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DESPITE THE ORDER OF PROTECTION EXCLUDING RESPONDENT FROM THE HOME, THE PETITIONER PRESENTED SUFFICIENT EVIDENCE RESPONDENT WAS A PERSON LEGALLY RESPONSIBLE FOR THE CHILD; PEITIONER DEMONSTRATED RESPONDENT HAD NEGLECTED THE CHILD BY COMMITTING DOMESTIC VIOLENCE IN THE CHILD’S PRESENCE (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence demonstrated respondent was a person legally responsible (PLR) for the child and respondent neglected the child by committing domestic violence in the child’s presence:

Petitioner demonstrated by a preponderance of the evidence that respondent was a person legally responsible (PLR) for the subject child, as well as for the child’s three older siblings. Respondent and the children’s mother were in a romantic relationship and lived together before the child was born, and they both represented to caseworkers that respondent was the child’s biological father. There is evidence that, although he was excluded from the home because of an order of protection against him, respondent maintained communication with the mother and slept at the home at least on occasion, sharing the mother’s bed. Respondent failed to appear or testify to dispute the evidence that he was the child’s biological father or a PLR for him … . The fact that respondent was excluded from the household before the child’s birth as a result of having committed acts of excessive corporal punishment against the child’s eldest sibling does not outweigh the evidence that demonstrates that he is a PLR for the child … . The finding that respondent is a PLR for the child is further supported by his failure to appear in court, “allowing the court to draw a negative inference against him” … . Matter of Tristian B. (Winston B.), 2022 NY Slip Op 00498, First Dept 1-27-22

 

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THE TRIAL JUDGE SHOULD HAVE GIVEN THE ADVERSE INFERENCE CHARGE WHICH HAD BEEN ORDERED AS A DISCOVERY SANCTION RE: A MISSING SURVEILLANCE TAPE; JURY VERDICT SET ASIDE (FIRST DEPT). ​

The First Department, reversing Supreme Court and setting aside the verdict, determined the trial judge should have given the adverse inference charge with respect to a missing video surveillance tape:

… [T]he court erred in declining to give an adverse inference charge with respect to a missing video surveillance tape. An order stating that plaintiff was entitled to such a charge had been issued during discovery upon plaintiff’s motion for sanctions pursuant to CPLR 3126. Thus, the adverse inference charge was a discovery sanction, not a prospective evidentiary ruling … . While the verdict is supported by sufficient evidence, that error was not harmless. Hegbeli v TJX Cos., Inc., 2022 NY Slip Op 00502, First Dept 1-27-22

 

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PLAINTIFF WAS AN EMPLOYEE OF THE CONTRACTOR DEFENDANT HOMEOWNER HIRED TO BUILD A NEW STAIRCASE; PLAINTIFF WAS INJURED BY A PROTRUDING SCREW ON THE NEW STAIRCASE; DEFENDANT WAS NOT LIABLE; THE HOMEOWNER DID NOT CREATE THE CONDITION, DID NOT SUPERVISE THE CONTRACTOR’S WORK, AND DID NOT HAVE NOTICE OF THE CONDITION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant homeowner was not liable to plaintiff, an employee of the contractor defendant hired to replace a staircase. Plaintiff was injured by a protruding screw attached to the new staircase:

… [D]efendant established prima facie that he did not create the allegedly unsafe condition in the unfinished staircase … . Although defendant testified that he tried to repair the old staircase before hiring the contractor, the uncontradicted evidence showed that the contractor removed the old staircase and that plaintiff was injured on a screw attached to the new staircase. The new staircase was built entirely by the contractor.

… [P]laintiff’s testimony that defendant gave the contractor instructions on where to place the staircase and general instructions on how he wanted the construction to proceed does not, without more, raise a triable issue of fact as to whether defendant created the condition. On the contrary, the mere retention of general supervisory powers over an independent contractor, as opposed to the giving of specific directions on how to do the work, cannot form a basis for the imposition of liability against the principal …

There is … no evidence in the record that defendant had actual or constructive notice of the condition in the unfinished staircase, as the protruding screw was not visible and apparent, nor is there any evidence showing that it existed for a sufficient length of time before the accident to permit defendant to discover and remedy it … . Lara v Kadir, 2022 NY Slip Op 00504, First Dept 1-27-22

 

THIRD-DEGREE POSSESSION OF A CONTROLLED SUBSTANCE (PENAL LAW 220.16 (12)) IS NOT A LESSER INCLUDED OFFENSE OF THIRD-DEGREE POSSESSION OF A CONTROLLED SUBSTANCE (PENAL LAW 220.16 (1)); GUILTY PLEA VACACTED (FIRST DEPT).

The First Department, reversing Supreme Court and vacating defendant’s guilty plea, determined defendant pled to an offense which was not a lesser included offense of any offense in the indictment:

… [W]here the indictment charges two or more offenses in separate counts, a defendant may enter a plea of guilty to one or more of the offenses charged and/or lesser included offenses thereof” … . “For plea purposes only, lesser included offenses include not only those qualifying as such under the general statutory definition of lesser included crimes (CPL 1.20[37]), but also the specifically enumerated extensions of the lesser included offense concept, set forth in CPL 220.20(1)(a)-(k)” … .

Third-degree possession of a controlled substance in violation of Penal Law § 220.16(12) is not a lesser included offense of third-degree possession in violation of Penal Law § 220.16(1). The former subsection was not charged in the indictment, does not qualify as a lesser included offense under the general statutory definition, and is not included in the class of crimes that are deemed lesser included offenses of criminal possession of a controlled substance pursuant to CPL 220.20(1)(i) … . People v Acosta, 2022 NY Slip Op 00509, First Dept 1-27-22

 

A PRE-JOINDER MOTION FOR SUMMARY JUDGMENT MUST BE DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, noted that a pre-joinder motion for summary judgment must be denied:

The Court of Appeals has noted that the rule barring a pre-joinder motion for summary judgment is strictly applied (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). While CPLR 3211(c) permits the court, on notice to the parties, to treat a motion to dismiss as a motion for summary judgment before issue is joined, that is not the case here, where [plaintiff] moved directly for summary judgment; thus, a motion for summary judgment brought before a defendant has answered the complaint is premature and must be denied … . SHG Resources, LLC v SYTR Real Estate Holdings LLC, 2022 NY Slip Op 00525, First Dept 1-27-22

 

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DEFENDANT HAD WITHHELD PAYMENT ON THE CONTRACT AS AN OFFSET FOR THE LIQUIDATED DAMAGES PROVISION OF THE CONTRACT; THE AWARD OF LIQUIDATED DAMAGES TO THE DEFENDANT THEREFORE CONSTITUTED A DOUBLE RECOVERY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant should not have been awarded summary judgment on the liquidated damages counterclaim because defendant had withheld payment on the contract as an offset to the liquidated damages:

Supreme Court should have denied summary judgment in defendant’s favor on the liquidated damages counterclaim. To be sure, the liquidated damages provision of the contract, providing for damages of $100 for each day that plaintiff failed to timely respond to a request for repairs or to complete repairs already begun and $100 for failing to timely provide a written estimate, was not an unenforceable penalty … . However, to the extent defendant has withheld payment from plaintiff for work performed to offset liquidated damages, the award of liquidated damages constitutes a double recovery. Summit Rest. Repairs & Sales, Inc. v New York City Dept. of Educ., 2022 NY Slip Op 00526, First Dept 1-27-22

 

IN THIS SCAFFOLD-FALL CASE, EVIDENCE PLAINTIFF WAS INSTRUCTED TO USE GUARD RAILS ON THE SCAFFOLD BUT DID NOT REQUIRED DENIAL OF PLAINTFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined Supreme Court properly denied plaintiff’s motion for summary judgment in this scaffold-fall case. Defendants raised a question of fact with evidence plaintiff was instructed to use guard rails on the scaffold but did not:

… [T]hrough the testimony that plaintiff declined to use guardrails even though he was instructed to do so and even though guardrails were available, [defendants] raised an issue of fact as to whether plaintiff was the sole proximate of his accident, thus rendering summary judgment in his favor inappropriate … . Although the field supervisor did not witness the accident, he attested that he arrived on the scene as plaintiff was getting into the ambulance and proceeded straightaway to the worksite, where he found the Baker scaffold that plaintiff had been using to be in good condition, but the guardrails that plaintiff had been instructed to use leaning up against a nearby wall. Vargas v 1166 LLC, 2022 NY Slip Op 00528, 1-27-22

 

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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

 

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