You are here: / Second Department

Tag Archive for: Second Department

,

THE CITY HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT FROM AN ACCIDENT REPORT AND THEREFORE WAS NOT PREJUDICED BY THE FAILURE TO FILE A NOTICE OF CLAIM; THE PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED DESPITE THE ABSENCE OF A REASONABLE EXCUSE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim should have been granted. The accident alerted the city to the potential lawsuit and the delay was minimal. The absence of a reasonable excuse for the delay was overlooked:

It was readily inferable from a police accident report, a line-of-duty injury report, and witness statements taken on the day of the subject accident “that a potentially actionable wrong had been committed by [an employee of] the public corporation” … . Thus, the defendant was not prejudiced by the petitioner’s delay, which was, in any event, minimal. Accordingly, the court should have granted the petition notwithstanding the lack of a reasonable excuse … . Matter of Dautaj v City of New York, 2022 NY Slip Op 04802, Second Dept 8-3-22

Practice Point: Where a municipal defendant has actual timely notice of a potential lawsuit from an accident report, the delay is not long, and the city suffers no prejudice from the failure to timely file, a petition for leave to file a late notice of claim should be granted even when petitioner does not have a reasonable excuse.

 

PLAINTIFF IN THIS LABOR LAW 240(1) ACTION FELL FROM AN INVERTED BUCKET HE WAS STANDING ON TO REACH A POWER CABLE; DEFENDANTS DEMONSTRATED THERE WAS NO NEED FOR PLAINTIFF TO ELEVATE HIMSELF TO DO HIS JOB; THEREFORE PLAINTIFF WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY (SECOND DEPT).

The Second Department determined Supreme Court properly granted defendants’ motion for summary judgment on the Labor Law 240(1) cause of action. Plaintiff fell off an inverted bucket when he was installing stacked washers and dryers. Defendant demonstrated plaintiff did not need to elevate himself to do the work:

According to the plaintiff, on the day at issue, he was standing on an inverted bucket in order to reach the power cable for the stacked washer dryer unit that he had just pushed into the closet before he had plugged in the power cable. The plaintiff contended that the power cable was resting on top of the dryer and was out of reach, and that the washer dryer unit, although on wheels, was difficult to move, so he stood on an inverted bucket to reach the power cable. The plaintiff alleged that the bucket slipped out from under him and he fell and was injured. …

… [T]he plaintiff was the sole proximate cause of his injuries because his conduct unnecessarily exposed him to an elevation-related risk … . The plaintiff’s deposition testimony … established that a ladder was not necessary for the plaintiff to do his work. The plaintiff testified that each of the stacked washer and dryer units that he was installing was on wheels and not secured within the closet in which they were being installed. … [P]rior to the incident, he had installed approximately 20 stacked washer and dryer units without using a ladder. … [W]ith respect to the unit he was installing on the day at issue, in order to reach the power cable, he could have moved the stacked washer and dryer out of the closet rather than stand on an inverted bucket, but he chose not to do so. Morales v 50 N. First Partners, LLC, 2022 NY Slip Op 04801, Second Dept 8-3-22

Practice Point: In this unusual Labor Law 240(1) action, the defendants demonstrated plaintiff did not need to stand on an inverted bucket to do his job. Therefore plaintiff was the sole proximate cause of his fall (from the bucket) and defendants were entitled to summary judgment.

 

,

DEFENDANT PIZZA-DELIVERY DRIVER WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE ALLEGELDY RESISTED ARREST AND INJURED PLAINTIFF POLICE OFFICER; THE OFFICER’S SUIT AGAINST THE DRIVER’S EMPLOYER, UNDER VICARIOUS LIABILITY AND NEGLIGENT HIRING THEORIES, SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-police officer’s (Maldonado’s) action against Domino’s Pizza (DP) as the employer of defendant pizza-delivery-driver (Alum) should have been dismissed. Maldonado pulled Alum over to issue a ticket for a defective headlight. Alum allegedly became violent and injured Maldonado sued DP under vicarious-liability theory negligent hiring-supervision theories. The Second Department held Alum was not acting within the scope of his employment when he resisted arrest, DP demonstrate it did not have knowledge or notice that Alum had a propensity for violence:

… [DP demonstrated] that Allum’s allegedly tortious conduct was not within the scope of his employment. … DP demonstrated that the violent conduct displayed by Allum during the course of receiving a ticket for a defective headlight was not reasonably foreseeable or incidental to the furtherance of DP’s business interests and that Allum was not authorized to use force to effectuate the goals and duties of his employment … . …

… DP demonstrated its prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for negligent hiring and negligent supervision. In this regard, DP demonstrated that it did not have knowledge, or notice, of Allum’s propensity for the violent conduct that resulted in Maldonado’s injury … . Moreover, “[t]here is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee” … . Maldonado v Allum, 2022 NY Slip Op 04798, Second Dept 8-3-22

Practice Point: An employer will not be liable for the tortious behavior of an employee unless the employee is acting within the scope of his employment. Here a pizza-delivery driver allegedly resisted arrest after a traffic stop and injured plaintiff police officer. The employer was not liable for the violent behavior of the employee under either a vicarious liability or negligent hiring theory.

 

, ,

PLAINTIFF WAS DETAINED BY DEFENDANT HOME DEPOT’S EMPLOYEE BASED ON A FALSE ALLEGATION AND WAS SUBSEQUENTLY ARRESTED; PLAINTIFF’S VERDICT ON HIS BATTERY AND FALSE IMPRISONMENT CAUSES OF ACTION UPHELD (SECOND DEPT). ​

The Second Department upheld a jury verdict (reducing it however) in favor of plaintiff who was detained in defendant Home Depot’s store by a Home Depot employee based upon the false allegation plaintiff had assaulted a woman. Plaintiff was detained until the police arrived and then arrested. Plaintiff was a court attorney and was seeking a judicial nomination. Plaintiff was awarded $1.8 million, which the Second Department reduced to $500,000:

The jury, after a trial on the issue of liability, returned a verdict in favor of the plaintiff and against the defendants on the causes of action alleging battery and false imprisonment. …

… False arrest and false imprisonment are two different names for the same common-law tort … . The elements of the tort are intent to confine the plaintiff, the plaintiff was conscious of the confinement, the plaintiff did not consent to the confinement, and the confinement was not otherwise privileged … . “Probable cause is a complete defense to an action alleging . . . false imprisonment” … .

The fact that the police had probable cause to detain the plaintiff based on what Marrugo [the Home Depot employee] told them does not mean that Marrugo had probable cause to detain the plaintiff. Although a civilian complainant generally cannot be found liable for false imprisonment merely for providing information to the police which turns out to be wrong … , a private person can be liable for false imprisonment for actively participating in the arrest such as “‘importuning the authorities to act'” … . The record indicates that the plaintiff would not have been arrested but for Marrugo’s detention of him, and importuning the police to arrest him. Marrugo instigated the arrest, making the police his agents in confining the plaintiff … . Marrugo did so based upon false information that the plaintiff assaulted the female customer with a shopping cart. Wieder v Home Depot U.S.A., Inc., 2022 NY Slip Op 04830, Second Dept 8-3-22

Practice Point: Here a Home Depot employee detained plaintiff until the police arrived based on the false allegation he had assaulted a woman. Plaintiff sued Home Depot and the verdict in plaintiff’s favor was upheld.

 

UPON CONVICTION OF ROBBERY SECOND, ROBBERY THIRD, AS A LESSER INCLUDED OFFENSE, MUST BE DISMISSED (SECOND DEPT). ​

The Second Department noted that robbery third is a lesser included offense of robbery second and must be dismissed upon conviction of robbery second:

… [R]obbery in the third degree is a lesser included offense of robbery in the second degree (see CPL 300.30[4] …). A verdict of guilt upon the greater count is deemed a dismissal of every lesser count (see CPL 300.40[3]). Accordingly, we vacate the conviction of robbery in the third degree and the sentence imposed thereon, and dismiss that count of the indictment … . People v Hardy, 2022 NY Slip Op 04820, Second Dept 8-3-22

Practice Point: Upon conviction of the greater offense, a lesser included offense must be dismissed.

 

, ,

A JURY NOTE WHICH REQUIRES NO ACTION BY THE COURT NEED NOT BE SHARED WITH DEFENSE COUNSEL (SECOND DEPT).

The Second Department determined there was no need for the judge to notify defense counsel of a jury note which did not require any action by the court, Also, jury notes requesting exhibits did not need to be shared with counsel because counsel agreed at the outset of deliberations that the jury could request exhibits:

In the defendant’s view, the Supreme Court’s failure to read note 6 into the record constituted a mode of proceedings error. We disagree.

Note 6 did not request “further instruction or information with respect to the law, [or] with respect to the content or substance of any trial evidence” (CPL 310.30). Nor did it indicate that the jury was deadlocked or struggling to reach a verdict on any or all of the counts submitted to it, or otherwise apprise the court of a significant development in the deliberations … . All the note conveyed was that the jury was continuing to deliberate on all of the charges, and that they were nearing a verdict on the first count in the defendant’s case, as well as the two counts in the codefendant’s case. Plainly, then, there was no action for the Supreme Court to take, and, concomitantly, no input or participation from defense counsel was necessary to ensure that the defendant’s rights were “adequately protect[ed]” … . Note 6 was, in short, not a substantive communication from the jury. People v Edwards, 2022 NY Slip Op 04818, Second Dept 8-3-22

Practice Point: A jury note which does not require action by the judge need not be shared with defense counsel. Here the note informed the judge that they were near a verdict on certain counts.

 

,

PLAINTIFF BANK FAILED INCLUDE REFERENCED DOCUMENTS WITH ITS MOTION PAPERS AND THEREBY DID NOT DEMONSTRATE DEFENDANTS’ DEFAULT OR PLAINTIFF’S STANDING IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not establish defendants’ default or plaintiff’s standing in this foreclosure action:

… [T]he plaintiff submitted … the affidavit of Christy Vieau, a document execution associate for the plaintiff, who, based upon her review of business records, attested to [defendant’s]  default in payment. While Vieau made the requisite showing that she was familiar with the plaintiff’s record-keeping practices and procedures (see CPLR 4518[a]), she did not identify the records she relied upon, and did not attach them to her affidavit … . Thus, her assertions as to the contents of these records were inadmissible … .

The plaintiff also failed to establish, prima facie, its standing to commence the action. … “A plaintiff has standing to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint” … . A plaintiff may establish its standing by “demonstrating that the note was in its possession prior to the commencement of the action, as evidenced by its attachment of the endorsed note to the summons and complaint at the time the action was commenced” … . Here, the plaintiff contends that it established standing by annexing a copy of the original note, endorsed to it, to the complaint. However, there is no copy of an endorsed note attached to the complaint. Rather, the copy of the note attached to the complaint states that it is an electronic document with an electronic transfer history, a fact wholly unaddressed by the plaintiff … . Nationstar Mtge., LLC v Koznitz I, LLC, 2022 NY Slip Op 04813, Second Dept 8-3-22

Practice Point: Many foreclosure summary judgment awards are reversed because the bank did not attached the documents referenced in its papers. Here the documents supporting defendants’ alleged default and the bank’s standing were missing and summary judgment was reversed.

 

,

THE PEOPLE WERE CHARGED WITH THE DELAY IN RESPONDING TO DEFENDANT’S OMNIBUS MOTION ENTITLING DEFENDANT TO RELEASE ON BAIL PURSUANT TO THE SPEEDY TRIAL STATUTE (SECOND DEPT).

The Second Department determined defendant’s habeas corpus petition seeking release on bail based upon the speedy-trial statute should have been sustained:

When making a motion pursuant to CPL 30.30(2)(a) to be released on bail or his or her own recognizance, a defendant who has been committed to the custody of the sheriff has the initial burden of demonstrating, by sworn allegations of fact, that there has been an inexcusable delay beyond the time set forth in the statute … . Once a defendant has alleged that more than the statutorily prescribed time has elapsed without a declaration of readiness by the People, the People bear the burden of establishing sufficient excludable delay … . The burden is on the People “to ensure, in the first instance, that the record of the proceedings . . . is sufficiently clear to enable the court considering the . . . CPL 30.30 motion to make an informed decision as to whether the People should be charged” with any delay … .

… [T]he petitioner adequately raised before the Supreme Court the issue of whether the People should be charged with their delay in responding to the defendant’s omnibus motion. … [B]ecause the People did not seek and receive an extension of time to respond to the omnibus motion, or provide any explanation for the delayed response, they are “chargeable with the time between the court-imposed deadline to respond to the omnibus motion and the date on which the People actually filed a response” … . Here, the 13 days chargeable to the People due to their unexplained delay in responding to the omnibus motion, when coupled with the 86 days between the date of arraignment and the date upon which the People filed their certificate of compliance pursuant to CPL 245.50, totals more than 90 days … . People v Molina, 2022 NY Slip Op 04778, Second Dept 7-29-22

Practice Point: Plaintiff had been incarcerated for more than the 90 days allowed by CPL 30.30 and the 13-day delay occasioned by the People’s failure to timely respond to defendant’s omnibus motion was not adequately explained. Therefore defendant’s habeas corpus petition was sustained and he was entitled to release on bail which he is capable of meeting or on his own recognizance.

 

BURGLARY SECOND IS AN INCLUSORY CONCURRENT COUNT OF BURGLARY SECOND AS A SEXUALLY MOTIVATED FELONY (SECOND DEPT).

The Second Department vacated the burglary second conviction as an inclusory concurrent count of burglary second as a sexually motivated felony:

The People correctly concede that the defendant’s conviction of burglary in the second degree and the sentence imposed thereon, must be vacated, and that count of the indictment dismissed, as it is an inclusory concurrent count of burglary in the second degree as a sexually motivated felony … . People v Hay, 2022 NY Slip Op 04737, Second Dept 7-27-22

Practice Point: Burglary second is an inclusory concurrent count of burglary second as a sexually motivated felony.

 

, ,

ALTHOUGH DEFENDANT WAS SPEEDING AT THE TIME HE LOST CONTROL OF THE CAR, WENT DOWN AN EMBANKMENT AND STRUCK A TREE, KILLING A PASSENGER, THE EVIDENCE DID NOT DEMONSTRATE “DANGEROUS SPEEDING;” THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO SUPPORT THE CRIMINALLY NEGLIGENT HOMICIDE AND RECKLESS DRIVING CHARGES; ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT). ​

The Second Department, reversing defendant’s criminally negligent homicide conviction in this traffic accident case, determined the evidence was not legally sufficient. Although the issue was not preserved, it was considered in the interest of justice. Defendant attempted to exit a highway at 74 miles per hour where the ramp speed limit was 45 miles per hour and the highway speed limit was 65 miles per hour. Defendant lost control, went down an embankment, and hit a tree. A passenger was killed:

… [T]he evidence was legally insufficient to establish “the kind of seriously condemnatory behavior” … in addition to speeding that is necessary to “transform ‘speeding’ into ‘dangerous speeding'” … . The People’s evidence established only that the defendant attempted to navigate the curved profile of the exit ramp at an excessive speed, and was late in attempting corrective measures by manually steering the wheel. While this conduct reflected poor judgment in the defendant’s operation of his vehicle given the roadway environment … , it failed to establish that the defendant engaged in “some additional affirmative act aside from driving faster than the posted speed limit,” as required to support a finding of criminal negligence or recklessness … . Accordingly, we vacate the convictions of criminally negligent homicide and reckless driving … . People v Cardona, 2022 NY Slip Op 04733, Second Dept 7-27-22

Practice Point: Defendant was speeding (74 miles per hour on an exit ramp) when he lost control of the car and struck a tree, killing a passenger. The evidence did not demonstrate “dangerous speeding.” Therefore the criminally negligent homicide and reckless driving convictions were not supported by legally sufficient evidence.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy