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PLAINTIFF, WHILE ATTENDING A BEACH-FRONT PARTY, SUFFERED SEVERE INJURY WHEN HE DOVE OFF A BULKHEAD INTO SHALLOW WATER; HIS ACTION AGAINST THE PROPERTY OWNER FOR FAILURE TO WARN SHOULD NOT HAVE BEEN DISMISSED; THE PROPERTY OWNER’S INDEMNIFICATION ACTION AGAINST THE PERSON WHO RENTED THE AREA FOR THE PARTY WAS DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s action against the owner of beach-front property where a party was being held should not have been dismissed. Plaintiff dove off a bulkhead into shallow water and suffered severe injury. Plaintiff alleged a negligent failure to warn against diving. Apparently the water was murky and the bulkhead extended 40 feet into a bay along a boat channel. In addition, the Second Department determined that the person who rented the area for the party (Hanson) did not agree, in the rental agreement, to indemnify the property owner for the owner’s alleged negligence:

The plaintiff testified that he believed the waters to be deep in the area in which he dove because the bulkhead was adjacent to a boating channel, it extended approximately 40 feet into the bay from the beach, and he had seen people swimming earlier in the day. … [I]t cannot be said as a matter of law that the plaintiff knew or should have known that he was diving into shallow waters, and thus, that his conduct constituted the sole proximate cause of the accident or an unforeseeable superseding event sufficient to absolve [the owner] of liability … . Moreover, [the owner] did not demonstrate, as a matter of law, that the plaintiff’s blood alcohol level was the sole proximate cause, or a superseding cause, of the accident … . …

“When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” … . “The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances” … . Particularly with agreements to indemnify, “[a]lthough the words might ‘seem to admit of a larger sense, . . . they should be restrained to the particular occasion and to the particular object which the parties had in view'” … .

Here, the indemnification provision on which [the owner] relies is contained in the agreement Hanson signed to rent the Community Center for a party. Hanson demonstrated … that a promise on his part to indemnify PPI for its alleged negligence in relation to its ownership and maintenance of the beach area and bulkhead cannot be “clearly implied from the language and purpose of [that] entire agreement and the surrounding facts and circumstances” … . Reilly v Patchogue Props., Inc., 2022 NY Slip Op 01334, Second Dept 3-2-22

 

SUPREME COURT DID NOT MAKE THE REQUIRED FINDINGS RE: WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; MATTER REMITTED (SECOND DEPT).

​The Second Department determined Supreme Court did not make the required findings re: whether defendant should be afforded youthful offender status and remitted the matter:

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” … . With regard to the defendant’s conviction of criminal possession of a weapon in the second degree …, which, contrary to the defendant’s contention, is an armed felony (see CPL 1.20[41]; Penal Law §§ 70.02[1][b]; 265.03[3] …), the People concede that the Supreme Court improperly failed to determine on the record whether the defendant was an “eligible youth” (CPL 720.10[2], [3]) and, if so, whether he should be afforded youthful offender treatment … . With regard to the defendant’s conviction of resisting arrest …, the defendant contends, and the People concede, that the court also failed to determine whether he should be afforded youthful offender status (see CPL 720.20[1]). The parties are correct that the record does not demonstrate that the court made either of these required determinations … . People v Hunter, 2022 NY Slip Op 01320, Second Dept 3-2-22

 

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THE PEOPLE DID NOT MEET THEIR BURDEN TO SHOW THE LEGALITY OF THE SEIZURE OF DEFENDANT’S CLOTHES BY A DETECTIVE AT THE HOSPITAL WHERE DEFENDANT WAS BEING TREATED FOR A GUNSHOT WOUND; THE CLOTHES AND THE DNA EVIDENCE TAKEN FROM THE CLOTHES SHOULD HAVE BEEN SUPPRESSED; THE ERROR WAS HARMLESS HOWEVER (SECOND DEPT).

The Second Department determined the defendant’s clothes seized at the hospital where defendant was being treated for a gunshot wound should have been suppressed. The error was deemed harmless however:

The defendant had a legitimate expectation of privacy in his clothing, and the fact that the police perceived the defendant as a victim rather than a suspect at the time his clothing was seized did not strip the defendant of his Fourth Amendment protection … . Moreover, the People failed to establish that the testifying detective knew that the clothes would have covered the part of the defendant’s body where he was shot, as the detective admitted that he did not know what type of clothing was in the bag that was seized … . The People also failed to establish any exigent circumstances to justify seizure of the clothing, as they provided no evidence that the clothing was in danger of being removed or destroyed … . Accordingly, the seizure of the defendant’s clothing at the hospital was illegal, and the DNA evidence obtained from the items seized should not have been admitted into evidence at trial … . People v Gough, 2022 NY Slip Op 01317, Second Dept 3-2-22

 

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THE CONSENT-TO-SEARCH PROBATION CONDITION WAS NOT INDIVIDUALLY TAILORED TO THE OFFENSE AND SHOULD NOT HAVE BEEN IMPOSED; IT WAS NOT NECESSARY TO PRESERVE THE ERROR FOR APPEAL AND APPEAL WAS NOT PROHIBITED BY THE DEFENDANT’S WAIVER OF HIS RIGHT TO APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was no justification for the “consent-to-search” probation condition. Defendant stole a cab driver’s cell phone and pled guilty to attempted assault. The court noted it was not necessary to preserve the error for appeal and appeal was not prohibited by the waiver of appeal:

The probation department [requested] that as a condition of probation, the defendant be required to consent to a search by a probation officer of his person, vehicle, and place of abode, and the seizure of any illegal drugs, drug paraphernalia, gun/firearm or other weapon, or other contraband found (Condition No. 28). At sentencing, the Supreme Court imposed the consent to search condition of probation. On appeal, the defendant argues that this condition of his probation was improperly imposed.

The defendant correctly argues, and the People do not dispute, that this issue was not required to be preserved for appellate review, and that appellate review is not precluded by his waiver of the right to appeal … .

… [T]he defendant was a first-time offender and was not armed with a weapon at the time he committed the offense. While the defendant told the probation department that he was under the influence of alcohol at the time of the offense, he was not assessed as being in need of alcohol or substance abuse treatment. Under the circumstances, the consent to search condition of probation was improperly imposed because it was not individually tailored in relation to the offense, and was not, therefore, reasonably related to the defendant’s rehabilitation, or necessary to ensure that the defendant will lead a law abiding life … . People v Dranchuk, 2022 NY Slip Op 01312, Second Dept 3-2-22

 

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A SEX OFFENDER CERTIFICATION IS NOT PART OF A DEFENDANT’S SENTENCE; THEREFORE THE CERTIFICATION CANNOT BE SET ASIDE PURSUANT TO A MOTION TO SET ASIDE THE SENTENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s certification as a sex offender was not part of his sentence. Therefore the certification could not be set aside pursuant to CPL 440.20:

Prior to the defendant’s release from prison, the defendant moved, inter alia, pursuant to CPL 440.20 to vacate his certification as a sex offender on the ground that his certification was unlawful because the crime he was convicted of was not a sex offense or a sexually violent offense under Correction Law § 168-a. The Supreme Court granted that branch of the defendant’s motion and set aside so much of the sentence as certified the defendant as a sex offender and required him to pay a sex offender registration fee. The court then resentenced the defendant to the originally-imposed term of imprisonment and post-release supervision. The People appeal.

While a defendant’s certification as a sex offender under SORA is part of the judgment of conviction … , “SORA certification is not part of a sentence” … . Thus, the relief sought by the defendant was not available to him under CPL 440.20(1), which only authorizes a motion to set aside a sentence … . People v David, 2022 NY Slip Op 01310, Second Dept 3-2-22

 

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CONFLICTING ACCOUNTS OF WHAT THE POLICE OFFICERS SAW WHEN THEY APPROACHED THE VAN IN WHICH DEFENDANT WAS A PASSENGER FAILED TO DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH OF THE VAN; THE WEAPON SEIZED FROM THE VAN SHOULD HAVE BEEN SUPPRESSED; DEFENDANT’S POSSESSION OF A WEAPON CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing the possession of a weapon conviction, determined defendant’s motion to suppress a handgun found in a van in which defendant was a passenger should have been granted. Inconsistencies in the police officer’s accounts of what the officers saw when they approached the van rendered the People’s proof at the suppression hearing insufficient to demonstrate a lawful search incident to arrest:

The Supreme Court credited the accounts of both Ramos and Pimentel and concluded that what Pimentel testified that he had observed gave the officers probable cause to search the minivan for a gun … . However, the officers’ versions of events sharply conflicted with each other as to where the defendant was sitting in the minivan, and what he was doing, when the officers arrived at the minivan’s front windows. According to Ramos, the defendant was sitting in the front passenger seat, while Pimentel claimed that the defendant was sitting in the middle row, and attempting to conceal a gun in a bag at his feet. Ramos, though, did not see a gun, furtive movements, or a bag. It seems improbable that, if the defendant did what Pimentel said he did, Ramos could somehow have failed to notice it.

Ramos’s and Pimentel’s accounts both could not have been true, since both officers acknowledged that they approached the minivan simultaneously and reached the front seats at the same time. People v Austin, 2022 NY Slip Op 01306, Second Dept 3-2-22

 

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PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER SHE WAS THE VICTIM OF GENDER DISCRIMINATION; UPON HER RETURN FROM MATERNITY LEAVE SHE WAS TOLD HER POSITION HAD BEEN ELIMINATED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s gender-discrimination action against defendant employer should not have been dismissed. Upon returning from maternity leave, plaintiff was informed her management-level position had been eliminated and replaced by a position for which she was not qualified. Defendant did offer plaintiff a job as a temporary social worker at the same salary:

“Discrimination on the basis of pregnancy is a form of gender discrimination” … . …

… [T]he defendant failed to eliminate triable issues of fact as to whether the position offered to the plaintiff involved a materially adverse change in the terms of her employment, since the social worker position did not involve any of the management responsibilities that the plaintiff had performed … . …

… [T[here were triable issues of fact as to whether the plaintiff’s supervisor, Segree, made remarks [re: her pregnancy] indicative of a discriminatory motive to terminate the plaintiff’s employment … . …

Contrary to the defendant’s contention, it also failed to eliminate triable issues of fact as to whether the proffered explanation for terminating the plaintiff’s employment was a pretext for discrimination … . Although McDonald averred that the plaintiff’s employment was terminated because she had no business education and no sales or marketing experience, he acknowledged that a business education was not required. Lefort v Kingsbrook Jewish Med. Ctr., 2022 NY Slip Op 01294, Second Dept 3-2-22

 

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THE BANK DID NOT COMPLY WITH THE “ONE ENVELOPE” RULE FOR THE MAILING OF THE RPAPL 1304 NOTICE OF DEFAULT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank violated the notice requirements of RPAPL 1304 by including other documents in the envelope containing the notice of default in this foreclosure action:

RPAPL 1304(1) provides that “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” RPAPL 1304(2) states that “[t]he notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice.”

Here, the inclusion of additional “Important Disclosures” regarding bankruptcy and rights for military personnel on page 7 of the 90-day notice violated RPAPL 1304(2), which requires strict compliance … . Deutsche Bank Natl. Trust Co. v Salva, 2022 NY Slip Op 01290, Second Dept 3-2-22

 

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THE BUSINESS RECORDS REFERRED TO IN THE AFFIDAVIT SUBMITTED TO SHOW THE BANK’S COMPLIANCE WITH THE RPAPL 1304 NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION WERE NOT ATTACHED, RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with the notice requirements of RPAPL 1304 in this foreclosure action. The failure to attached the business records referred to in the affidavit purporting to demonstrate compliance rendered the affidavit inadmissible hearsay:

Although the plaintiff submitted copies of the 90-day notices purportedly sent to the defendant, the plaintiff failed to demonstrate, prima facie, that the notices were actually mailed, through either an affidavit of service, other proof of mailing by the United States Postal Service, or evidence of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure … . The assertion in an affidavit of an employee of the plaintiff’s loan servicer that the 90-day notices were sent in accordance with RPAPL 1304 was insufficient to establish that the notices were actually mailed to Blackman by first-class and certified mail. The affiant based his assertions upon his review of records which were created by a third-party vendor, and as those business records were not incorporated into the servicer’s own electronic files, they were inadmissible hearsay … . “It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . Deutsche Bank Natl. Trust Co. v Blackman, 2022 NY Slip Op 01289, Second Dept 3-2-22

 

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THE CONDITIONAL ORDER OF DISMISSAL DID NOT MEET THE REQUIREMENTS OF CPLR 3216 BECAUSE ISSUE WAS NEVER JOINED IN THIS FORECLOSURE ACTION; THE ACTION SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO PROSECUTE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the conditional order of dismissal of this foreclosure action did not meet the requirements of CPLR 3216 because issue was never joined. Therefore the action should not have been dismissed:

“‘A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met'” … , including that issue has been joined in the action (see CPLR 3216[b][1] …). Here, the dismissal of the action pursuant to the conditional order of dismissal was improper, since none of the defendants had submitted an answer to the complaint and, thus, issue was never joined … . Central Mtge. Co. v Ango, 2022 NY Slip Op 01286, Second Dept 3-2-22​

 

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