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IN THIS DRUG OFFENSE TRIAL, COURT SHOULD NOT HAVE ALLOWED IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR DRUG-RELATED CONVICTIONS.

Although the error was deemed harmless, the Fourth Department determined the People should not have been allowed, in this drug-offense trial, to impeach defendant with evidence of his prior drug-related convictions:

We agree with defendant that the court abused its discretion in ruling that the People could impeach him using his prior drug-related convictions and their underlying facts. In determining whether the People may impeach a defendant using prior criminal acts, a court must balance the probative value of the evidence on the issue of credibility against the risk of undue prejudice, as measured by the potential impact of the evidence and the possibility that its introduction would deter defendant from testifying in his or her defense (see People v Sandoval, 34 NY2d 371, 376-377). Certain factors should be considered, such as the prior conviction’s temporal proximity, the degree to which the prior conviction bears upon the defendant’s truthfulness, and the extent to which the prior conviction may be taken as evidence of the defendant’s propensity to commit the crime charged (see id.). It is well recognized that ” in the prosecution of drug charges, interrogation as to prior narcotics convictions . . . may present a special risk of impermissible prejudice because of the widely accepted belief that persons previously convicted of narcotics offenses are likely to be habitual offenders’ ” … . Here, the record reveals that the court considered only the temporal proximity of the prior convictions and defendant’s willingness to place his interests above those of society in general … . There is no indication that the court considered the special risk that defendant’s prior drug-related convictions might be taken by the jury as evidence of his propensity to commit the crime charged … . People v Brown, 2017 NY Slip Op 02190, 4th Dept 3-24-17

CRIMINAL LAW (IN THIS DRUG OFFENSE TRIAL, COURT SHOULD NOT HAVE ALLOWED IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR DRUG-RELATED CONVICTIONS)/EVIDENCE (CRIMINAL LAW, SANDOVAL, IN THIS DRUG OFFENSE TRIAL, COURT SHOULD NOT HAVE ALLOWED IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR DRUG-RELATED CONVICTIONS)/SANDOVAL (IN THIS DRUG OFFENSE TRIAL, COURT SHOULD NOT HAVE ALLOWED IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR DRUG-RELATED CONVICTIONS)

ATTEMPTED ASSAULT IN THE FIRST DEGREE COULD NOT SERVE AS A PREDICATE FOR CONVICTION OF CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE.

The Fourth Department noted that attempted assault in the first degree cannot serve as a predicate for conviction of criminal use of a firearm in the second degree:

… [T]he use or display of the firearm while committing the class C felony of attempted assault in the first degree cannot serve as the predicate for his conviction of criminal use of a firearm in the second degree inasmuch as the use or display of that same firearm satisfied an element of attempted assault in the first degree … . Although defendant failed to preserve that contention for our review … , we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]), and we modify the judgment by reversing that part convicting him of criminal use of a firearm in the second degree and dismissing that count of the indictment. People v Butler, 2017 NY Slip Op 02186, 4th Dept 3-24-17

CRIMINAL LAW (ATTEMPTED ASSAULT IN THE FIRST DEGREE COULD NOT SERVE AS A PREDICATE FOR CONVICTION OF CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE)/ASSAULT (ATTEMPTED ASSAULT IN THE FIRST DEGREE COULD NOT SERVE AS A PREDICATE FOR CONVICTION OF CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE)/FIREARM, CRIMINAL USE OF (ATTEMPTED ASSAULT IN THE FIRST DEGREE COULD NOT SERVE AS A PREDICATE FOR CONVICTION OF CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE)

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DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR.

In the context of a suit against the county, the Fourth Department determined the deliberative process privilege (also called the inter-agency or intra-agency materials exception) which applies to documents requested under the Freedom of Information Law does not apply to discovery request under the CPLR:

Both the CPLR and FOIL provide for disclosure of documents. The former controls discovery between litigants in court proceedings, and the latter permits disclosure of governmental records to the public even in the absence of litigation. “When a public agency is one of the litigants, this means that it has the distinct disadvantage of having to offer its adversary two routes into its records” … . The deliberative process privilege or exemption under FOIL seeks “to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers” … . While some courts have applied that privilege outside the FOIL context … , we decline to do so inasmuch as the Court of Appeals “has never created nor recognized a generalized deliberative process privilege’ ” … .

We “recognize[] the existence of some cases which all too casually mention the deliberate process privilege’ and purport to apply it outside the context of a FOIL proceeding” … . Nevertheless, it is also important to recognize that “privileges simply do not exist in the absence of either constitutional or statutory authority, or, when created as a matter of jurisprudence” … . Although the County seeks to assert “the so-called deliberative process privilege[,]’ ” in the context of a civil litigation, “neither the Court of Appeals’ case law nor that of the [Fourth] Department can be construed [as] having created a distinct deliberate process privilege’ outside the context of a FOIL proceeding” … . Mosey v County of Erie, 2017 NY Slip Op 02201, 4th Dept 3-24-17

 

CIVIL PROCEDURE (DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/FREEDOM OF INFORMATION LAW (FOIL) (DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/MUNICIPAL LAW (DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/DELIBERATIVE PROCESS PRIVILEGE (FOIL, DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/INTER OR INTRA AGENCY EXCEPTION (FOIL, DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)

NEGLIGENT BRAKING BY TRUCK DRIVER, IN RESPONSE TO A COLLISION WITH A THIRD PARTY, MAY HAVE BEEN A PROXIMATE CAUSE OF THE COLLISION BETWEEN THE TRUCK AND PLAINTIFFF. 

The Fourth Department, reversing Supreme Court, determined plaintiff’s expert had raised a question of fact about whether the actions of defendant truck driver (negligent application of the brakes) contributed to the accident:

… [A] tractor-trailer … driven by Mark C. Shaw … collided with a car driven by defendant Robin F. Lewis … , after Lewis made a sudden left turn in front of the tractor-trailer. After that initial collision, the tractor-trailer jackknifed, collided with plaintiff’s car, and ended up in a ditch on the opposite side of the road, on top of plaintiff’s car.

We agree with plaintiff that Supreme Court erred in granting defendants’ motion insofar as it sought summary judgment dismissing the complaint against them on the ground that Lewis’s conduct was the sole proximate cause of the collision. Even assuming, arguendo, that defendants met their initial burden of establishing their entitlement to judgment as a matter of law, we conclude that plaintiff raised triable issues of fact by submitting the affidavit of an expert forensic examiner … . Plaintiff’s expert opined within a reasonable degree of professional certainty that Shaw’s conduct was a proximate cause of the collision with plaintiff’s vehicle because he inappropriately and negligently applied the brakes, which caused the tractor-trailer to jackknife after the initial impact with Lewis’s vehicle. The expert’s opinion was not based on speculation, but was supported by voluminous deposition testimony, police reports, and the New York State Commercial Driver’s Manual … . Pacino v Lewis, 2017 NY Slip Op 01099, 4th Dept 2-10-17

 

NEGLIGENCE (NEGLIGENT BRAKING BY TRUCK DRIVER, IN RESPONSE TO A COLLISION WITH A THIRD PARTY, MAY HAVE BEEN A PROXIMATE CAUSE OF THE COLLISION BETWEEN THE TRUCK AND PLAINTIFFF)/TRAFFIC ACCIDENTS (NEGLIGENT BRAKING BY TRUCK DRIVER, IN RESPONSE TO A COLLISION WITH A THIRD PARTY, MAY HAVE BEEN A PROXIMATE CAUSE OF THE COLLISION BETWEEN THE TRUCK AND PLAINTIFFF)/TRUCKS (TRAFFIC ACCIDENTS, NEGLIGENT BRAKING BY TRUCK DRIVER, IN RESPONSE TO A COLLISION WITH A THIRD PARTY, MAY HAVE BEEN A PROXIMATE CAUSE OF THE COLLISION BETWEEN THE TRUCK AND PLAINTIFFF)

TRIPPING OVER EDGE OF A RUG NOT ACTIONABLE, NO SHOWING RUG DEFECTIVE OR DANGEROUS.

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted in this slip and fall case. Although plaintiff’s foot apparently “picked up” the corner of a rug, there was no showing the rug was defective or dangerous:

Although the rug may not have been designed to be placed over another rug or the recessed mat system, the video of the incident, which was submitted in opposition to the motion, shows that decedent tripped over the front edge of the rug. There is no indication that the rug slipped, and there is no record evidence that the rug constituted a defective or dangerous condition at the time of the fall. We conclude that “the mere placement of the [rug] by the front door of the defendant’s premises was not an inherently dangerous condition” … . Slattery v Tops Mkts., LLC, 2017 NY Slip Op 01078, 4th Dept 2-10-17

NEGLIGENCE (TRIPPING OVER EDGE OF A RUG NOT ACTIONABLE, NO SHOWING RUG DEFECTIVE OR DANGEROUS)/SLIP AND FALL (TRIPPING OVER EDGE OF A RUG NOT ACTIONABLE, NO SHOWING RUG DEFECTIVE OR DANGEROUS)/RUGS (SLIP AND FALL, TRIPPING OVER EDGE OF A RUG NOT ACTIONABLE, NO SHOWING RUG DEFECTIVE OR DANGEROUS)

NO PRETRIAL NOTICE OF IDENTIFICATION TESTIMONY BY A POLICE OFFICER, CONVICTION REVERSED.

The Fourth Department, reversing defendant’s conviction, determined the identification testimony of a police officer should not have been admitted because pretrial notice of the identification had not been provided to the defendant:

We agree with defendant … that the court erred in permitting the officer to identify defendant as the person in the left rear seat of the vehicle in the absence of a notice pursuant to CPL 710.30 (1) (b). We therefore reverse the judgment and grant that part of the omnibus motion seeking preclusion of that testimony on the ground that the People failed to serve a notice pursuant to CPL 710.30 (1) (b). The prosecutor advised the court and defense counsel after jury selection that the officer would identify defendant as the left rear passenger. Defendant objected and the court conducted a hearing, over defendant’s objection, and determined that the officer’s identification of defendant by means of a single photo approximately two hours after the incident was merely confirmatory and thus that no notice was required pursuant to CPL 710.30 (1) (b).

The exception to the requirement to provide notice pursuant to CPL 710.30 “carries significant consequences” … , and the Court of Appeals has “consistently held that police identifications do not enjoy any exemption from the statutory notice and hearing requirements” … . Unlike the buy-and-bust scenario, where the police participant is focused on the face-to-face contact with defendant with the goal of identifying him or her when he or she is picked up by a back up unit … , here, the officer was standing by the vehicle for approximately three minutes while he was engaged with all of the occupants of the vehicle. Thus, “we cannot conclude that the circumstances of [the officer’s] initial viewing were such that, as a matter of law, the subsequent identification could not have been the product of undue suggestiveness” … . Indeed, “the statute contemplates pretrial resolution of the admissibility of identification testimony’ ” … , and “[t]o conclude otherwise directly contravenes the simple procedure that has been mandated by the Legislature and would permit the People to avoid their statutory obligation merely because a police officer’s initial viewing of a suspect and a subsequent identification might be temporally related” … . People v Clay, 2017 NY Slip Op 01074, 4th Dept 2-10-17

 

CRIMINAL LAW (NO PRETRIAL NOTICE OF IDENTIFICATION TESTIMONY BY A POLICE OFFICER, CONVICTON REVERSED)/IDENTIFICATION (CRIMINAL LAW, NO PRETRIAL NOTICE OF IDENTIFICATION TESTIMONY BY A POLICE OFFICER, CONVICTON REVERSED)

FALL FROM TRUCK BED 20 INCHES ABOVE THE GROUND NOT COVERED BY LABOR LAW 240 (1).

The Fourth Department, reversing Supreme Court, determined plaintiff’s fall from a truck bed was not the type of elevation risk covered by Labor Law 240 (1):

Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Joseph T. Grabar (plaintiff) when the trailer on which plaintiff was standing tipped, and he fell. Plaintiff was on the bed of the trailer in order to place fuel in a welder that was located on the trailer, and it is undisputed that the trailer bed was approximately 20 inches from the ground. …

We conclude that the trailer “did not present the kind of elevation-related risk that the statute contemplates” … . Grabar v Nichols, Long & Moore Constr. Corp., 2017 NY Slip Op 01068, 4th Dept 2-10-17

 

LABOR LAW-CONSTRUCTION LAW (FALL FROM TRUCK BED 20 INCHES ABOVE THE GROUND NOT COVERED BY LABOR LAW 240 (1))

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UNAMBIGUOUS TERM OF INSURANCE CONTRACT CAPPING PAYMENT FOR WATER DAMAGE SHOULD HAVE BEEN ENFORCED.

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the terms of the insurance policy were not ambiguous and the $25,000 cap for water damage applied:

It is well-settled that insurance contracts are construed “in light of common speech’ and the reasonable expectations of a businessperson” … . “[U]nambiguous provisions of an insurance contract must be given their plain and ordinary meaning” … . We conclude that the contract language at issue here is not ambiguous. By its plain terms, the contract limits coverage to $25,000 for damage caused when ground water enters the basement through a gap, hole, or opening in the wall, and the conduit clearly falls within the water damage exclusion and endorsement … . Papa v Associated Indem. Corp., 2017 NY Slip Op 01118, 4th Dept 2-10-17

INSURANCE LAW (UNAMBIGUOUS TERM OF INSURANCE CONTRACT CAPPING PAYMENT FOR WATER DAMAGE SHOULD HAVE BEEN ENFORCED)/CONTRACT LAW (iNSURANCE LAW, UNAMBIGUOUS TERM OF INSURANCE CONTRACT CAPPING PAYMENT FOR WATER DAMAGE SHOULD HAVE BEEN ENFORCED)

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DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION.

The Fourth Department, reversing Supreme Court, determined the New York State Department of Human Rights’ (SDHR’s) ruling, without a hearing, there was no probable cause to believe petitioner was discriminated or retaliated against because of her disability was not arbitrary or capricious and had a rational basis:

“Where, as here, SDHR renders a determination of no probable cause without holding a hearing, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious or lacked a rational basis’ ” … . We agree with respondent that the court erred in disturbing SDHR’s determination based upon, inter alia, its failure to conduct a hearing. “Courts give deference to SDHR due to its experience and expertise in evaluating allegations of discrimination” … , and “such deference extends to [SDHR’s] decision whether to conduct a hearing” … . SDHR has the discretion to determine the method to be used in investigating a claim, and “a hearing is not required in all cases” … . Inasmuch as “the parties made extensive submissions to [SDHR], petitioner was given an opportunity to present [her] case, and the record shows that the submissions were in fact considered, the determination cannot be arbitrary and capricious merely because no hearing was held’ … . * * *

Here, we conclude that “the conflicting evidence before SDHR did not create a material issue of fact that warranted a formal hearing” … . Rather, we agree with respondent that a rational basis supports SDHR’s determination that, based upon all of the facts and circumstances, there is no factual basis in the evidence sufficient to warrant a cautious person to believe that respondent unlawfully discriminated against petitioner based on her disability ,,, . In addition, SDHR rationally determined that the evidence did not support petitioner’s allegation that respondent subjected her to a hostile work environment … . Finally, we conclude that SDHR’s determination that there was no probable cause to believe that respondent retaliated against petitioner is not arbitrary or capricious, and it has a rational basis in the record … . Matter of McDonald v New York State Div. of Human Rights, 2017 NY Slip Op 01060, 4th Dept 2-10-17

 

EMPLOYMENT LAW (DISABILITY DISCRIMINATION, DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION)/HUMAN RIGHTS LAW (NYS) (EMPLOYMENT DISCRIMINATION, DISABILITY DISCRIMINATION, DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION)/DISABILITIES (EMPLOYMENT DISCRIMINATION, HUMAN RIGHTS LAW, DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION)

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GLAZIERS ENROLLED IN AN APPRENTICE PROGRAM SHOULD BE PAID AS APPRENTICES EVEN IF THE WORK FOR WHICH THEY ARE PAID IS NOT IN THE SAME TRADE AS THE APPRENTICESHIP PROGRAM.

The Fourth Department, over a dissent, determined the Department of Labor’s interpretation of a statute was wrong and reversed. The case concerned whether glaziers enrolled in an apprentice program should be paid as apprentices even if the work for which they are paid is not in the same trade or occupation as the apprenticeship program:

In reviewing Labor Law § 220 as a whole, we conclude that nothing in that statute establishes any basis for a different interpretation of section 220 (3-e). Rather, we note that the very limitation defendants seek to impose on section 220 (3-e), i.e., a limitation to work in the same trade or occupation, was added to other subdivisions of Labor Law § 220 (see § 220 [3] [a], [b]). When “the Legislature uses unlike terms in different parts of a statute it is reasonable to infer that a dissimilar meaning is intended” … . The fact that the Legislature did not add similar restrictive language to section 220 (3-e) further supports our conclusion that no such restriction was intended, and this Court will not “amend [the] statute by inserting words that are not there” … .

Inasmuch as “the language of [the] statute is clear and unambiguous, [we] must give effect to its plain meaning” … , and we may not “resort to extrinsic material such as legislative history or memoranda” … . We thus conclude that Labor Law § 220 (3-e), by its terms, permits glazier apprentices who are registered, individually, under a bona fide glazier apprenticeship program to work and be paid as apprentices even if the work they are performing is not work in the same trade or occupation as their apprenticeship program. International Union of Painters & Allied Trades v New York State Dept. of Labor, 2017 NY Slip Op 01112. 4th Dept 2-10-17

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