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THE PROPOSED AMENDMENT TO THE NOTICE OF CLAIM DID NOT PRESENT A NEW THEORY OF NEGLIGENCE; THE MOTION TO AMEND SHOULD NOT HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to amend the notice of claim should have been granted. The amendments merely fleshed out the theory of negligence described in the original notice and did not present a new theory of liability:

The purpose of prohibiting new theories of liability in notices of claim is to prevent prejudicing the city in its ability to timely investigate the claim and provide an adequate defense … . Contrary to defendants’ argument, to the extent the notice of claim alleges affirmative negligence, plaintiff did so in the first instance. Plaintiff’s original notice of claim alleged that his injuries were caused by New York City’s “negligent . . . design, maintenance, construction and installation . . .” of the “the traffic island/extra curb/bumper” in question. Plaintiff only adds that his injuries were related to the “design, installation, and maintenance” of the delineators and bollards which are specific elements of the traffic island. This addition only alleges specific facts related to the theories of liability contained in the original claim, unlike in cases cited by defendants … . Accordingly, we find that this amendment does not seek to assert a new theory of liability, and instead merely clarifies the facts alleged in the claim, as permitted by General Municipal Law § 50-e. Burnes v City of New York, 2023 NY Slip Op 05221, First Dept 10-17-23

Practice Point: The motion to amend the notice of claim merely fleshed out the theory of negligence in the original notice and did not present a new theory. Therefore the motion should have been granted.

 

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FAMILY COURT DID NOT MAKE THE REQUIRED “SEARCHING INQUIRY” RE: WHETHER FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (FIRST DEPT). ​

The First Department, reversing Family Court, held the judge did not make the required “searching inquiry” to determine whether father was knowingly, intelligently and voluntarily waiving his right to counsel. Father had made a motion to vacate a final order of protection:

… [T]he court failed to conduct the requisite “searching inquiry” to ensure that the father’s waiver of his right to counsel was “knowing, intelligent, and voluntary” … . While the court advised both parties that they had the right to be represented by counsel, could seek an adjournment to speak to one, and that one might be appointed to them, the court did not question the father about his background, such as age, education, or occupation, and any prior experience of being a pro se litigant or being exposed to legal procedures … . It also did not caution the father against self-representation, detail the dangers and disadvantages of doing so, or inform him that he would have to follow the same legal rules as if he had been represented … . Thus, the court failed to evaluate the father’s competency to waive counsel and his understanding of the consequences of self-representation … . Matter of Marlene H. v Loren D.2023 NY Slip Op 05225, First Dept 10-17-23

Practice Point: The questions a judge must ask before a waiver of the right counsel will be deemed valid are concisely explained.

 

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DEFENDANT, IN THE PLEA COLLOQUY, SAID SHE ACTED IN SELF DEFENSE; AT THAT POINT THE JUDGE SHOULD HAVE MADE SURE SHE WAS AWARE SHE WAS WAIVING THE JUSTIFICATION DEFENSE (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined the judge, based on the plea colloquy, should have questioned the defendant about her waiver of her right to present a justification defense:

The trial court failed to determine defendant’s understanding and waiver of her right to present a defense of justification after defendant stated, during the plea colloquy, “I had to defend myself” and “I wasn’t just the aggressor in the situation” (see People v Muniz-Cayetano, 186 AD3d 1169, 1171-1172 [1st Dept 2020] …). The People concede that the particulars of this case are indistinguishable from those of Muniz-Cayetano and that defendant’s guilty plea should be vacated. People v Williams, 2023 NY Slip Op 05195, First Dept 10-12-23

Practice Point: Here the defendant said she acted in self defense during the plea colloquy. At that point the judge should have made sure she knew about and was waiving the justification defense.

 

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THE PLEA ALLOCUTION DID NOT DEMONSTRATE DEFENDANT MADE AN INFORMED DECISION TO WAIVE A VIABLE INSANITY DEFENSE; THE FIRST DEPARTMENT VACATED THE PLEA AND DISMISSED THE INDICTMENT; DEFENDANT WAS RETURNED TO AN ASSISTED LIVING FACILITY UNDER A CIVIL GUARDIANSHIP ORDER (FIRST DEPT).

The First Department, vacating defendant’s plea and dismissing the indictment, determined defendant’s plea was invalid because it was not clear he made an informed decision to waive a viable insanity defense:

As the People concede, the circumstances of this unique case warrant vacating the plea and dismissing the indictment. The plea allocution did not address whether defendant was making an informed decision to waive a potentially viable insanity defense … , and the record as a whole casts significant doubt on defendant’s mental competence and ability to understand the proceedings or the terms of his plea … .

Under these circumstances, the appropriate remedy is dismissal rather than a remand for further proceedings. Among other things, this 68-year-old, severely mentally ill defendant lives in a secured unit of an assisted living facility under a civil guardianship order. People v Cosme, 2023 NY Slip Op 05207, First Dept 10-12-23

Practice Point: Here it was apparent defendant suffered from mental health issues. The plea was vacated and the indictment dismissed because the allocution did not make it clear that defendant had made an informed decisions to waive a viable insanity defense. Defendant was returned to an assisted living facility under a civil guardianship order.

 

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CASE REMITTED FOR A DETERMINATION OF THE CONSTITUTIONALITY OF THE GUARANTY LAW WHICH WAS FOUND TO HAVE BARRED PLAINTIFF’S CLAIM FOR CERTAIN AMOUNTS (FIRST DEPT).

The First Department sent this case back for a determination whether guarantees at issue are constitutional:

In view of the recent decision in Melendez v City of New York (2023 WL 2746183, 2023 US Dist LEXIS 57050 [SD NY, Mar. 31, 2023, No. 20-CV-5301 (RA)] finding the guaranty law unconstitutional, we remand the constitutional question raised by the parties here so the parties can further develop the record in the trial court for the purpose of applying the Contracts Clause test for constitutionality … . Plaintiff is directed to serve notice on nonparty City of New York under CPLR 1012(b)(2) and file proof of service in order for the City to “intervene in support of its constitutionality” … .

Given the vitality of the constitutional question, we also reverse the dismissal of plaintiff’s claim for those amounts the court determined were barred by the guaranty law for a determination following the court’s resolution of the constitutional issue. 45-47-49 Eighth Ave. LLC v Conti, 2023 NY Slip Op 05180, First Dept 10-12-23

Practice Point: Supreme Court had held plaintiff’s claim to certain amounts was barred by the guaranty law. A federal court has held the guaranty law unconstitutional. This matter was sent back for a determination of the constitutional question.

 

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PLAINTIFF’S EMPLOYER, VERIZON, THREATENED LEGAL ACTION BASED UPON A NON-COMPETE AGREEMENT SIGNED BY PLAINTIFF IF PLAINTIFF RESIGNED TO WORK FOR WARNERMEDIA; PLAINTIFF’S TORTIOUS-INTERFERENCE-WITH-PROSPECTIVE-BUSINESS-RELATIONS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant-employer (Verizon) was entitled to summary judgment dismissing the tortious-interference-with-prospective-business-relations cause of action. Plaintiff signed a non-compete agreement. When Verizon learned of plaintiff’s plan to resign and work for WarnerMedia Verizon warned plaintiff that resigning would lead to legal action:

Although plaintiff contends that Verizon wrongfully threatened litigation against him to enforce the noncompete provision, the “wrongful means” element of the cause of action is satisfied only where the threatened lawsuit is frivolous … . In light of the above facts, and considering that Verizon has successfully enforced a similar noncompete provision in the past … , there was an objectively reasonable basis to believe that the provision in its agreement with plaintiff was enforceable. …

Furthermore, the record does not support plaintiff’s argument that Verizon took its legal position solely out of a personal dislike for plaintiff, or solely by a desire to harm him … . On the contrary, the record shows that Verizon’s actions were motivated by economic self-interest … . Lucas v Verizon Communications, Inc., 2023 NY Slip Op 05190, First Dept 10-12-23

Practice Point: In order to support a tortious-interference-with-prospective-business-relations cause of action plaintiff must prove the employer’s threatened action was “wrongful” and was motivated solely by a desire to harm plaintiff. Here the employer threatened only to take legal action to enforce a non-compete agreement. The tortious-interference cause of action should have been dismissed.

 

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THE REPEAL OF CIVIL RIGHTS LAW 50-A, WHICH PROHIBITED ACCESS TO POLICE PERSONNEL RECORDS, APPLIES RETROACTIVELY; PETITIONER PREVAILED RE: THE FOIL REQUEST AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, modifying Supreme Court, determined the repeal of Civil Rights Law 50-a, which prohibited access to police personnel records, applies retroactively. The court further held petitioner had prevailed re: the FOIL request and was therefore entitled to attorney’s fees:

… [F]ormer Civil Rights Law § 50-a provided, with limited exceptions, that “[a]ll personnel records [of law enforcement officers] used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review” … . The legislature repealed Civil Rights Law § 50-a on June 12, 2020 … , and made several related amendments to FOIL on the same date … , stating that all of this legislation including the repeal of section 50-a “shall take effect immediately” … . The “repeal of Civil Rights Law § 50-a . . . reflected a strong legislative policy promoting transparency of police disciplinary records and eliminated any claim of confidentiality in them … .  * * *

… [W]e hold that the repeal of Civil Rights Law § 50-a applies retroactively to records created prior to June 12, 2020 … . Matter of NYP Holdings, Inc. v New York City Police Dept., 2023 NY Slip Op 05193, First Dept 10-12-23

Practice Point: The repeal of Civil Rights Law 50-a, which prohibited access to police personnel records, applies retroactively.

Practice Point: Where, as here, a petitioner prevails on a FOIL request, petitioner is entitled to the award of attorney’s fees.

 

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PLAINTIFF BUS PASSENGER WAS INJURED WHEN THE BUS DRIVER TOOK ACTION IN AN EMERGENCY; DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff-bus-passenger’s injuries resulted from the bus driver’s reaction to an emergency:

In this action for personal injuries arising from a fall on a public bus, defendants established prima facie entitlement to judgment as a matter of law by demonstrating that their bus driver was presented with an emergency situation that was not of his own making when a vehicle abruptly swerved into his lane without signaling, and that he took reasonable action by braking to avoid a collision … .

In opposition, plaintiff failed to submit any evidence tending to show that the bus driver created the emergency or could have avoided a collision by taking a different action other than applying the brakes … . Plaintiff’s claim that an issue of fact is raised by conflicting testimony over whether the driver braked abruptly or gradually is unavailing. The undisputed evidence demonstrates that the driver was required to take immediate action to avoid striking the vehicle and that braking with sufficient force to prevent an accident was a reasonable response to the emergency … . Febres v Metropolitan Transp. Auth., 2023 NY Slip Op 05095, First Dept 10-10-23

Practice Point: Defendants demonstrated the bus driver took justifiable action in an emergency. Plaintiff, a bus passenger, was injured by the movement of the bus. Defendants were entitled to summary judgment.

 

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THE SCAFFOLD COLLAPSED ENTITLING PLAINTIFF TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE HEARSAY SUBMITTED IN OPPOSITION DID NOT DEFEAT THE MOTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this scaffold-collapse case. Plaintiff alleged he was told to assemble use the scaffold despite mismatched parts. The defendants relied on hearsay statements attributed to Sabato, plaintiff’s supervisor, to the effect that Sabato told plaintiff to wait until the correct scaffold parts were supplied. Hearsay alone will not defeat a summary judgment motion:

… [T]estimony establishing that a safety device collapsed is sufficient for a prima facie showing on liability … . * * *

Because defendants’ submissions in opposition rely entirely on Sabato’s inadmissible hearsay statements, they are insufficient to raise a triable issue of fact as to whether plaintiff’s conduct — namely, using a scaffold that he was allegedly instructed not to use – may be the sole proximate cause for his accident and therefore warrant a denial of plaintiff’s motion … . Garcia v 122-130 E. 23rd St. LLC, 2023 NY Slip Op 05096, First Dept 10-10-23

Practice Point: The collapse of a scaffold warrants summary judgment on a Labor Law 240(1) cause of action. Hearsay alone offered in opposition will not defeat the motion.

 

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DEFENSE COUNSEL TOOK A POSITION ADVERSE TO DEFENDANT ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA; THE MATTER WAS REMITTED FOR CONSIDERATION OF THE MOTION AFTER NEW COUNSEL IS ASSIGNED (FIRST DEPT).

The First Department sent the matter back for a ruling on defendant’s pro se motion to withdraw his plea. Defendant’s attorney took a position adverse to the defendant’s by telling the judge the motion would not succeed. New counsel must be assigned:

Before sentencing, defendant made a written pro se motion to withdraw his guilty plea, asserting, among other things, deficiencies in defense counsel’s performance with respect to the plea. The court assigned defendant new counsel, and the People opposed defendant’s motion. At the outset of the sentencing hearing, the court asked counsel if he was seeking an adjournment to supplement defendant’s pro se motion, and counsel responded: “No, I am not, and I am not adopting it because I read the People’s [opposition] and reviewed the case law on this issue and it really doesn’t seem to be worthy of asking for my client to take his plea back.” Under the circumstances, counsel took a position adverse to defendant, requiring assignment of new counsel on the motion … . People v Rivera-Santana, 2023 NY Slip Op 05101, First Dept 19-10-23

Practice Point: Here defense counsel told the judge defendant’s pro se motion to withdraw his plea was weak, thereby taking a position adverse to defendant’s. The First Department sent the matter back for assignment of new counsel and consideration of the motion.

 

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