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THE NOTICE OF CLAIM ACT DOES NOT APPLY TO THE PORT AUTHORITY, WHICH IS A BISTATE ENTITY (NEW YORK AND NEW JERSEY) CREATED BY COMPACT (FIRST DEPT).

The Frist Department, reversing Supreme Court, determined the action against the Port Authority was time-barred pursuant to New York and New Jersey law, noting that the Notice of Claim Act does not apply:

… [N]either CPLR 217-a nor New York Unconsolidated Laws § 6412-a — both of which were enacted as part of the Uniform Notice of Claim Act … — extends the time in which an action may be commenced against the Port Authority. CPLR 217-a does not apply to the Port Authority because it is not a “political subdivision of the state, . . . instrumentality or agency of the state or a political subdivision, . . . public authority[,] or . . . public benefit corporation entitled to receive a notice of claim as a condition precedent to commencement of an action” within the meaning of the statute; rather, it is a bistate agency … . What is more, New Jersey has not enacted identical legislation … . and bistate entities created by compact are not subject to the unilateral control of any one state … . McKenzie v Port Auth. of N.Y. & N.J., 2022 NY Slip Op 00378, First Dept 1-25-22

 

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AN APPELLATE COURT CANNOT DETERMINE A SUPPRESSION MOTION BASED ON TRIAL EVIDENCE; THE TRIAL EVIDENCE REVEALED THE SEARCH OF DEFENDANT’S APARTMENT MAY HAVE BEEN UNLAWFUL; BASED UPON THE LIMITED INFORMATION AVAILABLE TO DEFENDANT WHEN THE SUPPRESSION MOTION WAS MADE, THE ALLEGATION THE POLICE DID NOT HAVE PERMISSION TO ENTER WAS ENOUGH TO WARRANT A PROBABLE CAUSE HEARING; MATTER REMITTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt, reversing Supreme Court’s denial of a probable cause hearing, determined the evidence revealed for the first time at trial called into serious question whether the search of defendant’s apartment was unlawful. Prior to trial the information provided to defendant gave the impression the apartment was entered and searched pursuant to a warrant. At trial the police testified they entered the apartment two hours before the search warrant was issued. The defendant was convicted of drug possession. The suppression motion stated the police entered the apartment without defendant’s permission. Given the limited and misleading information available to the defendant at the time the suppression motion was made, the allegations in the motion were sufficient to warrant a probable cause hearing. The appeal was held in abeyance and the matter was sent back for the hearing:

… [T]he Appellate Division “may not make its own finding of an independent source based upon trial testimony” … . Thus, we cannot hold that the denial of the Mapp/Dunaway hearing was proper, and the claim unpreserved, due to legal arguments pertaining to the lawfulness of the search and based on evidence adduced at trial, well after the lower court ruled on the motion to suppress.

… [H]ere, the trial testimony is being used solely to determine the context of defendant’s motion, the extent of her lack of access to information …, and the extent of information withheld from the motion court prior to making its decision to summarily deny defendant’s motion. … [W]e find that defendant’s motion should not have been summarily denied pursuant to CPL 710.60, and a hearing should have been conducted to make the necessary findings of fact. People v Esperanza, 2022 NY Slip Op 00383, First Dept 1-25-22

 

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GIVEN THE INITIAL LACK OF DISCLOSURE BY THE PEOPLE AND DEFENDANT’S RESPONSES ONCE THE PEOPLE DISCLOSED THE TRANSMISSION WHICH LED TO HIS ARREST, DEFENDANT ALLEGED SUFFICIENT FACTS TO WARRANT A MAPP/DUNAWAY HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant had alleged sufficient facts to warrant a hearing on whether the police had probable cause to arrest him:

… [D]efendant’s motion challenged the constitutional adequacy of “any transmitted description on which the seizing officers relied in detaining and arresting the defendant.”

Defendant’s access to information was limited, because … the People … did not disclose “by either voluntary discovery or otherwise, . . . the description radioed by the purchasing officer to the arresting officer” … . Indeed, … the People did not even specifically aver that such a communication occurred. … [T]he absence of factual allegations regarding the content of a transmission from the undercover to the arresting officer did not render defendant’s motion deficient. …

[D]efendant made allegations of facts within his knowledge that … were pertinent to defendant’s argument that probable cause to arrest him was lacking. … [D]efendant described his own appearance at the time of arrest to the extent of stating that he was a 44-year-old black man, and that there was nothing “particularly distinctive about his appearance” that would tend to “preclude the possibility of misidentification.” This description allowed for a comparison between defendant’s self-description and the transmitted description, once that description was disclosed. People v Fleming, 2022 NY Slip Op 00360, First Dept 1-20-22

 

THE PLAINTIFFS’ REQUEST TO PROCEED ANONYMOUSLY IN THIS CHILD VICTIMS ACT CASE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE OF ANY HARM WHICH WOULD RESULT FROM USING PLAINTIFFS’ LEGAL NAMES IN THE CAPTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the plaintiffs in this Child Victims Act action should not have been allowed to proceed anonymously. The request was not supported by sufficient evidence of harm which would result from using plaintiff’s legal names in the caption:

Several New York courts “have addressed the legislature’s intent in enacting the CVA [Child Victims Act] with respect to the use of pseudonyms and concluded that the legislature ‘left it up to each alleged victim to determine whether to seek anonymity’ . . . [and] ‘left it to the courts to assess each individual case'” … . This Court has held that permission to use a pseudonym will not be granted automatically and has noted that the motion court “should exercise its discretion to limit the public nature of judicial proceedings sparingly and then, only when unusual circumstances necessitate it” … . In determining whether to grant a plaintiff’s request to proceed anonymously, the motion court must “‘use its discretion in balancing plaintiff’s privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant'”… . A plaintiff seeking permission to proceed anonymously by employing a pseudonym must provide facts specific to the plaintiff that will allow the motion court to exercise its discretion in an informed manner … .

Here, plaintiffs’ motion to allow 33 unnamed plaintiffs to proceed anonymously should have been denied because plaintiffs failed to submit sufficient evidence to support the relief requested. Plaintiffs only submitted a short attorney affirmation, which merely repeated the relief requested in the order to show cause and made a single vague statement that plaintiffs might suffer further mental harm should their identities be revealed. Plaintiffs failed to provide any specific evidence as to why each unnamed plaintiff should be entitled to proceed anonymously … . Twersky v Yeshiva Univ., 2022 NY Slip Op 00366, First Dept 1-20-22

 

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THE DEPOSITION OF THE NONPARTY MAJORITY SHAREHOLDER IN THE COOPERATIVE REGARDING LEAKS IN THE UNITS WAS PROPER AND SHOULD NOT HAVE BEEN STOPPED AND SUPPRESSED BY THE JUDGE; SANCTIONS AGAINST PLAINTIFF’S ATTORNEY FOR FRIVOLOUS AND UNPROFESSIONAL CONDUCT WERE WARRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the deposition of a witness, Ruth Miller, was proper and the judge should not have ordered the deposition to cease and should not have suppressed the portion of the deposition which had already been taken. Miller was a nonparty majority shareholder in the cooperative and the action concerned leaks in the units. The First Department further determined that sanctions against plaintiff’s counsel were warranted:

It was an improvident exercise of discretion for the court to issue a protective order under CPLR 3103(a) barring a continuation of the deposition of nonparty Ruth Miller. Miller is the majority shareholder of the Coop, and therefore is a key figure in the events surrounding plaintiffs’ negligence and breach of contract claims regarding leaks in plaintiffs’ units. Moreover, Miller was a member of the Board during a period of time when decisions were made about building maintenance, which is a relevant issue in plaintiffs’ action. Thus, her testimony is “material and necessary” (CPLR 3101[a] …). …

… [i]t was error for the court to sua sponte issue a suppression order of the testimony previously taken (see CPLR 3103[c]). Defendants made no showing that evidence was improperly or irregularly obtained during the deposition, or that prejudice to a substantial right had accrued through discovery of improperly obtained evidence … . …

… [C]ounsel’s behavior at the deposition was frivolous and unprofessional. Among other things, counsel called the witness “a liar” and told her on the record that she had done “plenty wrong” and had “plenty to worry about in this case,” despite the fact that she is not even a party to the action. Sanctions against counsel are therefore warranted (22 NYCRR 130-1.1 …). Gendell v 42 W. 17th St. Hous. Corp., 2022 NY Slip Op 00272, First Dept 1-18-22

 

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DEFENDANT’S REPEATED REQUESTS TO REPRESENT HIMSELF WERE NOT ADEQUATELY ADDRESSED BY THE THREE JUDGES TO WHOM THE REQUESTS WERE MADE; CONVICTION REVERSED AND NEW TRIAL ORDERED (FIRST DEPT). ​

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant’s repeated requests to represent himself had not been properly addressed by the three calendar judges to whom the requests were made:

“The denial of defendant’s repeated requests to proceed pro se deprived defendant of his right to represent himself and requires reversal of his conviction” … . Although defendant made repeated unequivocal requests to proceed pro se, the calendar courts hearing these applications repeatedly deferred making a ruling. To the extent that these courts can be viewed as having denied the applications on the ground that defendant was disruptive, this was inappropriate because defendant’s only outbursts were the product of his frustration at not receiving a ruling on his rightful applications … . Furthermore, defendant was clearly fit to proceed to trial and fit to waive counsel … . The fact that defendant’s request to proceed pro se was based in part on his disagreements with counsel did not, standing alone, justify the denial of his request … . Defendant expressly stated that he wanted to represent himself, whether or not the court assigned new counsel. People v Goodwin, 2022 NY Slip Op 00281, First Dept 1-18-22

 

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THE LANDLORD’S SUMMARY PROCEEDING WAS PROPERLY BROUGHT IN SUPREME COURT BECAUSE COVID EXECUTIVE ORDERS PROHIBITED BRINGING THE ACTION IN CIVIL COURT; ALTHOUGH SUA SPONTE ORDERS ARE NOT APPEALABLE, THE NOTICE OF APPEAL WAS DEEMED A MOTION FOR LEAVE TO APPEAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined Supreme Court should not have dismissed the landlord’s summary proceeding on the ground that it should have been brought in Civil Court, not Supreme Court. COVID-related Executive Orders prohibited actions for nonpayment of rent in Civil Court. The First Department noted that a sua sponte order is not appealable as of right, but deemed the notice of appeal to be a request for leave to appeal which was granted:

The motion court erred in sua sponte dismissing the complaint on the ground that this action was a landlord-tenant dispute that should have been brought as a summary proceeding in Civil Court. Supreme Court has unlimited general jurisdiction over all real property actions, including those commenced by a landlord against a tenant (NY Const, art VI, § 7[a] …). Supreme Court, however, has the discretion to decline to entertain such an action on the ground that a pending action in Civil Court was the proper forum … .

Here, Supreme Court was the appropriate forum for this action to recover rental arrears because the Executive Orders implemented in response to the pandemic precluded the landlord from commencing a nonpayment proceeding in Civil Court during the relevant period, compelling the landlord to commence this action. A&L 1664 LLC v Jaspar Hospitality LLC, 2022 NY Slip Op 00264, First Dept 1-18-22

 

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PLAINTIFF’S VERDICT IN THIS SUBWAY ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE; PLAINTIFF WAS STRUCK BY A TRAIN AND ALLEGED THE ALLOWED SPEED FOR ENTERING A STATION WAS TOO HIGH; DEFENDANT TRANSIT AUTHORITY SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE THAT SPEED STUDIES HAD BEEN CONDUCTED IN SUPPORT OF THE QUALIFIED IMMUNITY DEFENSE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mazzarelli, determined the NYC Transit Authority’s (TA’s) motion to aside the plaintiff’s verdict in this subway accident case should have been granted. Plaintiff was on the tracks when he was struck by a train. Plaintiff argued the speed regulations allowed the train to enter the station at an unsafe speed. The trial judge prohibited the TA from introducing evidence demonstrating it was entitled to qualified immunity because it had conducted studies to determine the appropriate train speed:

The evidence that the TA proffered, and that the trial court precluded, suggested that it may have been entitled to qualified immunity. … Korach’s (the TA’s expert’s] testimony indicated that the TA’s speed policy was consistent with “universally accepted rapid transit system operating practice” … . Accordingly, Korach should have been permitted to testify about the policies that other rapid transit systems have in place with respect to speed restrictions in subway and train stations, including in cases where those stations are situated on curved sections of track. Further, … the testimony that the TA’s own witnesses would have given was designed to demonstrate that the speed policy enabled the “efficient running of a transportation system which serves millions of passengers every year” … . This language suggests that the trial court’s decision to limit evidence of speed policy decisions to their effects on a particular subway line was too restrictive, since the cases applying qualified immunity in subway speed cases take into account the effects that slower speeds would have on the entire subway system. Pedraza v New York City Tr. Auth., 2022 NY Slip Op 00255, First Dept 1-13-22

Similar issues in a case involving a similar accident in which the Pedraza (supra) trial-level evidentiary rulings on qualified immunity were applied under the doctrine of collateral estoppel. Because Pedraza was reversed, this case was reversed as well. Martinez v New York City Tr. Auth., 2022 NY Slip Op 00252, First Dept 1-11-22

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IN THIS FORECLOSURE ACTION, THE ACCRUAL OF INTEREST SHOULD HAVE BEEN TOLLED DURING THE BANK’S UNEXPLAINED DELAYS IN PROCURING AND ENTERING AN ORDER OF REFERENCE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the accrual of interest should have been tolled during the bank’s unexplained delays in procuring and entering an order or reference:

Supreme Court properly found that the nearly 17-month delay in the plaintiff’s service of the notice of entry of the order of reference entered April 30, 2014, was excessive … . However, it improvidently exercised its discretion in tolling the accrual of interest for only one year, as it should have been tolled for the entire period from April 30, 2014, through September 9, 2015. In addition, the court should have also tolled the accrual of interest for the time periods in which the plaintiff made two motions for an order of reference after its initial motion for an order of reference was denied for administrative reasons … . The tolling of the accrual of interest during these time periods is not … penalizing the plaintiff for losing its motions, but is instead a response to the plaintiff’s unexplained delay in prosecuting the action by failing to promptly move for relief after the denial of its first and second motions. … [A]fter the plaintiff’s first motion for an order of reference was denied in August 2011, it failed to move again until February 2013. After the second motion was denied in September 2013, the plaintiff did not make its third motion until February 2014. Deutsche Bank Natl. Trust Co. v Ould-Khattri, 2022 NY Slip Op 00167, Second Dept 1-12-22

 

THE SCAFFOLD BRACING BAR OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the scaffold-bracing bar over which plaintiff tripped was open and obvious and not inherently dangerous. Therefore the Labor Law 200 and common law negligence causes of action should have been dismissed:

… [T]he horizontal cross-bracing bar affixed to the scaffold, about 14 inches above the ground, which plaintiff tripped over while attempting to step over it, was open and obvious, and not inherently dangerous … . Plaintiff, a carpenter for 28 years, testified that the cross-bracing was readily observable, he was aware of its presence, having stepped over it without incident on four to six prior occasions, and that the bar was stationary and secure and did not move or shift when his foot struck it.

Plaintiff’s own imprudent act of attempting to climb over the cross-bracing bar, rather than use the available openings in the scaffold without bars, was the sole proximate cause of his injury … . Plaintiff was admittedly aware that a safer method was available to him, and instead chose not to use it … . Peranzo v WFP Tower D Co. L.P., 2022 NY Slip Op 00147, First Dept 1-11-22

 

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