] defendant’s earlier statements to police” … . In contrast, in this case, the People have a videotaped confession by the defendant that has been found admissible at trial and that includes statements consistent with other evidence in the case. Under the circumstances, and in keeping with “the consistent tradition in this State of providing the broadest possible protection to the sensitive role of gathering and disseminating news of public events'” … , we find that the People have not made a “clear and specific showing” that the disclosure sought from Robles (her testimony and interview notes) is “critical or necessary” to the People’s proof of a material issue so as to overcome the qualified protection for the journalist’s nonconfidential material (Civil Rights Law § 79-h[c]). People v Juarez, 2016 NY Slip Op 06900, 1st Dept 10-20-16

CRIMINAL LAW (JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL)/EVIDENCE (CRIMINAL LAW, JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL)/CIVIL RIGHTS LAW (JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL)/JOURNALISTS (JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL)

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