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FATHER DEPRIVED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND SUPPORT ARREARS PROCEEDING, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined father was denied his right to counsel in this maintenance, child support, eduction and medical expense arrears proceeding:

We agree with the father that he was denied his right to counsel at the hearing to determine whether he was in willful violation of the support order … . Supreme Court “failed to inform the father of his right to have counsel assigned if he could not afford to retain an attorney” … , and failed to grant the father an adjournment at the outset of the second day of the hearing when he requested the assistance of counsel … . To the extent that the father thereafter chose to proceed pro se, the court also failed to “engage the father in the requisite searching inquiry concerning his decision to proceed pro se and thereby ensure that the father was knowingly, intelligently and voluntarily waiving his right to counsel” … . Villella v Villella, 2018 NY Slip Op 07917, Fourth Dept 11-16-18

FAMILY LAW (ATTORNEYS, FATHER DEPRIVED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND SUPPORT ARREARS PROCEEDING, SUPREME COURT REVERSED (FOURTH DEPT))/ATTORNEYS (FAMILY LAW, RIGHT TO COUNSEL, FATHER DEPRIVED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND SUPPORT ARREARS PROCEEDING, SUPREME COURT REVERSED (FOURTH DEPT))/RIGHT TO COUNSEL (FAMILY LAW, FATHER DEPRIVED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND SUPPORT ARREARS PROCEEDING, SUPREME COURT REVERSED (FOURTH DEPT))

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QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Curran, over a two-justice dissent, reversing Supreme Court, determined that defendant driver’s motion for summary judgment in this bicycle-car collision case should not have been granted. Apparently plaintiff was riding on the sidewalk and ran into the side of defendant’s car at an intersection. The majority concluded there was a question of fact whether defendant saw what he should have seen. The dissent relied on the right of way provisions of the Vehicle and Traffic Law:

Plaintiff [contended] that the provisions of the Vehicle and Traffic Law § 1234 (a) are inapplicable because plaintiff was riding his bicycle on a sidewalk and not a roadway, as contemplated by that section. Plaintiff further contended that issues of fact exist regarding whether defendant violated Vehicle and Traffic Law §§ 1142 and 1172 by failing to stop at the stop sign and failing to yield the right-of-way to plaintiff, and whether defendant failed to “see what [was] there to be seen.” …

Defendant, as the movant for summary judgment, had the burden of establishing as a matter of law that he was not negligent or that, even if he was negligent, his negligence was not a proximate cause of the accident … . To meet that burden, defendant was required to establish that he fulfilled his “common-law duty to see that which he should have seen [as a driver] through the proper use of his senses” … , “and to exercise reasonable care under the circumstances to avoid an accident” … , including that he met the obligation “to keep a reasonably vigilant lookout for bicyclists” .. . Defendant also had the burden of establishing as a matter of law that there was nothing he could do to avoid the accident … . Pagels v Mullen, 2018 NY Slip Op 07855, Fourth Dept 11-16-18

NEGLIGENCE (QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (NEGLIGENCE, QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT))/TRAFFIC ACCIDENTS  (QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT))/BICYCLES (TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT))

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APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT).

The Fourth Department determined the appeal must be dismissed for three reasons: the stipulation appealed from was entered into by consent, the appeal is not from an appealable order under CPLR 5701, and the matters raised on appeal could have been raised on a prior appeal. The court noted that counsel should have informed the court of the prior dismissed appeal:

We now dismiss the instant appeal for the following three reasons. First, defendant is not aggrieved by the “Stipulation and Order” on appeal because, as its title reflects, it constitutes an order entered on consent. As such, defendant “may not appeal from it” (…  see CPLR 5511…). The fact that defendant is aggrieved by the prior summary judgment order is of no moment because the “Stipulation and Order” is not a final order or judgment, and it thus does not bring up for review that prior order … .

Second, the appeal must be dismissed because the paper from which defendant purports to appeal is not an appealable order under CPLR 5701 (a) (2), which authorizes an appeal as of right from certain specified orders “where the motion it decided was made upon notice.” That provision is inapplicable here because the “Stipulation and Order” on appeal did not decide a motion, much less a motion made on notice … .

Third, it is well established that “[a]n appeal that has been dismissed for failure to prosecute bars, on the merits, a subsequent appeal as to all questions that could have been raised on the earlier appeal had it been perfected” … . Defendant’s substantive contentions on the instant appeal could have been raised on the prior appeal, had it been perfected. Thus, dismissal of the instant appeal is also warranted on that ground … . …

Finally, given the parties’ failure to inform us of the prior dismissed appeal in their appellate briefs, we must remind counsel that “attorneys for litigants in [an appellate] court have an obligation to keep the court informed of all . . . matters pertinent to the disposition of a pending appeal and cannot, by agreement between them, . . . predetermine the scope of [its] review”  … . Dumond v New York Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 07853, Fourth Dept 11-16-18

APPEALS (APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT))/cIVIL PROCEDURE (APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT))/CPLR 5701  (APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT))/ATTORNEYS  (APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT)

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PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT).

The Fourth Department determined petitioner had the right to appeal a ruling which granted relief he had requested in the alternative but denied the more complete relief requested in the petition. The court further found that the evidence supported the finding that petitioner is a detained sex offender with a mental abnormality and required a regimen of strict and intensive superivsion and treatment (SIST):

… [W]e conclude that petitioner is aggrieved by the order because, although Supreme Court granted one of the forms of the relief he requested in the alternative, i.e., release under a regimen of SIST, the primary relief he sought was release to the community without conditions, and the denial of that part of the petition involved a substantial right of petitioner … . …

We … reject petitioner’s contention that basing the determination that he has a mental abnormality on a diagnosis of unspecified paraphilic disorder does not comport with the requirements of due process. That diagnosis is contained in the current edition of the Diagnostic and Statistical Manual — Fifth Edition (DSM-5). Although there is limited case law concerning that diagnosis, the Court of Appeals has repeatedly held that basing such a determination on the very similar former diagnosis of paraphilia not otherwise specified (paraphilia NOS) meets the requirements of due process … , and the diagnosis of unspecified paraphilic disorder has similar diagnostic requirements as the former diagnosis of paraphilia NOS. …

In addition, “to the extent that [petitioner] challenges the validity of [unspecified paraphilic disorder] as a predicate condition, disease or disorder,’ we need not reach that argument because he did not mount a Frye challenge to the diagnosis” … . Matter of Luis S. v State of New York, 2018 NY Slip Op 07852, Fourth Dept 11-16-18

MENTAL HYGIENE LAW (PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT))/CRIMINAL LAW (MENTAL HYGIENE LAW, SEX OFFENDERS, (PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, MENTAL HYGIENE LAW, PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT))/STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT))/APPEALS (MENTAL HYGIENE LAW, CRIMINAL LAW, SEX OFFENDERS, PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT))

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OWNER OF THE FARM AND HAY CONVEYOR OWED A DUTY OF CARE TO PLAINTIFF WHO WAS INJURED BY THE CONVEYOR, LICENSEES USING THE CONVEYOR ON OWNER’S LAND DID NOT OWE A DUTY OF CARE TO PLAINTIFF, WHO WAS A VOLUNTEER HELPING THE LICENSEES (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court determined there was a question of fact whether, Burdick, the owner of a farm and a hay conveyor, was liable for plaintiff’s injury from catching her finger in the unguarded conveyor chain. Burdick, as part of an oral agreement, allowed the Fosters to use the hay conveyor on Burdick’s property and was aware that persons, like plaintiff, would assist the Fosters. Plaintiff was a volunteer, not an employee. The court found  that Burdick, as the owner of the farm and the conveyor, owed a duty of care to the plaintitff and there was a question of fact whether the conveyor presented a dangerous condition that was not open and obvious. The Fosters owed no duty of care to plaintiff. But the Fosters, who now own the conveyor, were required to allow plaintiff to inspect the conveyor in connection with the lawsuit:

It is well established that, “[b]ecause a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party” … . “New York landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition” … . “The duty of a landowner to maintain [his or her] property in a safe condition extends to persons whose presence is reasonably foreseeable by the landowner” … . “[A] landowner’s duty to warn of a latent, dangerous condition on his [or her] property is a natural counterpart to his [or her] duty to maintain [the] property in a reasonably safe condition” … . “It is well settled that both owners and occupiers owe a duty of reasonable care to maintain property in a safe condition and to give warning of unsafe conditions that are not open and obvious” … . …

Additionally, where, as here, “the defendant [property] owner provides . . . allegedly defective equipment, the legal standard [with respect to negligence] is whether the owner created the dangerous or defective condition or had actual or constructive notice thereof’ . . . , because in that situation the defendant property owner is possessed of the authority, as owner, to remedy the condition’ of the defective equipment” … . …

The Fosters, at most, “had a license to [perform hay baling work on Burdick’s farm with his hay conveyor], but the right to use the [farm and hay conveyor] does not establish control or give rise to a duty to warn”… . “In the absence of any authority to maintain or control the [farm or the hay conveyor], or to correct any unsafe condition, [the Fosters] owed no duty of care with respect to any unsafe condition on [Burdick’s] premises” … . Breau v Burdick, 2018 NY Slip Op 07851, Fourth Dept 11-16-18

NEGLIGENCE (OWNER OF THE FARM AND HAY CONVEYOR OWED A DUTY OF CARE TO PLAINTIFF WHO WAS INJURED BY THE CONVEYOR, LICENSEES USING THE CONVEYOR ON OWNER’S LAND DID NOT OWE A DUTY OF CARE TO PLAINTIFF, WHO WAS A VOLUNTEER HELPING THE LICENSEES (FOURTH DEPT))/PRODUCTS LIABILITY  (OWNER OF THE FARM AND HAY CONVEYOR OWED A DUTY OF CARE TO PLAINTIFF WHO WAS INJURED BY THE CONVEYOR, LICENSEES USING THE CONVEYOR ON OWNER’S LAND DID NOT OWE A DUTY OF CARE TO PLAINTIFF, WHO WAS A VOLUNTEER HELPING THE LICENSEES (FOURTH DEPT))/DUTY OF CARE (NEGLIGENCE, PRODUCTS LIABILITY, OWNER OF THE FARM AND HAY CONVEYOR OWED A DUTY OF CARE TO PLAINTIFF WHO WAS INJURED BY THE CONVEYOR, LICENSEES USING THE CONVEYOR ON OWNER’S LAND DID NOT OWE A DUTY OF CARE TO PLAINTIFF, WHO WAS A VOLUNTEER HELPING THE LICENSEES (FOURTH DEPT))

FAILURE OF NO-FAULT BENEFIT ASSIGNEE TO APPEAR AT EXAMINATIONS UNDER OATH (EUO’S) REQUESTED BY THE CARRIER IS NOT A DEFENSE TO THE CARRIER’S OBLIGATION TO PAY THE NO-FAULT CLAIMS WHERE COVERAGE HAS NOT BEEN TIMELY DENIED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Peradotto, disagreeing with the First Department, reversing Supreme Court, determined that the defendant medical professional corporation’s failure to appear at examinations under oath (EUO’s) requested by plaintiff insurer (Nationwide) was not a defense to Nationwide’s obligation to pay no-fault claims submitted by defendant (where Nationwide had not timely disclaimed coverage):

Defendant is a medical professional corporation that was assigned claims for no-fault benefits by individuals who purportedly received treatment for injuries allegedly sustained in motor vehicle accidents. Defendant submitted bills for the services it purportedly rendered, along with the assignment of benefit forms, to the insurance carrier plaintiffs (hereafter, Nationwide) seeking reimbursement pursuant to the no-fault law and regulations (see Insurance Law art 51… ). As part of an investigation of the validity of the claims, Nationwide sought additional information and requested that defendant submit to EUOs. Despite Nationwide’s repeated requests, defendant failed to appear at any of the scheduled EUOs.

Thereafter, Nationwide commenced this declaratory judgment action alleging that, by failing to appear for properly scheduled and noticed EUOs, defendant “breached a material condition precedent to coverage” under the insurance policies and no-fault regulations. Nationwide moved for summary judgment declaring that, as a result of such breach, it was under no obligation to pay or reimburse any of the subject claims, and defendant cross-moved for, inter alia, summary judgment dismissing the complaint.

Supreme Court subsequently granted the motion, and denied the cross motion. The court declared, among other things, that defendant breached a condition precedent to coverage by failing to appear at the scheduled EUOs and determined that Nationwide therefore had the right to deny all claims retroactively to the date of loss, regardless of whether it had issued timely denials.

… [D]efendant contends that the court erred in granting the motion because … an insurer is precluded from asserting a litigation defense premised upon nonappearance at an EUO in the absence of a timely denial of coverage and that Nationwide failed to meet its burden of establishing that it issued timely denials. We agree … . Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 2018 NY Slip Op 07850, Fourth Dept 11-16-18

INSURANCE LAW (FAILURE OF NO-FAULT BENEFIT ASSIGNEE TO APPEAR AT EXAMINATIONS UNDER OATH (EUO’S) REQUESTED BY THE CARRIER IS NOT A DEFENSE TO THE CARRIER’S OBLIGATION TO PAY THE NO-FAULT CLAIMS WHERE COVERAGE HAS NOT BEEN TIMELY DENIED (FOURTH DEPT))/NO-FAULT INSURANCE  (FAILURE OF NO-FAULT BENEFIT ASSIGNEE TO APPEAR AT EXAMINATIONS UNDER OATH (EUO’S) REQUESTED BY THE CARRIER IS NOT A DEFENSE TO THE CARRIER’S OBLIGATION TO PAY THE NO-FAULT CLAIMS WHERE COVERAGE HAS NOT BEEN TIMELY DENIED (FOURTH DEPT))/EXAMINATION UNDER OATH (EUO) (INSURANCE LAW, NO-FAULT, FAILURE OF NO-FAULT BENEFIT ASSIGNEE TO APPEAR AT EXAMINATIONS UNDER OATH (EUO’S) REQUESTED BY THE CARRIER IS NOT A DEFENSE TO THE CARRIER’S OBLIGATION TO PAY THE NO-FAULT CLAIMS WHERE COVERAGE HAS NOT BEEN TIMELY DENIED (FOURTH DEPT))

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FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Curran, determined the Tramadol pills possessed by the inmate defendant did not constitute dangerous contraband, requiring a reduction of the conviction from promoting prison contraband first degree to second degree. The Fourth Department disagreed with the cases from other departments which held small amounts of drugs to constituted dangerous contraband:

The Court of Appeals in People v Finley (10 NY3d 647 [2008]) considered the unrelated prosecutions of two inmates for promoting and attempted promoting prison contraband in the first degree, both involving small amounts of marihuana. The Court pronounced the test for courts to apply: “[T]he test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security” (id. at 657). * * *

We recognize that, after Finley was decided, some courts have considered cases involving the possession of drugs other than marihuana and have concluded that the possessed drugs were dangerous contraband on what may be viewed as less “specific, competent proof” of a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats … . For example, testimony that the defendants were engaged in drug trafficking has been held to be sufficient to establish that there was dangerous contraband (see e.g. People v Ariosa, 100 AD3d 1264, 1265-1266 [3d Dept 2012], lv denied 21 NY3d 1013 [2013]; People v Cooper, 67 AD3d 1254, 1256-1257 [3d Dept 2009], lv denied 14 NY3d 799 [2010]). We disagree with those cases to the extent that they do not focus on the dangerousness of the use of the particular drug at issue, but instead focus on broad concerns that could involve any sort of contraband, such as alcohol, cigarettes or other items that are not dangerous in themselves … . People v Flagg, 2018 NY Slip Op 07849, Fourth Dept (11-16-18

CRIMINAL LAW (FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, DANGEROUS CONTRABAND, FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))/DANGEROUS CONTRABAND (CRIMINAL LAW, FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))/INMATES (CRIMINAL LAW, CONTRABAND, FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))/CONTRABAND (CRIMINAL LAW, INMATES, FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))

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DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined two evidentiary errors deprived defendant of a fair trial. Defendant was precluded from presenting evidence of a witness’s motive to lie, and the evidence of prompt outcry should not have included the identity of the assailant:

It is well settled that ” [t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations’ “… . “It is also well settled that in presenting the defense, counsel for the defendant may establish, during both cross[-]examination and on [defendant’s] direct case, the [complainant’s] . . . motive to lie . . . This is not a collateral inquiry, but is directly probative on the issue of credibility’ ” … , “the excluded evidence was not speculative . . . or cumulative . . . , as it went directly to the credibility of the complainant[, and] the defense counsel offered a good faith basis for the excluded line of questioning [and evidence].” “Because it cannot be said that there is no reasonable possibility that the error contributed to the verdict, the error cannot be deemed harmless beyond a reasonable doubt and reversal therefore is required” … .

Defendant also correctly contends that the court erred in permitting the People to present prompt outcry testimony that exceeded the proper scope of such testimony. Although “evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place” … , such evidence is limited to “only the fact of a complaint, not its accompanying details,” including the identity of the assailant … . We thus conclude that the court erred in permitting two of the three prompt outcry witnesses to testify concerning the identity of the alleged assailant … .

We thus conclude that either error, alone, would justify reversal and that the cumulative effect of the errors denied defendant a fair trial … . People v Vo, 2018 NY Slip Op 07909, Fourth Dept 11-16-18

CRIMINAL LAW (EVIDENCE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT))/LIE, MOTIVE TO (CRIMINAL LAW, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT))/PROMPT OUTCRY (CRIMINAL LAW, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT))/HEARSAY (CRIMINAL LAW, PROMPT OUTCRY, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT))/IDENTIFICATION (CRIMINAL LAW, PROMPT OUTCRY,  DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT))

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FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT).

The Fourth Department reversed Family Court’s custody ruling because the ruling was not supported by factual findings. The matter was remitted:

It is “well established that the court is obligated to set forth those facts essential to its decision’ ” (…see CPLR 4213 [b]; Family Ct Act § 165 [a]). Here, the court utterly failed to follow that well-established rule inasmuch as it made no findings to support its determination. “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . We therefore reverse the order, reinstate the mother’s petition, and remit the matter to Family Court to make a determination on the petitions, including specific findings as to a change in circumstances and the best interests of the child, following an additional hearing if necessary … . Matter of Brown v Orr, 2018 NY Slip Op 07905, Fourth Dept 11-16-28

FAMILY LAW (CUSTODY, APPEALS, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))/CUSTODY (FAMILY LAW, APPEALS, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))/APPEALS (FAMILY LAW, CUSTODY, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))/CUSTODY (FAMILY LAW, APPEALS, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))

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TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant town’s motion for summary judgment in this snowplow traffic accident case should have been granted. Defendant alleged the plow blade was in his lane, but there was evidence the road markings were covered with snow:

Vehicle and Traffic Law § 1103 (b) “exempts all vehicles actually engaged in work on a highway’—including [snowplows]—from the rules of the road” … . Here, defendants established as a matter of law that the snowplow was “actually engaged in work on a highway” at the time of the incident… , and plaintiff’s evidence that the plow blade was up at the time of the accident did not raise a triable issue of fact with respect thereto inasmuch as plaintiff did not dispute that Farr [the snowplow driver] was “working his run or beat at the time of the accident” … . …

At most, plaintiff established that Farr did not see plaintiff’s vehicle and that a portion of the snowplow crossed the center line of the road, which does not amount to recklessness. Moreover, plaintiff failed to submit competent evidence that Farr’s operation of the snowplow without either a “wing man” or certification to operate the snowplow without a wing man was reckless. Finally, while plaintiff and Farr provided different versions of the accident, those differences alone do not create a question of fact on the issue of reckless disregard here … . Clark v Town of Lyonsdale, 2018 NY Slip Op 07870. Fourth Dept 11-16-18

NEGLIGENCE (TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))/MUNICIPAL LAW (TRAFFIC ACCIDENTS, SNOWPLOWS, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))/SNOWPLOWS (MUNICIPAL LAW, TRAFFIC ACCIDENTS, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (MUNICIPAL LAW, SNOWPLOWS, TRAFFIC ACCIDENTS, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, SNOWPLOWS, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))

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