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ALTHOUGH THE TRAFFIC ACCIDENT OCCURRED IN VIRGINIA, PLAINTIFF’S CHOICE OF FORUM (NEW YORK) SHOULD HAVE BEEN UPHELD; VIRGINIA WITNESSES MAY COME TO NEW YORK VOLUNTARILY OR THE VIRGINIA WITNESSES COULD BE DEPOSED IN VIRGINIA; SUPREME COURT SHOULD NOT HAVE SPECULATED ABOUT THE AVAILABILITY OF VIRGINIA WITNESSES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the plaintiff’s choice of forum should have been upheld:

Dalaine M. Piesker (plaintiff) was injured in a motor vehicle accident while driving a truck owned by defendant. Plaintiffs are residents of New York, and defendant has an office and transacts business in New York, but the accident occurred in Virginia. Plaintiffs thereafter commenced this negligence action in New York. Supreme Court subsequently granted defendant’s motion to dismiss the complaint on forum non conveniens grounds, reasoning that defendant would be prejudiced by litigating this action in New York because it would be unable to subpoena either the Virginia State Police officers who investigated the accident or the medical providers who treated plaintiff in Virginia immediately following the accident.

“[W]here a plaintiff is a New York resident, a defendant bears the heavy burden of establishing that New York is an inappropriate forum before plaintiff’s choice of forum will be disturbed” … . Defendant failed to meet that heavy burden here. Although “New York courts lack the authority to subpoena out-of-state nonparty witnesses” …, defendant submitted no evidence establishing that the investigating police officers and the emergency medical providers would not testify voluntarily in New York. The court’s speculation to the contrary is unsupported by the record. In any event, both New York and Virginia are parties to the Uniform Interstate Depositions and Discovery Act (see CPLR 3119; Va Code Ann § 8.01-412.10), and defendant could, if necessary, depose the subject witnesses in Virginia and thereafter introduce those depositions at trial in lieu of in-person testimony in New York (see CPLR 3117 [a] [3] [ii]). Piesker v Price Leasing Corp., 2020 NY Slip Op 05648, Fourth Dept 10-9-20

 

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INSUFFICIENT EVIDENCE OF SEXUAL CONTACT; RISK LEVEL REDUCED FROM LEVEL TWO TO ONE (FOURTH DEPT).

The Fourth Department, reducing defendant’s risk level from two to one, determined the evidence of sexual contact was not sufficient:

… [T]he record is devoid of any evidence, much less the requisite clear and convincing evidence … , that defendant touched the victim’s “sexual or other intimate parts.” Rather, the record contains only a statement from the victim that defendant “touched her inappropriately.” An “inappropriate” touch, however, encompasses a far broader array of conduct than that classified as “sexual conduct” by section 130.00 (3). …

… [A]lthough defendant was indicted for aggravated sexual battery under Tennessee law—an offense that includes “sexual contact” as an element (see Tenn Code Ann §§ 39-13-501 [6]; 39-13-504 [a])—he was ultimately convicted only of attempted aggravated sexual battery, and it is well established that ” ‘the fact that an offender was arrested or indicted for an offense is not, by itself, evidence that the offense occurred’ ” … . People v Bryant, 2020 NY Slip Op 05646, Fourth Dept 10-9-20

 

WAIVER OF APPEAL OF THE UNDERLYING OFFENSE DOES NOT PRECLUDE APPEAL OF THE SENTENCE IMPOSED FOR A SUBSEQUENT VIOLATION OF PROBATION; SENTENCE DEEMED HARSH AND EXCESSIVE (FOURTH DEPT).

The Fourth Department determined defendant’s sentence was harsh and excessive and noted a waiver of appeal for the underlying offense does not apply to an appeal of the sentence imposed for a subsequent violation of probation:

… [A]s defendant contends and the People correctly concede, even if defendant executed a valid waiver of the right to appeal at the underlying plea proceeding, it would not encompass her challenge to the severity of the sentence imposed following her violation of probation … . We agree with defendant that the sentence is unduly harsh and severe. In light of defendant’s young age, minimal criminal history, and prior efforts to address her substance abuse issues, as well as the nonviolent nature of the underlying crimes and the relatively minor infractions for which she was discharged from her treatment program thereby resulting in her violation of probation, we modify the judgment as a matter of discretion in the interest of justice … by reducing the sentence on each count to a determinate term of imprisonment of three years, to be followed by the two years of postrelease supervision imposed by County Court, with the sentences remaining concurrent. People v Griffin, 2020 NY Slip Op 05645, Fourth Dept 10-9-20

 

BURGLARY SECOND COUNT DISMISSED AS A LESSER INCLUSORY COUNT OF THE TWO BURGLARY FIRST COUNTS (FOURTH DEPT).

The Fourth Department dismissed the burglary second count as a lesser inclusory count of the two burglary first counts:

…[C]ount three of the indictment, charging burglary in the second degree, must be dismissed as a lesser inclusory concurrent count of counts one and two, charging burglary in the first degree (see CPL 300.40 [3] [b] …). People v Smith, 2020 NY Slip Op 05643, Fourth Dept 10-9-20

 

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THE UNAMBIGUOUS INSURANCE POLICY DID NOT INCLUDE COVERAGE FOR LOSS OF BUSINESS INCOME AND THE POLICY MUST BE ENFORCED AS WRITTEN (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the coverage unambiguously described in an insurance policy must be enforced as written and there is no coverage for anything, here loss of business income, which is not explicitly described in the contract:

… [T]he insurance contract unambiguously does not include coverage for actual loss of business income. The contract provides coverage “as described and limited” for certain categories of loss “for which a Limit Of Insurance is shown in the Declarations.” Actual loss of business income, however, is neither described nor limited by the declarations. Thus, there is no actual loss of business income coverage “by reason of ‘lack of inclusion’ “… , and “the policy as written could not have covered the liability in question under any circumstances” … . Downstairs Cabaret, Inc. v Wesco Ins. Co., 2020 NY Slip Op 05637, Fourth Dept 10-9-20

 

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IN THIS FRAUD ACTION, PLAINTIFF COULD NOT DEMONSTRATE THE FRAUDULENT STATEMENTS WERE MADE IN ERIE COUNTY; THEREFORE THE PLACE OF DEFENDANT’S RESIDENCE, NEW YORK COUNTY, WAS PROPERLY DESIGNATED THE VENUE FOR THE ACTION (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined New York County was the proper venue for this fraud action because plaintiff did not demonstrate the fraudulent statements allegedly made by defendant were made in Erie County, as opposed to Cleveland, Ohio. Absent proof the statements were made in Erie County, the fact that defendant resides in New York County controlled:

… New York County is indisputably a proper county based upon defendant’s residence therein (see CPLR 503 [a]). Because none of the parties resides in Erie County, the sole question before the trial court was whether “a substantial part of the events or omissions giving rise to the claim occurred” in Erie County … . …

The legislature only recently added a provision to CPLR 503 (a) that allows venue based on the location of the events underlying the claim … , but the Federal Rules of Civil Procedure contain an identical provision (see 28 USC § 1391 [b] [2]), doubtless the model for the amended language in CPLR 503 (a). In determining whether venue is proper under that provision, the Second Circuit applies a two-part inquiry. First, the court must “identify the nature of the claims and the acts or omissions that the plaintiff alleges give rise to those claims” … . Second, the court must “determine whether a substantial part of those acts or omissions occurred in the district where suit was filed, that is, whether ‘significant events or omissions material to [those] claim[s] . . . have occurred in the district in question’ ” … . In a fraud claim, the act giving rise to the claim is the alleged making of the fraudulent statement … . Consistent with that, federal courts have found venue to be proper based upon “where the defendant allegedly made the fraudulent statements” … . …

Plaintiff … failed to show that material, fraudulent statements were made in Erie County … . Harvard Steel Sales, LLC v Bain, 2020 NY Slip Op 05635, Fourth Dept 10-9-20

 

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IN THIS DEFICIENCY JUDGMENT ACTION, THE PLAINTIFF DID NOT PRESENT SUFFICIENT PROOF OF THE AMOUNT OWED BY THE DEFENDANT OR THE REASONABLENESS OF THE SALE OF THE COLLATERAL (FOURTH DEPT).

The Fourth Department, vacating the damages award in this action on a motor vehicle retail installment contract, determined the plaintiff did not present evidence sufficient to determine the correct amount of the deficiency judgment or the reasonableness of the sale of the collateral:

… [T]he court should have denied plaintiff’s motion insofar as it sought summary judgment on the amount of damages. Plaintiff did not meet its initial burden of establishing the amount of the alleged deficiency as a matter of law … . We note in particular that plaintiff failed to provide evidence of defendant’s payment history, and failed to establish whether it applied certain applicable credits, including an unearned credit service charge pursuant to Personal Property Law §§ 305 and 315.

Moreover, plaintiff’s moving papers failed to establish that the vehicle was sold in a commercially reasonable manner … . A “secured party seeking a deficiency judgment from the debtor after sale of the collateral bears the burden of showing that the sale was made in a commercially reasonable manner” ( … see generally UCC 9-627 [b]). We conclude that, “[h]aving failed to set forth any of the facts and circumstances surrounding the sale, plaintiff failed to satisfy a prerequisite to obtaining a deficiency judgment and is not entitled to summary judgment” with respect to damages … . Ally Fin. Inc. v Jonathan, 2020 NY Slip Op 05630, Fourth Dept 10-9-20

 

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CITIZEN INFORMANT WHO WALKED INTO THE POLICE STATION PROVIDED SUFFICIENT INFORMATION TO JUSTIFY APPROACHING A VAN IN WHICH DEFENDANT WAS SLEEPING, LEADING TO DEFENDANT’S ARREST; A TWO-JUSTICE DISSENT ARGUED THE INFORMATION PROVIDED BY THE FACE-TO-FACE INTERVIEW WITH THE INFORMANT DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police, after interviewing a citizen informant who walked into the police station, had reasonable suspicion to approach a van in which the defendant was sleeping. Thereafter the police were justified in asking the defendant to step out of the van for safety reasons and in arresting the defendant when an officer saw a handgun in defendant’s waistband. The dissent argued the informant (who identified himself to the police but was not identified to the defendant) did not provide sufficiently detailed information to justify approaching the van:

…[T]he testimony of a police officer during the suppression hearing established that a citizen informant walked into a police station at 4:30 a.m. and reported that two men had “ripped him off” during “a drug deal gone wrong.” The informant, who identified himself by name to the officer but whose identity was not disclosed to defendant, appeared to be angry and upset and did not seem to be intoxicated. The informant alleged, inter alia, that the two men were in a purple minivan at a specific address on Stevens Street in the City of Buffalo, and that “there were drugs in the vehicle” and one of the men “was holding [a] handgun in his lap.” The police officer interviewed the informant for 10 to 15 minutes, during which time the officer had an opportunity to evaluate his reliability on the basis of his appearance and demeanor … . The informant’s reliability was enhanced because he identified himself to the officer and reported that he had attempted to take part in a drug transaction, thus making a declaration against penal interest and subjecting himself to potential prosecution for his own criminal activity … . The informant also waited at the police station while officers investigated the allegations, thereby subjecting himself to “the criminal sanctions attendant upon falsely reporting information to the authorities” … . Thus, we conclude that the People established the reliability of the informant by establishing that the officer obtained information from him during a face-to-face encounter … , and that information did not constitute an anonymous tip … .

From the dissent:

… [A]lthough the majority relies on the ability of the police “to evaluate [the] reliability [of the informant]” during face-to-face contact … , the testimony of the police officer who met the informant reveals that the officer lacked sufficient information to make such an evaluation. The officer believed that the informant appeared agitated, and conceded that he did not know whether the informant was sober. The informant offered the officer no description of the men who purportedly “ripped him off” or how the alleged drug deal had gone wrong, and the officer testified that he never even asked the informant when that incident took place. Instead, the informant offered no more than the description of the outside of a vehicle … . People v Edwards, 2020 NY Slip Op 05672, Fourth Dept 10-9-20

 

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DEFENDANT SCHOOL DISTRICT DID NOT DEMONSTRATE THE APPLICABILITY OF THE STORM-IN-PROGRESS RULE IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant school district did not demonstrate the applicability of the storm-in-progress rule in this slip and fall case:

… [D]efendants did not meet their initial burden of establishing that plaintiff’s injuries were the result of “an icy condition occurring during an ongoing storm or for a reasonable time thereafter” … . Although defendants submitted an affidavit from a meteorologic expert, Doppler radar data, and deposition testimony establishing that it had been snowing and icy on the date of the accident from the early morning hours through 3:00 p.m., the time plaintiff fell, defendants also submitted conflicting evidence regarding how much snow actually accumulated in the area of the middle school. Defendants’ expert never set forth, by opinion or otherwise, any specific amount of snowfall in the Town of Yorkshire on the date of plaintiff’s fall. … Thus, defendants’ own submissions raised a question of fact whether there was a storm in progress at the time of the fall.

Even assuming, arguendo, that defendants met their initial burden, plaintiff raised an issue of fact whether the ice upon which she fell preexisted the weather event … . Plaintiff submitted the affidavit of an expert meteorologist who averred that a thaw in the days prior to the accident, followed by a drop in temperatures from the night before into the morning hours of the accident, would account for the formation of the ice. Plaintiff also submitted deposition testimony establishing that there had been thick ice in the parking lot since the day before the accident, and that defendants’ groundskeeper had plowed down to the ice … . We also conclude that plaintiff raised an issue of fact whether defendants had constructive notice of the condition … . Ayers v Pioneer Cent. Sch. Dist., 2020 NY Slip Op 05622, Fourth Dept 10-9-20

 

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EVIDENCE OF CAUSATION IN THE ASBESTOS EXPOSURE CASE WAS SUFFICIENT, MOTION TO SET ASIDE THE VERDICT PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined the evidence of causation in this asbestos exposure case was sufficient to support the plaintiffs’ verdict and the motion to set aside was properly denied:

Although, to prove specific causation, plaintiff and decedent were required to establish that decedent “was exposed to sufficient levels of the toxin to cause” his alleged injuries, “it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship” … . There simply “must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of [the] agent that are known to cause the kind of harm that the plaintiff claims to have suffered” … . Such evidence may include an expert’s use of estimates generated by mathematical models taking a plaintiff’s work history into account, or the use of “more qualitative means” to determine the level of a plaintiff’s exposure, such as comparing the plaintiff’s exposure level “to the exposure levels of subjects of other studies” … . Matter of Eighth Jud. Dist. Asbestos Litig., 2020 NY Slip Op 05621, Fourth Dept 10-9-20

 

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