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FAILURE TO PRESERVE VIDEO SHOWING THE AREA WHERE PLAINTIFF SLIPPED AND FELL PRIOR TO THE FALL WARRANTED AN ADVERSE INFERENCE CHARGE; UNDER THE FACTS, STRIKING DEFENDANT’S ANSWER WAS TOO SEVERE A SANCTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined striking defendant’s answer for destruction of video evidence in this slip and fall case was not warranted, an adverse inference jury instruction was a sufficient sanction. Defendant provided video of plaintiff’s fall in compliance with plaintiff’s attorney’s request. Nine months later plaintiff’s attorney requested video showing the area prior to the fall, but it had been overwritten by then:

Plaintiffs’ counsel sent defendants a preservation letter approximately seven days following the accident. Defendants responded by producing several minutes of video of the accident itself, which was reasonably compliant with plaintiffs’ request for video surveillance of “the incident.” However, there was no pre-fall video footage provided to aid plaintiffs in establishing defendants’ actual or constructive notice of the alleged hazardous condition on the floor. Defendants’ employee, who culled the video footage provided, was no longer in defendants’ employ and was not available to be deposed as to his or her reasons for selecting particular video footage. Plaintiff’s counsel did not alert defendants of a need for additional video footage depicting the pre-fall circumstances at the accident site until nine months after receipt of the initial video clip, which was well after the software that operated defendants’ surveillance cameras had overwritten the video surveillance from plaintiff’s accident date.

Plaintiff’s proof established that defendants had control over the relevant surveillance and preserved it to the extent requested, but absent deposition testimony from defendant’s former employee who prepared the video clip as to his reasons for selecting the footage he or she did, the culpability issue cannot be definitively resolved. Nevertheless, the destroyed evidence video compromised the fairness of the litigation so as to warrant an adverse inference sanction … . Lev v Eataly USA LLC, 2024 NY Slip Op 04910, First Dept 10-8-24

Practice Point: Plaintiff’s counsel requested video of “the incident” in this slip and fall case, which was provided. Nine months later plaintiff’s counsel requested video showing the area prior to the fall re: the issue of defendant’s notice of the condition. By that time the video had been overwritten. Plaintiff was entitled to an adverse inference jury instruction. Striking the defendant’s answer was deemed too severe a sanction.

 

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ALTHOUGH DEFENDANT DID NOT PRODUCE AN EMPLOYMENT CONTRACT WITH PLAINTIFF, DEFENDANT DEMONSTRATED IT WAS PLAINTIFF’S SPECIAL EMPLOYER; THEREFORE PLAINTIFF’S PERSONAL INJURY ACTION WAS PRECLUDED BY HIS ELECTION OF WORKERS’ COMPENSATION BENEFITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant was plaintiff’s special employer and plaintiff’s action for personal injury was precluded by his election of workers’ compensation benefits:

Plaintiff testified that he received all his work instructions from an employee of defendant, the building’s manager … . Both plaintiff and the building’s manager testified that they considered the building manager to be plaintiff’s boss or supervisor … .

The evidence thus showed that defendant “supervised, directed and controlled plaintiff’s work” … . Although defendant has produced no contract between itself and the building owner, such a contract is not a prerequisite for special employment status … . Therefore, defendant has established its prima facie case that it was plaintiff’s special employer, which plaintiff has failed to rebut with any issue of fact…. . Payano v Proto Prop. Servs. LLC, 2024 NY Slip Op 04915, First Dept 10-8-2024

Practice Point: Here defendant was deemed plaintiff’s special employer, despite the absence of an employment contract. Therefore plaintiff’s election to receive workers’ compensation benefits precluded his personal injury action against defendant.

 

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THE FACT THAT THE POLICE WERE AWARE THE VAN THEY STOPPED HAD REPORTEDLY BEEN INVOLVED IN TWO PRIOR INCIDENTS—(1) A ROAD RAGE SHOOTING AND (2) NEARLY RUNNING OVER A TRAFFIC AGENT ABOUT TO ISSUE A PARKING TICKET—PROVIDED REASONABLE SUSPICION SUPPORTING THE LEVEL THREE TRAFFIC STOP, DESPITE THE FACT THE POLICE DID NOT KNOW WHO WAS DRIVING THE VAN DURING THE PRIOR INCIDENTS (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice O’Neill, affirming defendant’s conviction, over an extensive dissent, determined the police had reasonable suspicion supporting a level three traffic stop. The registration number of the van defendant was driving had been the subject of police reports for two prior incidents, a road rage incident during which a firearm was discharged, and nearly running a traffic agent over when the agent was about to place a parking ticket on the van. When the van was stopped, the driver was asked to step out of van because of the firearm incident. Defendant refused to get out and picked up a firearm. One of the officers tased the defendant three times and he was arrested:

A forceable stop and detention is authorized “[w]here a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor” … .

“Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand. To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion” … .

Here, before stopping the van, the BOLO [be-on-the-lookout] alert notified Officers Amaral and Stokes of the criminal activity involving the van on April 28th; the officers were also aware of the May 17th incident because they both responded to the traffic enforcement agent’s call for backup. The officers’ knowledge of either incident alone furnished reasonable suspicion of criminal activity at hand … . People v Zubidi, 2024 NY Slip Op 04824, First Dept 10-3-24

Practice Point: Here the fact that defendant’s van had reportedly been involved in a road rage shooting and had nearly run over a traffic agent about to issue a parking ticket provided reasonable suspicion justifying a level three traffic stop, despite the fact that the identity of the driver involved in the prior incidents was not known at the time of the stop.

 

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THE APPELLATE COURTS HAVE THE “INTEREST OF JUSTICE” POWER TO REDUCE AN OTHERWISE LEGAL AND APPROPRIATE SENTENCE WHEN THE DEFENDANT IS SERIOUSLY MENTALLY ILL; HERE THE MAJORITY CHOSE NOT TO REDUCE THE SENTENCE; A STRONG TWO-JUSTICE DISSENT ARGUED FOR A REDUCTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, over an extensive two-justice dissent, affirmed defendant’s conviction by guilty plea to attempted murder and declined to reduce the eight-year sentence in the interest of justice. Defendant is seriously mentally ill and has endured almost indescribable hardships throughout his life, which are detailed in the dissent. The underlying question here is, given the prison system’s inability to properly care for the seriously mentally ill, should the appellate court exercise its power to reduce this defendant’s sentence in the interest of justice. The majority answered “no” and the dissent argued “yes.” The opinion is far too detailed to fairly summarize here:

From the dissent:

… [R]esearch … demonstrates that people with serious psychiatric needs are more likely to be violently victimized and housed in segregation while in prison. That research also shows that the vast majority of people with mental illness in jails and prisons do not receive care, and for those that do, the care is generally inadequate.… This is of particular concern given [defendant’s] history of suicide attempts … .

This case raises an important question: What is the utility of extended incarceration under the present circumstances? Specifically, where, among other things, the offense occurred during a time when [defendant] had been unmedicated for five days and, moreover, the record suggests—as evidenced by [defendant’s] comments to the police when arrested and a subsequent mental examination—that his severe mental illness contributed to what is his first and only criminal conviction. People v Paulino, 2024 NY Slip Op 04625, First Dept 9-26-24

Practice Point: The appellate courts have the “interest of justice” power to reduce an otherwise appropriate sentence based upon a defendant’s mental illness.

 

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A SAFE ON A HIGH SHELF IN A HOTEL ROOM FELL ON PLAINTIFF; DEFENDANT HOTEL DID NOT ADDRESS WHEN THE SAFE WAS LAST INSPECTED; THEREFORE THE HOTEL DID NOT SHOW IT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF THE CONDITION OF THE SAFE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant did not sufficiently demonstrate a lack of constructive notice of the allegedly dangerous condition—a 40-t0-60-pound safe which fell from a high shelf in a hotel-room closet, apparently because it was not securely attached to the wall:

Plaintiff commenced this personal injury action after a 40-to-60-pound safe fell on him while he was staying at defendant hotel in January 2022. In moving for summary judgment, defendant failed to meet its prima facie burden that it neither created nor had actual or constructive notice of the dangerous condition by submitting evidence that the room was inspected two years earlier. The inspection report did not have probative value because it was performed two years before plaintiff’s accident, and failed to provide any specific details as to the inspection so as to establish defendant’s lack of notice … . Defendant did not address how often the hotel safes were inspected, and what, if any, steps were taken to ensure that a safe, which in this case was placed on a high closet shelf, remained securely affixed to the wall … . Here, a physical inspection of the in-room safe would have been reasonable and revealed whether the safe was firmly secured to the wall … . Swallows v W N.Y. Times Sq., 2024 NY Slip Op 04629, First Dept 9-26-24

Practice Point: A defendant’s motion for summary judgment in a premises liability case must demonstrate when the area or object in question was last inspected and found safe. A motion that does not address that issue fails to show a lack of constructive notice of the condition and will be denied.

 

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IN THIS CHILD VICTIMS ACT CASE, LONG-ARM JURISDICTION WAS PROPERLY EXERCISED OVER AN OUT-OF-STATE CATHOLIC DIOCESE WHICH EMPLOYED DEFENDANT PRIEST WHO WAS ASSIGNED TO A NEW YORK PARISH (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the Diocese of Burlington (apparently an out-of-state party) has sufficient contact with New York to warrant the exercise of long-arm jurisdiction in this Child Victims Act case. It was alleged the Diocese of Burlington employed the defendant priest and assigned him to a parish in New York with actual knowledge of the priest’s history of sexually abusing children:

Accepting as true the facts alleged … , plaintiff has made a prima facie showing that Diocese of Burlington is subject to personal jurisdiction under CPLR 302(a)(1) … . Plaintiff alleges that Diocese of Burlington exercised supervision and control over the Priest, placing him on an indefinite, long-term assignment in New York to provide Catholic clergy services to parishioners in New York, including plaintiff even though it knew that he was a sexual predator. Plaintiff also alleges that during this period and in connection with those priestly duties, the Priest sexually assaulted plaintiff on multiple occasions. Therefore, plaintiff adequately alleges that Diocese of Burlington engaged in “purposeful activity” in New York, and that there is a “substantial relationship between the transaction and the claim asserted” …… .

Further, “the exercise of long-arm jurisdiction over defendants per CPLR 302(a)(1) comports with due process, as it must” … . For the reasons stated, “plaintiff adequately alleged Diocese of Burlington’s ‘minimum contacts’ with New York, in the form of their purposeful availment of the privilege of conducting activities here, thus invoking the protections and benefits of New York’s laws” … . Diocese of Burlington “failed to present a compelling case that some other consideration would render jurisdiction unreasonable” … .  V.Z. v Roman Catholic Diocese of Burlington, 2024 NY Slip Op 04631, First Dept 9-26-24

Practice Point: Here in this Child Victim’s Act case, an out-of-state Catholic Diocese employed a priest who was assigned to a New York parish. It was alleged the Diocese had actual knowledge of the priest’s history of sexually abusing children. The Diocese was subject to New York’s long-arm jurisdiction.

 

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THE ARBITRATION RULING THAT THE CONTRACT WAS TERMINATED UNDER A “FRUSTRATION OF PURPOSE” THEORY PRECLUDED, UNDER THE DOCTRINE OF RES JUDICATA, ANY CONSIDERATION OF THE BREACH OF CONTRACT CAUSES OF ACTION THAT AROSE FROM THE SAME FACTS (FIRST DEPT).

The First Department, in a detailed full-fledged opinion by Justice Oing, determined the arbitration-ruling that a multi-million dollar contract for construction and operation of a liquid-natural-gas-related facility was terminated under a “frustration of purpose” theory precluded consideration of the breach of contract causes of action (res judicata). New technology for the extraction of natural gas from shale had rendered the liquid natural gas facility obsolete. The opinion is much too detailed to fairly summarize here. In simple terms, the arbitration ruling precluded the breach of contract causes of action under the doctrine of res judicata because all arose from the same facts:

Under the transactional analysis, the test is to determine whether a claim should be precluded by viewing a claim or cause of action as conterminous with the transaction, regardless of the number of substantive theories or variant forms of relief available to a litigant … . The analysis embraces a broadened view of the scope of a claim in order to limit the number of possible actions arising out of a single controversy … . The application of this test means that a final judgment on the merits of a claim or claims will bar future claims or causes of action arising from “all or any part of the transaction, or series of connected transactions, out of which the [prior] action arose” … . The question for us to resolve is whether the [breach of contract causes of action] arise from “all or any part of the transaction, or series of connected transactions” out of which the prior arbitration arose. We hold they do. Gulf LNG Energy, LLC v Eni S.p.A., 2024 NY Slip Op 04517, First Dept 9-24-24

Practice Point: Here an arbitration ruling that the contract was terminated for “frustration of purpose” precluded, under the doctrine of res judicata, any consideration of the breach of contract causes of action that arose from the same facts.

 

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HEARSAY STATEMENTS IN AN UNCERTIFIED, UNAUTHENTICATED REPORT FOR WHICH NO FOUNDATION WAS PROVIDED DID NOT CREATE AN ISSUE OF FACT (FIRST DEPT).

The Frist Department, reversing Supreme Court in this hit and run traffic accident case, noted that hearsay statements in the Prehospital Care Report, which was not certified or authenticated, did not create an issue of fact:

The court improperly denied petitioner’s motion based on hearsay statements in the Prehospital Care Report, as the report was not certified or authenticated and no proper foundation was provided for it … . Therefore, the statements in the Prehospital Care Report cannot create an issue of fact. Even if it were appropriate to consider the report, it would “merely present[] an issue of fact to be resolved in the plenary action” since it is contradicted by the allegations in the petition, petitioner’s affidavit, the Household Affidavit, the motor vehicle accident report, and petitioner’s deposition testimony concerning whether there was contact between his bicycle and the hit and run vehicle … . Matter of Luna v Motor Veh. Acc. Indem. Corp., 2024 NY Slip Op 04521, First Dept 9-24-24

Practice Point: Hearsay statements in an uncertified, unauthenticated report for which no foundation was provided did not create an issue of fact.

 

THE FLOOR OF THE ELEVATOR WHERE PLAINTIFF’S ACCIDENT OCCURRED IS NOT A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the floor of an elevator is not a “passageway” within the meaning of the Industrial Code. Therefore the Labor Law 241(6) cause of action based upon an Industrial Code provision requiring that “passageways” be kept free from dirt, debris and other obstructions was inapplicable, However, the code provision requiring “floors” and “platforms” be kept free from scattered tools, etc., did apply to elevators:

Supreme Court should have granted defendants’ motion for summary judgment dismissing plaintiff’s Labor Law § 241 (6) claim insofar as it was predicated on 12 NYCRR § 23-1.7 (e) (1). That regulation provides, as relevant here, “All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.” A passageway for purposes of this regulation “mean[s] a defined walkway or pathway used to traverse between discrete areas as opposed to an open area” … . The elevator in which plaintiff’s accident occurred cannot be considered a walkway or pathway, and therefore cannot constitute a passageway within the meaning of the regulation … . Smith v Extell W. 45th LLC, 2024 NY Slip Op 04533, First Dept 9-24-24

Practice Point: The floor of the elevator where plaintiff’s accident occurred is not a “passageway” within the meaning of the Industrial Code. Therefore the Labor Law 241(6) cause of action alleging a violation of the “passageway” code provision should have been dismissed.

 

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THE FOIL REQUEST FOR THE EMAIL ADDRESSES OF ALL NEW YORK CITY EMPLOYEES PROPERLY DENIED UNDER THE CYBERSECURITY EXEMPTION (FIRST DEPT).

The First Department, affirming Supreme Court’s denial of petitioner’s FOIL request for the email addresses of all New York City employees, determined the information was covered by the cybersecurity exemption from disclosure under FOIL. The petitioner is a foundation which seeks to inform those city employees who are public-employee-union members of their right to opt out of union membership:

… DCAS’s [NYC Department of Citywide Administrative Services’] General Counsel “articulat[ed] a particularized and specific justification for denying access” … under the cybersecurity exemption by explaining that “disclosure would create a substantial risk to the information technology infrastructure of the City of New York, including computer hardware, software, and data.”

The City Cyber Command’s Deputy Chief Information Security Officer further explained that disclosing “all New York City employees’ email addresses would relinquish control of the City’s information technology assets and jeopardize the security of those assets and of City infrastructure” by “mak[ing] it substantially easier for threat actors to successfully attack City . . . employees” in “[p]hishing and other email-based attacks.” Phishing and other confidence-based attempts at fraud prey on a target’s trust. The other information sought herein concerning employee’s names, titles, and other employment-related information could be used in conjunction with an email address to dupe unsuspecting targets. Of course, we do not find that the Foundation has any intention of phishing or committing any other type of fraud; it seeks to advance its mission. We note these facts only to point out the risks that can ensue from mass release of public employee contact information should the information fall into the wrong hands.

For these reasons, DCAS “articulate[d] a legitimate concern covered by the exemption”— that disclosure of email addresses could “breach or compromise [the agency’s] information technology infrastructure” or enable attackers to “gain access to or manipulate information maintained by” DCAS … . Matter of Freedom Found. v New York City Dept. of Citywide Admin. Servs., 2024 NY Slip Op 04483, First Dept 9-19-24

Practice Point: Here the FOIL request for the email addresses of all NYC employees was properly denied under the cybersecurity exemption because of the possibility of “phishing and other email-based attacks.”​

 

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