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Property Owner Responsible for Defect in Sidewalk that Did Not Directly “Abut” Owner’s Property (Liability Based On New York City Ordinance)

In a full-fledged opinion by Justice Richter, the First Department determined a property owner was responsible for ensuring the safe condition of a sidewalk that did not directly abut the defendant’s property. The sidewalk was separated from the defendant’s property by a strip of land owned by the City. The Court determined the terms “abutting” and “adjoining” in the ordinance making a property owner responsible for the condition of a sidewalk should be construed “to include property in close proximity to an improved sidewalk although separated from it by [the strip of land]”… . James v 1620 Westchester Avenue, LLC, 8710A, 17396/06 1st Dept. 2-7-13

 

Judge’s Failure to Follow Statutory Requirements for Handling Jury Questions Required Reversal.

The jury sent out a note asking “Is intent defined as premeditated desires or actions once engaged?”  The trial judge responded to the question by reading an expanded definition of intent and explaining “intent does not require premeditation.”  Defense counsel did not object to the way the judge handled the jury’s question.  The First Department explained  the statutory procedure for answering jury questions and held that the judge’s failure comply with CPL 310.30 by affording  “counsel … the opportunity to suggest appropriate responses …,” was a reversible “mode of proceedings” error.  People vs McGhee, 2010-05026, Ind. No. 2434/08 Second Dept. 2-6-13

 

Mutual Mistake.

“Mutual mistake may furnish the basis for the reformation of a written agreement where the signed writing does not express the actual agreement of the parties…. Parol evidence is admissible to establish the actual agreement.  There is a heavy presumption that the executed agreement reflects the true intention of the parties, and a correspondingly high order of evidence is required to overturn the presumption …”  The First Department found that a question of fact had been raised concerning whether the doctrine of mutual mistake should be applied to reform the contract in this case.  West Vernon Petroleum Corp. vs. Singer Holding Corp., 2010-10522, Second Dept. 2-6-13

 

Rights of Adopted Children.

In a full-fledged opinion by Justice Austin, the First Department determined, as a case of first impression, an adopted child of the decedent should share in trusts created by the decedent even though the decedent’s wife surrendered the child for a second adoption eight years after the adoptive father’s death and the admission of his will to probate.  The opinion includes a discussion of the rights of adopted children in this context.  Matter of Svenningsen, 2010-11057, 2010-11113, 2010-11114 Second Dept. 2-6-13

 

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Home Addresses of Handgun Licensees and Hate Crime Victims Not Released.

In a Freedom of Information Law (FOIL) case brought by the New York Times against the City of New York Police Department, the First Department determined several important procedural aspects of a FOIL request including the proper vehicle to address an untimely response or ruling (Article 78), the proper vehicle for hybrid FOIL and declaratory relief (combined petition and complaint), and the “futility exception” to the exhaustion of administrative remedies applies to FOIL requests.  With respect to the substance of the FOIL request, the First Department ruled that the home addresses of handgun licensees and the home addresses of hate crime victims should not be released.  New York Times Company vs City of New York Police Department, 7994, 116449/10 First Dept. 2-5-13

 

Criminal Impersonation—Falsely Attributed E-Mails.

Defendant was convicted of criminal impersonation (and other offenses) because he sent e-mails which he falsely attributed to scholars who disagreed with the defendant’s father, an expert on the Dead Sea Scrolls.  The First Department explained why the defendant’s falsely-attributed e-mails were not protected by the First Amendment: “Defendant was not prosecuted for the content of any of the emails, but only for giving the false impression that his victims were the actual authors of the emails.” People v Golb, 9101, Ind. 2721/09 1st Dept. 1-29-13

Substantially modified by the Ct. of Appeals in People v Golb, 2014 NY Slip Op 03426 [23 NY3d 455], CtApp 5-13-14

 

Flight Elevated Level of Suspicion and Justified Pursuit.

The police received a late-night report that three men had committed a robbery and fled into a park. At the park, the police saw the defendant and two other men.  The defendant’s flight upon seeing the officers, who were in plainclothes and were getting out of an unmarked police car, “elevated the level of suspicion to reasonable suspicion of criminality and justified pursuit.”  People v Pitman, 9092, Ind. 2908/10 First Dept. 1-29-13

DeBour, street stops

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Spoliation, Discovery Abuse Sanctions, Equitable Estoppel.

In a full-fledged opinion by Justice Richter discussing a breach of contract case with a convoluted history, the First Department dealt with the spoliation of evidence and the appropriate sanctions for spoliation under the CPLR.  It was alleged that a document was deliberately scorched so its authenticity could not be determined by scientific tests.  The Court remanded the case for a hearing on the spoliation issue and determined that, under the facts of the case, if spoliation is demonstrated at the hearing, striking the pleadings would not be an appropriate sanction.  The Court suggested a monetary sanction. Although most of the decision deals with the factual history of the case, there are substantive discussions of sanctions for discovery abuse under CPLR 3126 and the doctrine of equitable estoppel. Melcher v Appolo Medical Fund Management, LLC, et al, 4759-4764, Index 604047/03 First Dept. 1-29-13.

 

Neglect Finding Based On Single Incident Reversed.

The First Department reversed a finding of neglect of a child which was based on a single incident.  There is a brief but substantive discussion of neglect or abuse findings based upon a single incident.  In re Pria J. L., et al, 8841 First Dept. 1-29-13

 

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Third-Party Claims Against Other Law Firms Which Advised Plaintiff.

The First Department, in a full-fledged opinion by Justice Saxe, determined a law firm sued for malpractice could assert third party claims against other law firms which advised the plaintiff on the same matter.  There is a substantive discussion of similar third party actions in legal malpractice cases.  Millenium Import, LLC v Reed Smith LLP, et al, Index 603350/07; 591100-07 First Dept. 1-24-13

 

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