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WHETHER THE SIDEWALK DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL IS SHOWN ON A BIG APPLE MAP MUST BE RESOLVED BY A JURY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the sidewalk defect which allegedly caused plaintiff to fall was depicted on the Big Apple map. Therefore the question whether the city had written notice of the defect was for the jury:

Administrative Code of the City of New York § 7-201(c)(2) “limits the City’s duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location” … . Accordingly, “prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City” … . …

“Big Apple is a corporation established by the New York State Trial Lawyers Association for the purpose of giving notices in compliance with [Administrative Code of City of New York § 7-201(c)(2)]. It does so through maps on which coded symbols are entered to represent defects” … . “A Big Apple map submitted to the Department of Transportation may serve as prior written notice of a defective condition” … . …

” Where [, as here,] there are factual disputes regarding the precise location of the defect that allegedly caused a plaintiff’s fall, and whether the alleged defect is designated on the [Big Apple] map, the question should be resolved by a jury'” … . Harrison v City of New York, 2020 NY Slip Op 03401, Second Dept 6-17-20

 

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WHERE A TRIAL JUDGE DEMANDS A WAIVER OF APPEAL, THE JUDGE SHOULD PLACE HIS OR HER REASONS ON THE RECORD SO THE DEMAND IS NOT SEEN AS A TOOL FOR AVOIDING APPELLATE REVIEW; THE JUDGE-DEMANDED WAIVER WAS NOT ENFORCED IN THIS CASE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, determined defendant’s waiver of appeal was not enforceable for two reasons: (1) the waiver was demanded by the judge, not the People; and (2) the waiver was demanded after the guilty plea and the sentence promise (therefore defendant did not receive a material benefit from the waiver). The court noted that a waiver demanded by a judge could be seen a tool for avoiding appellate review. Therefore, the Second Department held the judge should put his or her reasons for demanding a waiver on the record. Turning to the merits, the Second Department affirmed the conviction:

We do not foreclose the possibility that there may be circumstances where the trial court has a legitimate interest in conditioning its acceptance of a plea and determination of a sentence upon an appeal waiver that the prosecution has not requested. While the prosecution need not articulate any reason for including a demand for an appeal waiver in its settlement offer, where it is the court that makes the demand, the court should articulate on the record its reasons for doing so in order to dispel any concern that the court’s demand is motivated solely as a means of avoiding appellate review of its decisions. Here, the Supreme Court did not set forth any reason for demanding an appeal waiver, and none is apparent on the record. Accordingly, we will not enforce the defendant’s purported waiver of the right to appeal. People v Sutton, 2020 NY Slip Op 03400, Second Dept 6-17-20

 

THE TWO COUNTS OF ROBBERY THIRD WERE CONCURRENT INCLUSORY COUNTS OF THE TWO COUNTS OF ROBBERY SECOND; CONVICTIONS ON THE ROBBERY SECOND COUNTS REQUIRED VACATION OF THE CONVICTIONS ON THE ROBBERY THIRD COUNTS AND THE RELATED SENTENCES (SECOND DEPT).

The Second Department noted that the two robbery third degree counts were concurrent inclusory counts of the two robbery second degree counts and must be dismissed:

 The two counts of robbery in the third degree were concurrent inclusory counts of the two counts of robbery in the second degree (see CPL 300.30[4]; People v Hutson, 43 AD3d 959, 959; People v Gibson, 295 AD2d 529, 530). 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 convictions of robbery in the third degree and the sentences imposed thereon, and dismiss those counts of the indictment … . People v Wingate, 2020 NY Slip Op 03398, Second Dept 6-17-20

 

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ALTHOUGH PLAINTIFF’S EXPERT, A GENERAL SURGEON, PROVIDED AN OPINION IN THE AREA OF INTERNAL MEDICINE, THE EXPERT’S AFFIRMATION DEMONSTRATED THE EXPERT WAS QUALIFIED TO OFFER THE OPINION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert’s affirmation raised a question of fact in this failure-to-diagnose medical malpractice case, even though the affirmation dealt with an area of medicine outside of the expert’s area of practice (general surgery):

… [T]he plaintiffs’ expert’s affirmation was not lacking in probative value because the plaintiffs’ expert was board certified in general surgery rather than internal medicine. A medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field; however, the expert must be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable … . “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . “Where no such foundation is laid, the expert’s opinion is of no probative value'” … .

Here, the plaintiffs’ expert’s affirmation sufficiently established that the plaintiffs’ expert was possessed of the requisite skill, training, education, knowledge and experience from which it can be assumed that the opinion rendered was reliable … . In particular, the expert demonstrated that he was qualified to render an opinion regarding the symptomology of temporal arteritis, which he characterized as a relatively common disease of the arteries, and as to whether a proper examination and investigation of [the] symptoms was conducted in accordance with accepted medical practices. Kiernan v Arevalo-Valencia, 2020 NY Slip Op 03388, Second Dept 6-17-20

 

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PLAINTIFF WAS NOT BARRED FROM SEEKING RENT OVERCHARGES BASED UPON A 1986 RENT REDUCTION ORDER (SECOND DEPT).

he Second Department, reversing Supreme Court, determined plaintiff could seek rent overcharges based upon a 1986 rent reduction order:

… [T]he plaintif’s first cause of action to recover damages for rent overcharges based upon the May 1, 1986, rent reduction order was not barred by the then-applicable four-year statute of limitations and the “look-back rule,” precluding examination of the rental history prior to the four-year period preceding commencement of the action (see former Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-516[a][2]; former CPLR 213-a; Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, _____ NY3d _____, 2020 NY Slip Op 02127). Since rent reduction orders impose a continuing obligation on landlords, tenants are entitled to recover for any rent overcharges occurring during the applicable limitations period by reference to rent reduction orders that remain in effect during that period, even if the rent reduction order was initially issued outside the limitations period … . Santana v Fernandez, 2020 NY Slip Op 03383, Second Dept 6-17-20

 

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PLAINTIFF ENTITLED TO RETURN OF ENGAGEMENT RING AFTER THE ENGAGEMENT AND MARRIAGE WERE CALLED OFF (SECOND DEPT).

The Second Department determined plaintiff was entitled to summary judgment in an action for the return of an engagement ring after the engagement and marriage were called off:

As a general matter, a party not under any impediment to marry may maintain an action to recover property, such as an engagement ring, given in contemplation of marriage where the contemplated marriage does not come to pass (see Civil Rights Law § 80-b …). Here, the plaintiff established his prima facie entitlement to summary judgment on the cause of action for the return of the ring by establishing that he gave the ring to the defendant in contemplation of their marriage, and thus, he was entitled to its return at the time of the termination of their engagement … .

In opposition, the defendant failed to raise a triable issue of fact. Although the defendant maintained that the plaintiff made an inter vivos gift of the ring to her after the termination of their engagement, the evidence she submitted failed to support this assertion. A valid inter vivos gift requires proof, by clear and convincing evidence, of “the intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the donee; and acceptance by the donee” … . Here, the text messages upon which the defendant relied did not clearly demonstrate a donative intent on the part of the plaintiff with respect to the ring, nor did they establish an acceptance of the ring as a gift by the defendant. Rambod v Tazeh, 2020 NY Slip Op 03382, Second Dept 6-17-20

 

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DEFENDANT WAS ENTITLED TO A JURY INSTRUCTION ON THE INTOXICATION DEFENSE; DEFENDANT SHOULD HAVE BEEN ALLOWED TO ATTEMPT TO LAY FOUNDATIONS FOR THE ADMISSION OF POLICE AND DISTRICT ATTORNEY BUSINESS RECORDS IN SUPPORT OF HIS INTOXICATION DEFENSE; NEW TRIAL ORDERED DESPITE DEFENDANT’S COMPLETION OF HIS SENTENCE (SECOND DEPT).

The Second Department, reversing defendant’s forcible touching and sexual abuse convictions and ordering a new trial, despite defendant’s having completed his sentence, determined defendant was entitled to a jury instruction on the intoxication defense, and defendant was wrongly precluded from attempting to lay foundations for the admission of certain police and district-attorney’s-office business records supporting the intoxication defense:

The defendant also sought to introduce as a business record a Desk Appearance Ticket Investigation form (hereinafter the DAT form) which contains information from the arresting officer at the time of the arrest. Specifically, the DAT form contains the arresting officer’s notation, “intox,” and a box checked by the arresting officer indicating “under the influence of drugs/marihuana to the degree that he may endanger himself or others.” The arresting officer testified that he had completed the form in his own handwriting. As the defendant contends, the trial court should have allowed the defendant to introduce the DAT form as an admissible business record of the Police Department … . …

The defendant likewise sought to introduce an Early Case Assessment Bureau sheet (hereinafter the ECAB sheet) apparently created by the Police Department or the District Attorney’s office, as well as the testimony of the individual who created it to establish the foundation for its admission as a business record. The ECAB sheet supports the defendant’s request for an intoxication charge and also provides a basis for impeachment of the arresting officer’s testimony as to his perceptions of the defendant’s condition at the time of the arrest.  * * *  Had the defendant been permitted to explore the circumstances under which the ECAB sheet was created, the defendant may have established that the statements contained in the ECAB sheet were admissible for the truth of those statements … . People v Sabirov, 2020 NY Slip Op 03378, Second Dept 6-17-20

 

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PLAINTIFF WAS WORKING ON A ROOF WHEN HE ALLEGEDLY CONTACTED AN ELECTRIC WIRE LEADING TO THE HOME AND WAS KILLED; THE UTILITIES’ (CON EDISON’S) MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION ON THE GROUND IT OWED NO DUTY TO PLAINTIFF’S DECEDENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint against the Con Edison defendants in this electrocution case should not have been dismissed for failure to state a cause of action. Plaintiff was working on a roof when he alleged came into contact with an electric wire attached to the home and was killed. Con Edison argued it did not owe a duty to plaintiff’s decedent:

“[T]he existence and scope of a duty is a question of law requiring courts to balance sometimes competing public policy considerations” …. Contrary to Con Edison’s contention, it failed to establish that it owed no duty to the decedent … . Viewing the allegations in the light most favorable to the plaintiff, since the plaintiff alleged that Con Edison authorized the installation of an improper and non code-compliant connection between its electrical lines and the homeowner’s electrical system, such actions gave rise to Con Edison’s duty to the decedent who reasonably could be expected to come into contact with the property’s electrical wires … . Thus, Con Edison did not establish that the plaintiff failed to state a cause of action to recover damages for negligence. Sucre v Consolidated Edison Co. of N.Y., Inc., 2020 NY Slip Op 03377, Second Dept 6-17-20

 

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PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE OF DEFAULT PROVISIONS OF THE MORTGAGE AND THE NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not submit sufficient evidence of compliance with the notice-of-default provisions of the mortgage and did not demonstrate the loan was a reverse mortgage exempt from the notice requirement of Real Property Actions and Proceedings Law (RPAPL) 1304:

Although the plaintiff submitted a purported notice of default … , the plaintiff failed to submit an affidavit attesting to the mailing of the purported … notice, whether it was mailed at all, and if so, whether the mailing was by first class mail or, if otherwise, whether notice was actually delivered to [defendant’s] notice address, as required by the provisions in sections 15 and 22 of the mortgage agreement. …

… [T]he attorney’s affirmation submitted by the plaintiff which stated that the purported … notice was “in full compliance with the terms of the mortgage” was unsubstantiated and conclusory. Neither the attorney’s affirmation nor the copy of the purported … notice established “that the required notice was mailed by first class mail or actually delivered to the notice address if sent by other means, as required by the mortgage agreement” … . …

… [T]he plaintiff also failed to establish, as a matter of law, its compliance with the 90-day notice requirements of RPAPL 1304. “[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” … . Deutsche Bank Natl. Trust Co. v Crimi, 2020 NY Slip Op 03376, Second Dept 6-17-20

 

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EXCULPATORY (BRADY) EVIDENCE IN THE COMPLAINANT’S MENTAL HEALTH RECORDS WAS REDACTED BY THE JUDGE; TWO INDICTMENT COUNTS WERE MULTIPLICITOUS; NEW TRIAL ORDERED IN THIS SEXUAL ABUSE CASE (SECOND DEPT).

The Second Department, reversing defendant’s sexual abuse convictions, determined the defendant was entitled to exculpatory (Brady) evidence in the complainant’s mental health records which was redacted by the judge. The Second Department noted that, upon retrial, two counts of sexual abuse related to a continuous incident were multiplicitous and one of the counts must be dismissed:

The complainant and the defendant each testified and presented sharply divergent accounts of the events that were alleged to have occurred during the summer of 2009. The record shows that a determination of credibility was key to the jury’s consideration of this case, as the jury acquitted the defendant of the charge of rape in the first degree but convicted him of the charges alleging sexual abuse in the first degree. Thus, the redacted portion of the complainant’s mental health records which contains the statement “[s]exual abuse denied” and the portion of the checklist reflecting that “[s]exual abuse (lifetime)” was not checked off could be viewed by the jury as exculpatory and materially relevant to the matter … . Since the jury had to weigh the credibility of the complainant and the defendant, this evidence, if disclosed, may have changed the result of the proceeding. Accordingly, the judgment must be reversed and the matter remitted for a new trial. People v Butler, 2020 NY Slip Op 03374, Second Dept 6-17-20

 

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