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THE PEOPLE FAILED TO TIMELY REDUCE THE BOND OBLIGATION TO A JUDGMENT, THEREFORE THE SURETY’S MOTION TO VACATE THE JUDGMENT FORFEITING THE $100,000 BAIL SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Renwick, determined the surety’s motion to vacate a judgment forfeiting $100,000 bail should have been granted. Although the surety’s (Empire’s) motion was untimely, the People had failed to timely reduce the bond obligation to a judgment. The opinion is too detailed to fairly summarize here:

In this special proceeding brought pursuant to CPLR 5015 by a surety of a defendant in a criminal case, the dispositive question is whether a surety is procedurally precluded from moving to vacate a judgment of bail forfeiture as untimely made. The People argue that the application is precluded because the surety did not move within the one-year time limit applicable to a motion for remission of the forfeiture, which, as set forth in CPL 540.30(2), “must be made within one year after the forfeiture of bail is declared.” We answer the question in the negative because the People must first comply with the statutory mandate of CPL 540.10(2) before they can raise the one-year statute of limitations of CPL 540.30(2). The People did not comply with CPLR 540.10(2), which requires the People to reduce a bond obligation to a judgment within 120 days after the forfeiture is declared by the court. People v Empire Bonding & Ins. Co., 2021 NY Slip Op 03120, First Dept 5-13-21

 

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THERE IS A QUESTION OF FACT WHETHER A 16-YEAR-OLD SOFTBALL PLAYER ASSUMED THE RISK OF STEPPING IN A HOLE ON THE FIELD (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether a 16-year-old softball player assumed the risk of stepping into a hole on the softball field:

Plaintiff, an experienced 16-year-old softball player was playing softball on an outdoor artificial turf field owned by defendant City of New York (the City). Plaintiff maintained that she sustained injures to her left knee when she stepped into a hole on the turf that had been placed over existing turf. The City contends that the hole was an open and obvious condition and that plaintiff assume the risk of injury. We disagree. The photographs in the record appear to depict a tear or seam in the turf that may have caused a concealed depression relative to the surrounding playing surface.

Accordingly, issues of fact exist whether the City was negligent in maintaining the field in a reasonably safe condition. Although a participant in an athletic activity is deemed to have assumed “those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation,” there remain issues of fact as to whether plaintiff’s injuries resulted from concealed or unreasonably increased risks … . A.S. v City of New York, 2021 NY Slip Op 02975, First Dept 5-11-21

 

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THE NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) PROPERLY HELD THE APARTMENT WAS RENT-STABILIZED, BUT DID NOT PROPERLY CALCULATE THE RENT OVERCHARGE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the NYS Division of Housing and Community Renewal (DHCR) properly found the apartment in question was rent-stabilized, but used the wrong formula to calculate the rent overcharge. The decision is too detailed to fairly summarize here:

Supreme Court correctly denied AEJ’s petition insofar as it seeks reversal of DHCR’s determination that the apartment is rent-stabilized. DHCR’s examination of the apartment’s rental history to determine its regulated status had a rational basis … . DHCR erred, however, in establishing the base date rent by using the last registered rent from 1990 and then adding subsequent rent-stabilized rent increases to bring it up to date as of March 2010. The rent history of the apartment beyond the four year look back should not have been examined to determine the base rent for overcharge purposes … . Rather the base date rent is what [the tenant] actually paid four years prior to the date when [the landlord] filed its request for administrative determination (AD request) with DHCR. Matter of AEJ 534 E. 88th, LLC v New York State Div. of Hous. & Community Renewal, 2021 NY Slip Op 02977, First Dept 5-11-21

 

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DEFENDANTS DID NOT FOLLOW THE PROCEDURES FOR ELECTRONICALLY FILING A VIDEO; THEREFORE THE VIDEO WAS NOT AVAILABLE TO THE COURT AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the video evidence relied upon by defendants’ expert in this elevator-malfunction personal-injury case was not properly electronically filed and therefore was unavailable for review. Because of the unavailability of the evidence defendants’ motion for summary judgment should have been denied:

Defendants failed to establish prima facie that plaintiff was the sole proximate cause of the injuries she sustained when the manual freight elevator that she was operating suddenly stopped moving … . Defendants submitted an affidavit by an expert professional engineer who opined — based on his review of the surveillance footage of plaintiff’s accident and still images purportedly extracted therefrom — that plaintiff failed to fully close the elevator car’s scissor gate, which then opened while the elevator car was in flight, triggering the elevator’s sudden stop. However, they failed to submit the video footage on which their expert relied. Instead, in this electronically filed case, defendants submitted a sheet of paper that read, “Copy of the video to be provided upon the Court’s request.” The New York County e-filing protocol required parties who wished to submit exhibits “that cannot practically be e-filed,” such as videos, to file NYSCEF Form EF 21 and consult with the County Clerk about how best to submit such exhibits … . Because defendants failed to comply with these procedures, the video never became part of the record and thus cannot be reviewed by this Court.

Absent the video, the record evidence does not establish that plaintiff was the sole proximate cause of her injuries. Amezquita v RCPI Landmark Props., LLC, 2021 NY Slip Op 02979, First Dept 5-11-21

 

THE SUPERIOR COURT INFORMATION (SCI) WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT INCLUDED OFFENSES FOR WHICH DEFENDANT WAS NOT HELD FOR GRAND JURY ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the superior court information (SCI) was jurisdictionally defective because it included offenses for which defendant was not held for grand jury action:

The initial felony complaint charged defendant with two counts of criminal contempt in the first degree, and one count each of assault in the third degree and harassment in the second degree. Defendant subsequently agreed to waive prosecution by indictment and plead guilty to one count of aggravated criminal contempt, an offense greater than that charged in the original felony complaint. Because the only offense contained in the superior court information was not an offense for which defendant was held for grand jury action, or a lesser included offense, the superior court information was jurisdictionally defective … .

The fact that the felony complaint was amended to include a charge for aggravated criminal contempt does not require a different result. The superior court information is still defective because it included higher offenses for which defendant was not held for grand jury action (see CPL 195.20). People v Angel, 2021 NY Slip Op 03001, First Dept 5-11-21

 

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DEFENDANT DOCTOR’S FAILURE TO APPEAR FOR THE NO-FAULT EXAMINATION UNDER OATH (EUO) REQUESTED BY THE INSURER JUSTIFIED THE DENIAL OF DEFENDANT’S CLAIMS FOR BENEFITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the surgeon’s failure to appear for the no-fault examination under oath (EUO) requested by the insurer voided the insurance policy:

Plaintiff sent defendant a timely request for an examination under oath (EUO) with respect to a claim for benefits in the amount of $6,106.56, for shoulder surgery performed by defendant on an individual that was a passenger in a vehicle involved in an accident, covered by a no-fault insurance policy issued by plaintiff. Defendant failed to appear and plaintiff denied all claims for benefits made by defendant.

The failure to appear for an EUO that was requested in a timely fashion by the insurer is a breach of a condition precedent to coverage and voids the policy ab initio … . The coverage defense applies to any claim and is not determined on a bill by bill basis … . The EUO was timely requested as to the second claim for benefits for the shoulder surgery, accordingly, defendant’s failure to appear at that EUO voided the policy ab initio as to all claims, and plaintiff’s cross motion for summary judgment should have been granted in its entirety. Unitrin Advantage Ins. Co. v Dowd, 2021 NY Slip Op 03012, First Dept 5-11-21

 

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WRONGFUL DEATH PROCEEDS BELONG TO THE DISTRIBUTEES, NOT THE ESTATE; THEREFORE, RATHER THAN DIVIDING THE PROCEEDS EQUALLY, SURROGATE’S COURT MUST CONDUCT A HEARING AND DISPURSE THE PROCEEDS BASED UPON PECUNIARY LOSS (FIRST DEPT).

The First Department, reversing Surrogate’s Court, noted that the proceeds of a wrongful death action belong to the distributees, not the estate. Therefore the proceeds should not be divided equally among the distributees:

Petitioners commenced this proceeding in Surrogate Court seeking judicial allocation and distribution of the settlement proceeds resulting from a Supreme Court wrongful death action. The proceeds of a wrongful death action belong to the statutory distributees of the decedent and not to the estate; therefore, the law does not presume equal distribution of shares (see EPTL 5—4.3 and 5—4.4[a][1] ). Instead, each distributee receives damages in proportion to the pecuniary injuries suffered by him or her, as determined after a hearing in Surrogate’s Court (see EPTL 5—4.4[a][1]). Here, Surrogate’s Court allocated objectant 50% of the settlement proceeds of the wrongful death action without conducting a hearing on the issue of pecuniary loss. Matter of Dixson, 2021 NY Slip Op 02870, First Dept 5-6-21

 

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PLAINTIFF TESTIFIED IT HAD RAINED FOR ONLY FIVE MINUTES BEFORE SHE SLIPPED AND FELL ON WATER ON THE FLOOR; THEREFORE HER TESTIMONY ESTABLISHED DEFENDANTS DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should have been granted. Plaintiff testified it had only begun raining five minutes before she slipped and fell on water on the floor, which she did not see until after she fell:

Defendants established prima facie that they did not have actual or constructive notice of the water on their lobby floor that plaintiff alleges caused her to slip and fall … . Their property manager stated in an affidavit that she conducted a search of defendants’ records for complaints about water on the lobby floor between January 1, 2015 and July 14, 2015, the date of plaintiff’s accident, and found none except for the complaint made by plaintiff after she fell. That someone fell in the lobby while it was raining after stepping off a mat about a year before plaintiff’s accident does not raise an issue of fact as to whether defendants had actual notice of the water that caused plaintiff to fall. Plaintiff’s own testimony established prima facie that defendants did not have constructive notice of water on the lobby floor; she testified that it was sunny when she left for lunch, that it did not start raining that day until about five minutes before she reentered the building, and that she did not see the water until after she fell … . A general awareness that the lobby floor could become wet during inclement weather is insufficient to raise a triable issue of fact as to whether defendants had constructive notice of the specific condition that caused plaintiff’s fall … . Barreto v 750 Third Owner, LLC, 021 NY Slip Op 02868, First Dept 5-6-21

 

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PLAINTIFF, ON A BICYCLE, WAS STRUCK BY A BUS AND SUFFERED TRAUMATIC BRAIN INJURY, A TORN ROTATOR CUFF AND SEVERAL HERNIATED DISCS; THE JURY’S DAMAGES AWARDS, WHICH INCLUDED $0 FOR FUTURE PAIN AND SUFFERING AND PAST AND FUTURE LOST WAGES, WERE DEEMED UNREASONABLE; NEW TRIAL ON DAMAGES ORDERED (FIRST DEPT).

The First Department vacated several of the jury’s damages awards and ordered a new trial on damages. Plaintiff was struck by a bus while on a motorized bike resulting in traumatic brain injury, a torn rotator cuff and several herniated discs:

The jury’s award of $0 for future pain and suffering is inconsistent with its award of $250,000 for future medical expenses and, in any event, against the weight of the evidence and materially deviates from what would be reasonable compensation … .

Given the jury’s finding that plaintiff sustained a “significant limitation of use,” and its award of future medical costs over a period of 25 years, it is clear that the jury found plaintiff to have suffered injuries that will continue to impair his life into the future, and the award of $0 for future pain and suffering is irreconcilable with this finding and cannot stand … .

The award of $750,000 for past pain and suffering deviates materially from what would be considered reasonable compensation in light of plaintiff’s shoulder, spine, and traumatic brain injuries … .

The $0 awards for past and future lost earnings were against the weight of the evidence in light of plaintiff’s testimony regarding his prior income and current unemployment. Dr. Cornelius E. Gorman testified that plaintiff’s “career is lost” and that he “cannot qualify for competitive employment” given his cognitive deficits. The jury had no reasonable basis for depriving plaintiff of damages for past and future loss of earnings … . Scott v Posas, 2021 NY Slip Op 02885, First Dept 5-6-21

 

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THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT PROVIDES NO BROADER SCOPE FOR THE SEARCH THAN WOULD A WARRANT ISSUED BASED ON THE SAME FACTS; HERE THE SMALL AMOUNT OF MARIJUANA ON THE CONSOLE OF DEFENDANT’S CAR DID NOT PROVIDE PROBABLE CAUSE TO SEARCH THE TRUNK WHERE A FIREARM WAS FOUND (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court and holding that decisions to the contrary should no longer be followed, determined the odor of marijuana smoke and the small about of marijuana on the console of the defendant’s car did not, pursuant to the automobile exception to the warrant requirement, justify the full search of the trunk of the car. Therefore the firearm found in the trunk should have been suppressed:

… “[T]he automobile exception. . . is an exception only to the warrant requirement; it does not, in contrast to the search-incident-to-arrest exception, dispense with the requirement that there be probable cause to search the vehicle” … . * * *

We are left with the question of whether the presence of a small amount of marijuana consistent with personal use provided the requisite probable cause and nexus to justify a search of the trunk. We find that in this case it did not. The only reasonable conclusion supported by the evidence here was that the de minimis amount of unburnt marijuana was for personal use, not for distribution or trafficking. The officer did not find any drug paraphernalia in the car. Indeed, in this case, there was “scant evidence of drugs in the car” … , and there was no probable cause to believe there was contraband in the trunk of the car. Therefore, because a proper search pursuant to the automobile exception “is no narrower-and no broader-than [sic] the scope of a search authorized by a warrant supported by probable cause, [and] otherwise is as the magistrate could authorize” … , we find that here the search of the trunk was not supported by probable cause. Consequently, the gun found therein, and the statements made by defendant thereafter, should have been suppressed. People v Ponder, 2021 NY Slip Op 02880, First Dept 5-6-21

 

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