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PETITIONER WAS ENTITLED TO A HEARING ON A TEMPORARY ORDER OF PROTECTION (TOP) WHICH BARRED HER FROM HER OWN APARTMENT WHERE HER CHILDREN LIVED; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, reversing Criminal Court, determined the mandamus action against  a Criminal Court judge seeking a hearing on a temporary order of protection (TOP) should have been granted. The First Department found that the matter qualified as an exception to the mootness doctrine and heard the appeal despite the dismissal of the underlying criminal action. Petitioner was charged with assaulting a man with whom she lived in her apartment. The TOP barred her from her own apartment where her children resided:

We find that the Criminal Court’s initial failure to hold an evidentiary hearing in accordance with petitioner’s due process rights after being informed that petitioner might suffer the deprivation of a significant liberty or property interest upon issuance of the TOP falls within the exception to the mootness doctrine: “(1)[there is] a likelihood of repetition, either between the parties or among other members of the public; (2) [it involves] a phenomenon typically evading review; and (3) [there is] a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . Matter of Crawford v Ally, 2021 NY Slip Op 04082, First Dept 6-24-21

 

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CHARTER SCHOOLS IN NYC ARE REQUIRED TO PROVIDE RANDOM COVID-19 TESTS TO CITY-RESIDENT CHILDREN (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the NYC Board of Education was required to provide random COVID-19 testing to city-resident students in charter schools, but not to charter-school staff or to nonparty charter schools:

… Supreme Court erred in directing the City to provide Covid testing not only to children but also to charter school staff, and charter schools which are not parties to this proceeding. Section 912 by its terms directs the school district to provide covered services to “resident children who attend” nonpublic schools, to the same extent such services are provided to children attending public schools (Education Law § 912). The statute does not require that such services be provided to staff or anyone else other than resident children. Accordingly, we modify the judgment, to limit relief to children attending petitioners’ charter schools, and not to children attending nonparty charter schools, nor to staff at any school. Matter of King v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2021 NY Slip Op 04083, First Dept 6-24-21

 

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THE HARASSMENT-RELATED SPEECH PROHIBITIONS IN THE ORDER OF PROTECTION DID NOT VIOLATE THE FIRST AMENDMENT BUT THE PROVISION PROHIBITING RESPONDENT FROM DISCSUSSING THE PETITIONER OR THE FAMILY OFFENSE PROCEEDING WAS STRUCK FROM THE ORDER OF PROTECTION AS UNNECESSARY (FIRST DEPT).

The First Department affirmed the finding respondent committed the family offense of harassment by sending email about petitioner’s personal matters to 53 people. Although the harassment prohibitions in the order of protection did not violate the Firs Amendment, the provision in the order of protection which prohibited respondent from discussing the petitioner or the proceedings was struck as unnecessary:

Respondent contends that the provision of the order prohibiting him from discussing petitioner or the case with anyone familiar with petitioner violated his First Amendment right to freedom of speech. To be sure, respondent’s repeatedly sending petitioner emails articulating his unwanted opinions about her, her mother and their family dynamic or making petitioner aware of the emails he sent to several third parties broadcasting those opinions by blind-copying her on those messages is not protected by the First Amendment, because those repeated and unwanted communications serve no legitimate purpose … . However, because the harassment is adequately addressed by the provision that respondent stay away from petitioner and not contact her, we delete the prohibition against his discussing petitioner or the proceeding … . Matter of Sophia M. v James M., 2021 NY Slip Op 03992, First Dept 6-22-21

 

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THE LANDLORD AND GENERAL CONTRACTOR RESPONSIBLE FOR THE INSTALLATION OF AN UNAUTHORIZED SYSTEM TO DELIVER GAS TO APPARTMENTS WERE PROPERLY CONVICTED OF MANSLAUGHTER AFTER A GAS EXPLOSION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, affirmed the manslaughter convictions of the landlord (Hrynenko) and general contractor (Kukic) stemming from a gas explosion which killed two and injured 13. The defendants were responsible for installing an unauthorized system for delivering gas to apartments in the building. The evidence was deemed legally sufficient and the verdicts were not against the weight of the evidence:

… [T]he evidence was legally sufficient to prove that defendants recklessly caused the victims’ deaths when they deliberately circumvented safety regulations to create and operate the unauthorized system that diverted natural gas from the building at 119 Second Avenue to the apartments in the building at 121 Second Avenue. Contrary to defendants’ primary argument, the explosion was a foreseeable result of their actions. There was ample evidence that defendants, who both had ample experience with buildings and the relevant DOB [Department of Buildings] and Con Ed regulations, understood the risk that death would occur when they proceeded with building and operating the unauthorized gas delivery system … . However, Hrynenko needed a gas delivery system to enable her to immediately begin collecting rent for the apartments at 121, so she chose not to wait for Con Ed’s permitting and inspection process to be completed for the authorized system and instead had Kukic build an unauthorized and dangerous makeshift system, using unlicensed plumbers, which they hid from Con Ed. The record shows that defendants both had active roles throughout the planning, building and operation of the system. People v Kukic, 2021 NY Slip Op 03996, First Dept 6-22-21

 

THE COMPLAINT CHARGING FORCIBLE TOUCHING DID NOT ALLEGE THE APPLICATION OF PRESSURE AS AN ELEMENT OF THE TOUCHING RENDERING THE COMPLAINT LEGALLY INSFUFFICIENT (FIRST DEPT).

The First Department, vacating the defendant’s forcible touching conviction, determined the complaint was legally insufficient because it did not allege the application of pressure as an element of the touching:

The complaint was legally insufficient to support the forcible touching charge; therefore, with respect to that charge only, the prosecutor’s information was jurisdictionally defective … . The actus reus of forcible touching (Penal Law § 130.52) is “any bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts” … . Here, the complaint alleged that defendant touched the victim’s thighs and genitals by reaching under her skirt, but it failed to allege any facts consistent with the application of pressure … . People v Zaragoza, 2021 NY Slip Op 03915, First Dept 6-17-21

 

THE SENTENCING COURT CAN LOOK BEYORD THE WORDING OF A FOREIGN STATUTE TO THE CONTENTS OF THE FOREIGN ACCUSATORY INSTRUMENT TO DETERMINE WHETHER A FOREIGN FELONY IS THE EQUIVALENT OF A NEW YORK FELONY RE: SECOND FELONY OFFENDER STATUS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined defendant was properly sentenced as a second felony offender even though the Pennsylvania statute at issue did not require knowledge of the precise controlled substance which was possessed. The First Department looked beyond the wording of the statute to the allegations in the accusatory instrument:

The knowledge requirement of the Pennsylvania statute at issue here is satisfied when it is established that the defendant knew he or she possessed an illegal substance, without the necessity of a showing that he or she knew which illegal substance was possessed … . In contrast, the knowledge requirement under the New York Penal Law sections relevant here “demands proof of ‘knowledge that the item at issue was, in fact, the controlled substance the defendant is charged with selling or possessing'” … . This presents the possibility that defendant could have been convicted of a felony under the Pennsylvania statute without being guilty of a felony in New York.

However, a sentencing court may go beyond the statute and examine the underlying accusatory instrument when the foreign statute under which the defendant was convicted renders criminal several different acts, some of which would constitute felonies and others of which would constitute only misdemeanors in New York … .

An examination of the underlying accusatory instrument revealed that defendant had “knowingly manufacture[d], deliver[ed] or possess[ed] with intent to manufacture or deliver (crack/cocaine and powder cocaine), a controlled substance.” Accordingly, defendant’s Pennsylvania conviction was the equivalent of a felony in New York, and defendant was properly adjudicated a second felony offender. People v Simmons, 2021 NY Slip Op 03924, First Dept 6-17-21

 

PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION STEMMING FROM A FALL FROM A SIDEWALK BRIDGE PLAINTIFF WAS DISMANTLING; ALTHOUGH PLAINTIFF WAS SUPPLIED WITH A HARNESS, THERE WAS NO PLACE TO ATTACH THE SAFETY LINE (FIRST DEPT).

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) cause of action based on his fall from a sidewalk bridge he was dismantling. Although plaintiff had a harness, there was no place to attach the safety line:

Plaintiff testified that he was wearing a harness but that the sidewalk bridge did not have a lifeline to which he could attach the safety line, which was seven to nine feet long. The task at hand involved his breaking down the structure’s components and carrying them to the end of the sidewalk bridge run, which covered nearly a city block. The expert stated that if plaintiff’s movement was limited to nine feet with his lanyard attached to the sidewalk bridge, he could still have performed his job “as described.” However, he failed to explain further or indicate where on the bridge a tie-off would have been either practicable or safe, given the maximum range of the harness line. Gomez v Trinity Ctr. LLC, 2021 NY Slip Op 03810, First Dept 6-15-21

 

PLAINTIFF WAS STANDING AT THE TOP OF A LADDER WHEN IT WOBBLED AND HE FELL; COMPARATIVE NEGLIGENCE IS NOT A DEFENSE TO A LABOR LAW 240 (1) ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action, Plaintiff was standing at the top of a ladder when it wobbled and he fell:

Plaintiff established prima facie entitlement to summary judgment on the Labor Law § 240(1) claim through his testimony that while installing a cover on a sprinkler in a ceiling, he fell to the ground and sustained injury when the unsecured ladder on which he was standing with one foot on the ladder’s top, and the other foot one rung below began to wobble and he lost his equilibrium … . …

… [T]here is no requirement that plaintiff identify exactly what caused the ladder to move, or his fall … . While defendants argue that different versions as to why the ladder wobbled preclude summary judgment, under any of the scenarios, plaintiff is entitled to partial summary judgment because he was not supplied with adequate protection under the statute, which was the proximate cause of the accident … .

Given plaintiff’s undisputed testimony, any alleged misuse by him constitutes at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Hoxhaj v West 30th HL LLC, 2021 NY Slip Op 03811, First Dept 6-15-21

 

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THE JURY WAS INSTRUCTED ON THE CRITERIA FOR CONSCIOUS PAIN AND SUFFERING IN THIS NURSING-HOME MALPRACTICE CASE, BUT THE JUDGE DID NOT FIRST DETERMINE PLAINTIFF HAD SOME LEVEL OF COGNITIVE AWARENESS; THE CONSCIOUS PAIN AND SUFFERING CRITERIA ARE THE SAME FOR MALPRACTICE AND FOR VIOLATION OF PUBLIC HEALTH LAW 2801-D; NEW DAMAGES TRIAL ORDERED (FIRST DEPT).

The First Department vacated the $2.5 million pain and suffering award in this nursing-home malpractice case because the jury was instructed on the elements of “conscious” pain and suffering, but the judge did not first determine plaintiff had some level of cognitive awareness. The suit alleged the nursing home’s failure to monitor plaintiff-resident’s blood sugar level led to brain injury and death. A new trial on damages was ordered. The First Department noted that the criteria for “conscious pain and suffering” damages is the same for malpractice and violation of Public Health Law 2801-d:

The court should not have allowed the jury to award damages for pain and suffering without first determining that the decedent “experienced some level of cognitive awareness following the injury”… . There is no legal basis for applying this rule in the general negligence/malpractice context but not in the context of a violation of PHL 2801-d. Although PHL 2801-d(4) provides that “[t]he remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, . . . including tort causes of action, and may be granted regardless of whether such other remedies are available or are sought,” this language has been interpreted as authorizing a separate cause of action, not a separate category of damages … . Smith v Northern Manhattan Nursing Home, Inc., 2021 NY Slip Op 03818, First Dept 6-15-21

 

PLAINTIFF WAS INJURED ATTEMPTING TO HOLD BACK A HAND TRUCK WITH A 500 POUND LOAD AS HE WAS DESCENDING STAIRS; IT WAS POSSIBLE TO LOWER THE LOAD USING RIGGING IN AN ELEVATOR SHAFTWAY BUT PLAINTIFF WAS DIRECTED TO USE THE STAIRS; PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was injured trying to keep a hand truck from descending stairs too fast with a 500 pound load. The load could have been lowered with rigging equipment in an elevator shaftway but was directed to use the stairs:

Plaintiff was not provided with any hoisting equipment to use on the staircase and defendants had previously refused Dunwell’s [plaintiff’s employer’s] requests to bring equipment through the building’s lobby and down the shaftway of the lobby elevator, which was already outfitted with rigging equipment. Instead, defendants instructed Dunwell to bring their materials through the courtyard behind the building and down an exterior staircase to the basement. Plaintiff testified that he was holding the hand truck by the handles at the top, while his coworkers held it from the bottom to control its descent, and as the hand truck was going down the first step, one of the coworkers, a helper, “kind of let off the pressure” on his side of the hand truck, causing the hand truck to go down the first step “very fast,” which “jerked” plaintiff and caused him to slip on some dirt, gravel, or debris on the step. Plaintiff testified further that at that point he attempted to hold back the weight of the steel bedplate and stop the load’s descent. Plaintiff “yelled out a little bit” and the three workers rested for approximately 30 seconds, before continuing the descent down the stairs. All three workers rested at the bottom of the stairs before moving the bedplate into the building. During this break, plaintiff told his coworkers “I pulled my shoulder out and my back is killing me.” Agli v 21 E. 90 Apts. Corp., 2021 NY Slip Op 03540, First Dept 6-8-21

 

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