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CONVICTIONS OF INCLUSORY CONCURRENT COUNTS VACATED (SECOND DEPT).

The Second Department determined inclusory concurrent counts must be dismissed and the related convictions and sentences vacated:

… [A]s charged, the counts alleging driving while ability impaired by alcohol in violation of Vehicle and Traffic Law § 1192(1) and aggravated unlicensed operation of a motor vehicle in the second degree were inclusory concurrent counts of the count alleging aggravated unlicensed operation of a motor vehicle in the first degree (see CPL 300.30[4]; 300.40[3][b]; Vehicle and Traffic Law §§ 511[2][a][ii]; [3][a][i]; 1192). Accordingly, the defendant’s convictions of driving while ability impaired by alcohol in violation of Vehicle and Traffic Law § 1192(1) and aggravated unlicensed operation of a motor vehicle in the second degree and the sentences imposed thereon must be vacated, and those counts of the indictment dismissed. Under the circumstances of this case, the defendant’s contention that the mandatory surcharge and crime victim assistance fee must be reduced is more appropriately raised before the Supreme Court and, accordingly, we remit the matter to the Supreme Court … to consider this issue … . People v Delcid, 2019 NY Slip Op 08575, Second Dept 11-27-19

 

PLEA TO ASSAULT FIRST WAS DEFECTIVE BECAUSE THE INTENT TO INFLICT SERIOUS PHYSICAL INJURY WAS NOT STATED IN THE ALLOCUTION (SECOND DEPT).

The Second Department, reversing the judgment, determined the plea to assault first was defective because the intent to inflict serious physical injury was not stated in the allocution:

During the plea colloquy, the Supreme Court stated, and the defendant admitted, the elements of assault in the first degree as including an intent to inflict physical injury and conduct which in fact causes physical injury. However, the crime of assault in the first degree, as defined in Penal Law § 120.10(1), requires an intent to inflict serious physical injury and conduct which in fact causes serious physical injury. Under the circumstances, since the defendant admitted harboring an intent and inflicting an injury other than those required for the commission of assault in the first degree, the defendant’s plea of guilty must be vacated, as her allocution failed to make out the requisite elements of that crime … . People v Steele-Warrick, 2019 NY Slip Op 08428, Second Dept 11-20-19

 

PROBATION ONLY IS NOT A LEGAL SENTENCE FOR ASSAULT SECOND; ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED IN FAVOR OF A PERSON WHO WAS NOT A VICTIM OR WITNESS (SECOND DEPT).

The Second Department determined the defendant could not be sentenced to probation only for assault and Supreme Court should not have issue an order of protection in favor of a person who was not a victim or a witness:

Penal Law § 60.05(5) mandates that a person convicted of the class D violent felony offense of assault in the second degree be sentenced to a term of imprisonment … . Such a sentence could consist of a determinate term of imprisonment of at least two years and no more than seven years … , or alternatively, a definite term of imprisonment of one year or less under Penal Law § 70.00(4) or an intermittent term of imprisonment under Penal Law § 85.00 … . Moreover, a split sentence of imprisonment and probation is also authorized … .

Consequently, as the defendant argues and the People concede, the defendant’s sentence of a term of probation only with respect to his conviction of assault in the second degree was illegal, and the sentence must be vacated and the matter remitted to the Supreme Court, Richmond County for resentencing or to allow the defendant to withdraw his plea of guilty … .

The defendant, a first time felony offender, requests that his sentence be equivalent to the amount of time that he has already served in connection with this conviction. Such a sentence would be a legal sentence if the sentencing court, in considering the circumstances of the crime and the defendant’s character, deems such a sentence to be proper … .

Further, as the defendant argues and the People concede, the Supreme Court had no authority to issue an order of protection in favor of an individual who was neither a victim of nor a witness to the crime to which the defendant pleaded guilty … . People v Ferguson, 2019 NY Slip Op 08424, Second Dept 11-20-19

 

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ALTHOUGH THE TOWN DEMONSTRATED THE DEPARTMENT OF PUBLIC WORKS DID NOT HAVE NOTICE OF THE ALLEGED SIDEWALK DEFECT IN THIS SLIP AND FALL CASE, IT DID NOT DEMONSTRATE THE TOWN CLERK’S RECORDS WERE SEARCHED; TOWN’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the town did not demonstrate that it did not receive written notice of the alleged sidewalk defect in this slip and fall case. The town’s motion for summary judgment was therefore properly denied:

In support of its motion for summary judgment, the Town submitted the deposition testimony of a project supervisor for the Town’s Department of Public Works, who testified that he directed an administrative aide to perform a record search of “the Town’s complaint database.” The Town also submitted an affidavit from the administrative aide for the Department of Public Works who conducted the search. The administrative aide stated that her duties included “searching the official records of the Department of Public Works” to determine “whether the Department of Public Works ha[d] been provided with any prior written notice” of any defects in the area where the incident occurred. The administrative aide stated that her search revealed that “the Town was not in receipt of any written notice or written complaints.”

While this evidence established, prima facie, that the Town’s Department of Public Works did not have prior written notice of the alleged defect in the sidewalk, neither the deposition testimony nor the affidavit state specifically that the Town Clerk’s records were searched for prior written notice of the alleged defect … . The Town’s failure to provide specific evidence that the records of both the Department of Public Works and the Town Clerk were searched for prior written notice constitutes a failure to demonstrate its prima facie entitlement to judgment as a matter of law. Otto v Miller, 2019 NY Slip Op 08417, Second Dept 11-20-19

 

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REPORTS BY THE DISTRICT ATTORNEY’S CONVICTION REVIEW UNIT (CRU) EXONERATING CONVICTED PERSONS ARE EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL); AN EXONERATED PERSON MAY WAIVE THE SEALING REQUIREMENT (CPL 160.50) AND CONSENT TO DISCLOSURE OF A REPORT; THE RELEASED REPORT HERE IS SUBJECT TO REDACTION DETERMINED IN AN IN CAMERA REVIEW BY A JUDGE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, determined: (1) the redacted report of the District Attorney’s Conviction Review Unit (CRU) concerning the exoneration of Jabbar Washington was properly made available to the New York Times because Washington consented to the unsealing of the document (CPL 160.50(a)(d)); (2) absent such consent, the CRU reports are exempt from disclosure under FOIL; and (3) the redaction of the Washington report should be reviewed by a judge (in camera review):

CPL 160.50 does not define what constitutes an official record relating to an arrest or prosecution, and the Court of Appeals has held that “bright line rules are not wholly appropriate in this area” … . …

… [ T]he CRU’s final reports constitute official records created in connection with the arrest and prosecution of the persons whose convictions were ultimately vacated through the conviction review process. At the time the reports were created, the subjects of the reports stood convicted as the result of prosecutorial action. The reports are “official records” in that they were created by the DA’s office itself for the purpose of scrutinizing the propriety of each of the subject convictions. …

… [T]hat the CRU’s reports might serve a broader public purpose in leading to reform of police agencies or prosecutors’ offices, is not a basis to overlook the protections endowed by CPL 160.50 to the individuals exonerated through the CRU’s work. Matter of New York Times Co. v District Attorney of Kings County, 2019 NY Slip Op 08410, Second Dept 11-20-19

 

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JUDGE SHOULD NOT HAVE DENIED, SUA SPONTE, PLAINTIFF’S MOTION FOR A JUDGMENT OF FORECLOSURE ON A GROUND NOT RAISED BY ANY PARTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, denied plaintiff’s motion for a judgment of foreclosure on a ground not raised by the parties:

… [T]he Supreme Court should not have denied its motion for a judgment of foreclosure and sale upon finding that DLJ [plaintiff] failed to show that the defendants were properly served. The defendants did not oppose DLJ’s motion on any ground, including lack of personal jurisdiction. Therefore, the court should not have, sua sponte, raised the issue of the propriety of service …

Moreover, DLJ demonstrated its entitlement to a judgment of foreclosure and sale by submitting evidence establishing the merits of its unopposed motion and the referee’s findings and report … . DLJ Mtge. Capital, Inc. v Ramnarine, 2019 NY Slip Op 08392, Second Dept 11-20-19

 

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DEFENDANT MANUFACTURER DID NOT ELIMINATE QUESTIONS OF FACT WHETHER THE SNOW THROWER WAS DEFECTIVELY DESIGNED AND WHETHER WARNINGS WERE ADEQUATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant snow-thrower manufacturer’s motion for summary judgment in this products liability case should not have been granted. Plaintiff alleged he turned off the snow thrower before placing his hand inside the mechanism in an attempt to clean out a blockage. The impeller was allegedly still spinning at that point and two of plaintiff’s fingers were amputated. Plaintiffs’ expert opined that a $20 clean-out tool should have been provided. The defendant failed to eliminate questions of fact about whether the snow thrower was defective and whether the warnings were adequate:

According to the plaintiffs’ expert, a clean-out tool “would have been technologically and economically feasible to include with the snow [thrower] in 1983” since the defendant manufactured a clean-out tool costing approximately $20 that was sold in Germany in 1983 as part of a “safety kit.” Based on the foregoing, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the causes of action sounding in negligence and strict products liability based on design defect.

… [A]lthough the defendant submitted evidence that certain warnings were placed on the snow thrower and in the owner’s manual, the defendant failed to establish, prima facie, that it adequately warned users that the impeller may continue to rotate after the engine is turned off … . The defendant also failed to establish, prima facie, that the plaintiff was aware of the danger of putting his hand inside the discharge chute after turning off the engine, or that he would not have heeded more prominent or express warnings on the snow thrower … . Samyn v Ariens Co., 2019 NY Slip Op 08435 [177 AD3d 917], Second Dept 11-20-19

 

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STATUTE OF LIMITATIONS TOLLED BY THE FILING OF SIMILAR ACTIONS ALLEGING THE UNDERPAYMENT OF WAGES TO HOME HEALTH AIDES (SECOND DEPT).

The Second Department determined defendants’ motion to dismiss these “wage-underpayment” actions as time-barred to the extent they seek damages for underpayment more than six years before the suits were brought was properly denied. The Second Department held that, pursuant to American Pipe & Constr. Co. v Utah, 414 US 538, the statute of limitations was tolled based upon the filing of prior similar actions:

The plaintiffs, home health aides who were employed by the defendants Americare Certified Special Services, Inc., and Americare, Inc. (hereinafter together Americare), and who often worked 24-hour “live in” shifts, seek to recover damages for underpayment of minimum, overtime, and “spread of hours” wages in violation of the Labor Law and New York State Department of Labor wage orders and regulations. * * *

We find that … applying American Pipe tolling under the circumstances, where a court has not previously addressed the impropriety of class certification, is consistent with the policies underlying the tolling doctrine: avoiding multiplicity of suits and vexatious litigation … . Accordingly, we agree with the Supreme Court’s denial of the defendants’ motion to dismiss … . Badzio v Americare Certified Special Servs., Inc., 2019 NY Slip Op 08389, Second Dept 11-20-19

 

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SCHOOL DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF WATER ON THE FLOOR IN THIS SLIP AND FALL CASE; SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school did not demonstrate it did not have constructive knowledge of water on the floor of the cafeteria where plaintiff slipped and fell:

… [T]he School District failed to demonstrate, prima facie, that it did not have constructive notice of the alleged water condition that caused the plaintiff to fall. The deposition testimony of the School District’s head custodian merely referred to the general cleaning and inspection practices of the custodial staff in relation to the south cafeteria of the school, but provided no evidence regarding any specific cleaning or inspection of the area in question relative to the time when the plaintiff’s accident occurred … . Williams v Island Trees Union Free Sch. Dist., 2019 NY Slip Op 08443, Second Dept 11-20-19

 

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$13,000,000 VERDICT IS AGAINST WEIGHT OF THE EVIDENCE IN THIS TRAFFIC ACCIDENT BACK-INJURY CASE, NEW TRIAL ORDERED UNLESS PLAINTIFFS STIPULATE TO A SUBSTANTIALLY REDUCED VERDICT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the over $13,000,000 verdict was against the weight of the evidence and ordered a new trial unless the defendants (the Tarpleys) stipulated to substantially reduced damages in this traffic accident back-injury case:

​” The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation'” ( … see CPLR 5501[c]). ” The reasonableness of compensation must be measured against relevant precedent of comparable cases'” … .  …

Considering the nature and extent of the injuries sustained by Tarpley, the awards for past and future pain and suffering and past and future loss of services deviate materially from what would be reasonable compensation … (see CPLR 5501[c] … ). …

“A party claiming lost earnings has the burden of proving the amount of actual past earnings with reasonable certainty, by means of tax returns or other documentation” … . “Unsubstantiated testimony, without documentation, is insufficient to establish lost earnings” … . Here, the award for lost earnings was speculative to the extent that it exceeded the income Tarpley could have expected to earn based on his 2008 and 2009 W2 forms submitted into evidence, since no documentation or expert testimony was presented to establish that Tarpley’s income was likely to increase in future years … . …

Tarpley’s treating physician provided an uncontroverted opinion that Tarpley would require a future lumbar fusion surgery, with an estimated cost of $100,000, due to his ongoing symptoms following the prior laminectomy. However, the verdict awarding damages for future medical expenses in excess of $100,000 was speculative, and we reduce it accordingly … . Tarpley v New York City Tr. Auth., 2019 NY Slip Op 08440, Second Dept 11-20-19

 

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