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DEFENDANT DEMONSTRATED HE WAS UNLIKELY TO REOFFEND; THEREFORE, DESPITE THE SERIOUSNESS OF HIS SEX OFFENSES, HE WAS ENTITLED TO A REDUCTION OF HIS RISK LEVEL FROM THREE TO ONE (SECOND DEPT).

The Second Department, modifying the SORA court, in a comprehensive, full-fledged opinion by Justice Austin, determined defendant sex offender was entitled to a downward modification of his risk assessment from level three to level one:

The defendant’s submissions demonstrated that, through his long-term sobriety, strong family support, faith-based and law abiding lifestyle, continuous employment despite his numerous physical disabilities and age, his risk of reoffending is so diminished that a further reduction from his current risk level two to risk level one is appropriate … . * * *

… [I]f a defendant served his or her sentence, rehabilitated himself or herself, and demonstrated no actual likelihood of reoffending, a reduction to a risk level one classification from a level three classification should be a possibility. …

In modifying the Supreme Court’s order which reduced the defendant’s sex offender risk level classification from three to two, and thereby granting the petition to further reduce the defendant’s sex offender risk level designation to a level one, we are not signaling a departure from our strict interpretation of the Guidelines and the legislative history of SORA. Rather, we are following the law, and the policy underlying it, as it applies to this defendant. That is, it is not out of sympathy for his physical condition nor with a blind eye to the defendant’s significant criminal past that we render our determination. Rather, we consider these as well as all of the factors—positive and negative—presented at the hearing on his petition for a downward modification in deciding the singular question presented: Did the defendant establish, by clear and convincing evidence, that the risk he poses to the community as a convicted sex offender warrants a downward modification to level one? We answer that question in the affirmative.

To hold otherwise ignores the sincere, positive strides the defendant has made to be a productive, positive member of society. By using the disturbing nature of one’s crime as the tipping point in the analysis of a petition such as the one before this Court comes dangerously close to saying, if not holding, that once one has committed a sex crime and has been designated a sex offender level, there is no way he or she can ever be rehabilitated to a legally sufficient extent to warrant a downward modification to the lowest level of supervision. If that were so, then the cited portions of the Guidelines and Correction Law § 168-o(2), which allow annual reevaluation of a defendant’s risk level after it is initially established, would be rendered without meaning and illusory. People v Davis, 2019 NY Slip Op 08720, Second Dept 12-4-19

 

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PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, ordering a new trial, determined prosecutorial misconduct deprived defendant of a fair trial:

… [D]uring summation, the prosecutor repeatedly engaged in improper conduct. For instance, the prosecutor denigrated the defense and disparaged the defendant, referring to his self-defense claim as “ridiculous,” “insulting,” and “ludicrous,” and informing the jury that the defendant would “tell you anything” in an effort to “sell you” a story. The prosecutor described the defendant as a “hothead” and a “punk” who could not “take [a] beating like a man” … . Moreover, the prosecutor impinged on the defendant’s right to remain silent before arrest by arguing that he could not have acted in self-defense during the altercation because he did not call the 911 emergency number … . Further, the prosecutor improperly invoked the jury’s sympathy for the complainant … , vouched for the complainant’s credibility … , and interjected her own sense of moral retribution with respect to the complainant’s entitlement to use physical force against the defendant, while misleading the jury as to the law on justification … . People v Dawson, 2019 NY Slip Op 08689, Second Dept 12-4-19

 

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ARTICLE 78 PETITION WAS NOT SERVED UPON A PERSON AUTHORIZED TO RECEIVE SERVICE ON BEHALF OF THE NYC DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP); ALTHOUGH THE PROCESS SERVER ALLEGED THE PETITION WAS DELIVERED TO AN ATTORNEY AT THE DEP WHO SAID SHE WAS AUTHORIZED TO RECEIVE SERVICE, THE DOCTRINE OF EQUITABLE ESTOPPEL DID NOT APPLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the NYC Department of Environmental Protection (DEP) was not properly served with an Article 78 petition and therefore the court did not have jurisdiction over this Freedom of Information Law (FOIL) action. The process server alleged the petition was delivered to an attorney at the DEP who said she was authorized to receive service. The Second Department found that the doctrine of equitable estoppel, based upon the DEP attorney’s assertion she was authorized to receive service, did not apply:

It is undisputed that the petitioner’s process server did not deliver the notice of petition and petition to the Corporation Counsel, or any other “person designated to receive process in a writing filed in the office of the clerk of New York county” (CPLR 311[a][2]). Because the petitioner did not effectuate service in strict compliance with CPLR 311(a)(2), it is irrelevant that the petitioner’s process server allegedly relied upon the representations of an attorney employed by the DEP … .

Contrary to the petitioner’s contention, the DEP should not be equitably estopped from asserting the petitioner’s failure to properly serve the DEP with the notice of petition. The doctrine of equitable estoppel should be invoked against governmental entities sparingly and only under exceptional circumstances … . Estoppel against a governmental entity will lie when the governmental entity acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes its position to its detriment or prejudice … . The fact that the DEP’s attorney may have identified herself as an agent who was “authorized by appointment to receive service at that address” is far removed from any clear expression of her status as a person designated to receive process on behalf of the City in a writing filed in the New York County Clerk’s office … . There is no evidence in the record demonstrating that the petitioner justifiably relied on any misleading conduct by the DEP which would support a finding of equitable estoppel … . Matter of Exxon Mobil Corp. v New York City Dept. of Envtl. Protection, 2019 NY Slip Op 08670, Second Dept 12-4-19

 

DEFENDANT DRIVER WAVED TO PLAINTIFF’S DECEDENT, A PEDESTRIAN, INDICATING SHE WAS ALLOWING PLAINTIFF’S DECEDENT TO CROSS THE STREET; ONE SECOND LATER PLAINTIFF’S DECEDENT WAS STRUCK BY ANOTHER CAR; THE ACCIDENT WAS THE RESULT OF A SUPERSEDING, INTERVENING ACT AND DEFENDANT WAS NOT LIABLE AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined defendant driver, Biesty, was entitled to summary judgment in this pedestrian accident case because the act of another driver was the supervening cause of the accident. Biesty had stopped at a stop sign and waved to plaintiff-pedestrian (Nanfro) indicating Biesty would allow Nanfro to cross the street. One second later Nanfro was struck by a car driven by Agostinelli:

A driver of a motor vehicle may, under certain circumstances, be liable to a pedestrian where the driver “undertakes to direct a pedestrian safely across the road in front of his [or her] vehicle, and negligently carries out that duty” … . “However, even if a pedestrian is injured because he or she relied on a driver’s gesture directing him or her to cross a roadway, the acts of another driver may constitute a superseding, intervening act that breaks the causal nexus” … . “Whether an intervening act is a superseding cause is generally a question of fact, but there are circumstances where it may be determined as a matter of law” … .

Here, assuming without deciding that Biesty negligently motioned Nanfro to continue walking across the street and that Nanfro relied upon the gesture, Agostinelli’s unforeseeable failure to see what was there to be seen and failure to yield the right-of-way to Nanfro, who was crossing the street within an unmarked crosswalk, constituted an intervening and superseding cause that established Biesty’s prima facie entitlement to judgment as a matter of law … . Levi v Nardone, 2019 NY Slip Op 08665, Second Dept 12-4-19

 

PLAINTIFF, WHO WAS USING HIS OWN LADDER WHEN IT SLID CAUSING HIM TO FALL, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (SECOND DEPT).

The Second Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action in this ladder-fall case was properly granted. The rolling stairway provided to plaintiff was not high enough to reach the control box for a door which was stuck open. So plaintiff used his own ladder which slid to the side causing him to fall 10 or 12 feet:

Labor Law § 240(1) provides that building owners and contractors shall furnish, or cause to be furnished, safety devices which are “so constructed, placed and operated as to give proper protection [to workers]” … . “To establish liability pursuant to Labor Law § 240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries” … . A building owner may be held liable for a violation of Labor Law § 240(1) even if it did not exercise supervision or control over the work … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action … by demonstrating that he was injured when he fell while using an unsecured ladder, which unexpectedly collapsed and caused his injuries, without the benefit of any safety devices to prevent such a fall … . Jara v Costco Wholesale Corp., 2019 NY Slip Op 08664, Second Dept 12-4-19

 

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THE REFEREE’S REPORT, WHICH IS MERELY ADVISORY AND IS NOT BINDING ON THE COURT, SHOULD NOT HAVE BEEN ACCEPTED BY THE COURT BECAUSE IT WAS BASED UPON BUSINESS RECORDS THAT WERE NOT PROVIDED TO THE REFEREE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been accepted because it was based upon business records which were not in evidence:

… Supreme Court should have granted that branch of the defendant’s cross motion which was to reject the referee’s report. “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” … . “The referee’s findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute” … .

Here, in addition to the outstanding principal amount of the loan, along with accrued interest and charges, the referee included $507,095.35 in “Tax Disbursements” and $27,705.00 in “Hazard Insurance Disbursements” as part of the total amount due to the plaintiff. The defendant correctly objected to the inclusion of these disbursements on the ground that they were calculated based on business records that were never produced by the plaintiff or submitted to the referee (see CPLR 4518[a] …). HSBC Bank USA, N.A. v Cherestal, 2019 NY Slip Op 08660, Second Dept 12-4-19

 

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BECAUSE THE B MISDEMEANOR CARRIES DEPORTATION AS A POTENTIAL PENALTY, DEFENDANT IS ENTITLED TO A JURY TRIAL (SECOND DEPT).

The Second Department reversed defendant’s conviction based upon a recent Court of Appeals case which held a defendant charged with a misdemeanor which carries deportation as a potential penalty is entitled to a jury trial:

… [T]he defendant, a noncitizen, is entitled to a jury trial under the Sixth Amendment of the United States Constitution because the charged crime of attempted assault in the third degree, a class B misdemeanor, carries a potential penalty of deportation (see People v Suazo, 32 NY3d 491). We note that because People v Suazo was decided after this matter was argued but before it was decided, the change of the law set forth therein therefore applies to the defendant … . Accordingly, we reverse the judgment of conviction and grant a new trial. People v Ahsan, 2019 NY Slip Op 08571, Second Dept 11-27-19

 

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14-YEAR-OLD PLAYING CATCH ON A SCHOOL ATHLETIC FIELD ASSUMED THE RISK OF INJURY FROM A TWO TO FIVE INCH DEPRESSION IN THE FIELD (SECOND DEPT).

The Second Department, over an extensive dissent, determined that the primary assumption of risk doctrine applied to a 14-year-old experienced football player who was injured by stepping into a 2 to 5 inch depression in a school athletic field. The majority distinguished the condition here, part of the natural features of a grass field, and a condition resulting from disrepair:

The plaintiffs described the grass field on which the accident occurred as “choppy,” “wavy,” and “bumpy,” with several depressions. In other words, the topography of the grass field on which the infant plaintiff was playing was irregular. The risks posed by playing on that irregular surface were inherent in the activity of playing football on a grass field … . Moreover, the infant plaintiff’s testimony demonstrated that he was aware of and appreciated the inherent risks, and that the irregular condition of the field was not concealed … .

Like our dissenting colleague, we acknowledge the Court of Appeals’ admonition that the doctrine of primary assumption of risk “does not exculpate a landowner from liability for ordinary negligence in maintaining a premises” … . Thus, the doctrine does not necessarily absolve landowners of liability where they have allowed certain defects, such as a hole in a net in an indoor tennis court, to persist … . In this case, we do not determine the doctrine’s applicability to similar to that of a hole in an indoor tennis net, as there is a distinction between accidents resulting from premises having fallen into disrepair and those resulting from natural features of a grass field … . Ninivaggi v County of Nassau, 2019 NY Slip Op 08568, Second Dept 11-27-19

 

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COPY OF POSTNUPTIAL AGREEMENT SHOULD NOT HAVE BEEN ADMITTED UNDER THE BEST EVIDENCE RULE; JUDGMENT OF DIVORCE REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce action, determined a copy of the postnuptial agreement should not have been admitted pursuant to the best evidence rule:

The best evidence rule requires the production of an original writing where its contents are in dispute and sought to be proven … . The rule serves mainly to protect against fraud, perjury, and inaccuracies derived from faulty memory … . “[S]econdary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” … . “Loss may be established upon a showing of a diligent search in the location where the document was last known to have been kept, and through the testimony of the person who last had custody of the original” … . The more important the document is to the resolution of the ultimate issue in the case, the stricter the requirement of establishing its loss … .

Here, at trial, the plaintiff merely testified that she did not possess the original postnuptial agreement and that she believed it was either lost or stolen. Given the significance of the postnuptial agreement to the issue of equitable distribution, the defendant’s allegations that his purported signature on the document was forged, and the plaintiff’s failure to adequately explain the unavailability of the original document, we disagree with the Supreme Court’s determination to admit a copy of the document into evidence … , and to incorporate the purported agreement into the judgment of divorce. Mutlu v Mutlu, 2019 NY Slip Op 08567, Second Dept 11-27-19

 

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LAW FIRM SANCTIONED FOR FAILURE TO APPEAR AT A MANDATORY MEDIATION SESSION TO ATTEMPT TO RESOLVE THE MATTER ON APPEAL (SECOND DEPT).

The Second Department sanctioned a law firm $750 for failure to appear at a mandatory mediation session to resolve an appeal:

Pursuant to a Notice of Reference of the Mandatory Civil Appeals Mediation Program, the petitioner-appellant’s counsel, the petitioner-appellant, counsel for the respondent-respondent Charles Schwartz, and the respondent-respondent Charles Schwartz were directed to appear for a mandatory mediation session. The petitioner-appellant’s counsel, Law Offices of Seidner & Associates, P.C., failed to insure that the petitioner-appellant appear for the regularly scheduled mandatory mediation session, without good cause, and there is no indication that the attorney who appeared for the petitioner-appellant possessed the authority to settle the matter. In this regard, we consider that the lead counsel for the petitioner-appellant sought, and was granted, an adjournment of the mediation session so that he could personally attend and yet inexplicably sent a different attorney in his stead on the adjourned date. Although parties are not compelled to resolve their appeals by settlement, parties and their counsel are required to attend mediation sessions and may not arrogate unto themselves the authority to dispense with a mediation session or to render such sessions nugatory by refusing to appear and participate in them. Matter of Schwartz (Schwartz), 2019 NY Slip Op 08565, Second Dept 11-27-19

 

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