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DEFENDANT’S MOTION TO VACATE HIS 1999 MURDER CONVICTION BASED UPON THE PROSECUTION’S FAILURE TO TURN OVER BRADY MATERIAL PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant’s motion to vacate his 1999 murder conviction based upon the prosecution’s failure to turn over Brady material regarding a prosecution witness (Corti) was properly granted:

The People are obligated to disclose exculpatory evidence in their possession which is favorable to the defendant and material to the issues of guilt or innocence … . Moreover, the duty of disclosing exculpatory material extends to disclosure of evidence impeaching the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence … .

Here, the defendant was not provided with material regarding Cort’s participation as a witness in two unrelated homicide trials, along with prior agreements between Cort and law enforcement, including her use as a confidential informant by police and her placement in a witness relocation program following her participation in one of the unrelated homicide trials, during which her rent was paid by the Office of the Kings County District Attorney for approximately one year. This material contradicted Cort’s trial testimony that she did not have any “deals” with law enforcement and had not been in touch with the District Attorney’s Office “for a long period of time,” as well as the prosecutor’s arguments during summation that Cort “never took a deal” and “never asked for anything in return.” Significantly, Cort’s credibility was critical as she was the People’s only witness to testify that it was the defendant who shot the victim, and there was no other trial evidence directly linking the defendant to the crime … . Under these circumstances, in the context of the entire trial, Cort’s involvement with law enforcement “was both favorable and material to the defense, and the People’s failure to disclose this information to the defense violated defendant’s constitutional right to due process” … . In addition, the errors were compounded by the prosecution’s repetition and emphasis on the misinformation during summation … . People v Rodriguez, 2020 NY Slip Op 05234, Second Dept 9-30-20

 

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION OF A 1996 MURDER BASED UPON NEWLY DISCOVERED EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY GRANTED (SECOND DEPT).

The Second Department determined County Court properly granted defendant’s motion to vacate his conviction stemming from a 1996 murder, despite defendant’s confession, based upon evidence of third-party culpability, i.e., statements allegedly made by Gombert to Santoro about Gombert’s involvement in the crime:

… [W]e find that the newly discovered evidence “is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10[1][g]). A reasonable jury could credit Santoro’s testimony regarding the statements made by Gombert, including that he could not be charged with the rape and murder of the victim because “[t]hey already got the other suckers,” and find that such statements raise a reasonable doubt as to the defendant’s involvement in the subject crimes … . Moreover, had Santoro’s testimony been available to the defendant at trial, defense counsel could have advanced the theory that Gombert was the actual perpetrator of the crimes, rather than merely denying the defendant’s involvement … . In fact, the codefendant was acquitted following his third trial, at which Santoro’s testimony was admitted for the first time.

Further, although the evidence presented at the defendant’s trial included the defendant’s statement confessing to the crimes, the record reveals the existence of circumstances casting doubt on that statement. The portion of the defendant’s statement regarding how he tied the victim’s hands together was inconsistent with the testimony of a medical examiner for the People as to the manner in which the victim was “hogtied” with rope. In addition, the defendant presented testimony at trial from a polygraph examiner, who opined that the defendant was telling the truth during a polygraph examination when he initially denied raping and killing the victim. People v Krivak, 2020 NY Slip Op 05226, Second Dept 9-30-20

 

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SUPREME COURT SHOULD NOT HAVE REQUIRED DEFENSE COUNSEL TO SEEK COURT APPROVAL BEFORE ALLOWING INVESTIGATORS OR OTHER EMPLOYEES ACCESS TO RECORDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have required that defense counsel seek court approval before allowing investigators or other employees access to recordings:

Pursuant to CPL 245.70(6), a party who has unsuccessfully sought, or opposed the granting of, a protective order relating to the name, address, contact information, or statements of a person may obtain expedited review by an individual justice of the intermediate appellate court to which an appeal from a judgment of conviction would be taken. Where, as here, “the issue involves balancing the defendant’s interest in obtaining information for defense purposes against concerns for witness safety and protection, the question is appropriately framed as whether the determination made by the trial court was a provident exercise of discretion” … .

Applying the factors set forth in CPL 245.70(4), including concerns for witness safety and protection, I conclude that the Supreme Court improvidently exercised its discretion in requiring defense counsel to seek approval of the court before exhibiting the subject recordings to investigators or others employed by counsel. Under the particular circumstances of this case, the court should have permitted defense counsel to disclose the recordings to those employed by counsel or appointed to assist in the defense, without prior approval from the Supreme Court … . People v Clarke, 2020 NY Slip Op 05221, Second Dept 9-30-20

 

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INSUFFICIENT EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED WEAPONS FOUND IN A LOCKED ROOM BELONGING TO DEFENDANT’S DECEASED BROTHER; WEAPONS POSSESSION CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing the possession-of-a-weapon convictions, determined the evidence of constructive possession was insufficient and the convictions were therefore against the weight of the evidence:

The evidence demonstrated that the defendant resided in the third bedroom of the searched premises, and that the defendant’s brother had resided in the first bedroom up until his death in 2014 or 2015. There was also testimony that, after the defendant’s brother passed away, the door to the first bedroom was locked and remained locked. There was no evidence that the defendant frequented the first bedroom, had a key to that room or kept his belongings in that room. Although the police witnesses testified that they could not recall any damage to the door to the first bedroom, the defense introduced a photograph depicting damage to the door and frame after the search.

Moreover, although the police officers recovered a magazine containing seven 9 millimeter cartridges from the defendant’s bedroom, the evidence demonstrated that it was not the correct magazine for the pistol recovered from the first bedroom; it had to be manipulated in order to function properly with the pistol. Apart from the magazine, there was no other evidence connecting the defendant to the first bedroom or the weapons found therein. People v Branch, 2020 NY Slip Op 05220,  Second Dept 9-30-20

 

PLAINTIFF WAS INJURED BY A HAZARD INHERENT IN THE JOB HE WAS HIRED TO DO; HIS LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor Law 200 cause of action should have been granted because plaintiff was injured in the normal course of the tasks he was hired to do. Plaintiff was removing debris when his shovel struck a subway track:

The plaintiff’s specific task was to shovel concrete debris, which had been chipped from the subway tunnel’s walls, into bags for removal. During the project, eight-by-four foot pieces of plywood had been placed atop the subway tracks covering its rails and the trough between the rails, onto which the debris would fall making it easier to shovel. The plaintiff allegedly was injured when his shovel struck a rail of a track that was not covered by plywood. …

… The duty to provide workers with a safe place to work does not extend to hazards that are part of, or inherent in, the very work the worker is performing or defects the worker is hired to repair … .

Here, the defendants established, prima facie, that the plaintiff’s job responsibilities required him to remove the debris from the subway tracks, and that his alleged injuries were caused in the normal course of his removal of the debris in that area  … . In support of their motion, the defendants submitted, among other things, the transcripts of the deposition testimony … demonstrated that[defendant] decided to and actually placed the plywood over the tracks for the purpose of making it easier to remove the debris rather than for a safety purpose. Pacheco v Judlau Contr., Inc., 2020 NY Slip Op 05216, Second Dept 9-30-20

 

PLAINTIFF ALLEGEDLY FELL SIX FEET FROM A SCAFFOLD WITHOUT GUARD RAILS; PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED; DEFENDANT’S SUMMARY JUDGMENT MOTION ON PLAINTIFF’S LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN GRANTED; AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 241 (6) CAUSE OF ACTION WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s summary judgment motion on his Labor Law 240 (1) cause of action should not have been granted, defendant’s (Henry Street’s) motion for summary judgment on plaintiff’s Labor Law 200 cause of action should have been granted, and defendant’s motion for summary judgment on plaintiff’s Labor Law 241 (6) cause of action was properly denied. Plaintiff fell approximate six feet for a scaffold which did not have guard rails:

The plaintiff failed to eliminate triable issues of fact as to whether the scaffolding at issue provided proper protection under Labor Law § 240(1) … . …

Here, the plaintiff’s accident did not involve any dangerous or defective condition on Henry Street’s premises. Rather, the accident involved the manner in which the plaintiff performed his work … . Henry Street established, prima facie, that it did not have the authority to exercise supervision and control over the subject work … . In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of Henry Street’s cross motion which was for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against it. …

… [W]we agree with the Supreme Court’s determination to deny that branch of Henry Street’s cross motion which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon an alleged violation of Industrial Code provision 12 NYCRR 23-5.1(b) insofar as asserted against it. That section provides that “[t]he footing or anchorage for every scaffold erected on or supported by the ground, grade or equivalent surface shall be sound, rigid, capable of supporting the maximum load intended to be imposed thereon without settling or deformation and shall be secure against movement in any direction.” Henry Street failed to sustain its prima facie burden of demonstrating that Industrial Code provision 12 NYCRR 23-5.1(b) was either factually inapplicable to this case or was satisfied … . Medina-Arana v Henry St. Prop. Holdings, LLC, 2020 NY Slip Op 05199, Second Dept 9-30-20

 

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THE CHILD SUPPORT PROVISIONS OF THE STIPULATION OF SETTLEMENT IN THE DIVORCE ACTION VIOLATED THE CHILD SUPPORT STANDARDS ACT AND MUST BE VACATED; THE VACATUR SHOULD HAVE EXTENDED BACK TO THE DATE OF THE STIPULATION, NOT MERELY TO THE DATE OF THE RELATED MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this action on the child support provisions of a stipulation of settlement in a divorce action, determined the child support provisions violated the Child Support Standards Act and the required vacatur should extend back to the date of the stipulation:

The Child Support Standards Act (Domestic Relations Law § 240[1-b][h]; hereinafter CSSA) mandates vacatur of original child support stipulations when they fail to comply with CSSA guidelines. Here … the Supreme Court found that the parties’ failure to strictly comply with the CSSA with regard to the deviation from the statutory support obligations vitiated the child support provision of the stipulation of settlement with regard to apportionment of unreimbursed medical costs. … [T]he court improperly determined that the reimbursement of the medical costs and child care expenses was retroactive only to the filing date of the motion, relying on Luisi v Luisi (6 AD3d 398). However, in Luisi, this Court held that it was improper to award child support arrears retroactive to the date of a stipulation of settlement because the party seeking such recalculation only did so by motion in the matrimonial action rather than by plenary action … . Here, the defendant did properly commence a plenary action to vacate those provisions of the stipulation of settlement which pertained to the calculation of the medical costs and child care expenses and, upon vacatur, to recalculate the amounts owed. … Thus, the court should have granted those branches of the defendant’s motion which sought a recalculation of the arrears owed retroactive to the date of the stipulation of settlement … . Martelloni v Martelloni, 2020 NY Slip Op 05197, Second Dept 9-30-20

 

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SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED THE PROVISION OF AN “AGREEMENT OF PURCHASE AND SALE OF STOCK” WHICH CALLED FOR RECOVERY OF DOUBLE ATTORNEYS FEES BY THE PREVAILING PARTY IN LITIGATION WAS AN UNENFORCEABLE PENALTY (SECOND DEPT).

The Second Department determined Supreme Court should not have, sua sponte, held that the provision of the “Agreement of Purchase and Sale of Stock” (PSA) which awarded double attorney’s fees if litigation resulted from a breach was an unenforceable penalty. The decision, which includes legal analysis well worth reading, is a complex discussion of the covenant not to compete and the nonsolicitation agreement which is too detailed and fact-specific to summarize here. There is an extensive dissent. With respect to the “double attorney’s fees” provision, the court wrote:

We disagree with the Supreme Court’s sua sponte determination that the provision of the PSA, which, in the event of litigation, allows for a recovery of double the amount of attorneys’ fees expended by the substantially prevailing party, is an unenforceable penalty. When parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms … . Paragraph 10.11 of the PSA clearly sets forth the intent of the parties, two sophisticated businesspeople with the benefit of counsel, that, should litigation arise out of the PSA, the “substantially prevailing party” is entitled to two times reasonable attorneys’ fees. Where, as here, “there is no deception or overreaching” in the making of such agreement, the agreement should be enforced as written … . Moreover, while each party asserted in the Supreme Court, and asserts on appeal, that he should prevail and be treated as the prevailing party for the purpose of paragraph 10.11, neither party contended in the Supreme Court that the double attorneys’ fees provision of paragraph 10.11 should not be enforced. Loughlin v Meghji, 2020 NY Slip Op 05196, Second Dept 9-30-20

 

NASSAU COUNTY SUPREME COURT CANNOT VACATE A DEFAULT ORDER ISSUED BY NEW YORK COUNTY SUPREME COURT, DESPITE THE CHANGE OF VENUE FROM NEW YORK COUNTY TO NASSAU COUNTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Nassau County Supreme Court could not vacate the default order issued by New York County Supreme Court, even though New York County Supreme Court had granted a change of venue to Nassau County:

The Supreme Court, Nassau County, had no authority to vacate the order of the Supreme Court, New York County … . A motion to vacate an order must be addressed to the court that made the order (see CPLR 5015[a]), and no court other than the one that rendered the order may entertain a motion to vacate it … . In any event, contrary to the defendants’ contention, the Supreme Court, New York County, did not lack subject matter jurisdiction to issue the New York County default order one day after its order granting a change of venue to Nassau County, since the “Supreme Court is a court possessing State-wide jurisdiction and is competent to entertain a motion no matter where the underlying action is pending” … . London v 107 (160) Realty, LLC, 2020 NY Slip Op 05195, Second Dept 9-30-20

 

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LOST NOTE AFFIDAVIT INSUFFICIENT TO ESTABLISH STANDING; PROOF OF COMPLIANCE WITH RPAPL 1304 INSUFFICIENT; OUT OF STATE AFFIDAVIT LACKED A CERTIFICATE OF CONFORMITY; NEITHER PLAINTIFF NOR DEFENDANT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-bank’s motion for summary judgment in this foreclosure action should not have been granted. The lost note affidavit was insufficient to establish standing the proof of compliance with the notice requirements of RPAPL 1304 was insufficient and the out of state affidavit lacked a certificate of conformity. Defendants’ cross-motion for summary judgment, however, was properly denied:

… [T]he plaintiff failed to proffer evidence establishing that the note was assigned to it, and the affidavit of lost note submitted in support of its motion failed to establish the facts that prevented the plaintiff from producing the original note (see UCC 3-804 …). We also note that the out-of-state affidavit from the vice president of loan documentation for Wells Fargo lacked a certificate of conformity as required by CPLR 2309(c), although such defect by itself would not be fatal to the plaintiff’s motion ,,, ,

… [A]lthough the plaintiff submitted a copy of the 90-day notice purportedly sent to the defendants, it failed to submit an affidavit of service or other proof of mailing establishing that it properly served them by registered or certified mail and first-class mail in accordance with RPAPL 1304 … . …

The defendants’ bare denial of receipt of the RPAPL 1304 notice, without more, was insufficient to establish their prima facie entitlement to judgment as a matter of law … . Trust v Moneta, 2020 NY Slip Op 05181, Second Dept 9-30-20

 

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