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THE DEFENDANT ARGUED A 2022 US SUPREME COURT RULING FINDING NEW YORK’S FIREARM LICENSING REQUIREMENT UNCONSITUTIONAL RENDERED THE POSSESSION-OF-A-WEAPON STATUTE TO WHICH HE PLED GUILTY IN 2016 UNCONSTITUTIONAL; THE ISSUE WAS NOT PRESERVED BECAUSE IT WAS NOT RAISED IN THE TRIAL COURT IN 2016 (FIRST DEPT).

The First Department refused to consider a constitutional issue on appeal because the issue was not preserved. Defendant pled guilty in 2016. The defendant argued on appeal that a 2022 US Supreme Court ruling rendered the offense to which he pled guilty, Penal Law 265.03(3), unconstitutional. In order to preserve that issue for appeal, it must have been raised before the trial court in 2016. The US Supreme Court case, New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 [2022]), declared New York’s license requirement for carrying a loaded firearm in public unconstitutional. Defendant pled guilty to possessing a loaded weapon outside his home or business:

Defendant did not preserve his claim that Penal Law § 265.03(3) is unconstitutional in light of the United States Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v Bruen …), or his related claim that the ineligibility of persons under 21 (such as himself at the time of the crime) to apply for licenses to carry firearms violates the Second Amendment. “This [preservation] requirement is no mere formalism, but ensures that the drastic step of striking duly enacted legislation will be taken not in a vacuum but only after the lower courts have had an opportunity to address the issue and the unconstitutionality of the challenged provision has been established” … .

“[D]efendant should not be permitted to avoid the consequences of the lack of preservation” on the ground that a constitutional challenge to Penal Law § 265.03(3) would have been futile … . Here, “[a]lthough [Bruen] had not yet been decided, and trial counsel may have reasonably declined to challenge the [constitutionality of Penal Law § 265.03 (3)], defendant had the same opportunity to advocate for a change in the law as [any other] litigant” … . Defendant is essentially making the argument that an “appellant should not be penalized for his failure to anticipate the shape of things to come,” but the Court of Appeals has expressly rejected that argument … . This preservation principle applies to constitutional claims … .

As an alternative holding, we find that on the present record, defendant has failed to establish that Penal Law § 265.03(3) is unconstitutional. People v Adames, 2023 NY Slip Op 02623, Fist Dept 5-16-23

Practice Point: Even if there has been no ruling on the constitutionality of a statute at the time the offense is before the trial court, in order to preserve the constitutional issue it must be raised in the trial court. Here defendant argued a 2022 US Supreme Court ruling finding New York’s firearm licensing requirement unconstitutional rendered the possession-of-a-weapon statute to which he pled guilty in 2016 unconstitutional. The First Department held the issue was not preserved because it was not raised in the trial court in 2016.

 

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THE STORE MANAGER TOOK THE TWO CANS OF RED BULL DEFENDANT WAS CARRYING FROM HIM AND TOLD HIM TO LEAVE THE STORE; THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE BURGLARY CONVICTION; AN EXTENSIVE TWO-JUSTICE DISSENT ARGUED OTHERWISE (FIRST DEPT). ​

The First Department, over a two-justice dissent, determined the evidence supported the burglary charge. The defendant was stopped by the store manager carrying two cans of Red Bull. The manager took the cans and defendant left the store. The dissenters argued there was no evidence the defendant intended to leave the store without paying:

We disagree with the dissent that the surveillance video supports a reasonable inference that defendant was planning to purchase the two cans of Red Bull because he has “what appears to be cash” in his hand, while walking toward the front of the store. The record indicates that when defendant walked down the store aisle, toward the front of the store, holding a can of Red Bull in each hand, the store manager told him to stop. She then told defendant that he did not belong in CVS, and asked defendant to leave and to give her the two cans. Defendant apparently “became upset,” put the two cans down and immediately left the store. Defendant never indicated that he intended to buy the two cans of Red Bull or made any effort to pay for them. Following his arrest, defendant admitted to police that “[he] was thirsty, [he] need[ed] something to drink[,]” and that “all [he] took was a Red Bull.” In fact, the defense never sought to prove that defendant was carrying cash in his hand or made such an argument to the jury. This argument is purely speculative. The jury viewed the video and was able to decide for itself whether the video was “grainy” as well as what reasonable inferences could be drawn from the defendant’s actions. People v Williams, 2023 NY Slip Op 02467, First Dept 5-9-23

Practice Point: Here the store manager took the two cans of Red Bull defendant was carrying and told the defendant to leave the store, which he did. The strong dissent argued the burglary conviction was not supported because there was no evidence defendant did not intend to pay for the Red Bull.

 

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DEFENDANTS IN THIS WET-FLOOR SLIP AND FALL CASE WERE NOT ENTITLED TO SUMMARY JUDGMENT; DEFENDANTS DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED BEFORE THE FALL AND THERE WAS EVIDENCE THE MAT AND WARNING SIGN PLACED IN THE AREA WERE INADEQUATE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants were not entitled to summary judgment in this wet-floor slip and fall case. There was no evidence when the area was last inspected prior to fall. And there was evidence the mat and warning sign placed in the area were inadequate:

… [D]efendants failed to make a prima facie showing that they lacked actual or constructive notice of the hazardous condition caused by the wet and slippery floor where plaintiff fell, as they did not submit any evidence establishing when they last inspected the vestibule on the day of the accident … . Rather, the evidence shows that the building’s superintendent was aware of the hazardous condition and tried to address it with a mat and caution sign. In addition, plaintiffs raised issues of fact as to whether these precautions were reasonable under the circumstances. Although a landlord is not obligated to continuously mop moisture tracked onto the floor of its premises by people entering from outside or to cover the entire floor with mats, here plaintiff claims that her accident was caused by the building superintendent’s placement of an unreasonably short anti-slip floor mat on known wet, glossy tiles on a newly laid floor … . Plaintiffs also claim that defendants failed to check to see if the wet floor warning sign remained in place after it was initially placed as a precautionary device. Rodriguez v KWIK Realty, LLC, 2023 NY Slip Op 02471, First Dept 5-9-23

Practice Point: In a slip and fall case the defendant must show the area was inspected close in time to the fall in order to prove a lack of constructive notice.

Practice Point: Even where, as here, the defendant attempts to address the dangerous condition (placing a mat and a warning sign in the area of the wet floor0 a question of fact may be raised about whether the measures taken were adequate.

Similar constructive-notice issue and result in Gomez v Samaritan Daytop Vil., Inc., 2023 NY Slip Op 02458, First Dept 5-9-23

 

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UNDER THE FACTS, PLAINTIFF CAN ASSERT A CLAIM FOR TORTIOUS INTERFERENCE WITH CONTRACT AGAINST DEFENDANT, EVEN THOUGH BOTH ARE SIGNATORIES TO THE MULTILATERAL CONTRACTS; THE PARTIES HAVE DIFFERENT RIGHTS AND DUTIES UNDER THE CONTRACTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that, under the facts, plaintiffs should be allowed to state a claim for tortious interference with contract against another signatory to the multilateral agreements:

We are asked to decide whether a party to multilateral contracts may be sued by its contracting counterparty for inducing a breach of those contracts. Here, we answer that question in the affirmative. The rights and duties of defendants are separate from those of the breaching party. Plaintiffs also lack a contractual remedy against defendants. Under this narrow set of circumstances, plaintiffs should be permitted to assert a cause of action for tortious interference with contract, despite defendants being signatories to the multilateral agreements. * * *

The general principle that only a nonparty to a contract can be liable for tortious interference derives from cases involving either bilateral contracts or contracts under which all defendants had the same or similar contractual obligations … . * * *

This reasoning does not apply, however, if the inducing party is subject to duties that are different from those it allegedly encouraged another party to the contract to breach. Given such facts, the plaintiff cannot assert that the offending defendant breached a contractual obligation to it. “[T]he fact that one may derive rights under the same agreement as two other contracting parties does not excuse interference with their contractual rights” … . When breaching and inducing parties have different rights and duties, if the plaintiff is unable to recover fully from the breaching party, a tortious interference claim against the inducing party may be necessary for the plaintiff to be made whole. Arena Invs., L.P. v DCK Worldwide Holding Inc., 2023 NY Slip Op 02476, First Dept 5-9-23

Practice Point: Usually only a nonparty to a contract can be liable for tortious interference. Here plaintiff and defendant were both signatories to multilateral contracts. Because both had different rights and duties under the contracts, plaintiff was allowed to assert a claim  for tortious interference with contract against defendant.

 

THE MOTION TO STRIKE INFLAMMATORY ALLEGATIONS FROM THE COMPLAINT SHOULD HAVE BEEN GRANTED; WHETHER EVIDENCE ASSOCIATED WITH THE ALLEGATIONS IS DISCOVERABLE OR ADMISSIBLE AT TRIAL IS NOT AFFECTED BY GRANTING THE MOTION TO STRIKE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to strike inflammatory allegations from the complaint should have been granted:

Plaintiff commenced this action against defendant asserting causes of action for defamation, defamation per se, intentional infliction of emotional distress, and gender-motivated violence under the Victims of Gender-Motivated Violence Protection Law (Administrative Code of NYC § 10-111 et seq.).

The court should have granted defendant’s motion to strike certain inflammatory factual allegations from the first amended complaint. The allegations at issue, which employed rhetoric or detailed defendant’s misconduct toward other women and his relationships with notorious third parties, were scandalous and prejudicial, and not necessary to establish any element of plaintiff’s causes of action (see CPLR 3024 [b] …). CPLR 3024 (b) motions do not judge whether matters will be discoverable or admissible at trial … . Ganieva v Black, 2023 NY Slip Op 02380, First Dept 5-4-23

Practice Point: Here the motion to strike inflammatory allegations from the complaint should have been granted. Granting such a motion has no effect on whether the related evidence is discoverable or admissible at trial.

 

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THE MOTION TO VACATE THE DEFAULT ON LAW-OFFICE-FAILURE GROUNDS SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff’s motion to vacate the default on law-office-failure grounds should have been granted:

Plaintiff established a reasonable excuse for his default in failing to timely file his cross motion and opposition to defendants’ motion for summary judgment. Plaintiff’s counsel stated that he mistakenly believed that the papers could be filed at any time on the return date of December 15, 2021, and that the e-filing at 10:58 p.m. on that date was timely, despite the fact that the papers were, in fact, due to be filed two days before the return date. Thus, the default resulted from law office failure, which a court may excuse in its discretion (CPLR 2005 …). Moreover, there was no evidence that the default was deliberate or part of a pattern of dilatory conduct by plaintiff … .

Although plaintiff did fail to provide defendants with time to reply to his cross motion, thus causing prejudice to them, this error should have been remedied by granting defendants a brief adjournment, in view of the strong public policy of resolving cases on the merits, rather than by granting a default judgment … . The record also raises issues about defendants’ own conduct in connection with their motion, namely their submission of the motion for summary judgment just a few days before the court-imposed deadline for complying with a subpoena issued by plaintiff, and their failure to comply with an order directing production of responsive documents.

Furthermore, plaintiff made a prima facie showing of a meritorious claim … . Giordano v Giordano, 2023 NY Slip Op 02381, First Dept 5-4-23

Practice Point: Here law-office-failure was deemed an adequate ground for vacating the default judgment. Any prejudice caused by the late filing of motion papers could have been avoided by a brief adjournment.

 

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THE DEFENSE REQUEST FOR THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the defense request for the circumstantial-evidence jury instruction should have been granted;

The court should have granted defendant’s request for a circumstantial evidence charge. There was no direct evidence establishing defendant’s participation in the conspiracy … , and the People do not argue otherwise. The court’s standard instructions on reasonable doubt and inferences to be drawn from evidence did not suffice, because they did not make the jury aware of its duty to apply the circumstantial evidence standard to the People’s entire case and exclude beyond a reasonable doubt every reasonable hypothesis of innocence … . The error was not harmless, because the circumstantial evidence of defendant’s involvement in the conspiracy was not overwhelming.

However, because the verdict was based on legally sufficient evidence and was not against the weight of the evidence, there is no basis for dismissal of the indictment. People v Garcia, 2023 NY Slip Op 02392, First Dept 5-4-23

Practice Point: The judge’s jury instruction did not make it clear the circumstantial evidence standard applied to the entire case. New trial ordered.

 

THE INDICTMENT DID NOT GIVE ADEQUATE NOTICE OF THE PARTICULAR CRIME WITH WHICH DEFENDANT WAS CHARGED (FIRST DEPT).

The First Department, reversing Supreme Court and dismissing the indictment, determined the indictment did not give sufficient notice of the particular crime with which defendant was charged:

The indictment was jurisdictionally defective because it failed to charge defendant with committing a particular crime … . The indictment purported to charge defendant with persistent sexual abuse, a statute that elevates the repeated commission of any of three separately codified misdemeanors to a felony … , but it failed to “specify which of the three discrete qualifying offenses defendant was alleged to have committed” … . Hardware [200 AD3d 431] is dispositive of this appeal … . . In Hardware the indictment alleged that defendant had “subjected an individual to . . . sexual contact.” We held that this allegation was inadequate because ‘sexual contact’ is an element of all three of the qualifying offenses. Therefore, the indictment did not give defendant notice “with sufficient precision to clearly apprise the defendant . . . of the conduct which is the subject of the accusation” (CPL 200.50[7][a] …). The only additional allegation in the indictment in this case is that defendant acted “without the [victim’s] consent.” That allegation similarly failed to specify the underlying crime, because the absence of consent is also an element shared by all three of the qualifying offenses. People v Lacy, 2023 NY Slip Op 02394, First Dept 5-4-23

Practice Point: If it is not clear from the indictment exactly which of several possible crimes is charged, it must be dismissed.

 

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THE NYC BOARD OF HEALTH PROPERLY REFUSED TO ADD GENEALOGISTS TO THE LIST OF PERSONS WHO CAN ACCESS DEATH CERTIFICATES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Board of Health did not exceed the scope of its powers when it amended the NYC Health Code to add family members to the list of persons who can access death certificates but refused to add genealogists:

… New York City Board of Health did not “exceed[] the scope of its delegated powers” in amending 24 RCNY 207.11 … , by adding to the existing list of family members for whom requests for death certificates would automatically be deemed “necessary or required for a proper purpose” while declining to add genealogists … . Instead, it “balance[ed] costs and benefits according to preexisting guidelines” and did not create “its own comprehensive set of rules without benefit of legislative guidance” … .  …

The stated goal of the proposal was to allow more family members access to death certificates, and the Board of Health reasonably expressed concern with family privacy issues, due to social security numbers and causes of death being listed on death certificates, when declining to add genealogists to the expanded list … .  Matter of Reclaim the Records v New York City Dept. of Health & Mental Hygiene, 2023 NY Slip Op 02395, First Dept 5-4-23

Practice Point: The NYC Board of Health did not exceed its administrative powers when it refused to add genealogists to the list of persons who can access death certificates.

 

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DEFENDANT COULD NOT SEEK INDEMNIFICATION FOR PLAINTIFF’S DAMAGES FROM THIRD-PARTY DEFENDANT BECAUSE PLAINTIFF WAS THE THIRD-PARTY DEFENDANT’S SPECIAL EMPLOYEE FOR WHOM WORKERS’ COMPENSATION WAS THE EXCLUSIVE REMEDY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Count, determined the defendant, TIA, could not seek indemnification for plaintiff’s damages from third-party defendant, Freeman, because plaintiff was Freeman’s special employee for whom Workers’ Compensation is the exclusive remedy:

Supreme Court should have dismissed TIA’s common-law indemnification and contribution claims on the ground that plaintiff was Freeman’s special employee when his accident occurred and therefore, the claims are precluded by the Workers’ Compensation Law. “A worker may be deemed a special employee where he or she is ‘transferred for a limited time of whatever duration to the service of another'” … . “While the mere transfer does not compel the conclusion that a special employment relationship exists, a court is most likely to find that it does where the transferee ‘controls and directs the manner, details and ultimate result of the employee’s work'” … . Carey v Toy Indus. Assn. TM, Inc., 2023 NY Slip Op 02280, First Dept 5-2-23

Practice Point: If plaintiff’s sole remedy against a party is Workers’ Compensation, a defendant cannot seek indemnification from that party. Here plaintiff was the third-party defendant’s special employee so defendant could not seek indemnification from the third-party defendant.

 

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