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PLAINTIFF WAS DIRECTED TO LIFT A HEAVY BOX MANUALLY; THE FACT THAT A FORKLIFT WAS AVAILABLE WAS NOT DETERMINATIVE; A WORKER IS EXPECTED TO FOLLOW ORDERS; PLAINTIFFS’ MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS LABOR LAW 240(1) ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion to set aside the defense verdict in this Labor Law 240(1) action should have been granted. The Labor Law 240(1) claim was reinstated and judgment in favor of plaintiffs was granted. Apparently plaintiff was injured when lifting a heavy box after the stage manager directed him to do so. The fact that a forklift was available would only raise an issue of comparative negligence which will not defeat a Labor Law 240(1) claim:

… [A]lthough defendants established that there was an available safety device, i.e., a forklift, and that plaintiff knew that it was available and that he was expected to use it, plaintiffs established that the stage manager instructed plaintiff and his coworkers to lift the box manually. Regardless of whether that stage manager was plaintiff’s actual supervisor, plaintiff was under no obligation to demand safer methods for moving the box … . To expect plaintiff to refuse the stage manager’s demands “overlooks the realities of construction work” … .

“When faced with an . . . instruction to use an inadequate device [or no device at all], many workers would be understandably reticent to object for fear of jeopardizing their employment and their livelihoods” … . Finocchi v Live Nation Inc., 2022 NY Slip Op 02680, Fourth Dept 4-22-22

​Practice Point: Plaintiff was directed to lift a heavy box manually. A worker is expected to follow directions. The fact that a forklift was available was therefore not determinative. Plaintiffs’ motion to set aside the defense verdict in this Labor Law 240(1) action should have been granted.

 

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

The Fourth Department, reversing the conviction and dismissing the count, noted that refusing to take a DWI breath test is not an offense:

… [W]e note that defendant’s “refusal to submit to a breath test did not establish a cognizable offense” … . People v Alim, 2022 NY Slip Op 02671, Fourth Dept  4-22-22

Practice Point: Refusing to take a DWI breath test is not a crime.

 

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IN THIS NEGLECT PROCEEDING AGAINST STEPMOTHER, THE STATUTORY REQUIREMENTS FOR THE ISSUANCE OF ORDERS OF PROTECTION IN FAVOR OF THE CHILDREN WERE NOT MET (FOURTH DEPT).

The Fourth Department, vacating the five-year orders of protection in favor of the children (re: respondent stepmother) in this neglect proceeding, determined the statutory criteria for issuance of the orders of protection were not met:

… [T]he stepmother contends that the court erred in issuing orders of protection in favor of the children with a duration of five years. We agree, and we therefore reverse the orders of protection … . In an article 10 proceeding, the court may issue an order of protection, but such order shall expire no later than the expiration date of “such other order made under this part, except as provided in subdivision four of this section” (Family Ct Act § 1056 [1]). Subdivision (4) of section 1056 allows a court to issue an independent order of protection until a child’s 18th birthday, but only against a person “who was a member of the child’s household or a person legally responsible . . . , and who is no longer a member of such household at the time of the disposition and who is not related by blood or marriage to the child or a member of the child’s household.” Here, the orders of protection do not comply with Family Court Act § 1056 (1) and (4) because no other dispositional orders were issued with respect to the children at the time the court issued the orders of protection and the stepmother, although no longer living in the home, remains married to the children’s mother … . Moreover, the court erred in issuing the dispositional orders of protection without first holding a dispositional hearing. “The Family Court Act directs that a dispositional hearing be held as a condition precedent to the entry of a dispositional order such as the order of protection granted by Family Court here” … . Matter of Kayla K. (Emma P.-T.), 2022 NY Slip Op 02668, Fourth Dept 4-22-22

 

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ALTHOUGH THE ISSUE WAS NOT PRESERVED, DEFENDANT’S GUILTY PLEA WAS VACATED BECAUSE IT WAS INDUCED BY THE JUDGE’S PROMISE THAT ALL THE COURT’S ORDERS COULD BE APPEALED; IN FACT, THE DEFENDANT’S CONTENTION THAT TWO COUNTS OF THE INDICTMENT WERE DUPLICITOUS COULD NOT BE RAISED ON APPEAL (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence in the interest of justice, determined the defendant’s guilty plea was induced by the judge’s promise that defendant could appeal from all the court’s orders. In fact, however, by pleading guilty defendant could not appeal the order rejecting his argument that the first two counts of the indictment were duplicitous:

We agree … with defendant that his plea was not knowingly, voluntarily, and intelligently entered. Although defendant failed to preserve that contention for our review … , we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). “A trial court is constitutionally required to ensure that a defendant, before entering a guilty plea, has a full understanding of what the plea entails and its consequences” … , and where “a guilty plea has been induced by an unfulfilled promise, the plea must be vacated or the promise must be honored” … . Here, the court repeatedly promised defendant, who was proceeding pro se, that he would retain the right to appeal from all of its orders. The court reiterated that promise during the plea colloquy and did not advise defendant that he was forfeiting any challenge by pleading guilty. We conclude, however, that “[b]y pleading guilty, defendant forfeited his . . . contention that the first two counts of the indictment were duplicitous” … . Consequently, “[i]nasmuch as the record establishes that defendant, in accepting the plea, relied on a promise of the court that could not, as a matter of law, be honored, defendant is entitled to vacatur of his guilty plea” … . People v Mothersell, 2022 NY Slip Op 02661, Fourth Dept 4-22-22

Practice Point: Here the defendant’s guilty plea was induced by the judge’s promise all the court’s orders could be appealed. In fact, the guilty plea precluded raising on appeal defendant’s contention two indictment counts were duplicitous. Even though the issue was not preserved for appeal, the Fourth Department vacated the guilty plea.

 

ROBBERY WAS THE FELONY UPON WHICH THE FELONY ASSAULT WAS PREDICATED; THEREFORE THE SENTENCES FOR ASSAULT FIRST AND ROBBERY FIRST MUST RUN CONCURRENTLY (FOURTH DEPT).

The Fourth Department determined the sentences for assault first and robbery first should not have been imposed consecutively:

… [T]he court erred in directing that the sentence on the count of assault in the first degree run consecutively to the sentence imposed on the count of robbery in the first degree because the robbery was the predicate felony for the felony assault (see Penal Law § 70.25 [2] …). Inasmuch as “[t]he felony upon which felony assault is predicated is a material element of that crime,” the sentence imposed on the count of assault in the first degree must run concurrently with the sentence imposed on the count of robbery in the first degree … . People v Brown, 2022 NY Slip Op 02655, Fourth Dept 4-22-22

Practice Point: When one felony (here robbery first) is a predicate felony for another (here assault first), the sentence for the two crimes must run concurrently.

 

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THE PEOPLE DID NOT PROVE THE ALLEGED ACTS OF SEXUAL MISCONDUCT OCCURRED AT LEAST 24 HOURS APART; THEREFORE THE PEOPLE DID NOT PRESENT PROOF SUPPORTING A 20 POINT ASSESSMENT FOR A “CONTINUOUS COURSE OF SEXUAL MISCONDUCT:” LEVEL THREE REDUCED TO LEVEL TWO (FOURTH DEPT).

The Fourth Department, reducing the defendant’s risk level from three to two, determined the People did not prove defendant engaged in a “continuous course of sexual misconduct” which requires that the acts be at least 24 hours apart:

The court erred … in assessing 20 points under risk factor 4 for having engaged in a continuous course of sexual misconduct. Points may be assessed under risk factor 4 if, as relevant here, the People establish by clear and convincing evidence that defendant engaged in “two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours” … . Here, “[a]lthough the People presented evidence that defendant engaged in acts of sexual contact with the victim on more than one occasion, they failed to establish ‘when these acts occurred relative to each other’ ” … , and thus failed “to demonstrate that such instances were separated in time by at least 24 hours” … . People v Ellis, 2022 NY Slip Op 02654, Fourth Dept 4-22-22

Practice Point: A 20-point SORA assessment for a continuous course of sexual misconduct requires proof the acts took place at least 24 hours apart. Here there was no proof of when the acts occurred relative to each other, therefore the 20-point assessment was struck.

 

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THE STATUTE OF LIMITATIONS IN THIS FORECLOSURE ACTION STARTED ANEW WHEN DEFENDANT MADE A PARTIAL PAYMENT; DEFENDANT WAIVED THE LACK OF STANDING DEFENSE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the statute of limitations in the foreclosure action had been restarted by partial payment and defendants had waived the argument that the plaintiff did not have standing:

The partial payment exception “requires proof that ‘there was a payment of a portion of an admitted debt, made and accepted as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder’ “… . “If the exception is established, the statute of limitations begins to run anew from the date of the partial payment” … . * * *

“Having failed to interpose an answer which asserted the defense [of lack of standing] or to file a timely pre-answer motion raising that defense,” [defendant] waived his contention on his cross appeal that plaintiff lacked standing to commence the action … . Citibank, N.A. v Gifford, 2022 NY Slip Op 02650, Fourth Dept 4-22-22​

Practice Point: Partial payment of a debt after the statute of limitations has run may start the statute running anew. Failure to raise the lack of standing defense in the answer or a motion to dismiss waives it.

 

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THE 2022 CONGRESSIONAL REDISTRICTING MAP FAVORED DEMOCRATS IN VIOLATION OF ARTICLE III OF THE NYS CONSTITUTION (FOURTH DEPT). ​

The Fourth Department, over a two-justice concurrence and a two-justice partial dissent, determined the NYS 2022 congressional redistricting map was drawn to favor democrats in violation of Article III of the NYS Constitution:

… [W]e agree with petitioners and the court that the congressional map was unconstitutional in that it violated article III, § 4 (c) (5), which provides as relevant here that “[d]istricts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.”  * * *

We conclude that evidence of the largely one-party process used to enact the 2022 congressional map, a comparison of the 2022 congressional map to the 2012 congressional map, and the expert opinion and supporting analysis of Sean P. Trende, met petitioners’ burden of establishing that the 2022 congressional map was drawn to discourage competition and favor democrats in violation of article III, § 4 (c) (5). First, democratic leaders in the legislature drafted the 2022 congressional redistricting map without any republican input, and the map was adopted by the legislature without a single republican vote in favor of it. Second, under the 2012 congressional map there were 19 elected democrats and 8 elected republicans and under the 2022 congressional map there were 22 democrat-majority and 4 republican-majority districts. Matter of Harkenrider v Hochul, 2022 NY Slip Op 02648, Fourth Dept 4-22-22

 

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A LOCAL ONLINE NEWS OUTLET SHOULD NOT HAVE BEEN EXCLUDED FROM A FAMILY COURT HEARING REGARDING WHETHER A DEPUTY COUNTY ATTORNEY SHOULD BE DISQUALIFIED FROM A NEGLECT PROCEEDING ON CONFLICT OF INTEREST GROUNDS; THE OUTLET IS ENTITLED TO A TRANSCRIPT OF THE HEARING (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined appellant, an online local news outlet, should not have been excluded from an attorney-disqualification hearing and was entitled to a transcript of the hearing. The respondent in a neglect proceeding had moved to disqualify the deputy county attorney on conflict of interest grounds. Appellant’s owner deemed the motion newsworthy because the deputy county attorney had just been elected City-Court Judge. When appellant’s owner attempted to attend the disqualification hearing he was denied entry:

… “[T]he general public may be excluded from any hearing under [Family Court Act] article [10] and only such persons and the representatives of authorized agencies admitted thereto as have an interest in the case” (§ 1043). In making that determination, however, “[a]ny exclusion of courtroom observers must . . . be accomplished in accordance with 22 NYCRR 205.4 (b)” … . That rule provides that “[t]he general public or any person may be excluded from a courtroom [in Family Court] only if the judge presiding in the courtroom determines, on a case-by-case basis based upon supporting evidence, that such exclusion is warranted in that case” … . The rule further provides certain nonexclusive factors that a Family Court judge may consider in exercising his or her discretion, and requires that the judge make findings prior to ordering any exclusion … .

… [T]he court abused its discretion in excluding appellant from the hearing on the underlying disqualification motion. … [T]he court violated 22 NYCRR 205.4 (b) by failing to make findings prior to ordering the exclusion, and … there is no indication … that the court rendered its determination based on … evidence or considered any of the relevant factors in exercising its discretion. Moreover, … the court lacked an adequate basis to exclude appellant from the hearing on the disqualification motion … . * * *

… [T]he release of the transcript is consistent with Family Court Act § 166 and 22 NYCRR 205.5. … [T]he statute provides in relevant part that although “[t]he records of any proceeding in the family court shall not be open to indiscriminate public inspection[,] . . . the court in its discretion in any case may permit the inspection of any papers or records” … . The statute thus “does not render Family Court records confidential, but merely provides that they are not open to indiscriminate public inspection” … . The statute makes clear that Family Court “has the discretionary statutory authority to permit the inspection of any record by anyone at any time … .Matter of Rajea T. (Niasia J.), 2022 NY Slip Op 01940, Fourth Dept 3-18-22

Practice Point: Although the general public can be excluded from Family Court Article 10 proceedings, the judge exercising the discretion to exclude an observer must make certain findings in accordance with 22 NYCRR 205-4 (b). Family Court here made no findings and abused its discretion by excluding the news outlet. The court proceeding concerned whether the county attorney handling the neglect case should be disqualified on conflict of interest grounds, and did not concern the underlying allegations of neglect. The news outlet is entitled to a transcript of the hearing.

 

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DEFENDANTS’ OWN SUBMISSIONS DEMONSTRATED (1) PLAINTIFF OWNED THE PROPERTY LEFT IN THE HOUSE PURCHASED BY DEFENDANTS, (2) PLAINTIFF HAD REMOVED SOME OF THE PROPERTY, AND (3) PLAINTIFF ASKED FOR MORE TIME TO REMOVE MORE PROPERTY; THOSE FACTS NEGATED DEFENDANTS’ ALLEGATION PLAINTIFF HAD ABANDONDED THE PROPERTY; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSING THE CONVERSION CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment dismissing the conversion cause of action should not have been granted. Defendants’ own submissions demonstrated plaintiff’s ownership of the property, his removal of some of the property, and his request for more time to remove the rest. The property was in a house where plaintiff used to live, but which was purchased by the defendants. Defendants disposed of the remaining property, arguing plaintiff had abandoned it. Plaintiff then sued for conversion:

If the property can be deemed abandoned, then plaintiff’s possessory interest was forfeited and defendants’ actions were authorized, i.e., there can be no cause of action for conversion … . “The abandonment of property is the relinquishing of all title, possession or claim to or of it—a virtual intentional throwing away of it. It is not presumed. Proof supporting it must be direct or affirmative or reasonably beget the exclusive inference of the throwing away” … . …

… [D]efendants’ … own submissions establish that plaintiff was the owner of the personal property left on the premises, that he attempted to remove some of the property during the 30-day period, and that he made requests for additional time to retrieve his property…. . Cretaro v Huntington, 2022 NY Slip Op 01935, Fourth Dept 3-18-22

Practice Point: Here defendants purchased a house formerly owned by plaintiff and gave plaintiff 30 days to remove plaintiff’s personal property from the house. Defendants’ disposed of the property, arguing that plaintiff had abandoned it. Defendants’ own submissions demonstrated plaintiff owned the property, removed some of the property and asked for time to remove more. Defendants’ own submissions, therefore, demonstrated plaintiff had not abandoned the property. Defendants’ motion to dismiss plaintiff’s conversion cause of action should not have been granted.

 

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