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REFUSING TO SUBMIT TO A DWI BREATH TEST IS NOT AN OFFENSE (FOURTH DEPT).

The Fourth Department, reversing the conviction, noted that refusing to submit to a DWI field screening test (Alco-Sensor breath test) is not an offense:

We agree with defendant … that his “refusal to submit to a [field screening device] did not establish a cognizable offense” (People v Alim, 204 AD3d 1418, 1419 [4th Dept 2022]  … ; see People v Bembry, 199 AD3d 1340, 1342 [4th Dept 2021] …). We therefore modify the judgment by reversing that part convicting defendant of count seven of the indictment and dismissing that count. People v Shirley, 2022 NY Slip Op 05631, Fourth Dept 10-7-22

Practice Point: Refusing to submit to a DWI breath test is not an offense. The “conviction” was reversed that the indictment count was dismissed.

 

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APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE A MOTION ALERTING THE APPELLATE COURT TO A COURT OF APPEALS DECISION WHICH CAME DOWN AFTER THE BRIEFS WERE FILED BUT BEFORE THE APPELLATE RULING; MOTION FOR WRIT OF ERROR CORAM NOBIS GRANTED (FOURTH DEPT).

The Fourth Department granted the defendant’s motion for writ of error coram nobis on the ground appellate counsel was ineffective. Although the Court of Appeals decision mandating that sentencing judges consider youthful offender status came down after the briefs were filed, appellate counsel should have made a motion to raise the issue:

Defendant contends that he was denied effective assistance of appellate counsel because counsel failed to raise an issue on direct appeal, specifically, whether Supreme Court failed to determine whether defendant should be afforded youthful offender status. Upon our review of the motion papers and under the circumstances presented here, we conclude that appellate counsel’s representation was not constitutionally adequate. “As held by the Court of Appeals in People v Rudolph (21 NY3d 497, 501 [2013]), CPL 720.20 (1) requires ‘that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain’ ” …  Here, there is nothing in the record demonstrating that the court considered whether to adjudicate defendant a youthful offender, even though defendant, who was convicted of manslaughter in the first degree (Penal Law § 125.20 [1]) was presumably eligible … . Although the Court of Appeals decided Rudolph after appellate counsel filed the briefs on appeal and shortly before this Court affirmed defendant’s judgment on appeal, the standard of meaningful representation required appellate counsel to, after Rudolph was decided, seek to file an appropriate motion in this Court in order to raise the argument that Rudolph requires that the sentence must be vacated and the matter remitted for determination of defendant’s youthful offender status …  The order of July 5, 2013 is vacated and this Court will consider the appeal de novo … . Defendant is directed to file and serve his records and brief with this Court on or before January 23, 2023. People v Nathan, 2022 NY Slip Op 05479, Fourth Dept 9-30-22

Practice Point: A motion for writ of error coram nobis is a post-appeal tool for arguing appellate counsel was ineffective. Here a Court of Appeals decision requiring sentencing judges to consider youthful offender status even if not raised by the defendant came down after the briefs were filed but before the ruling. Appellate counsel was ineffective for failing to make a motion alerting the appellate court to the new law.

 

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THE JUDGE INCORRECTLY PARAPHRASED THE JURY NOTE; CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s condition, determined that the judge did not adequately inform counsel of the contents of a jury note:

The record reflects that the court received the note from the jury and properly marked it as a court exhibit. The jury note stated, in relevant part, “[p]lease go over manslaughter vs murder 2 elements of the charges from your instructions” … . The court did not read the note verbatim and the record does not reflect that the court showed the note to the parties. Rather, the record reflects that the court informed the parties that the jury wanted the court to “go over the instructions for manslaughter and [m]urder in the [s]econd [d]egree” … . We conclude that by improperly paraphrasing the jury note, the court failed to give meaningful notice of the note … . Contrary to the People’s contention, the difference between the content of the note and the court’s words altered the meaning of the jury’s request … . People v Zenon, 2022 NY Slip Op 05446, Fourth Dept 9-30-22

Practice Point: Here the judge paraphrased the jury note in a way which altered its meaning. Conviction reversed.

 

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DEFENSE COUNSEL MISTAKENLY FAILED TO NOTIFY THE PROSECUTION OF AN ALIBI WITNESS; DEFENSE COUNSEL ADMITTED HE HAD NO EXCUSE FOR HIS MISTAKE; BECAUSE THE FAILURE WAS NOT DELIBERATE AND WAS NOT AN ATTEMPT TO GAIN A TACTICAL ADVANTAGE, THE DEFENSE MOTION FOR PERMISSION TO SERVE A LATE NOTICE OF ALIBI SHOULD HAVE BEEN GRANTED (FOURTH DEPT),

The Fourth Department, reversing defendant’s conviction on the two relevant counts, determined defense counsel’s failure to timely notify the prosecution of an alibi witness was not deliberate and the defense motion to serve a late notice of alibi should have been granted:

… [O]n the day prior to jury selection, defendant filed a motion to permit the late service of a notice of alibi with respect to the first two counts of the indictment. In an affirmation in support of the motion, defense counsel explained that, just days after defendant’s arraignment on the indictment, defendant informed him of the existence of a potential alibi witness, and defense counsel’s investigator confirmed the alibi with the witness a week later. Defense counsel averred that, despite his awareness of that witness, he failed to notify the court and the prosecutor of the existence of the witness simply through his own negligence. Defense counsel had no objection to a brief adjournment for the People to investigate the alibi. Defense counsel’s averments and statements to the court established that his failure to comply with the time limits of CPL 250.20 was not willful or motivated by a desire to obtain a tactical advantage but simply a mistake … and, under these circumstances, defendant’s constitutional right to offer the testimony of the alibi witness outweighed any prejudice to the People or their interest in having the trial begin as scheduled … . The court therefore abused its discretion in precluding the testimony of the alibi witness (see Green, 70 AD3d at 45-46). The evidence against defendant was not overwhelming, and thus the harmless error doctrine is inapplicable here … . People v Thomas, 2022 NY Slip Op 05430, Fourth Dept 9-30-22

Practice Point: The failure to notify the prosecution of an alibi witness was an inadvertent mistake. The defense motion for permission to serve a late notice of alibi should have been granted. The denial of the motion denied defendant a fair trial.

 

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SEXUAL ABUSE FINDINGS IN A FAMILY COURT PROCEEDING COULD NOT BE THE BASIS FOR APPLYING THE COLLATERAL ESTOPPEL DOCTRINE IN THIS CIVIL ACTION UNDER THE CHILD VICTIMS ACT; HEARSAY ADMITTED IN THE FAMILY COURT PROCEEDING IS NOT ADMISSIBLE IN THIS CIVIL ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a substantial dissent, determined defendant in this Child Victims Act action was not collaterally estopped from disputing the sexual abuse allegations based upon the related Family Court proceedings. Hearsay evidence properly admitted in Family Court is not admissible in this civil action in Supreme Court:

… [A]lthough the burden of proof for both the Family Court proceeding and these personal injury actions is the same, i.e., preponderance of the evidence … , hearsay evidence that was admissible in the underlying Family Court proceeding would not be admissible in the instant personal injury actions … . Inasmuch as our determination in the prior Family Court proceeding was based largely on hearsay evidence that would not be admissible in these civil actions, we agree with defendant that he should not be collaterally estopped from defending these actions and that the court erred in granting plaintiffs’ motions for partial summary judgment on liability. Of Doe 44 v Erik P.R., 2022 NY Slip Op 04839, Fourth Dept 8-4-22

Practice Point: Here the sexual abuse findings in a Family Court proceeding could not be the basis for collateral estoppel prohibiting defendant from disputing the child abuse allegation in this Child Victims Act action. Hearsay admitted in the Family Court proceeding is inadmissible in this civil proceeding.

 

ALTHOUGH THERE WAS EVIDENCE PLAINTIFF’S USE OF A LADDER INSTEAD OF THE SCISSORS LIFT CREATED THE SAFETY ISSUE LEADING TO PLAINTIFF’S FALL IN THIS LABOR LAW 240(1) ACTION, THERE WAS EVIDENCE THE OPERATOR OF THE SCISSORS LIFT WOULD NOT ALLOW PLAINTIFF TO ACCESS IT, RAISING A QUESTION OF FACT WHETHER PLAINTIFF’S USE OF A LADDER WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT; THERE WAS A SUBSTANTIAL DISSENT (FOURTH DEPT).

The Fourth Department, over a substantial dissent, determined plaintiff’s Labor Law 240(1) action should have survived summary judgment. Plaintiff fell from a ladder attempting to pass sheet rock to another worker on a scissors lift. The dissent argued plaintiff should have used the scissors lift and therefore was the sole proximate cause of the fall. There was evidence the operator of the scissors lift refused to reposition it to allow plaintiff to access it, and, therefore, plaintiff’s use of the ladder was not the sole proximate case of his fall:

With respect to the Labor Law § 240 (1) claim, we conclude that defendants did not meet their initial burden of establishing as a matter of law that plaintiff was the sole proximate cause of the accident … . … [D]efendants established that the coworker, who was operating and standing in the scissor lift at the time of the accident, denied plaintiff’s request for access to the device by refusing to reposition it to allow plaintiff to safely lift the sheetrock into place. We note that “[i]t is well established that there may be more than one proximate cause of an injury” … , and that “[q]uestions concerning . . . proximate cause are generally questions for the jury” … .

Our dissenting colleague argues that the court properly concluded that, as a matter of law, plaintiff was the sole proximate cause of the accident because he chose to use the ladder instead of the scissor lift. The court’s conclusion was based on plaintiff’s deposition testimony admitting that use of the scissor lift was the proper and expected way to perform the task of lifting the sheetrock. We disagree with the dissent’s conclusion. Although plaintiff testified that the scissor lift was the proper device to use for his work, that statement alone does not, under the unique circumstances of this case, establish that plaintiff knew that the scissor lift was “available” and “chose for no good reason” not to use it … . Further, “[w]here causation is disputed, summary judgment is not appropriate unless only one conclusion may be drawn from the established facts” … and, here, in light of the coworker’s alleged conduct, the evidence is not conclusive about whether plaintiff chose to use the ladder over an “available” scissor lift for “no good reason.” Thomas v North Country Family Health Ctr., Inc., 2022 NY Slip Op 04836, Fourth Dept 8-4-22

Practice Point: Apparently use of a scissors lift, not a ladder, was the appropriate method for the work. Plaintiff fell from a ladder attempting to do the work. There was evidence the operator of the scissors lift would not allow plaintiff to access it. Therefore plaintiff’s use of the ladder may not have been the sole proximate cause of the fall and the defense motion for summary judgment on the Labor Law 240(1) cause of action should not have been granted. There was a substantial dissent.

 

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HERE PLAINTIFFS ALLEGED THEY WERE SEXUALLY ABUSED DECADES AGO IN MASSACHUSETTS AND SUED UNDER THE CHILD VICTIMS ACT WHICH SERVES TO EXTEND THE STATUTE OF LIMITATIONS; ORDINARILY THE BORROWING STATUTE APPLIES TO OUT-OF-STATE TORTS REQUIRING THE ACTION TO BE TIMELY UNDER BOTH NEW YORK AND THE FOREIGN STATE’S LAWS; HERE THE “RESIDENT EXCEPTION” APPLIED BECAUSE THE PLAINTIFF’S WERE NEW YORK RESIDENTS AT THE TIME OF THE ALLEGED ABUSE; THEREFORE THE ACTION NEED ONLY BE TIMELY UNDER NEW YORK’S CHILD VICTIMS ACT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the “resident exception” to the borrowing statute applied to New-York-resident plaintiffs who allegedly were sexually abused decades ago at a camp in Massachusetts run by Syracuse University. Ordinarily New York’s borrowing statute requires that an action for an out-of-state tort be timely under both New York’s Child Victims Act and the foreign state’s statute of limitations. However, there is an exception to that rule when the plaintiffs, abused in a foreign state, were New York residents at the time of the abuse:

“When a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitation[s] periods of both New York and the jurisdiction where the cause of action accrued” … . In tort cases, the Court of Appeals has held that “a cause of action accrues at the time and in the place of the injury” … . Thus, for [such] claims to survive, they must be timely under both CPLR 214-g and the applicable [foreign state’s] statute of limitations. …

… [Plaintiffs] were New York residents when the … causes of action accrued. Pursuant to the “resident exception” of the borrowing statute … , a claim that accrues in favor of a New York resident will be governed by the New York statute of limitations regardless of where the claim accrued (see CPLR 202 … . … [Teh Child Victims Act] revival statute applies … . Shapiro v Syracuse Univ., 2022 NY Slip Op 04835, Fourth Dept 8-4-22

Practice Point: Ordinarily an action based on out-of-state sexual abuse of a child decades ago must be timely under both New York’s Child Victim’s Act and the foreign state’s statute of limitations. However, if the child was a New York resident at the time of the out-of-state abuse, only the extended statute of limitations provided by the Child Victims Act applies.

 

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PLAINTIFF RENTED DEFENDANT’S COTTAGE AND WAS INJURED WHEN THE DECK COLLAPSED; PLAINTIFF’S CAUSES OF ACTION BASED UPON RES IPSA LQUITUR AND VICARIOUS LIABILITY FOR AN INDEPENDENT CONTRACTOR WHO CONSTRUCTED THE DECK SHOULD HAVE SURVIVED SUMMARY JUDGMENT; A PROPERTY OWNER HAS A NONDELEGABLE DUTY TO THE PUBLIC TO KEEP THE PREMISES SAFE, AN EXCEPTION TO THE GENERAL RULE THAT A PROPERTY OWNER WILL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF AN INDEPENDENT CONTRACTOR (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff’s causes of action based upon res ipsa loquitur and vicarious liability for a contractor who constructed the deck should have survived a motion for summary judgment. Plaintiff rented a cottage from defendant. While plaintiff was on the deck, it collapsed:

In New York, in order to establish liability under that doctrine, the plaintiff must establish that the event was: “(1) of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) . . . caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) . . . not . . . due to any voluntary action or contribution on the part of the plaintiff”…. . “The exclusive control requirement . . . is that the evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it” … .. “The purpose is simply to eliminate within reason all explanations for the injury other than the defendant’s negligence” … . …

“Generally, a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts” … . The “most commonly accepted rationale” for that rule is that “one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor” … . There are, of course, exceptions to the general rule. “A party may be vicariously liable for the negligence of an independent contractor in performing [n]on-delegable duties . . . arising out of some relation toward the public or the particular plaintiff” … . To determine whether a nondelegable duty exists, the court must conduct “a sui generis inquiry” because the court’s conclusion rests on policy considerations … . Although “[t]here are no clearly defined criteria for identifying duties that are nondelegable[,] . . . [t]he most often cited formulation is that a duty will be deemed nondelegable when the responsibility is so important to the community that the employer should not be permitted to transfer it to another” … . Here, we conclude that defendant owes a nondelegable duty to the public to maintain the premises in reasonably safe condition … , and thus that defendant failed to establish as matter of law that she may not be held liable for the actions of her independent contractor … . McGirr v Shifflet, 2022 NY Slip Op 04831, Fourth Dept 8-4-22

Practice Point: Here plaintiff was injured when the deck of the cottage rented from defendant collapsed. Plaintiff’s causes of action based on res ipsa loguitur and vicarious liability for the contractor who built the deck should not have been dismissed. There was a question of fact whether defendant had a nondelegable duty to the public to keep the premises safe, an exception to the general rule that a property owner is not vicariously liable for the acts or omissions of an independent contractor.

 

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THE POSTNUPTIAL AGREEMENT WAS NOT SIGNED UNDER DURESS AND WAS NOT UNCONSCIONABLE, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this divorce action, determined the postnuptial agreement was not signed under duress and was not unconscionable:

Initially, we conclude that the court erred insofar as it held that plaintiff signed the 2017 agreement under duress as a result of defendant’s emotional abuse. An agreement is voidable on the ground of duress “when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his [or her] free will” … . Generally, “the aggrieved party must demonstrate that threats of an unlawful act compelled his or her performance of an act which he or she had the legal right to abstain from performing” … . “[T]he threat must be such as to deprive the party of the exercise of free will” … . Here, even accepting as true plaintiff’s allegations that defendant persistently urged him to sign the 2017 agreement and threatened to tell the parties’ children of plaintiff’s wrongful actions in the past, such conduct did not amount to any unlawful acts on the part of defendant sufficient to constitute duress … .

… [P]laintiff failed to sustain his burden of establishing that the 2017 agreement was unconscionable. “An agreement is unconscionable if it is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense” … . The fact that defendant was represented by counsel but plaintiff was not is a factor for the court to consider, but is not dispositive … . As relevant here, in the 2017 agreement each party waived his or her rights in the other party’s separate property, which was defined in that agreement. … . …[T]he parties waived any right to receive maintenance. … Plaintiff … signed … three postnuptial agreements during the course of the marriage, and the testimony of both parties revealed that the parties conducted their finances in accordance with the terms of the agreements. … [I]t cannot be said that the 2017 agreement was such that it would “shock the conscience and confound the judgment of any [person] of common sense” … . Campbell v Campbell, 2022 NY Slip Op 04875, Fourth Dept 8-4-22

Practice Point: This decision includes concise descriptions of the criteria for determining whether a postnuptial agreement was signed under duress and whether the agreement is unconscionable.

 

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THE CELL PHONE RECORDS OF PLAINTIFF-DRIVER IN THIS TRAFFIC ACCIDENT CASE HAD BEEN PROVIDED TO DEFENDANTS BUT THERE ARE SEVERAL POSSIBLE USES OF THE CELL PHONE WHICH ARE NOT REVEALED BY THE RECORDS; DEFENDANTS WERE ENTITLED TO DISCOVERY OF THE CELL PHONE TO DETERMINE WHETHER PLAINTIFF WAS USING IT AT THE TIME OF THE ACCIDENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants in this traffic accident case were entitled to access to plaintiff-driver’s (Farrell’s) cell phone to determine whether the phone was being used at the time of the accident. There are certain uses of the phone which were not revealed by the cell phone records already provided to defendants:

Although the cell phone records subsequently obtained from the service provider established that Farrell was not talking on his phone at the time of the accident, they did not indicate whether he opened or sent text messages during the relevant time period. On the phone used by Farrell, texts were sent as encrypted “iMessages” that do not show up on phone records. Moreover, the phone records did not indicate whether Farrell was using any applications on his phone, such as Snapchat or Facebook. * * *

Defendants “satisf[ied] the threshold requirement that the[ir] request [was] reasonably calculated to yield information that [was] ‘material and necessary’—i.e., relevant—” to issues involved in the action … . “The test is one of usefulness and reason” … . In support of the motion … defendants submitted evidence that Farrell was traveling at close to 80 miles per hour seconds before the accident, which occurred on a residential road near an elementary school. Defendants also submitted evidence that Farrell did not brake before colliding with the school bus. Evidence concerning whether Farrell was distracted before the collision is relevant to the issues involved in this negligence action, and defendants’ request for production of or access to his cellular phone is reasonably calculated to yield relevant information … , especially considering that Farrell is unable, due to his injuries, to provide any information regarding his activities in the moments before the accident … . Tousant v Aragona, 2022 NY Slip Op 04871, Fourth Dept 8-4-22

Practice Point: Here defendants were entitled to discovery of plaintiff-driver’s cell phone to determine whether plaintiff was using it at the time of the traffic accident. Although defendants had already been provided with the cell-phone records, there are several uses of the phone which are not revealed by the records.

 

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