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THE CONSOLIDATED TRIAL OF TWO SEPARATE CRIMINAL TRANSACTIONS, COUPLED WITH THE ABSENCE OF LIMITING JURY INSTRUCTIONS, CONSTITUTED REVERSIBLE ERROR (FIRST DEPT). ​

The First Department, in a full-fledged comprehensive opinion by Justice Rodriguez, over a two-justice comprehensive concurring opinion, determined that the consolidated trial of two separate criminal transactions, without appropriate limiting jury instructions, was reversible error:

The first indictment charged defendant with, among other counts, attempted murder. In relation to the first indictment, no gun was recovered, the alleged victim was not injured, and the evidence showed that there was at least some degree of animus between defendant and the alleged victim. The defense theory was thus that the discharged gun was in fact the victim’s. The second indictment, concerning an incident nearly six months later at a different location, charged defendant with possession of a firearm that was recovered on the person of his companion. The principal evidence supporting the second indictment was a set of suggestive jail phone call recordings.

Consolidated trial of indictments like the two at issue here is not necessarily error. However, defendant suffered impermissible prejudice as a result of (1) the nature and quantum of the evidence presented and (2) the specific respective theories of the prosecution and the defense. Supreme Court thus abused its discretion and committed error in trying the indictments together.

Although prejudice may in general be adequately ameliorated by appropriate limiting instructions, the jury received no such instruction here. People v Davis, 2024 NY Slip Op 00746, First Dept 2-13-24

Practice Point: This comprehensive majority opinion and and the comprehensive concurring opinion cannot be fairly summarized here. Consult this opinion for the law associated with consolidation of indictments for trial.

 

PLAINTIFF FELL THROUGH AN OPENING IN THE FLOOR WHEN THE PLYWOOD COVERING THE OPENING SHIFTED; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Plaintiff fell through an opening in the floor when the plywood covering the opening shifted:

While [defendants] argue that plaintiff was the sole proximate cause of his accident, that defense is inapplicable here, since “if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it” … . Their argument that there was no violation in that the opening, which had no railings or other affixed barricades, was adequately protected by the sheet of plywood, is unavailing … . Similarly, their claim that an unattributed statement in plaintiff’s … accident report that he was lifting wood at the time of the accident implies that he intentionally removed the plywood himself does not create a question of fact … . The argument that plaintiff should not have been working in that area is contradicted by the scope of his employer’s contract, photographs, and his coworker’s testimony. In any event, it is irrelevant and would constitute, at most, comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Devlin v AECOM, 2024 NY Slip Op 00673, First Dept 2-8-24

Practice Point: A fall through an opening in the floor which was inadequately protected by a sheet of plywood warranted summary judgment on plaintiff’s Labor Law 240(1) cause of action.

 

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THE PEOPLE DID NOT DEMONSTRATE AN INVENTORY LIST WAS CREATED FOR THE SEARCH OF DEFENDANT’S CAR; THEREFORE THE PEOPLE DID NOT PROVE THE SEARCH WAS A VALID “INVENTORY SEARCH” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the People did not prove the search of a car which turned up a firearm and marijuana was a valid “inventory search:”

The People failed to carry their initial burden of establishing a valid inventory search of defendant’s vehicle. Court of Appeals precedent “requires that a police officer prepare a meaningful inventory of the contents of an accused’s car” … . Although the People failed to establish that the officers prepared the prescribed inventory search form, such failure is considered a mere “technical defect” and “is not fatal to the establishment of a valid search as long as (1) the search, in accordance with the ‘standardized procedure,’ is designed to produce an inventory and (2) the search results are fully recorded in a usable format” … . Here, the People failed on this latter point, since there was no evidence offered to show that the officers created the “hallmark of an inventory search: a meaningful inventory list” … . * * *

Ultimately, no form, list, or usable record was produced before the hearing court, and there is otherwise no basis on which to conclude that an inventory list or record of the search results was ever created, either during the search or after its completion. People v Cabrera, 2024 NY Slip Op 00685, First Dept 2-8-24

Practice Point: In order to prove items were seized from a car pursuant to a valid “inventory search,” some sort of inventory list must have been created during the search.

 

QUESTIONS OF FACT ABOUT WHETHER REPLACING A WATER HEATER CONSTITUTED A REPAIR AS OPPOSED TO MAINTENANCE AND WHETHER AN ELEVATION-RELATED HAZARD WAS INVOLVED IN MOVING THE WATER HEATER WITH A HAND TRUCK PRECLUDED DISMISSAL OF THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined replacement of a 700 pound water heater which involved moving it with a hand truck raised questions of fact about the applicability of Labor Law 240 (1):

Plaintiff’s evidence * * * raised triable issues whether the day-long work that involved multiple workers to replace a 6-foot tall, 30-inch diameter water heater, weighing, by some estimates approximately 700 pounds, constituted a repair within the meaning of Labor Law § 240(1), as distinguished from routine maintenance … . Defendants did not offer proof, apart from conclusory statements, as to the cause of the water heater’s breakdown other than that the mechanism was leaking and no longer functioning. Defendants offered no specific proof that the water heater’s failure was due to normal wear and tear of particular parts or of its system itself. Triable issues were also raised as to whether an elevation differential existed such that the weight of the water heater, as it was strapped to the hand truck, created a hazardous gravitational force which devices enumerated in Labor Law § 240(1) were meant to protect against … . Rodriguez v Fawn E. Fourth St. LLC, 2024 NY Slip Op 00690, First Dept 2-8-24

Practice Point: There were questions of fact whether replacing a water heater was a “repair” and whether moving the 700-pound water heater on a hand truck was an “elevation-related” hazard within the meaning of Labor Law 240(1).

 

FAILURE TO FILE AFFIDAVITS OF SERVICE WITH THE CLERK OF THE COURT WITHIN 20 DAYS IS NOT A JURISDICTIONAL DEFECT; SERVICE IS DEEMED COMPLETE 10 DAYS AFTER FILING A MOTION FOR A DEFAULT JUDGMENT WITH THE AFFIDAVITS OF SERVICE (FIRST DEPT). ​

The First Department noted that the “nail and mail” service of process was valid and the failure to file affidavits of service within 20 days was not a jurisdictional defect:

… [E]ach affidavit of service states that the process servers made three separate attempts at serving the individual defendants at various dates and times before resorting to “nail and mail” service (CPLR 308(4) …). Plaintiffs’ failure to file affidavits of service with the clerk of the court within 20 days of service is a “mere irregularity” rather than a jurisdictional defect and does not render the service of process a “nullity” … . In any event, service was deemed complete 10 days after plaintiffs filed their initial motion for default judgment with the affidavits of service … . General Ins. v Leandre, 2024 NY Slip Op 00598, First Dept 2-6-24

Practice Point: The “nail and mail” service was valid despite the failure to fine affidavits of service with the clerk of the court within 20 days of service.

Practice Point: Here service was deemed complete ten days after the motion for a default judgment was filed with the affidavits of service.

 

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A HABEAS CORPUS PETITION WAS AN AVAILABLE METHOD FOR MOTHER TO SEEK CUSTODY DURING FAMILY COURT’S COVID MORATORIUM ON NONESSENTIAL MATTERS; THE PETITION PROVIDED FAMILY COURT WITH JURISDICTION WHICH WAS SUBSEQUENTLY LOST BECAUSE THE CHILDREN WERE TAKEN OUT OF STATE; FAMILY COURT SHOULD HAVE CONVERTED THE HABEAS PETITION TO A CUSTODY PROCEEDING PURSUANT TO CPLR 103 (C) (FIRST DEPT).

The First Department, reversing Family Court, determined that the habeas corpus petition filed by mother during the COVID moratorium on nonessential matters provided Family Court with jurisdiction over mother’s custody matter. Because the children had been out state for more than six months when mother made a subsequent custody application, Family Court did not have jurisdiction over them. Family Court should have converted the habeas corpus petition to a custody proceeding:

Family Court had jurisdiction over the parties to decide the mother’s custody petition pursuant to article 6 of the Family Court Act and, upon that basis and the unique circumstances presented in this case, should have converted the action from a writ of habeas corpus to a custody proceeding pursuant to CPLR 103(c) … .

The mother could not have even filed a custody petition in 2020 as a result of the Family Court’s Covid-19 moratorium on all nonessential matters but petitioning for a writ of habeas corpus was an available option to seek the return of the children to New York at the time. By the time the restriction was lifted, the children had already been out of state for more than six months, and Family Court had no jurisdiction over them which resulted in dismissal of the mother’s subsequently-filed custody application. * * * Although the mother was initially able to serve the father with the writ, her subsequent attempts at serving him were unsuccessful. Matter of Celinette H.H. v Michelle R., 2024 NY Slip Op 00456, First Dept 2-1-24

Practice Point; A habeas corpus petition was an appropriate vehicle for seeking custody during the Family Court COVID moratorium on nonessential matters.

 

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DEFENDANT’S INNOCENT TEMPORARY POSSESSION OF A WEAPON WAS THE RESULT OF HIS DISARMING A MAN WHO WAS ASSAULTING THE MAN’S WIFE; THE POSSESSION-OF-A-WEAPON CONVICTION REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, over a two-justice dissenting opinion, determined defendant’s temporary possession of a weapon was not “criminal.” Defendant took the weapon from his friend, Moscoso, who was assaulting his (Moscoso’s) wife in an effort to protect her:

… [T]he evidence established that defendant’s possession of the weapon after disarming Moscoso was incidental, temporary, and lawful, and that he did not use the weapon in a dangerous manner. The trial court instructed the jury on “temporary and lawful possession of a weapon” by giving the charge as it appears in the Criminal Jury Instructions … which states in relevant part:

“A person has innocent possession of a weapon when that person comes into possession of the weapon in an excusable manner, and maintains possession, or intends to maintain possession, of the weapon only long enough to dispose of it safely.”

The charge does not define “safely.” Instead, it provides a list of non-dispositive factors for the jury to consider — essentially an “amalgam of elements” — with only some relating to how the defendant disposed of the weapon, suggesting that trial courts should expand on or alter the charge where necessary to fit the facts of the case … . People v Ramirez, 2024 NY Slip Op 00390, First Dept 1-30-24

Practice Point: This case has everything you could ever need to know about innocent temporary possession of a weapon.

 

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PLAINTIFF CONTRACTOR DID NOT POSSESS THE REQUIRED NYC HOME IMPROVEMENT CONTRACTOR’S LICENSE; THE CONTRACTOR’S BREACH OF CONTRACT ACTION SEEKING PAYMENT FOR THE RENOVATION WORK PLAINTIFF COMPLETED WAS PROPERLY DISMISSED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Higgitt, determined the plaintiff contractor was required to have a home improvement contractor’s license by the New York City Administrative Code. Therefore plaintiff’s breach of contract, unjust enrichment, account stated and quantum meruit causes action against the owner of the property plaintiff worked on was correctly dismissed. The First Department determined the LLC which owned the property was an “owner” within the meaning of the Administrative Code, and the contract was a home improvement contract within the meaning of the meaning of the code:

Obtaining a home improvement contractor’s license is neither a ministerial act nor a mere technicality … . Rather, “strict compliance with the licensing statute [i.e. Administrative Code § 20-387] is required, with the failure to comply barring recovery regardless of whether the work performed was satisfactory, whether the failure to obtain the license was willful or, even, whether the homeowner knew of the lack of a license and planned to take advantage of its absence” … .

There is no dispute that plaintiff is a “contractor” for licensing purposes (see Administrative Code § 20-386[5]), and that plaintiff did not have a valid license. The controversy here essentially distills to whether defendant owners are “owners” within the meaning of Administrative Code § 20-387(a), and, if so, whether the agreement between the parties was a “home improvement contract” (Administrative Code § 20-386[6]). If the answer to both of those questions is yes, then plaintiff was required to have a home improvement contractor’s license to recover for the work; if the answer to either question is no, then plaintiff did not need a license. KSP Constr., LLC v LV Prop. Two, LLC, 2024 NY Slip Op 00356, First Dept 1-25-24

Practice Point: A contractor who does renovation work in New York City without a NYC Home Improvement Contractor’s license cannot sue for payment for the work.

 

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THE OWNER OF A COOPERATIVE BUILDING WAS PROPERLY FOUND LIABLE FOR FAILING TO REMEDIATE LEAD PAINT IN A SHAREHOLDER’S APARTMENT WHICH WAS SUBLET TO PLAINTIFF AND HER YOUNG DAUGHTER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined the owner of the building (Windsor) in which a cooperative shareholder, Sersch, sublet her cooperative apartment to plaintiff, had constructive knowledge plaintiff’s young daughter was living with plaintiff. Plaintiff’s daughter was diagnosed with lead poisoning and peeling lead paint was found in the apartment. Summary judgment finding Windsor liable for failing to remediate the lead paint problem was affirmed:

Windsor’s agents’ frequent and consistent interactions with plaintiff and the infant plaintiff were sufficient to provide constructive notice to Windsor … . Windsor failed to proffer an affidavit from any of the doormen stating that they did not know plaintiff and the infant plaintiff or were unaware of their residence. Under these circumstances, Windsor failed to raise a triable issue of fact as to the issue of constructive notice … . * * *

Windsor argues that section [NYC Administrative Code] 27-2056.15(c) exempts it from the duty to remediate and abate the lead paint in the apartment because Sersch “occupied” the apartment during plaintiffs’ subtenancy. Here, the terms of the sublease and the stipulation of settlement clearly indicate that the apartment was not “occupied” by Sersch during plaintiffs’ subtenancy. E.S. v Windsor Owners Corp., 2024 NY Slip Op 00267, First Dept 1-23-24

Practice Point; Here the owner of a cooperative building was deemed liable under New York City law for failure to remediate lead paint in a shareholder’s apartment which had been sublet to plaintiff and her young daughter.

 

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PLAINTIFF DID NOT CITE A VIOLATION OF ANY INDUSTRIAL CODE PROVISION IN THE COMPLAINT OR BILL OF PARTICULARS, WHICH WOULD ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION; HOWEVER PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE BILL OF PARTICULARS TO ADD A CODE VIOLATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff should have been allowed to amend the bill of particulars to allege a violation of an Industrial Code provision describing the construction of platforms. Plaintiff was walking on a rebar mat when he fell. The rebar mat could be considered to be a “platform” which, under the Industrial Code, requires planking:

Regarding the Labor Law § 241(6) claim, defendants “made a prima facie showing of entitlement to [summary] judgment” because “plaintiff did not cite any Industrial Code provision that allegedly was violated here in his complaint [or] bill of particulars” … . “However, this failure is not necessarily fatal to a section 241(6) claim and, in the absence of unfair surprise or prejudice, may be rectified by amendment, even where a note of issue has been filed” … . Plaintiff, in seeking to amend the bill of particulars, asserted a violation of Industrial Code § 23-1.22(c)(1), which requires that “[a]ny platform used as a working area or used for the unloading of wheelbarrows, power buggies, hand carts or hand trucks” to “be provided with a floor of planking at least two inches thick full size, exterior grade plywood at least three-quarters inch thick or metal of equivalent strength.” “[T]he platforms contemplated by that section are those used to transport vehicular and/or pedestrian traffic” … . Since it is uncontroverted that plaintiff was traversing the rebar mat carrying more rebar, and workers were expected to walk over the rebar mat, there is at least an issue of fact as to whether the rebar mat qualified as a platform used to transport pedestrian traffic. Plaintiff’s “belated identification of th[is] section[] entails no new factual allegations, raises no new theories of liability, and results in no prejudice to the defendant[s]” … . Thus, plaintiff is granted leave to amend his bill of particulars on this point, and summary judgment dismissing the § 241(6) claim is denied. Marte v Tishman Constr. Corp., 2024 NY Slip Op 00231, First Dept 1-18-24

Practice Point: Here in this Labor Law 240(1) action, plaintiff was allowed to amend his bill of particulars to cite a violation of the Industrial Code. Where there is no prejudice this type of amendment can be allowed even after the note of issue is filed.

 

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