You are here: / Fourth Department

Tag Archive for: Fourth Department

COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY.

The Fourth Department determined a house purchased by the husband prior to marriage was his separate property, despite the fact it was used a the marital residence and proceeds from the sale were used to purchase a marital residence. The appreciation in the value of the house, however, was marital property:

It was undisputed that the Seneca Hill Property was purchased by defendant prior to the marriage, and we conclude that it was not transmuted into marital property when the parties used it as the marital residence for approximately two years, or by virtue of defendant having used some of the sale proceeds therefrom to assist in funding the purchase of a new marital residence … . Defendant was therefore entitled to a credit for his separate property contributions to the marital estate … . We further conclude, however, that the appreciated value of the Seneca Hill Property that the court determined to be attributable to the contributions of plaintiff should have been classified as marital property … . Hart v Hart, 2016 NY Slip Op 08692, 4th Dept 12-23-16

FAMILY LAW (MARITAL PROPERTY, COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)/EQUITABLE DISTRIBUTION (MARITAL PROPERTY, COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)/MARITAL PROPERTY (COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)/SEPARATE PROPERTY (EQUITABLE DISTRIBUTION, COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)/APPRECIATION IN VALUE (EQUITABLE DISTRIBUTION, COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)

, ,

DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL.

The Fourth Department, reversing defendant’s convictions for criminal possession of a weapon, determined: (1) defendant was deprived of her right to present a defense when the court precluded questions that could reveal the complainant’s motive to lie; (2) prosecutorial misconduct warranted reversal (considered in the interest of justice; (3) allowing the prosecutor to cross-examine defendant about her failure to turn herself in warranted reversal (considered in the interest of justice); and (4) allowing a witness to refer to defendant as a drug dealer warranted reversal (considered in the interest of justice). With respect to the right to present a defense, the court wrote:

… [W]e conclude that defendant was improperly precluded from establishing that the complainant was engaged in a criminal enterprise and regularly purchased crack cocaine—therefore having good reason to possess a gun as compared to defendant. More importantly, that evidence, if credited by the jury, would demonstrate that the complainant had every reason to fabricate the story that the gun belonged to defendant and not her … . In addition, we conclude that the proffered evidence was admissible to complete the narrative of events, i.e., to provide background information as to how and why the complainant allegedly confronted defendant, and to explain the aggressive nature of the confrontation … . Applying those principles here, we conclude that defendant was denied her constitutional right to present a defense … . People v Horton, 2016 NY Slip Op 08727, 4th Dept 12-23-16

CRIMINAL LAW (DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/DEFENSE, RIGHT TO PRESENT (CRIMINAL LAW, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/PROSECUTORIAL MISCONDUCT (DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/EVIDENCE (CRIMINAL LAW, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)

,

FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL.

The Fourth Department, reversing defendant’s conviction, determined the court’s failure to hold a Sandoval hearing concerning the admissibility of prior uncharged crimes or bad acts as impeachment evidence required reversal. Defendant was in fact cross-examined about prior bad acts strikingly similar to the charges against him. In addition, the trial court erred in allowing testimony of prior consistent statements by the complaining witness, i.e., “bolstering:”

The Criminal Procedure Law provides that, “[u]pon a request by a defendant, the prosecutor shall notify the defendant of all specific instances of a defendant’s prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial for purposes of impeaching the credibility of the defendant” (CPL 240.43). Here, however, the prosecutor failed “to advise defendant before trial that he would be questioned on uncharged acts if he testified[,] and no pretrial inquiry or determination was made by the court . . . Because the court’s failure to conduct a proper pretrial inquiry may have affected defendant’s decision to testify at trial, the error cannot be deemed harmless” … . …

“The term bolstering’ is used to describe the presentation in evidence of a prior consistent statement—that is, a statement that a testifying witness has previously made out of court that is in substance the same as his or her in-court testimony” … . Although “[p]rior consistent statements will often be less prejudicial to the opposing party than other forms of hearsay, since by definition the maker of the statement has said the same thing in court that he said out of it” … , the Court of Appeals has warned that “the admission of prior consistent statements may, by simple force of repetition, give to a [factfinder] an exaggerated idea of the probative force of a party’s case” … . Contrary to the People’s sole contention, “[i]n light of the importance of the witnesses’ credibility in this case . . . , we cannot conclude that the court’s error is harmless” … . People v Memon, 2016 NY Slip Op 08653, 4th Dept 12-23-16

 

CRIMINAL LAW (FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/SANDOVAL HEARING (FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/PRIOR CRIMES AND BAD ACTS (FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/PRIOR CONSISTENT STATEMENTS (CRIMINAL LAW, BOLSTERING, ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/HEARSAY (CRIMINAL LAW, BOLSTERING, ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, BOLSTERING, ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)/BOLSTERING (CRIMINAL LAW, ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL)

,

PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED.

The Fourth Department, reversing defendant’s conviction, determined the for cause challenge to a juror whose son is married to the district attorneys daughter should have been granted. The court further determined that a defense witness’s testimony that the victim said she didn’t “think [defendant] did this” should have been allowed:

… [T]he prospective juror should have been excused from service for cause on the ground that he bears a “relationship to [the District Attorney] of such nature that it [was] likely to preclude him from rendering an impartial verdict” … . …

… [T]he court erred in excluding testimony from a defense witness that the victim had said that she did not “think [defendant] did this,” meaning that defendant did not commit the alleged crime. We conclude that, on cross-examination of the victim, defense counsel had laid an adequate foundation for the admission of that prior inconsistent statement by eliciting testimony that the victim had never discussed the matter with the defense witness and had never told the defense witness that the alleged occurrence “between [her] and [defendant] might not have happened” … . People v Collins, 2016 NY Slip Op 08645, 4th Dept 12-23-16

 

CRIMINAL LAW (PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/JURORS (CRIMINAL LAW, PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/EVIDENCE  (CRIMINAL LAW, PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/PRIOR INCONSISTENT STATEMENT (CRIMINAL LAW, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/HEARSAY (CRIMINAL LAW, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)

,

ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL.

Although deemed harmless error, the Fourth Department determined defendant was denied his right to counsel when the court permitted him to decide whether to request a jury charge on a lesser included offense (despite defense counsel advice that he should not):

“It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case’ such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal’ “… . On the other hand, defense counsel has ultimate decision making authority over matters of strategy and trial tactics, such as whether to seek a jury charge on a lesser included offense … . Here, the court “made plain that [it] would be guided solely by defendant’s choice in the matter, despite the defense attorney’s clearly stated views and advice to the contrary,” and thus the court “denied [defendant] the expert judgment of counsel to which the Sixth Amendment entitles him” … . People v Henley, 2016 NY Slip Op 08729, 4th Dept 12-23-16

CRIMINAL LAW (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/ATTORNEYS (CRIMINAL LAW, ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/RIGHT TO COUNSEL (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/LESSER INCLUDED OFFENSES (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/JURY INSTRUCTIONS (CRIMINAL LAW, ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)

JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED.

The Fourth Department reversed defendant’s conviction because a juror who expressed doubt she could be fair because of her close ties to law enforcement never stated she could put aside her bias toward police officers:

Although the prospective juror responded affirmatively to the court’s question whether she could base her decision in the case on what she heard and saw in the courtroom and the general question whether she could be fair and impartial … , she did not provide an “unequivocal assurance that . . . [she could] set aside [her] bias” toward police officers who would testify at the trial … . People v Griffin, 2016 NY Slip Op 08701, 4th Dept 12-23-16

CRIMINAL LAW (JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED)/JURORS (CRIMINAL LAW,  (JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED)/FOR CAUSE CHALLENGE (CRIMINAL LAW, JURORS, JUROR NEVER STATED SHE COULD PUT ASIDE HER BIAS IN FAVOR OF POLICE OFFICERS, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED)

FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA.

The Fourth Department granted defendant’s motion to withdraw his guilty plea based upon the sentencing court’s failure to completely explain the possible sentences and the discrepancy between the written plea agreement and the court’s oral explanation. The Fourth Department further found that the corrections made to the plea agreement one week after the guilty did not cure the problem. Defendant was not afforded the opportunity to withdraw his plea:

Here, although the court during defendant’s arraignment articulated the terms of a plea offer that included the alternative sentences defendant would receive if he was or was not successful in the Judicial Diversion Program, the court did not state those alternative sentences on the record during the plea colloquy. Specifically, although the court stated during the plea colloquy that defendant would receive a “cap of felony probation if successful[,]” the court did not articulate the sentence that defendant would receive if he was unsuccessful.

Furthermore, the Judicial Diversion Program Contract (Contract) signed by defendant on the date he pleaded guilty contradicts the terms of the plea agreement set forth in the transcript of defendant’s arraignment. …

The Contract was amended and re-signed by defendant one week after defendant’s guilty plea was taken, and the Court of Appeals has made clear that the court must inform the defendant of the direct consequences of a plea “[p]rior to accepting a guilty plea”… . People v Streber, 2016 NY Slip Op 08683, 4th Dept 12-23-16

CRIMINAL LAW (FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA)/GUILTY PLEA, MOTION TO WITHDRAW (FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA)/SENTENCING (FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA)

,

DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA.

The Fourth Department determined a hearing on defendant’s motion to withdraw his guilty plea should have been held. Defendant was charged with assault. 22 days before the assault defendant had undergone brain surgery. In his motion to withdraw his plea, defendant alleged he was told by his attorney the neurosurgeon had refused to testify if a psychiatric defense was raised. However, the neurosurgeon provided an affidavit stating he never spoke to defendant’s attorney and never refused to testify:

It is well settled that the determination whether to grant a motion to withdraw a guilty plea is within the court’s discretion and that a defendant is entitled to an evidentiary hearing only in rare instances … . The denial of such a motion is not an abuse of discretion “unless there is some evidence of innocence, fraud, or mistake in inducing the plea” … . Here, if the allegations in defendant’s affidavit are true, then defendant’s plea was not voluntarily and intelligently entered inasmuch as it was based upon a mistaken belief that a psychiatric defense was unavailable … . We therefore conclude that defendant’s motion was not “patently insufficient on its face” … , and that the court abused its discretion in denying the motion without an evidentiary hearing … . Thus, we hold the case, reserve decision, and remit the matter to County Court for a hearing on defendant’s motion. People v Noce, 2016 NY Slip Op 08632, 4th Dept 12-23-16

CRIMINAL LAW (DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA)/GUILTY PLEA, MOTION TO WITHDRAW (DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA)

PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department determined the street patdown search of defendant was not justified and the cocaine found in the search should have been suppressed. Defendant was a passenger in a car which was legally stopped by the police. Defendant was asked to step out of the car, which was deemed a proper request. Defendant initially refused to get out of the car and demanded an explanation for the request. At that point defendant was seized, pulled from the car, placed face down, hand-cuffed and the patdown search was conducted:

Based upon the evidence at the suppression hearing, we conclude that “the officers did not have any knowledge of some fact or circumstance that support[ed] a reasonable suspicion that the [defendant was] armed or pose[d] a threat to [their] safety’ ” … . Defendant’s evident nervousness as the officers approached the vehicle was not an indication of criminality or a threat to officer safety … . Nor was the patdown justified by the fact that the vehicle was in a high crime area … , particularly when the stop occurred on a busy street during rush hour … . Moreover, “there was no suggestion that a weapon was present or that violence was imminent” … . Finally, neither defendant’s initial refusal to exit the vehicle nor his demand for an explanation why he was being asked to exit the vehicle gave rise to a reasonable suspicion that he posed a threat to the officers’ safety … . People v Ford, 2016 NY Slip Op 08631, 4th Dept 12-23-16

CRIMINAL LAW (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/SEARCH AND SEIZURE (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/STREET STOPS (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/SUFPRESSION (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/PATDOWN SEARCH (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)

PROFESSIONAL WRESTLER ASSUMED RISK OF INJURY WHEN JUMPING FROM THE ROPES INTO THE RING.

The Fourth Department determined the doctrine of primary assumption of the risk precluded recovery by a professional wrestler for injuries resulting from a planned jump from the ropes into the ring:

It is well settled that the primary “assumption of [the] risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks’ ” … . The participant assumes the risks that are inherent in the “sporting or amusement activit[y]” (id.), which “commensurately negates any duty on the part of the defendant to safeguard him or her from the risk” … . Consequently, a participant in such activity ” consents to those commonly appreciated risks which are inherent in and arise out of the nature of the [activity] generally and flow from such participation’ ” … . “[F]or purposes of determining the extent of the threshold duty of care, knowledge plays a role but inherency is the sine qua non” … . Finally, “[t]he primary assumption of the risk doctrine also encompasses risks involving less than optimal conditions . . . It is not necessary to the application of assumption of [the] risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results’ ” … .

Here, the court properly concluded that the risk of severe neck and back injuries is inherent in the planned and staged activity engaged in by plaintiff, i.e., jumping from a four-foot high rope onto a wrestling ring, landing on one’s back, and then being pushed out of the ring by another performer. Thus, “it is indisputable that . . . plaintiff assumed the risk of landing incorrectly when tumbling in the manner he had been trained to do during his [five-year career as a professional wrestling performer]. The fact that the [rope was slightly looser], a circumstance of which . . . plaintiff was plainly aware, does not raise an issue of fact” … . Therefore, “by participating in the [exhibition], plaintiff consented that the duty of care owed him by defendants was no more than a duty to avoid reckless or intentionally harmful conduct . . . [and] consent[ed] to accept the risk of injuries that are known, apparent or reasonably foreseeable consequences of his participation in” that exhibition … , including the risk of the injuries he sustained. Kingston v Cardinal O’Hara High School, 2016 NY Slip Op 07798, 4th Dept 11-18-16

 

NEGLIGENCE (PROFESSIONAL WRESTLER ASSUMED RISK OF INJURY WHEN JUMPING FROM THE ROPES INTO THE RING)/ASSUMPTION OF THE RISK (PROFESSIONAL WRESTLER ASSUMED RISK OF INJURY WHEN JUMPING FROM THE ROPES INTO THE RING)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy