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Eugenics Argument Should Be Rejected in a Lead-Paint Poisoning Case/Notice Criteria Explained

In a lead-paint poisoning case, the Fourth Department determined that the trial court’s denial of plaintiff’s motion to preclude the defendant from “claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]” was not appealable. But Justice Fahey made it clear in a concurring opinion that the eugenics argument should be rejected.  In addition the Fourth Department explained the notice criteria in lead-paint cases:

We note at the outset that the appeal from the order insofar as it denied that part of the motion seeking to “preclud[e] defendants’ attorneys and hired experts from claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]” must be dismissed.  “ ‘[A]n evidentiary ruling, even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission’ ”… .

[Justice Fahey, in a concurring opinion, wrote:] … I am troubled by the concept that an individual’s family history may be relevant to establishing a baseline for the purpose of measuring cognitive disability or delay.  I acknowledge that an explanation for cognitive problems may arise from one’s personal history, but as a conceptual and general matter I cannot agree with the principle of the eugenics defense that defendants propose here.  To my mind, the family of a plaintiff in a lead paint case does not put its medical history and conditions at issue, and the attempt to establish biological characteristics as a defense to diminished intelligence, i.e., a eugenics argument, cannot be countenanced and is something I categorically reject.

[With respect to notice, the Fourth Department explained:] .  “It is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” … .  Under the circumstances of this case, we conclude that there is an issue of fact whether defendants had notice of the dangerous lead paint condition in the subject apartment “for such a period of time that, in the exercise of reasonable care, it should have been corrected” …  With respect to constructive notice, we note that the Court of Appeals in Chapman v Silber (97 NY2d 9, 15) wrote that constructive notice of a hazardous, lead-based paint condition may be established by proof “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before leadbased interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment.” Heyward v Shanne, 1358, 4th Dept 2-7-14

 

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Defense Counsel’s Failure to Move for Suppression Constituted Ineffective Assistance

The Fourth Department determined that the failure of defense counsel to make a suppression argument constituted ineffective assistance of counsel:

The facts of this case are similar to those in People v Clermont (22 NY3d 931), where the Court of Appeals held that the defendant was deprived of effective assistance of counsel at his suppression hearing.  The Court reasoned that defense counsel’s failure to marshal the facts adduced at the hearing, “coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression” (id. at 933).  * * *

Here, as in Clermont, suppression was the only viable defense strategy.  Nevertheless, defense counsel inexplicably failed to move for suppression of the cocaine or the knife seized by the police from defendant’s vehicle.  Defense counsel also failed to move for suppression of defendant’s incriminating statement to the officer about the knife, which the court thereafter suppressed in response to defendant’s pro se motion.  Like the attorney in Clermont, defense counsel did not marshal the facts for the court, made no legal argument regarding suppression, and submitted no post-hearing memorandum.  In short, as in Clermont, defense counsel “never supplied the hearing court with any legal rationale for granting suppression” (id. at 933).  People v Layou, 1309, 4th Dept 2-7-14

 

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Court Should Have Granted a Hearing on Defendant’s Motion to Vacate His Conviction on Ineffective-Assistance Grounds

The Fourth Department determined defendant’s 440 motion to vacate his conviction should not have been denied without a hearing:

Defendant’s submissions “tend[ ] to substantiate all the essential facts” necessary to support his claim of ineffective assistance of counsel (CPL 440.30 [4] [b]). Moreover, his allegations are not contradicted by a court record and are supported by other affidavits, and “it cannot be said that ‘there is no reasonable possibility that [they are] true’ ” …   Specifically, defendant averred that defense counsel advised him that, if he pleaded guilty and cooperated with the District Attorney’s office in its investigation of other criminal matters, he would receive a sentence of no more than five years of incarceration.  Three other people averred that defense counsel told defendant’s fiancé, mother and father that defendant would receive “no more than” a five-year sentence.  At the time of the plea, the court informed defendant that the agreed-upon sentence was a term of incarceration of 10 years, but noted that it would approve a lesser sentence if one were recommended by the People “based upon any cooperation [from defendant that the People] deem[ed] satisfactory and helpful.”  After defendant met with representatives of the District Attorney’s office to fulfill his obligation under the cooperation agreement, the court sentenced him to a term of incarceration of 10 years.  According to defendant, defense counsel miscommunicated to him the level of cooperation necessary for the People to recommend a lesser sentence and misled him concerning what his sentence would be if he entered a plea to the indictment. The affidavits submitted by defendant in support of the motion raise factual issues that require a hearing … .  People v Hill, 108, 4th Dept 2-7-14

 

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Counsel’s Failure to Object to References to Defendant’s Nickname Constituted Ineffective Assistance/Court’s Dismissal of an Entire Jury Panel Was Reversible Error

The Fourth Department reversed defendant’s conviction finding defense counsel ineffective for failure to object to the repeated references (by witnesses and the prosecutor) to the defendant’s nickname “killer.”  In addition, the Fourth Department determined the trial judge committed reversible error when he dismissed an entire jury panel:

Where, as here, a jury panel is “properly drawn and sworn to answer questions truthfully, there must be legal cause or a peremptory challenge to exclude a [prospective] juror” (…see CPL 270.05 [2]).  By dismissing the entire jury panel without questioning the ability of the individual prospective jurors to be fair and impartial …, the court deprived defendant of a jury chosen “at random from a fair cross-section of the community” (Judiciary Law § 500…). People v Collier, 8, 4th Dept 2-7-14

 

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Hearsay Statements Exonerating Defendant Properly Excluded as Not Meeting the Reliability Requirement for a “Statement Against Penal Interest”

Over a dissent, the Fourth Department determined the accomplice’s hearsay statements exonerating the defendant were properly excluded from evidence because they did not meet the “reliability” requirement for “statements against penal interest:”

We … note that the Court of Appeals has recently reiterated that there are four components to the declaration against penal interest exception to the hearsay rule: “(1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability” ….  Jerome Prince, Richardson on Evidence sets forth a fifth component, i.e., that the declarant “had no probable motive to misrepresent the facts” (Jerome Prince, Richardson on Evidence § 8-403 [Farrell 11th Ed 2008]).  To the extent that component should be part of our calculus here, we conclude that it weights our determination even more heavily in the People’s favor. People v McArthur, 1249, 4th Dept 1-3-14

 

Question of Fact About Negligent Operation of a Ski Lift

The Fourth Department determined plaintiffs had raised a question of fact about whether the operators of a ski lift were negligent in failing to notice plaintiff’s skis were entangled as they approached the point where they were to get off the lift.  Supreme Court had determined the cause of action was prohibited by the assumption of the risk doctrine:

It is beyond debate that there is inherent risk of injury to participants in downhill skiing . . . Moreover, there is undoubtedly some risk of injury inherent in entering, riding and exiting from a chairlift at a ski resort.  However, . . . the latter is not of such magnitude as to eliminate all duty of care and thereby insulate the owner from claims of negligent supervision and training of the lift operator or negligent maintenance and operation of the lift itself since such negligence may unduly enhance the level of the risk assumed” (…see General Obligations Law § 18-101…). …

We conclude … that defendants’ own submissions raised triable issues of fact whether they were negligent in their operation of the chairlift, thereby unduly enhancing the risk to plaintiff … . … Upon reaching the sign directing passengers to prepare to unload, plaintiff noticed that her skis were entangled with her son’s skis.  Defendants did not slow or stop the chairlift, and plaintiff was unable to unload from the chairlift before it passed the unloading area.  Plaintiff was injured when she either jumped or was thrown from the chairlift before it reached the safety gate that would have stopped the chairlift.  Tone v Song Mountain Ski Center…, 1377, 4th Dept 1-3-14

 

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Plaintiff Did Not Raise Question of Fact About Whether Municipality Had Notice of Sidewalk Defect and Was Affirmatively Negligent

The Fourth Department, over a dissent, determined the plaintiff failed to raise a question of fact about whether the municipality created a dangerous condition by placing a piece of plywood over a hole in a sidewalk.  There was evidence the municipality had received a work order for the area in question and the area was inspected but no problem was found.  There was no evidence the municipality was responsible for placing the plywood over the hole:

Contrary to plaintiff’s contention, the court properly determined that the City’s prior written notice requirement applies inasmuch as the area where the accident occurred is part of the sidewalk … .  Because the City established in support of its motion that it did not receive prior written notice, the burden shifted to plaintiff to demonstrate the applicability of an exception to that requirement … .  We agree with defendants that the court erred in determining that plaintiff met that burden by establishing that such an exception applies, i.e., that the City was affirmatively negligent … .  Although plaintiff submitted a preaccident “work order” to the City for the location in question, she failed to adduce any evidence that the City placed the plywood over the hole in which she fell.  Further, the City established that, in response to the “work order,” it dispatched an employee who testified that he inspected the area in question, found nothing wrong with it, and performed no work. Thus, plaintiff failed to raise an issue of fact “whether the City created a defective condition within the meaning of the exception” to defeat defendants’ motion … . Pulver v City of Fulton …, 1086, 4th Dept 1-3-14

 

The Destruction of Decedent’s Body in a Trash Compactor Gave Rise to a Cause of Action for Loss of Sepulcher

The Fourth Department determined plaintiff, decedent’s sister, had stated a cause of action for loss of sepulcher.  The decedent was crushed to death after falling into a trash compactor provided by the defendants.  His body was never recovered.  The court noted that adult children have “priority” over a sibling to bring an action for loss of sepulcher, but both have standing to do so.  Although decedent’s sister has standing to bring the action, she will have to demonstrate she has “priority” at trial (there was no indication the adult children sought to exercise the right to bring the action):

“It is well established that the common-law right of sepulcher gives the next of kin the absolute right to the immediate possession of a decedent’s body for preservation and burial, and that damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body” … .  “To establish a cause of action for interference with the right of sepulcher, plaintiff must establish that:  (1) plaintiff is the decedent’s next of kin; (2) plaintiff had a right to possession of the remains; (3) defendant interfered with plaintiff’s right to immediate possession of the decedent’s body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish, which is generally presumed” … . Shepherd v Whitestar Development Corp…, 1144, 4th Dept 1-3-14

 

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Twenty-Two-Year-Old Conviction Reversed Because of Ineffective Assistance of Counsel

The Fourth Department, over a two-justice dissent, reversed defendant’s 1992 conviction.  The conviction had already been upheld on appeal.  But, in 2012, a writ of coram nobis was brought arguing defendant did not receive a fair trial because of the ineffectiveness of his counsel.  The writ was granted and, on appeal, the court determined defendant was entitled to a new trial.  Defense counsel was deemed ineffective (1) for failure to object to the elicitation of testimony about a threat which had been precluded by the trial judge, and (2) for using a flawed alibi defense (referring to the wrong days of the week) which gave the jury the impression the alibi witnesses were testifying falsely:

We conclude that “defendant has demonstrated the absence of any strategic or other legitimate explanation for his attorney’s” failure to object to the introduction of this prejudicial and previously precluded testimony … .  Moreover, after defense counsel failed to object to the admission of that precluded testimony, the prosecutor continued to use that testimony to full advantage, arguing on summation that the threat to the prosecution witness “puts the [d]efendant [at the crime scene] just as easily as any person you saw in there” … .  Defense counsel’s error in failing to object to the testimony of the prosecution witness “simply cannot be construed as a misguided though reasonably plausible strategy decision” …, and “ ‘is sufficiently serious to have deprived defendant of a fair trial’… . * * *

Presenting an alibi defense for the wrong date or time has been found, by itself, to constitute ineffective assistance of counsel … .  We conclude that presenting an alibi defense for the wrong day of the week, as occurred here, similarly constitutes ineffective assistance of counsel inasmuch as offering patently erroneous alibi testimony cannot be construed as a plausible strategy… . People v Jarvis, 1009, 4th Dept 1-3-14

 

Decedent’s Divorce Did Not Invalidate Provisions of Her 1996 Will Which Made Her Former Father-In-Law the Alternate Executor and Alternate Beneficiary/Proof Was Insufficient to Demonstrate the 1996 Will Had Been Revoked by a Lost Will

In a full-fledged opinion by Justice Scudder, over a lengthy dissent by Justice Peradotto, the Fourth Department affirmed Surrogate’s Court’s determination that a 1996 will must be admitted to probate and any provisions of the will not affected by decedent’s divorce must be honored.  The petitioner was the (divorced) decedent’s former father-in-law who was named alternate executor and alternate beneficiary of the 1996 will.  Under New York law, decedent’s divorce revoked the testamentary distribution to her ex-husband and revoked her ex-husband’s appointment as executor, but the provisions of the will relating to decedent’s former father-in-law remained viable. The objectants argued that the 1996 will had been revoked by a subsequent will which was lost. The Fourth Department found that there was insufficient evidence presented at the hearing to show that the lost will was duly executed and attested and, therefore, there was insufficient evidence the prior will had been revoked:

Pursuant to New York law, the testamentary distribution to the ex-husband and his appointment as executor are revoked, but all other provisions of the will remain valid (see EPTL 5-1.4 [a], [b]…). * * *

We are constrained to conclude that the evidence at the hearing is insufficient to establish that the Lost Will was duly executed and attested … .  With respect to New York’s EPTL 3-2.1, there was no testimony that the document was signed or acknowledged by decedent in the presence of the witnesses. Furthermore, there was no evidence that decedent declared to the witnesses that the document was her will.  Finally, although the neighbor testified that decedent’s signature appeared on the document, there was no evidence that the signature was at the end of the document. Matter of Lewis…, 1170, 4th Dept 1-3-14

 

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