You are here: / Second Department

Tag Archive for: Second Department

,

DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING; DEFENSE COUNSEL WAS NOT FAMILIAR WITH THE CASE OR THE DEFENDANT’S BACKGROUND (SECOND DEPT).

The Second Department, reversing the conviction, determined defendant did not receive effective assistance of counsel at sentencing. Counsel was not familiar with the case of the defendant’s background:

… [T]he defendant was deprived of the effective assistance of counsel at sentencing. A defendant is ” entitled to an opportunity to be represented by counsel sufficiently familiar with the case and the defendant’s background to make an effective presentation on the question of sentence'” … . Here, the defendant’s counsel at sentencing made no substantive arguments on the defendant’s behalf, and the record demonstrates that counsel had no meaningful knowledge of the case or of the defendant’s background. People v Jones, 2020 NY Slip Op 01640, Second Dept 3-11-20

 

THE JURY WAS NOT PROPERLY INSTRUCTED ON THE JUSTIFICATION DEFENSE, INDICTMENT COUNT DISMISSED (SECOND DEPT).

The Second Department determined the jury was not properly instructed on the justification defense:

… [T]he Supreme Court instructed the jurors to consider justification as an element of each count submitted for their consideration. The court also instructed the jurors that they must find the defendant not guilty of all counts if they found that the People failed to disprove the defendant’s justification defense. However, the verdict sheet did not mention justification, and the court did not instruct the jurors that if they were to find the defendant not guilty of the greater counts of assault in the second degree on the basis of justification, they were not to consider the lesser count of obstructing governmental administration in the second degree. We cannot say with any certainty, and there is no way of knowing, whether the jurors acquitted the defendant of the greater counts on the ground of justification so as to mandate acquittal on the lesser count … .

The evidence at trial of lack of justification was not overwhelming … . Although, ordinarily, a new trial would be ordered, since the defendant was acquitted of the assault in the second degree counts and the only remaining count of the indictment concerns the offense for which the defendant has already completed his sentence, dismissal of the count of the indictment charging obstructing governmental administration in the second degree, rather than a new trial on that count, is appropriate … . People v Gunther, 2020 NY Slip Op 01638, Second Dept 3-11-20

 

,

SECOND DEGREE MURDER COUNTS DISMISSED AS INCLUSORY CONCURRENT COUNTS RE FIRST DEGREE MURDER; CROSS EXAMINATION OF A POLICE OFFICER RE EXCESSIVE FORCE PROPERLY PRECLUDED BECAUSE THE ALLEGATIONS WERE NOT RELEVANT TO CREDIBILITY (SECOND DEPT).

The Second Department determined the second degree murder counts must be dismissed as inclusory concurrent counts of the convictions of first degree murder. The court noted that the trial court properly precluded cross examination of a police officer about allegations of the officer’s use of excessive force because the allegations were not relevant to credibility:

While specific and relevant allegations of misconduct in a civil action filed against a law enforcement officer may be used for the limited purpose of impeaching that law enforcement witness at trial … , such impeachment is subject to the court’s broad discretion in controlling the permissible scope of cross-examination … . Here, the defendant failed to demonstrate that specific allegations of excessive force in a federal action pending against the detective and a finding in 2010 by the Civilian Complaint Review Board that the detective used excessive force were relevant to the detective’s credibility … . People v Brown, 2020 NY Slip Op 01632, Second Dept 3-11-20

 

,

PROTECTIVE ORDER PRECLUDING DISCLOSURE OF EVIDENCE TO THE DEFENSE REVERSED (SECOND DEPT).

The Second Department, in a decision by Justice Scheinkman, reversing Supreme Court, vacated a protective order concerning the disclosure of certain evidence to the defense:

I agree with the defendant that the People should have been required to disclose to defense counsel the general nature of the information that the People sought to be protected (see CPL 245.10[1][a] [“Portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under 245.70 of this article; but the defendant shall be notified in writing that information has not been disclosed under a particular subdivision of (CPL 245.20)”]).

The defendant and his counsel were not informed as to whether what was sought to be protected were only witness names and personal information as opposed to witness statements, police reports, grand jury testimony, video or audio recordings, or other evidence.

I also agree with the defendant that, under the circumstances of this case, the People should have been required to disclose information about the reasons for the application that would not reveal the existence of the information sought to be protected. As I stated in People v Bonifacio (179 AD3d 977, 979), “proceedings on applications for a protective order should be entirely ex parte only where the applicant has demonstrated the clear necessity for the entirety of the application, and the submissions in support of it, to be shielded from the opposing party” and that it may be that “even where some aspects of the application should be considered by the court ex parte, other portions of the application may be appropriately disclosable.” Here, much of the written application could have been disclosed to defense counsel in redacted form without any danger of revealing the information sought to be protected … . People v Belfon, 2020 NY Slip Op 01630, Second Dept 3-11-20

,

THE REFEREE’S FINDINGS WERE BASED UPON INADMISSIBLE HEARSAY, JUDGMENT OF FORECLOSURE REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s findings in this foreclosure action were based upon inadmissible hearsay:

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . Here, contrary to the plaintiff’s contention, the affidavit of its document execution specialist, submitted for the purpose of establishing the amount due and owing under the subject mortgage loan, constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records he purportedly relied upon in making his calculations … . Under the circumstances, the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . Nationstar Mtge., LLC v Cavallaro, 2020 NY Slip Op 01624, Second Dept 3-11-20

 

,

THE BUS DRIVER VIOLATED THE VEHICLE AND TRAFFIC LAW AND WAS NEGLIGENT AS A MATTER OF LAW; DEFENSE VERDICT SET ASIDE (THIRD DEPT).

The Second Department, setting aside the defense verdict in this traffic accident case, determined the bus driver was negligent as a matter of law. To avoid a stopped vehicle the driver (Barreto) crossed a double yellow line and lost control of the bus which crashed into a store. The plaintiffs were bus passengers:

This Court has held that “a driver who crosses over a double yellow line into opposing traffic, unless justified by an emergency not of the driver’s own making, violated the Vehicle and Traffic Law and is guilty of negligence as a matter of law” (… see Vehicle and Traffic Law § 1126[a] …). Here, although the evidence demonstrated that there was snow or slush on the surface of the subject road, the adverse weather conditions, as well as the fact that the road sloped downhill, were foreseeable and known to Barreto and did not provide a nonnegligent explanation for Barreto’s violation of the Vehicle and Traffic Law … . Although the evidence demonstrated that there was a vehicle stopped in the bus’s lane of travel, thereby obstructing its path, the evidence also demonstrated that the stopped vehicle was observable from a far distance, that the bus did not slow down after the stopped vehicle came into Barreto’s view, and that Barreto crossed over the double-yellow line without slowing down. Under the circumstances, Barreto’s loss of control over the bus was the result of his own negligent driving in adverse weather conditions, rather than the result of an emergency not of his own making. The absence of an emergency was recognized by the Supreme Court in its refusal to grant the defendant’s request that the jury be given an instruction on the emergency doctrine.

Barreto’s operation of the bus under the circumstances here violated Vehicle and Traffic Law § 1120(a). Such violation constitutes negligence as a matter of law and could not properly be disregarded by the jury … . Hodnett v Westchester County Dept. of Pub. Works & Transp., 2020 NY Slip Op 01603, Second Dept 3-11-20

 

INSTEAD OF DISMISSING THE COMPLAINT FOR FAILURE TO NAME A NECESSARY PARTY SUPREME COURT SHOULD HAVE ORDERED THE PARTY SUMMONED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the motion to dismiss for failure to name a necessary party should not have been granted. Rather the court should have ordered the party summoned:

… [T]he Supreme Court should have denied that branch of [defendant’s] motion which was pursuant to CPLR 3211(a)(10) to dismiss the complaint insofar as asserted against her for failure to join the estate … as a defendant. “When a [necesssary party] has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned” (CPLR 1001[b]). Accordingly, we remit the matter … for the joinder of the administrator of the estate … and for further proceedings consistent herewith … . U.S. Bank Trust, N.A. v Gedeon, 2020 NY Slip Op 01660, Second Dept 3-11-20

 

VACATING THE NOTE OF ISSUE RETURNS THE CASE TO THE PRE-NOTE OF ISSUE DISCOVERY STAGE, NO NEED TO MAKE A MOTION TO RESTORE THE ACTION TO THE TRIAL CALENDAR; THE MOTION TO EXTEND THE TIME TO FILE A NOTICE OF ISSUE, CITING LAW OFFICE FAILURE, SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that vacating the note of issue automatically removes the case from the trial calendar and restores the action to the pre-note of issue discovery stage. The Second Department also determined the motion to extend the time to file a note of issue, citing law office failure, should have been granted:

The Supreme Court should have denied, as unnecessary, that branch of the plaintiff’s motion which was to restore the action to the active calendar … . Since the note of issue … was vacated, thereafter, the action was restored to the pre-note of issue discovery stage … . Because no note of issue had been filed, the action was not on the trial calendar. Therefore, the court’s action of marking the action “disposed” … , after the plaintiff failed to file and serve a note of issue by the court-ordered deadline, did not dismiss the action … . For the same reason, contrary to the defendant’s contention, CPLR 3404 was inapplicable … . As “this action was never properly dismissed, there was no need for a motion to restore” … .

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to extend his time to file a note of issue. CPLR 2004 allows a court to “extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown.” Here, the plaintiff established good cause for his delay in completing discovery and filing a note of issue based on law office failure, among other things … . Ryskin v Corniel, 2020 NY Slip Op 01658, Second Dept 3-11-20

 

,

LETTER AGREEMENT REGARDING A LEASE WAS NOT AN ENFORCEABLE CONTRACT; RATHER IT WAS AN AGREEMENT TO AGREE (SECOND DEPT).

The Second Department determined a letter agreement regarding a lease was not an enforceable contract but rather was an agreement to agree:

In a document dated June 27, 2012 (hereinafter the 2012 letter agreement), the parties “consolidate[d] all existing letter agreements to the same expiration date” of February 28, 2015. The 2012 letter agreement also stated that the terms of the lease were “extended to now terminate on Feb. 28, 2030,” with “terms to be determined at the expiration of this initial lease consolidation period.” The 2012 letter agreement further stated that any annual percentage increase in rent will not be less than five percent and will not exceed eight percent. …

A “mere agreement to agree, in which a material term is left for future negotiations, is unenforceable” … . “This is especially true of the amount to be paid for the sale or lease of real property” … . An agreement is not enforceable as a lease unless all of the essential terms are agreed upon, and if “any of these essential terms are missing and are not otherwise discernible by objective means, a lease has not been created” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, a copy of the 2012 letter agreement, which demonstrated that the renewal provision was an unenforceable agreement to agree … . Reis v J.B. Kaufman Realty Co., LLC, 2020 NY Slip Op 01657, Second Dept 3-11-20

 

,

ABUTTING PROPERTY OWNER IS NOT RESPONSIBLE FOR TREE WELLS IN CITY SIDEWALKS; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was not liable for plaintiff’s slip and fall because abutting property owners are not responsible for the condition of tree wells in a sidewalk:

Administrative Code of the City of New York § 7-210 places the duty to maintain a sidewalk in a reasonably safe condition on the owner of the property abutting the sidewalk, and provides for civil liability for injuries proximately caused by the failure to so maintain the sidewalk. However, the statute does not extend that duty of maintenance to City-owned tree wells or provide for civil liability for injuries occurring in City-owned tree wells … . Thus, liability may be imposed on the abutting landowner for injuries caused by a dangerous condition in a tree well only where the landowner has “affirmatively created the dangerous condition, negligently made repairs to the area, [or] caused the dangerous condition to occur through a special use of that area” … .

Here, [defendant] established its prima facie entitlement to judgment as a matter of law by demonstrating that it had no duty to maintain the City-owned tree well, did not create the allegedly dangerous condition, did not negligently repair the sidewalk abutting the tree well, and did not cause the condition to occur through any special use of the tree well. Powroznik v City of New York, 2020 NY Slip Op 01655, Second Dept 3-11-20

 

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