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FLIGHT ALONE DID NOT JUSTIFY THE PURSUIT AND SEARCH OF DEFENDANT IN A STREET STOP (FOURTH DEPT).

The Fourth Department determined that a .22 caliber magazine found in defendant’s pocket in a street stop should have been suppressed. Although the defendant fled, that alone was not enough to justify the search and seizure:

… [T]he police witness testified that he received a report that two black males wearing dark clothing had fled the scene of an armed robbery. Soon after receiving the report, while driving in the vicinity of the incident, the officer observed two individuals in dark clothing, who fled as soon as the officer stopped his vehicle. The officer could not determine the gender or race of the individuals as he approached because they were facing away from him. Assuming, arguendo, that police lawfully approached defendant and the second individual to request information about the robbery … , we conclude that the subsequent pursuit of defendant was unlawful. The officer’s testimony did not establish that he determined that the individuals matched the sex or race of the robbery suspects before he undertook pursuit, and the evidence was therefore insufficient to demonstrate that the officer had ” ‘a reasonable suspicion that defendant ha[d] committed or [was] about to commit a crime’ ” … . Although defendant ran from the officer, “[f]light alone is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry” … . People v Austin, 2023 NY Slip Op 01442, Fourth Dept 3-17-23

Practice Point: The flight of someone approached by the police on the street, standing alone, is not enough to justify a pursuit, seizure and search of the person.

 

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PLAINTIFF’S ACTION RELIED ON EXTRINSIC EVIDENCE AND WAS NOT AN ACTION FOR THE PAYMENT OF MONEY ONLY WHICH CAN BE BROUGHT BY SUMMONS IN LIEU OF A COMPLAINT PURSUANT TO CPLR 3213 (FOURTH DEPT),

The Fourth Department, reversing Supreme Court, determined plaintiff’s cause of action was not for the payment of money only (CPLR 3213) for which a summons in lieu of  a complaint was an appropriate vehicle:

As proof of the agreement to reduce defendant’s liability under the guaranty and the amount of that reduction, plaintiff relies on evidence extrinsic to the instrument consisting of representations in the affidavit of its chief operating officer, deposit receipt printouts from the online system of plaintiff’s bank, and a guaranty balance chart apparently generated by plaintiff showing the calculation of defendant’s revised liability.

In our view, “[g]oing that far afield from the [financial] instrument itself does not appear to comport with the simple standards” embodied in the statute and related case law … . Indeed, inasmuch as plaintiff’s moving papers demonstrate that outside evidence beyond “simple proof of nonpayment or a similar de minimis deviation from the face of the document[s]” is needed to determine the amount due, we conclude that “[p]laintiff’s action falls far short of satisfying the [CPLR] 3213 threshold requirement” … . Counsel Fin. II LLC v Bortnick, 2023 NY Slip Op 01441, Fourth Dept 3-17-23

Practice Point: Plaintiff relied on extrinsic evidence. The action was not, therefore, for the “payment of money only” within the meaning of CPLR 3213 and was not properly brought by a summons in lieu of complaint.

 

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PLAINTIFFS PROVED THE “ENSUING LOSS” EXCEPTION TO THE “FAULTY WORKMANSHIP” EXCLUSION IN THE HOME INSURANCE POLICY APPLIED; PLUMBING WORK WAS FAULTY, RESULTING IN FLOODING THROUGHOUT THE HOUSE; THE WATER DAMAGE WAS COVERED UNDER THE “ENSUING LOSS” EXCEPTION TO THE “FAULTY WORKMANSHIP” EXCLUSION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the “ensuing loss’ exception to the “faulty workmanship” exclusion applied. The plumbers apparently used the wrong adhesion material for a water-pipe connection. The connection failed and the house was flooded. The “ensuing loss” exception to the “faulty workmanship” exclusion “provide[s] coverage when, as a result of an excluded peril, a covered peril arises and causes damage:”

We conclude that the ensuing loss exception applies to provide coverage for the household water damage because the excluded peril of faulty workmanship resulted in “collateral or subsequent damage” … “to property ‘wholly separate from the defective property itself’ ” … , and plaintiffs’ claim is for “a new loss to property that is of a kind not excluded by the policy,” i.e., sudden and accidental water leakage from within a plumbing system … . In other words, the ensuing loss exception provides coverage here because, as a result of an excluded peril (faulty workmanship), a covered peril arose (water discharge from a plumbing system) and caused other harm (water damage) to separate property (areas throughout the house) … . Ewald v Erie Ins. Co. of N.Y., 2023 NY Slip Op 01439, Fourth Dept 3-17-23

Practice Point: Here water damage throughout the house was covered by the “ensuing loss” exception to the “faulty workmanship” exclusion in the home insurance policy. The plumbers used the wrong material for a water-pipe connection and the house was flooded.

 

DEFENDANT WAS CONVICTED OF GRAND LARCENY BASED UPON OVERCHARGING HER EMPLOYER; THE RESTITUTION SHOULD NOT HAVE INCLUDED THE LABOR COSTS INCURRED BY THE EMPLOYER FOR INVESTIGATING THE CRIME OR THE TRAVEL COSTS FOR WITNESSES TO TESTIFY AT TRIAL; THE FOURTH DEPARTMENT REFUSED TO FOLLOW A THIRD DEPARTMENT DECISION RE: TRAVEL EXPENSES AND LOST WORK ASSOCIATED WITH TESTIFYING AT TRIAL (FOURTH DEPT).

The Fourth Department determined restitution in this grand larceny case should not include the victim’s (HomeCare”s) labor costs associated with investigating the defendant’s theft or the travel expense of witnesses who testified at trial:

Defendant was charged with grand larceny … after HomeCare conducted an audit of her time sheets and mileage vouchers and determined that she had received more than $14,000 in overpayments during the course of her employment as a registered nurse. …  … County Court … determined that HomeCare and its insurance carrier were entitled to restitution in the amount of $24,469.10 …: $14,207.67 for overpayments made to defendant in wages and mileage reimbursements … , $9,658.02 to HomeCare for labor costs incurred with respect to its employees who investigated defendant’s crime and appeared at her trial; and $603.41 to HomeCare for mileage, meal and hotel expenses incurred by its employees who appeared at trial.

We conclude that the labor costs allegedly incurred by HomeCare for employees who investigated the crime are not “actual out-of-pocket” losses within the meaning of Penal Law § 60.27. … With respect to the travel expenses incurred by HomeCare employees who appeared at defendant’s trial, we note that … section 60.27 does not impose a duty on the defendant to pay for the costs associated therewith inasmuch as such expenses are not directly caused by the defendant’s crime. …

The People rely on People v Denno (56 AD3d 902, 903-904 …), where the Third Department determined that the sentencing court did not improvidently exercise its discretion when it ordered that the defendant pay reparations to the victim’s mother to cover the expenses of traveling by airplane from Florida to New York to speak at sentencing, and to cover the lost wages caused by missing four days of work. … [W]e do not follow Denno because we do not read Penal Law § 60.27 as requiring a criminal defendant to pay for expenses incurred by the victim to testify at trial or investigatory costs incurred by the victim. People v Case, 2023 NY Slip Op 01438, Fourth Dept 3-17-23

Practice Point: Here the defendant was convicted of grand larceny for overcharging her employer. The restitution should not have included the employer’s labor costs associated with investigating the crime or the travel expenses for witnesses who testified at trial. Re: the costs incurred by witnesses who testified at trial, the Fourth Department refused to follow the Third Department.

 

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THE EVIDENCE OF “PHYSICAL INJURY” IN THIS ASSAULT SECOND PROSECUTION WAS LEGALLY INSUFFICIENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s second degree assault conviction, determined the physical-injury element of the offense was not supported by legally sufficient evidence:

… [T]he evidence of the injury inflicted here, viewed objectively, established only that the correction officer sustained slight scraping and scratching, perhaps some bruising, minor swelling in the wrist, a small laceration, and abrasions or redness, without any bleeding … . Indeed, although medical staff at the correctional facility purportedly noted bruising on the correction officer’s forearm, no bruising is apparent in the photographs taken shortly after the incident, and the photographs otherwise depict only minimal redness on the correction officer’s arm and hand, a minuscule nick on the knuckle of his index finger, and a slight scratch along his arm … . People v Dowdell, 2023 NY Slip Op 01432, Fourth Dept 3-17-23

Practice Point: Here the evidence of “physical injury” was deemed legally insufficient to support the assault second conviction. The decision analyzes all of the relevant aspects of “physical injury” including pain.

 

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IF A PREMATURE CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS WAS NOT FILED IN GOOD FAITH, THE STATEMENT OF READINESS FOR TRIAL IS ILLUSORY; MATTER REMITTED FOR A DETERMINATION WHETHER THE CERTIFICATE WAS FILED IN GOOD FAITH; THE JUDGE CONSIDERED ONLY WHETHER DEFENDANT WAS PREJUDICED BY THE POST-CERTIFICATE PRODUCTION OF DISCOVERY (FOURTH DEPT). ​

The Fourth Department, remitting the matter, found the judge applied the wrong criteria for determining whether the People’s premature filling of the certificate of compliance with discovery obligations (CPL 245.50) rendered the ready-for-trial announcement illusory:

… [T]he criminal action was commenced on June 9, 2021 (see CPL 1.20 [17]). The People filed their certificate of compliance and statement of readiness on August 6, 2021. On February 12, 2022, defendant moved to dismiss the indictment on speedy trial grounds, arguing that the People’s failure to provide all of the discovery required by CPL 245.20 rendered the certificate of compliance improper and the statement of readiness illusory. Defendant argued that the People should be charged with the entire eight month period and that the indictment should be dismissed (see CPL 30.30 [1] [a]). The court denied defendant’s motion, concluding that the People’s certificate of compliance was proper because defendant had not been prejudiced by the People’s belated disclosure of certain required discovery and that the statement of readiness therefore was not illusory.

… [T]he court’s use of a prejudice-only standard for evaluating the propriety of the certificate of compliance was error because the clear and unambiguous terms of CPL 245.50 establish that a certificate of compliance is proper where its filing is “in good faith and reasonable under the circumstances” … . On a CPL 30.30 motion, the question is not whether defendant was prejudiced by an improper certificate of compliance … . … In light of the court’s failure to consider whether the People’s certificate of compliance was filed in “good faith and reasonable under the circumstances” despite the belated discovery, we hold the case, reserve decision, and remit the matter to Supreme Court to determine whether the People’s certificate of compliance was proper under the terms of CPL 245.50 and thus whether the statement of readiness was valid. People v Gaskin, 2023 NY Slip Op 01415, Fourth Dept 3-17-23

Practice Point: If the People file a certificate of compliance with discovery obligations before discovery is complete the readiness-for-trial statement may be rendered illusory. The judge must determine whether the certificate was filed in good faith, not whether defendant was prejudiced by the post-certificate discovery.

 

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PLAINTIFF SUED THE TOWN ALLEGING BREACH OF CONTRACT; TOWN LAW 65 (3) REQUIRED PLAINTIFF TO FILE A NOTICE OF CLAIM WITHIN SIX MONTHS (WHICH PLAINTIFF FAILED TO DO) AND MAKES NO PROVISION FOR FILING A LATE NOTICE; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff in this breach of contract action against the town did not comply with the notice-of-claim requirement in the Town Law and the action therefore should have dismissed. Unlike other notice statutes, Town Law 65 (3) does not allow a late notice of claim:

Plaintiff commenced this action to recover payment for highway repair work it performed for defendant, asserting causes of action for breach of contract, unjust enrichment, and quantum meruit. Defendant moved to dismiss the complaint on the ground, inter alia, that plaintiff failed to comply with the notice of claim provision under Town Law § 65 (3) and plaintiff cross-moved for leave to file a late notice of claim. Supreme Court denied the motion and granted the cross motion, concluding that, although plaintiff failed to comply with section 65 (3), it should be permitted to file a late notice of claim inasmuch as defendant had actual notice of the essential facts of the claim and did not demonstrate any prejudice that would arise from the late filing of the claim. Defendant appeals.

We agree with defendant that the court erred in denying the motion and in granting the cross motion. Town Law § 65 (3) requires that a written verified claim be filed with the town clerk “within six months after the cause of action shall have accrued.” “[I]n contrast to other notice statutes, Town Law § 65 (3) contains no provision allowing the court to excuse noncompliance with its requirements” … . Accadia Site Contr., Inc. v Town of Pendleton, 2023 NY Slip Op 01386, Fourth Dept 3-17-23

Practice Point: Unlike other notice statutes, Town Law 65 (3) does not make any provision for filing a notice after the six-month deadline.

 

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THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION IN THIS CRIMIINAL POSSESSION OF A WEAPON PROSECUTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and ordering a new trial, determined the jury should not have been instructed on constructive possession in this criminal possession of a weapon prosecution:

… [W]e agree with defendant that the court erred in instructing the jury on constructive possession because there is no view of the evidence from which a jury could have concluded that defendant constructively possessed the handgun on the night in question—i.e., that he exercised dominion or control over the handgun by a sufficient level of control over the area where it was recovered … . We further conclude that the error is not harmless inasmuch as we cannot determine whether the jury’s general verdict was based upon defendant’s actual possession of the handgun or his constructive possession of it … . People v Ross, 2023 NY Slip Op 01381, Fourth Dept 3-17-23

Practice Point: Here is was deemed reversible error to instruct the jury on construction possession of a weapon because there was no evidence defendant exercised control over the area where the weapon was found.

 

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THE PEOPLE DID NOT DEMONSTRATE THE OFFICERS WHO MADE THE TRAFFIC STOP HAD THE TRAINING AND QUALIFICATIONS TO MAKE A VISUAL ESTIMATE OF THE SPEED OF A VEHICLE; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT),

The Fourth Department, granting the suppression motion and dismissing the indictment, over a dissent, determined the People did not demonstrate the legality of the traffic stop. Two police officers testified the stop was based on a visual estimate of the vehicle’s speed, 40 to 45 miles per hour in a 30 mph zone. But neither officer had any training in making visual speed estimates:

It is undisputed that the officers did not use radar at any point, nor did they pace the vehicle—i.e., follow it at a consistent distance—to confirm their visual estimates before initiating the stop. When questioned regarding their training to visually estimate a vehicle’s speed without pacing, one officer stated that he did not recall receiving such training, and the other testified that he did not believe such training existed. On further questioning, one of the officers testified that he had experience visually estimating speed due to the amount of time he spent on the road as a patrol officer, but failed to provide a reasoned explanation of how the time he spent driving on city streets enabled him to acquire the ability to visually estimate speed.

… [T]he People failed to establish the officers’ training and qualifications to support their visual estimates of the speed of the vehicle in which defendant was a passenger … . … [I]nasmuch as the People failed to meet their burden of showing the legality of the police conduct in stopping the vehicle in which defendant was a passenger in the first instance, we conclude that the court erred in refusing to suppress the physical evidence seized as a result of the traffic stop. People v Suttles, 2023 NY Slip Op 01380, Fourth Dept 3-17-23

Practice Point: Here the traffic stop was based on the officers’ visual estimate of speed (40 to 45 mph in a 30 mph zone). At the suppression hearing no evidence of the officers’ training or qualifications re: a visual speed estimate was presented. The People, therefore, did not prove the legality of the traffic stop.

 

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THE TRIAL JUDGE DID NOT RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL; THE APPELLATE COURT CANNOT TREAT THE FAILURE TO RULE AS A DENIAL; MATTER REMITTED FOR A RULING (FOURTH DEPT). ​

The Fourth Department, remitting the matter for a ruling, determined the trial judge never ruled on defendant’s motion for a trial order of dismissal:

At the close of the People’s case, defendant moved for a trial order of dismissal, arguing … that the People failed to make a prima facie case with respect to the second count of the indictment. There is no indication in the record that the court ruled on that part of defendant’s motion. We lack the power to review defendant’s contention that the evidence is legally insufficient to support the conviction of burglary in the second degree because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]), we cannot deem the court’s failure to rule on the . . . motion as a denial thereof” … . People v Desmond, 2023 NY Slip Op 00791, Fourth Dept 2-10-23

Practice Point: The trial judge’s failure to rule on a motion for a trial order of dismissal is not a denial which an appellate court can consider; here the matter was remitted for a ruling.

 

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