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THE JUDGE WAS REQUIRED TO DETERMINE WHETHER DEFENDANT IS AN “ELIGIBLE YOUTH,” AND, IF SO WHETHER DEFENDANT SHOULD BE ADJUDICATED A YOUTHFUL OFFENDER; THE JUDGE WAS NOT AUTHORIZED TO ACCEPT A GUILTY PLEA TO SECOND DEGREE MURDER FROM THE JUVENILE DEFENDANT; THE WAIVER OF APPEAL WAS INVALID (SECOND DEPT).

The Second Department determined: (1) because defendant pled guilty to “armed felonies,” the judge was required to determine on the record whether defendant was an “eligible youth” and, if so, whether he should be afforded youthful offender status; (2) the judge was not authorized to accept a guilty plea for second degree murder from the juvenile defendant; and (3) the waiver of appeal was invalid:

… Supreme Court was required to determine on the record whether the defendant was an “eligible youth” (CPL 720.10[2][a][ii]), by considering the presence or absence of the factors set forth in CPL 720.10(3), and, if so, whether he should be afforded youthful offender status … . …

… Supreme Court was not authorized to accept a plea of guilty to count 3 [second degree murder]. As a juvenile offender, the defendant cannot be held criminally responsible for felony murder where the underlying felony, attempted robbery, is a crime for which he cannot be held criminally responsible (see CPL 1.20[42][2]; Penal Law § 30.00[2]; People v Stowe, 15 AD3d 597, 598; Matter of Tracy C., 186 AD2d 250, 251; People v Smith, 152 AD2d 56, 61). Accordingly, … the defendant’s plea of guilty to murder in the second degree … must be set aside … .

… Supreme Court’s oral colloquy and written appeal waiver mischaracterized the nature of the appeal waiver as an absolute bar to the taking of a direct appeal and a forfeiture of the attendant right to counsel and poor person relief … . People v Shelton, 2022 NY Slip Op 01050, Second Dept 2-16-22

 

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THE TRIAL JUDGE DID NOT MEANINGFULLY RESPOND TO A NOTE FROM THE JURY; RE-READING THE ORIGINAL INSTRUCTIONS WAS NOT SUFFICIENT; CONVICTION REVERSED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department reversed the judgment of conviction and ordered a new trial because the trial judge did not meaningfully respond to a note from the jury. Under the facts here, re-reading the original instructions was not sufficient:

… [W]hen the jury was deliberating, the County Court failed to meaningfully respond to one of the jury’s notes. “Pursuant to CPL 310.30, the trial court has an obligation to meaningfully respond to all questions from the jury during deliberations” … . “Although simply rereading the original instructions may, under the appropriate circumstances, constitute a meaningful response” … , here, it was error for the court to respond to the jury’s last question about the elements of one of the charges by simply rereading its original instructions. The jury had previously sent a note about that charge demonstrating its initial confusion about that instruction … . The record reflects that defense counsel and the court perceived that, with respect to the jury note at issue, the jury may have been asking whether the defendant was required to know of the falsity of the information in the document that was alleged to contain false information at the time she submitted it to the Department of Health investigator. Notwithstanding its perception about the jury’s inquiry, the court did not seek any further clarification from the jury about that note. Under these circumstances, at a minimum, the court should have asked the jurors to again clarify their request … . People v Manzano, 2022 NY Slip Op 01040, Second Dept 2-16-22

 

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THE PETITIONERS DEMONSTRATED THAT THE OPERATION OF A CONCRETE PLANT WOULD CAUSE INJURIES TO THEM DIFFERENT FROM THOSE SUFFERED BY THE PUBLIC AT LARGE; SUPREME COURT SHOULD NOT HAVE DETERMINED PETITIONERS DID NOT HAVE STANDING TO CONTEST THE RENOVATION AND OPERATION OF THE PLANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioners had standing to contest the renovation and operation of a concrete plant:

Supreme Court improperly determined that the Hill & Dale petitioners and the Veteri petitioners lacked standing to challenge the ZBA’s determination. The Hill & Dale petitioners alleged environmental injuries to a private lake owned by Hill & Dale, which was situated directly across from the subject property, as well as interference with recreational activities enjoyed in and around the lake, and impacts to their properties from increased noise, truck traffic, dust, and pollutants from the concrete manufacturing use. These alleged injuries were different from those suffered by the public at large … , and fell within the zone of interests protected by the Town’s zoning laws … . Similarly, the Veteri petitioners sufficiently alleged that they would be adversely affected by the ZBA’s determination and that their alleged injuries fell within the zone of interests protected by the zoning laws. Matter of Veteri v Zoning Bd. of Appeals of the Town of Kent, 2022 NY Slip Op 01030, Second Dept 2-16-22

 

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THE SUPPORT MAGISTRATE DID NOT ENSURE THAT FATHER KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVED HIS RIGHT TO COUNSEL IN THIS CHILD SUPPORT PROCEEDING; ORDER OF COMMITMENT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court’s order of commitment for father’s failure to pay child support, determined the Support Magistrate did not ensure that father’s waiver of counsel was knowing, intelligent and voluntary:

… [A]t the beginning of the hearing, the Support Magistrate asked the father what he “want[ed] to do about legal representation,” to which the father responded, “I’m speaking for myself at this point.” The Support Magistrate did not make any further inquiries regarding counsel. The Support Magistrate also failed to advise the father about the potential pitfalls of proceeding pro se. Thus, the Support Magistrate failed to conduct a sufficiently searching inquiry to ensure that the father’s waiver of his right to counsel was knowing, intelligent, and voluntary … . Under these circumstances, the father was deprived of his right to counsel at the hearing. Contrary to the mother’s contention, this violation was not cured by the fact that the father was later represented by assigned counsel during the confirmation hearing … . Matter of Sylvester v Goffe, 2022 NY Slip Op 01028, Second Dept 2-16-22

 

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THE PETITION STATED CAUSES OF ACTION FOR A VIOLATION OF REAL PROPERTY TAX LAW (RPTL) 305 AND VIOLATION OF EQUAL PROTECTION; THE PETITION ALLEGED LARGER HOMES WERE ASSESSED AT LESS THAN 100% OF MARKET VALUE AND SMALLER HOMES WERE ASSESSED AT 100% OF MARKET VALUE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition stated causes of action for improper assessment of property values and violation of equal protection. It was alleged that the methodology use to assess the value of home for property tax purposes resulted in less than 100% assessment for the larger homes and 100% assessment for the smaller homes:

Under RPTL 305(2), real property within an assessing unit must “be assessed at a uniform percentage of value”… . “[R]egardless of the methodology adopted by the [a]ssessor, the result must reflect the realistic value of the property so that the tax burden of each property is equitable” … . Although there is a presumption that a tax assessor’s property valuations are valid, property owners may rebut the presumption through submission of substantial evidence of overvaluation … .

… The petition, as supplemented by affidavits from the petitioner’s members and empirical and statistical analyses, sufficiently stated a cause of action for violation of RPTL 305. …

Accepting as true the facts alleged in the petition and according the petitioner the benefit of every favorable inference, the petition, as supplemented by the petitioner’s submissions, sufficiently stated a claim for violations of the equal protection clauses of the State and Federal Constitutions. Matter of Scarsdale Comm. for Fair Assessments v Albanese, 2022 NY Slip Op 01027, Second Dept 2-16-22

 

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PETITIONER’S NOTICE OF CLAIM DEMONSTRATED HE HAD SUFFICIENT INFORMATION TO FORMULATE A COMPLAINT IN THIS SLIP AND FALL CASE; HIS REQUEST FOR PRE-JOINDER DISCOVERY AND PRESERVATION OF THE ACCIDENT SCENE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined pre-joinder discovery and preservation of the accident site was not necessary in this slip and fall case:

The petitioner alleges … he slipped and fell due to an accumulation of water leaking from the ceiling onto the landing at the top of an escalator in a subway station. The petitioner commenced this proceeding against the New York City Transit Authority (hereinafter the Transit Authority) seeking to direct the Transit Authority to preserve and produce any surveillance videos or records prepared in the regular course of business concerning the accident, or to provide an affidavit explaining the absence of any such videos or records. The petitioner also moved pursuant to CPLR 3102(c), in effect, to compel the Transit Authority to permit an inspection of the location of the accident upon certain conditions and to refrain from performing alterations or modifications to the location pending that inspection. …

CPLR 3102(c) provides, as relevant, that “[b]efore an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.” Here, the petitioner’s notice of claim demonstrates that the petitioner possessed sufficient information to enable him to formulate his complaint and commence an action … . Therefore, under the circumstances, the only purpose of the pre-action discovery sought by the petitioner would be to “explore alternative theories of liability, which is not a proper basis for invoking CPLR 3102(c)” … . Moreover, considering, inter alia, the evidence already in the petitioner’s possession, the order directing the Transit Authority to preserve the condition of the site of the accident until completion of an inspection was unduly burdensome …”. Matter of Neham v New York City Tr. Auth., 2022 NY Slip Op 01026, Second Dept 2-16-22

 

THE DAMAGES AMOUNT ASSESSED AGAINST THE DEFAULTING DEFENDANT IN THE INQUEST WAS EXCESSIVE (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the amount of damages assessed against the defaulting defendant in the inquest was excessive:

Although this Court is not relieving the defendant of his default, this Court may consider whether excessive damages were awarded … . “An unwarranted and excessive award after inquest will not be sustained, as to do otherwise ‘would be tantamount to granting the plaintiffs an open season at the expense of a defaulting defendant'” … . Based upon the proof submitted at the inquest, an award of $25,000 constitutes reasonable compensation … . Kokolis v Wallace, 2022 NY Slip Op 01018, Second Dept 2-16-22

 

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THE PURPORTED STIPULATION OF DISCONTINUANCE OF THE FORECLOSURE ACTION AND THE PURPORTED NOTICE OF DISCONTINUANCE WERE INVALID; SUPREME COURT SHOULD NOT HAVE DETERMINED THE ACCELERATION OF THE MORTGAGE DEBT HAD BEEN REVOKED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined both the purported stipulation of discontinuance and the purported notice of discontinuance were invalid. Therefore the judge should not have determined the acceleration of the mortgage debt had been revoked:

…Supreme Court erred in discontinuing the action based upon a purported stipulation of discontinuance, and then interceding on the plaintiff’s behalf to declare the acceleration of the loan revoked. The stipulation was clearly ineffective as it was only signed by the attorney for the plaintiff (see CPLR 3217[a][2] …). Further, to the extent that the stipulation was construed as a notice of discontinuance, it was equally ineffective to discontinue the action, as it was not served upon the appellant (see CPLR 3217[a][1] …). HSBC Bank USA, N.A. v Rini, 2022 NY Slip Op 01016, Second Dept 2-16-22

 

THE TENANT WHICH SUPPLIED THE ALLEGEDLY DEFECTIVE LADDER TO THE PLAINTIFF IN THIS LADDER-FALL CASE WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the tenant, Fresh Direct, which supplied the allegedly defective ladder to plaintiff was not entitled to summary judgment on the Labor Law 200 and common law negligence causes of action. Plaintiff fell 20 feet when the ladder slipped:

Fresh Direct failed to establish, prima facie, that it did not have actual or constructive notice of the allegedly defective condition of the ladder that, according to the plaintiff, it provided at the time of the accident … . Hamm v Review Assoc., LLC, 2022 NY Slip Op 01011, Second Dept 2-16-22

 

QUESTIONS OF FACT WHETHER THE DEFENDANT BUS DRIVER SAW WHAT SHOULD HAVE BEEN SEEN AND WHETHER THE EMERGENCY DOCTRINE APPLIED TO THIS REAR-END COLLISION CASE; THE BUS WAS BEHIND PLAINTIFF’S SCOOTER AND BOTH THE BUS AND THE SCOOTER APPARENTLY CHANGED LANES AT THE SAME TIME (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there were questions of fact whether defendant bus driver (Payne) failed to see what should have been seen and whether the emergence doctrine applied to this rear-end collision case. Plaintiff was on a motor scooter in front of the bus and both the bus and the scooter changed lanes at approximate the same time:

… [E]ven if Payne had the right of way, she testified at her deposition that she did not see the plaintiff on his motor scooter until “seconds” before the accident. Since the video recording taken from the bus seems to show that the bus was following the plaintiff’s motor scooter for approximately two blocks prior to the accident, Payne’s testimony raised a triable issue of fact as to whether Payne failed to see what was there to be seen through the proper use of her senses, and thus whether she exercised reasonable care to avoid the accident and whether her actions were a proximate cause of the accident … . …

… [T]he evidence failed to eliminate the existence of triable issues of fact as to whether Payne’s actions contributed to or caused the emergency, in light of, inter alia, her failure to observe the motor scooter earlier … . Fergile v Payne, 2022 NY Slip Op 01008, Second Dept 2-16-22

 

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