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AFTER REMOVING THE FLASHING AND CAULKING AROUND A SECOND-STORY WINDOW, PLAINTIFF WAS GIVEN PERMISSION TO LOWER THE LIFT TO THE GROUND TO GO THE BATHROOM; THE UNSECURED WINDOW FELL ON HIS HEAD; PLAINTIFF WAS NOT THE SOLE PROXIMATE CAUSE OF THE ACCIDENT AND WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) action. After the flashing and caulking around the second-story window were removed, plaintiff was given permission to go to the bathroom and he lowered the scissors lift he was working from to the ground. The unsecured window fell and struck plaintiff on the head:

… [I]nasmuch as the record establishes that plaintiff and the supervisor were working together on the scissor lift to remove the window by prying off the metal flashing and removing the caulk, and that the supervisor then granted plaintiff permission to use the bathroom and lowered the lift to the ground while leaving the window unsecured on the second story of the building when the window was susceptible to falling, it cannot be said that plaintiff’s conduct was the sole proximate cause of the accident … . We thus conclude that plaintiff’s “conduct during the [window removal] process ‘raises, at most, an issue concerning his comparative negligence, which is not an available defense under Labor Law § 240 (1)’ ” … . Reyes v Episcopal Senior Hous. Greece, LLC, 2023 NY Slip Op 05898, Fourth Dept 11-17-23

Practice Point: Apparently because plaintiff’s supervisor gave plaintiff permission to lower the lift to go to the bathroom, leaving the second-story window he was working on unsecured, plaintiff was not the “sole proximate cause” of the accident (which would preclude Labor Law 240(1) liability). At most he was comparatively negligent, which is not a bar to summary judgment.

 

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MOTHER’S DECLINING HEALTH WAS A FACTOR IN THE COURT’S GRANTING MOTHER’S PETITION TO RECOCATE WITH THE CHILDREN NEAR HER MOTHER IN TENNESSEE; THE DISSENT ARGUED THE REFEREE DID NOT ADEQUATELY CONSIDER THE EFFECT ON VISITATION WITH FATHER AND MOTHER DID NOT MEET HER BURDEN TO SHOW THE CHILDREN WOULD BE BETTER CARED FOR OR BETTER EDUCATED IN TENNESSEE (FOURTH DEPT).

The Fourth Department, over a dissent, determined mother’s petition for sole custody and permission to relocate to Tennessee was properly granted:

... [M]other testified at the hearing that she has been the primary caregiver of the children and that her health has been steadily declining. She further established that the maternal grandmother, who moved to Tennessee in 2021, has provided her with extensive financial assistance, as well as assistance in caring for herself and the children, and that the maternal grandmother would continue to do so if the mother were to relocate closer to the maternal grandmother … . Further, the record establishes that the father has no “accustomed close involvement in the children’s everyday life” … and thus we conclude that the need to “give appropriate weight to . . . the feasibility of preserving the relationship between the noncustodial parent and [the] child[ren] through suitable visitation arrangements” does not take precedence over the need to give appropriate weight to the necessity for the relocation … .

From the dissent:

… [T]he Referee gave disproportionate weight to certain factors and largely ignored the impact of the move on the children’s future contact with the father despite that factor weighing heavily against relocation, given the distance between Clinton County, New York, where the father resides, and Tennessee … . …

… [M]other did not establish that the children’s lives will be enhanced economically, emotionally, or educationally by the move, even if the move would not diminish them … . The mother offered no testimony that the children would receive a better education in Tennessee, and there was no testimony comparing schools in each location … .

The mother also offered no explanation as to why she and the children would be better cared for in Tennessee by the maternal grandmother—who testified that she works approximately 45 to 50 hours per week at multiple jobs in addition to caring for her son’s newborn child—than in New York by the certified caregiver the mother was approved for but has never utilized … . Matter of Martin v Martin, 2023 NY Slip Op 05893, Fourth Dept 11-17-23

Practice Point: Here mother’s declining health was a factor granting mother’s petition to relocate near her mother in Tennessee. The dissent argued the referee ignored the impact of the move on the children’s contact with father and mother did not demonstrate the children would be better cared for or better educated in Tennessee.

 

ATTEMPTED ASSAULT SECOND DEGREE IS A LESSER INCLUSORY CONCURRENT COUNT OF ATTEMPTED ASSAULT FIRST DEGREE; THE TWO COUNTS MUST BE SUBMITTED TO THE JURY IN THE ALTERNATIVE (FOURTH DEPT).

The Fourth Department reversed the attempted assault second conviction as a lesser inclusory concurrent count of attempted assault in the first degree. Defendant had been convicted of both: The two counts should have been submitted to the jury in the alternative. People v Roach, 2023 NY Slip Op 05872, Fourth Dept 11-17-23

 

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PLAINTIFF’S ATTORNEY HAD REPRESENTED THE DEFENDANT IN THIS CASE IN A MATTER INVOLVING SUBSTANTIALLY SIMILAR ALLEGATIONS OF MEDICAL MALPRACTICE; THE MOTION TO DISQUALIFY PLAINTIFF’S ATTORNEY AND THE ATTORNEY’S SMALL LAW FIRM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s attorney, Laraby, and Laraby’s law firm, must be disqualified in this medical malpractice action. Laraby had represented the defendant in this case in a matter involving substantially similar allegations of malpractice:

The plaintiff in the prior representation, whose baby had suffered from essentially the same injuries as plaintiff’s son here, made many of the same allegations of negligence and malpractice against defendant as plaintiff does in this case. Both cases involved whether defendant properly monitored the patients and the babies and made proper decisions regarding oxytocin administration, and whether defendant made the proper decision to continue with vaginal delivery instead of proceeding with a cesarean section. Alternatively, defendant established that Laraby received specific, confidential information in the prior litigation that is substantially related to the present litigation … . In particular, Laraby had access to the litigation strategy to defend defendant against the allegations of malpractice, including speaking with and receiving reports of expert witnesses. Brandice M.C. v Wilder, 2023 NY Slip Op 05871, Fourth Dept 11-17-23

Practice Point: Here plaintiff’s attorney had represented the defendant in this medical malpractice action in a case where the issues were substantially the same. The motion to disqualify the attorney and the attorney’s small law firm should have been granted.

 

IN A MANDAMUS PROCEEDING WHICH IS TRIGGERED BY A DEMAND BY PETITIONER, AN UNREASONABLE DELAY IN MAKING THE DEMAND WILL RENDER THE PROCEEDING TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined petitioner’s Article 78 proceeding was time-barred because petitioner unreasonably delayed making the demand which triggered the four-month statute of limitations (laches):

“[W]here, as here, the proceeding is in the nature of mandamus to compel, it ‘must be commenced within four months after refusal by respondent, upon demand of petitioner, to perform its duty’ ” … . ” ‘[A] petitioner[, however,] may not delay in making a demand in order to indefinitely postpone the time within which to institute the proceeding. The petitioner must make his or her demand within a reasonable time after the right to make it occurs, or after the petitioner knows or should know of the facts which give him or her a clear right to relief, or else, the petitioner’s claim can be barred by the doctrine of laches’ ” … . “The term laches, as used in connection with the requirement of the making of a prompt demand in mandamus proceedings, refers solely to the unexcused lapse of time” and “does not refer to the equitable doctrine of laches” … . Inasmuch as “[t]he problem . . . is one of the [s]tatute of [l]imitations[,] . . . it is immaterial whether or not the delay cause[s] any prejudice to the respondent” … . “[T]he four-month limitations period of CPLR article 78 proceedings has been ‘treat[ed] . . . as a measure of permissible delay in the making of the demand’ ” … . Matter of Cor Van Rensselaer St. Co. III, Inc. v New York State Urban Dev. Corp., 2023 NY Slip Op 05867, Fourth Dept 11-17-23

Practice Point: Where a mandamus proceeding is triggered by a demand by petitioner, an unreasonable delay in making the demand will render the proceeding time-barred.

 

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THE OFFICER WHO CONVINCED DEFENDANT TO CONSENT TO THE SEARCH TOLD THE DEFENDANT HE WOULD BE HAPPY TO APPLY FOR A WARRANT BUT DEFENDANT WOULD BE DETAINED UNTIL THE WARRANT WAS PROCURED; BECAUSE THE POLICE DID NOT HAVE PROBABLE CAUSE FOR A SEARCH WARRANT, THE OFFICER’S STATEMENT WAS MISLEADING; DEFENDANT’S CONSENT TO SEARCH WAS NOT VOLUNTARILY GIVEN (FOURTH DEPT).

The Fourth Department, suppressing the drugs found in defendant’s car and defendant’s related statements, determined the consent to search was not voluntarily given. The officer told the defendant he would be happy to apply for a warrant but defendant would be detained until the warrant was obtained. However, the officer told the defendant, if he consented to the search he would be allowed to leave, even if contraband were found. The officer did not have probable cause to search the car, so his claim he would be happy to procure a warrant was misleading:

… [T]he record establishes that defendant consented to the search of his vehicle with the understanding that, if he refused, the detective would obtain a warrant and search the vehicle anyway, and that in the meantime the vehicle would be detained at the scene. We note that a suspect’s consent to search that is based on threatened action by the police is deemed voluntary only where there are valid legal grounds for the threatened action … . Further, we agree with defendant that the voluntariness of his consent therefore turns on whether the detective could lawfully have obtained a search warrant, which may be issued “only upon a showing of probable cause to believe that a crime has occurred, is occurring, or is about to occur” … .

In our view, the detective did not have probable cause to believe that defendant had committed a crime or that the vehicle contained contraband when defendant consented to the warrantless search, and, thus, the detective’s threat to obtain a search warrant was hollow and misleading. People v Barner, 2023 NY Slip Op 05839, Fourth Dept 11-17-23

Practice Point: If a defendant’s consent to a search is procured by a misleading statement by a police officer, the defendant’s consent is not voluntarily given.

 

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THE PETITIONERS (THREE NYS LEGISLATORS AND AN ADVOCACY GROUP) DID NOT HAVE STANDING TO CHALLENGE THE DEPARTMENT OF HEALTH REGULATIONS ALLOWING ISOLATION AND QUARANTINE DURING THE COVID-19 PANDEMIC (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the three New York State legislators (the legislator petitioners) and the advocacy group (the organizational petitioner) challenging the Department of Health regulations allowing isolation and quarantine during the COVID pandemic did not have standing to bring the petition. Legislators have standing where there has been a usurpation of power by the challenged regulations, not the case here. Advocacy groups have standing if any of its members suffered an injury not suffered by the public at large, not the case here:

… “[C]ases considering legislator standing generally fall into one of three categories: lost political battles, nullification of votes and usurpation of power” … . … “in limited circumstances, legislators do have . . . standing to sue when conduct unlawfully interferes with or usurps their duties as legislators” … . Nonetheless, to confer legislator standing, the alleged action must have caused “a direct and personal injury [that] is . . . within a legislator’s zone of interest and . . . represents a concrete and particularized harm” … .  * * *

… [T]he organization petitioner failed to “articulate any direct injury to its [members], other than the injury every citizen allegedly suffers by reason of the challenged [action] of the . . . executive branch[ ]” … . … [W]e conclude … that the organization petitioner lacks standing to bring the challenge in its own name inasmuch as it “has failed to allege a personally concrete and demonstrable injury distinct from that suffered by the public at large” … . Matter of Borrello v Hochul, 2023 NY Slip Op 05834, Fourth Dept 11-17-23

Practice Point: Essentially, to have standing to challenge a regulation, a legislator and/or an advocacy group must be able to point to a harm separate and apart from harm suffered by other legislators (re: the legislator petitioners) or the public at large (re: the organizational petitioner). Here the legislators and the advocacy group challenging the COVID isolation and quarantine regulations were unable to demonstrate any unique harm.

 

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THE DISPUTE BETWEEN TWO RELIGIOUS ENTITIES COULD NOT BE RESOLVED ON THE BASIS OF NEUTRAL PRINCIPLES OF LAW; THEREFORE COURTS ARE PROHIBITED FROM ADJUDICATING THE MATTER BY THE FIRST AMENDMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the dispute between plaintiff church and defendant, which has some form of supervisory authority over plaintiff church, could not be adjudicated in a court pursuant to the First Amendment:

“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs . . . Civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution” … .

We conclude that none of the relief requested by plaintiff in its complaint may be decided by a court based on neutral principles of law … . Instead, resolution of those issues would “necessarily involve an impermissible inquiry into religious doctrine or practice” … . United Church of Friendship v New York Dist. of Assemblies of God, 2023 NY Slip Op 05090, Fourth Dept 10-6-23

Practice Point: Where the resolution of a dispute between religious entities requires a court to inquire into religious doctrine or practice, the First Amendment prohibits court involvement.

 

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LYING TO AN INVESTIGATOR WHO RECORDS THE LIE IN A REPORT CANNOT BE THE BASIS OF A “FALSIFYING A BUSINESS RECORD” CHARGE; ALTHOUGH THE ISSUE WAS NOT PRESERVED THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction after considering the unpreserved issue in the interest of justice, determined the People did not present legally sufficient evidence of the “falsifying a business record” charge. The People alleged defendant lied to the sheriff who interviewed him resulting in a false entry in the sheriff’s report. The report itself was not entered into evidence:

… [T]o meet its burden, the prosecution relied on testimony from a county sheriff’s office sergeant that, during the investigation into a shooting incident, he recorded his conversation with defendant in a report and the report became part of the business records for the sheriff’s office. The sergeant as well as additional sheriff’s deputies testified that defendant’s version of events conflicted with the concurrent observations of defendant’s gunshot wound by the members of the sheriff’s office. The People’s theory was that, by lying to the sergeant, defendant caused a false entry in the business records of the sheriff’s office. The trial testimony established, however, that the sergeant’s report was written to record the “condition or activity” of the sheriff’s office’s investigation into the shooting (Penal Law § 175.00 [2]). We conclude that there is no valid line of reasoning and permissible inferences from which a rational jury could have concluded beyond a reasonable doubt that the sergeant’s report contained a false record of that investigation. Indeed, the sergeant testified that the report accurately documented defendant’s responses to the sergeant’s investigatory questions. People v Andrews, 2023 NY Slip Op 05085, Fourth Dept 10-6-23

Practice Point: The Appellate Division can consider an unpreserved “legally insufficient evidence” issue.

Practice Point: Lying to an investigator who records the lie in the investigation report cannot be the basis for a “falsifying a business record” charge.

 

IN ORDER FOR THE ARREST IN CORTLAND COUNTY ON A JEFFERSON COUNTY WARRANT TO BE VALID THE WARRANT MUST BE ENDORSED BY A JUDGE IN CORTLAND COUNTY BEFORE THE ARREST; HERE THE WARRANT WAS ENDORSED AFTER THE ARREST (FOURTH DEPT).

The Fourth Department, reversing County Court, determined law enforcement in Cortland County did not have the authority to stop defendant’s vehicle and “detain” him on a Jefferson County arrest warrant which had not yet been endorsed by a town justice in Cortland County. To constitute a valid arrest, the warrant must have been endorsed in Cortland County before, not after, the arrest:

… [T]he statute provides that an arrest warrant issued by a city court, a town court, or a village court may be executed “[a]nywhere else in the state upon the written endorsement thereon of a local criminal court of the county in which the arrest is to be made” (CPL 120.70 [2] [b] …). As defendant correctly contends, inasmuch as “[t]he use of the future tense . . . indicates that the statute was intended to relate to [the] future act” of an arrest, the plain meaning of the statutory language indicates that the requisite endorsement must be obtained prior to execution of a subject arrest warrant in a non-issuing or non-adjoining county … . People v Burke, 2023 NY Slip Op 05083, Fourth Dept 10-6-23

Practice Point: When the counties are not contiguous, the arrest in one county on a warrant issued in another county will only be valid if the out-of-county warrant is first endorsed by a judge in the county where the arrest is made.

 

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