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VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing (modifying) Supreme Court, determined the abutting property owner (Bank of America) was not liable for this public sidewalk slip and fall. The village code placed responsibility for sidewalk maintenance on the abutting property owner, but did not explicitly impose tort liability on an abutting property owner:

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“Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner”… . “That rule does not apply, however, if there is an ordinance or municipal charter that specifically imposes a duty on the abutting landowner to maintain and repair the public sidewalk and provides that a breach of that duty will result in liability for injuries to the users of the sidewalk; the sidewalk was constructed in a special manner for the use of the abutting landowner; the abutting landowner affirmatively created the defect; or the abutting landowner negligently constructed or repaired the sidewalk” … .

We conclude that Bank of America and Jones Lang [the property manager] met their prima facie burden of establishing their entitlement to judgment as a matter of law … . Although the Code of the Village of Williamsville (Code) imposes a duty on landowners to keep public sidewalks “in good order and repair” (Code § 89-3), it is undisputed that the Code does not “clearly subject landowners to . . . liability” for failing to comply with that duty … . It is also undisputed that the public sidewalk was not constructed in a special manner for the property owner’s benefit, and that neither Bank of America nor Jones Lang [the property manager] negligently constructed or repaired the sidewalk or otherwise created the defect. Clauss v Bank of Am., N.A., 2017 NY Slip Op 04606, 4th Dept 6-9-17

 

MUNICIPAL LAW (NEGLIGENCE, SIDEWALK SLIP AND FALLS, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, SIDEWALK SLIP AND FALLS, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SLIP AND FALL (SIDEWALK SLIP AND FALLS, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SIDEWALKS (SLIP AND FALL, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

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ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER.

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff town’s motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action should have been granted. Plaintiff was hired by the town to repair a vacant house. He fell from a ladder. The Fourth Department determined the town was not an “owner” or “general contractor” within the meaning of the Labor Law statutes:

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We agree with the Town that it established as a matter of law that it is not liable for plaintiff’s injuries under Labor Law §§ 240 (1) and 241 (6) inasmuch as it was not an owner of the property or a general contractor on the project. For the purposes of the Labor Law, the term “owner” encompasses the titleholder of the property where the accident occurred, as well as “a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit”… . Here, the Town did not hold title to the property, nor did it have any interest in the property… . Furthermore, even assuming, arguendo, that the Town was an owner of the property, we conclude that the Town would be entitled to the homeowner exemption under the Labor Law … .

We further conclude that the Town established as a matter of law that it was not a general contractor on the project … . The Town submitted evidence establishing that no Town employees were on the job site, plaintiff’s employer, and not the Town, directed plaintiff to the job site, and the Town did not have the authority to direct plaintiff with respect to the method and manner in which he would perform the work. Thus, the Town established that it was not a general contractor inasmuch as it was not “responsible for coordinating and supervising the project” … , and plaintiff failed to raise a question of fact.  Berner v Town of Cheektowaga, 2017 NY Slip Op 04610, 4th Dept 6-9-17

 

MUNICIPAL LAW (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER)/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW,  ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER)

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED THIRD-PARTY ADMISSIONS REQUIRE A NEW TRIAL.

The Fourth Department, over an extensive, comprehensive dissent, determined defendant’s motion to vacate his conviction was properly denied. The defendant was convicted of kidnapping a woman (Heidi) who has never been seen since. The dissent argued newly discovered evidence, third-party admissions, required a new trial. The decision is fact-based and cannot be fairly summarized here:

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FROM THE DISSENT (JUSTICE CENTRA):

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I respectfully dissent. I agree with the majority that County Court properly rejected that part of defendant’s motion alleging a Brady violation inasmuch as defendant did not meet his burden of establishing that the alleged Brady material was suppressed by the People. I further agree with the majority that the court properly precluded defendant from introducing certain evidence that did not involve third-party admissions. I also agree with the majority that defendant failed to establish his entitlement to relief through an actual innocence claim … . I agree with defendant, however, that he established his entitlement to a new trial based on newly discovered evidence. I would therefore reverse the order, grant the motion, vacate the judgment of conviction, and grant a new trial. * * *

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“When considering the reliability of a declaration, courts should . . . consider the circumstances of the statement, such as, among other things, the declarant’s motive in making the statement—i.e., whether the declarant exculpated a loved one or inculpated someone else, the declarant’s personality and mental state, and the internal consistency and coherence of the declaration’ ” … . Here, Steen, Breckenridge, and Wescott were not related to defendant and were not his friends, and thus had no reason to exonerate him or implicate themselves or their friends in Heidi’s disappearance. Wescott’s statement to Priest revealed that she did not like discussing what happened to Heidi, and she showed fear and reluctance to speak to the police about it. The third-party admissions were made to people they knew, not strangers, and were made to provide explanations, rather than mere theories, to the listener as to what actually happened to Heidi. The majority notes that many of the third-party admissions were inconsistent with each other. At first blush, that seems to be the case inasmuch as the statements were that Heidi’s body was cut up and buried in a cabin, or burned in a wood stove in the cabin, or placed in a van that was sent to Canada to be salvaged. It is certainly possible, however, that all three of those events could have occurred.

I therefore conclude that the testimony of Priest, Braley, and Combes, and the statement of Wescott, would be admissible at defendant’s trial, and that evidence would probably change the result of the trial … . People v Thibodeau, 2017 NY Slip Op 04577, 4th Dept 6-9-17

 

CRIMINAL LAW (VACATE CONVICTION, MOTION TO, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED EVIDENCE REQUIRES A NEW TRIAL)/EVIDENCE (CRIMINAL LAW, NEWLY DISCOVERED EVIDENCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED EVIDENCE REQUIRES A NEW TRIAL)/VACATE CONVICTION, MOTION TO (DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED EVIDENCE REQUIRES A NEW TRIAL)/ADMISSIONS (CRIMINAL LAW, THIRD PARTY ADMISSIONS, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED THIRD-PARTY ADMISSIONS, REQUIRE A NEW TRIAL)

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INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS.

The Fourth Department determined defendant insurance company had a duty to defend in this toxic tort case brought by residents in the vicinity of plaintiff business (Hillcrest) which allegedly contaminated the area with hazardous materials. Although the policy excluded coverage for damages caused by hazardous material, the complaint also alleged Hillcrest caused a “malodorous condition” which, the court reasoned, was not necessarily related to hazardous materials:

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It is well settled that an insurance company’s duty to defend is ” exceedingly broad,’ ” and is broader than the duty to indemnify … . The duty to defend arises whenever allegations of an underlying complaint suggest ” a reasonable possibility of coverage,’ ” even if facts outside the pleadings ” indicate that the claim may be meritless or not covered’ ” … . “[U]pon a motion such as this[,] the court’s duty is to compare the allegations of the complaint to the terms of the policy to determine whether a duty to defend exists” … .

Moreover, “exclusions are subject to strict construction and must be read narrowly” … . “In order to establish that an exclusion defeats coverage, the insurer has the heavy burden’ of establishing that the exclusion is expressed in clear and unmistakable language, is subject to no other reasonable interpretation, and is applicable to the facts” … .

Here, liberally construing the allegations set forth in the second amended complaint in the underlying action … , we conclude that there is a reasonable possibility of coverage, and that defendant therefore did not meet its heavy burden of establishing as a matter of law that the hazardous materials exclusion precludes coverage. The tort plaintiffs alleged in the second amended complaint that the Hillcrest plaintiffs’ operation of the facility “caused a malodorous condition to be created in the surrounding neighborhood.” Although many of the factual assertions in the second amended complaint allege that the odor resulted from hazardous materials, those are not the only factual allegations therein. Indeed, foul odors are not always caused by the discharge of hazardous materials. Inasmuch as there is a reasonable possibility of coverage, the court properly declared that defendant is obligated to defend the Hillcrest plaintiffs in the underlying tort action and ordered defendant to reimburse them for the cost of the defense. Hillcrest Coatings, Inc. v Colony Ins. Co., 2017 NY Slip Op 04613, 4th Dept 6-9-17

 

INSURANCE LAW (TOXIC TORTS, DUTY TO DEFEND, INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS)/TOXIC TORTS (INSURANCE LAW, DUTY TO DEFEND, INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS)/DUTY TO DEFEND (INSURANCE LAW, TOXIC TORTS, INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS)

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GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING FROM A FATAL SHOOTING BY A POLICE OFFICER.

The Fourth Department, reversing Supreme Court, determined the grand jury minutes surrounding a fatal shooting by a police officer should not be released. Decedent’s wife sought the grand jury minutes in a federal civil rights action:

We agree with the County that plaintiff failed to “demonstrat[e] a compelling and particularized need for access’ ” to the grand jury materials… . Such a showing must be made in order to overcome the “presumption of confidentiality [that] attaches to the record of [g]rand [j]ury proceedings” … , and is a prerequisite to the court’s exercise of its discretion in “balanc[ing] the public interest for disclosure against the public interest favoring secrecy” … . Here, plaintiff failed to establish that the discovery proceedings in federal court would not be sufficient to ascertain the facts and circumstances surrounding the shooting … . Williams v City of Rochester, 2017 NY Slip Op 04646, 4th Dept 6-9-17

FREEDOM OF INFORMATION LAW (FOIL) (GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING FROM A FATAL SHOOTING BY A POLICE OFFICER)/GRAND JURY MINUTES (FREEDOM OF INFORMATION LAW, GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING FROM A FATAL SHOOTING BY A POLICE OFFICER)

FAILURE TO PRESERVE AND PHOTOGRAPH THE CONTRABAND REQUIRED ANNULMENT OF THE CONTRABAND AND SMUGGLING DETERMINATIONS.

The Fourth Department annulled the contraband and smuggling determinations because the respondent did not preserve and photograph the items:

We … agree with petitioner that the judgment must be modified with respect to the first misbehavior report by granting the petition in part because respondent failed to preserve and photograph the alleged contraband in violation of Department of Corrections & Community Supervision Directive No. 4910A … , and the error cannot be deemed harmless on this record. Matter of Adams v New York State Dept. of Corr. & Community Supervision, 2017 NY Slip Op 04728, 4th Dept 6-9-17

DISCIPLINARY HEARINGS (INMATES) (FAILURE TO PRESERVE AND PHOTOGRAPH THE CONTRABAND REQUIRED ANNULMENT OF THE CONTRABAND AND SMUGGLING DETERMINATIONS)

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DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY.

The Fourth Department, over a two-justice dissent, determined defendant’s statement should have been suppressed because he was in custody, not warned of his Miranda rights, and was asked questions designed to elicit an incriminating response. However, although the statement he had a firearm should have been suppressed, the firearm would have been discovered even if the statement had not been made (inevitable discovery doctrine). Therefore the firearm need not be suppressed. Even though the conviction was by guilty plea, the court determined the suppression error could not have affected the defendant’s decision to plead guilty and the conviction was affirmed:

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Here, defendant’s statement admitting his possession of the handgun was the tainted primary evidence arising from the unlawful pre-Miranda custodial interrogation and must be suppressed … ; however, the inevitable discovery doctrine applies to the handgun as secondary evidence arising therefrom … . We conclude that there was a ” very high degree of probability’ ” that the officers would have discovered the firearm, which was found inside the right leg of defendant’s pants during a lawful and routine search of defendant’s person prior to his attempted flight … .

Although defendant’s statement admitting to the possession of the firearm should have been suppressed, we conclude that the particular circumstances of this case permit the rare application of the harmless error rule to defendant’s guilty plea … . “[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision, unless at the time of the plea he states or reveals his reason for pleading guilty” … . “The … doctrine is not absolute, however, and [the Court of Appeals has] recognized that a guilty plea entered after an improper court ruling may be upheld if there is no reasonable possibility that the error contributed to the plea’ ” … . In our view, because the firearm was not suppressed and would have been admissible at trial, there is no reasonable possibility that the court’s error in failing to suppress defendant’s statement admitting possession of the firearm contributed to his decision to plead guilty … . People v Clanton, 2017 NY Slip Op 04579, 4th Dept 6-9-17

CRIMINAL LAW (DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/EVIDENCE (SUPPRESSION, INEVITABLE DISCOVERY, (DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/SUPPRESS, MOTION TO (DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/SEARCH AND SEIZURE (INEVITABLE DISCOVERY, DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/GUILTY PLEA (SUPPRESSION ERROR COULD NOT HAVE AFFECTED DECISION TO PLEAD GUILTY, CONVICTION AFFIRMED)/HARMLESS ERROR (GUILTY PLEA, SUPPRESSION ERROR COULD NOT HAVE AFFECTED DECISION TO PLEAD GUILTY, CONVICTION AFFIRMED)

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PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department, reversing County Court, determined the search of defendant’s person after traffic stop was not supported by proof of a valid warrant for defendant’s arrest. Defendant was a passenger in a car stopped by a sheriff’s deputy. The driver was arrested for driving without a license. The deputy then checked the defendant’s “data” and found defendant did not have a license and  there was a warrant for defendant. The defendant was then taken into custody on the warrant and cocaine was found in a pat-down search. The People did not demonstrate that the warrant was valid at the time of the arrest. County Court ruled the search was a valid “safety pat-down” before placing defendant in the police car:

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We agree with defendant that the court erred in upholding the search on the ground that it was a lawful “safety pat-down.” There was no evidence in the record of the hearing to support a conclusion that “defendant had a weapon or was a threat to [the deputy’s] safety” … . Moreover, “[a]lthough a police officer may reasonably pat down a person before he [or she] places [that person] in the back of a police vehicle, the legitimacy of that procedure depends on the legitimacy of placing [the person] in the police car in the first place” … . Here, the People failed to establish the legitimacy of placing defendant in the patrol vehicle. First, the People failed to establish “the existence of a validly-issued and outstanding warrant” … . Once defendant challenged the validity of the warrant by questioning the deputy concerning the status of the warrant and whether it was still valid, the People were “required to make a further evidentiary showing by producing the . . . warrant” (id.). The People did not do so. Thus, without establishing the existence of a valid and outstanding warrant, the People failed to establish the legitimacy of placing defendant in the patrol vehicle … . Although defendant, who did not have a valid driver’s license, could not have driven the stopped vehicle from the scene after the arrest of the driver, the deputy testified that, in the absence of a warrant, defendant could have called for someone to pick him up and therefore could have lawfully refused to be transported away from the scene in the patrol vehicle. People v Richards, 2017 NY Slip Op 04668, 4th Dept 6-9-17

CRIMINAL LAW (PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, PAT-DOWN SEARCH, PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED)

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PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY NEED TO EVALUATE THE EFFECT OF THE ERRORS ON THE CONVICTION.

The Fourth Department reversed defendant’s conviction because of the prosecutor’s misconduct:

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During jury selection, the prosecutor improperly inquired if defendant “look[ed] like an arsonist” because she was dressed in red-colored clothing. During cross-examination, the prosecutor improperly questioned defendant on her inability to make bail, thus indicating that defendant was incarcerated … , and improperly questioned defendant about the conviction of her codefendant husband of the same crime … . The prosecutor also improperly questioned defendant concerning the criminal history of her husband … During summation, the prosecutor commented on the failure of defendant’s husband to testify regarding her financial condition, again implying that her husband had been convicted of the same crime and was incarcerated … . Although County Court sustained many of defense counsel’s objections and gave curative instructions, we cannot conclude on this record that any resulting prejudice was alleviated… .Moreover, even when a trial court repeatedly sustains a defendant’s objections and instructs the jury to disregard certain remarks by the prosecutor, “[a]fter a certain point, . . . the cumulative effect of a prosecutor’s improper comments . . . may overwhelm a defendant’s right to a fair trial”… , and that is the case here. We therefore “must reverse the conviction and grant a new trial, . . . without regard to any evaluation as to whether the errors contributed to . . . defendant’s conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right”  … . People v Hayward-Crawford, 2017 NY Slip Op 04581, 4th Dept 6-9-17

CRIMINAL LAW (ATTORNEYS, PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)/ATTORNEYS (CRIMINAL LAW. PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)

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ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT.

The Fourth Department determined defendants should be sanctioned for spoliation of evidence, but that striking the answer is too severe a sanction. Plaintiff allegedly slipped and fell on stairs which were replaced by defendants at a time when plaintiff’s expert had yet to examine them. Plaintiff, however, had photographs of the stairs and was therefore able to proceed with the suit:

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… [W]e conclude that the court abused its discretion in striking defendants’ answer and granting plaintiff partial summary judgment on liability based on defendants’ destruction of the stairway … . In deciding whether to impose sanctions, and what particular sanction to impose, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness … . The burden is on the party requesting sanctions to make the requisite showing … . “It is well established that a less drastic sanction than dismissal of the responsible party’s pleading may be imposed where[, as here,] the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense’ ” … . Here, the record does not demonstrate that plaintiff has been left ” prejudicially bereft’ ” of the means of prosecuting her action … , given that plaintiff has in her possession, among other evidence of the condition of the stairs, photographs of the stairs taken after the commencement of this action. Thus, we conclude that an appropriate sanction is that an adverse inference charge be given at trial with respect to any now unavailable evidence of the condition of the stairs … . Burke v Queen of Heaven R.C. Elementary Sch., 2017 NY Slip Op 04593, 4th Dept 6-9-17

CIVIL PROCEDURE (NEGLIGENCE, SPOLIATION OF EVIDENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/NEGLIGENCE (CIVIL PROCEDURE, SPOLIATION OF EVIDENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/EVIDENCE (CIVIL PROCEDURE, NEGLIGENCE, SPOLIATION,  ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/SPOLIATION OF EVIDENCE (CIVIL PROCEDURE, NEGLIGENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)

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