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ABUTTING PROPERTY OWNER NOT LIABLE FOR HOLE IN BRICKWORK PUBLIC SIDEWALK IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined the abutting property-owner's summary judgment motion in this sidewalk slip and fall case was properly granted. There was no statute or ordinance which imposed liability and the defendant demonstrated it did not create the defect and did not cause the defect by a special use. The defendant owned a cafe and had tables near, but not on, the sidewalk:

The plaintiff allegedly sustained injuries when she tripped and fell after stepping into a hole in the brickwork portion of a public sidewalk … .

… [T]he Cafe demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it did not create the alleged defect in the brickwork, did not cause the alleged defect to occur because of a special use, and did not violate a statute or ordinance that would impose liability for failing to maintain the sidewalk. Moreover, the Cafe demonstrated, prima facie, that the placement of outdoor tables and chairs on the cement portion of the public sidewalk abutting the storefront was not a proximate cause of the plaintiff's alleged injuries … . Finocchiaro v Town of Islip, 2018 NY Slip Op 05915, Second Dept 8-29-18

NEGLIGENCE (ABUTTING PROPERTY OWNER NOT LIABLE FOR HOLE IN BRICKWORK PUBLIC SIDEWALK IN THIS SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (ABUTTING PROPERTY OWNER NOT LIABLE FOR HOLE IN BRICKWORK PUBLIC SIDEWALK IN THIS SLIP AND FALL CASE (SECOND DEPT))

QUESTION OF FACT WHETHER LOCATION OF THE DOORWAY AND THE STAIRWAY PILLAR, WHICH WAS OPEN AND OBVIOUS, WAS AN INHERENTLY DANGEROUS CONDITION, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant property-owner's motion for summary judgment in this slip and fall case should not have been granted. Although the pillar of an exterior stairway (which allegedly caused plaintiff to trip) was open and obvious, there was a question of fact whether the location of the pillar and the exit door created an inherently dangerous condition:

The accident occurred after the injured plaintiff exited the building through a door located next to an opening between the door and the railing. The opening was at the top of the staircase and provided access to the steps descending from the landing. According to the injured plaintiff, the opening was less than two feet wide. When the door was completely open, it blocked the opening leading to the stairs. The injured plaintiff testified at her deposition that she was attempting to reach the opening to access the steps when her left foot hit the pillar of the railing, causing her to fall. * * *

… [t]he defendant failed to establish, prima facie, that it maintained its premises in a reasonably safe condition. Thus, the Supreme Court should have denied the defendant's motion regardless of the sufficiency of the plaintiffs' opposition papers … . Contrary to the defendant's contention, it cannot be said as a matter of law that the metal railing, which was open and obvious, was not inherently dangerous given its location within the accident site … . The defendant also failed to establish, prima facie, that it did not have notice of the alleged dangerous condition … . Dudnik v 1055 Hylan Offs., LLC, 2018 NY Slip Op 05914, Second Dept 8-29-18

NEGLIGENCE (QUESTION OF FACT WHETHER LOCATION OF THE DOORWAY AND THE STAIRWAY PILLAR, WHICH WAS OPEN AND OBVIOUS, WAS AN INHERENTLY DANGEROUS CONDITION, DEFENDANT PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER LOCATION OF THE DOORWAY AND THE STAIRWAY PILLAR, WHICH WAS OPEN AND OBVIOUS, WAS AN INHERENTLY DANGEROUS CONDITION, DEFENDANT PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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ALTHOUGH PLAINTIFF TURNED RIGHT INTO DEFENDANT DRIVER’S PATH AT AN INTERSECTION, DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM FAULT AND DEFENDANT TOWN DID NOT DEMONSTRATE FOLIAGE OBSTRUCTING A STOP SIGN DID NOT CONTRIBUTE TO THE ACCIDENT, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver and municipality's motions for summary judgment in this intersection accident case should not have been granted. Apparently plaintiff made a right turn at an intersection into the path of defendant driver, Ayers. According to Ayers, plaintiff did not stop at the stop sign before turning. Plaintiff alleged foliage obscured the stop sign:

The driver defendants failed to eliminate triable issues of fact as to whether Ayers contributed to the happening of the accident. In particular, Ayers testified at his deposition that he was traveling 40 miles per hour as he approached the intersection, and that although nothing obstructed his view of the intersection, he did not see the plaintiff's vehicle until he was one car length from the intersection. Further, Ayers could not say whether he took any evasive action to avoid the collision. Under the circumstances, it cannot be said as a matter of law that Ayers used reasonable care to avoid the accident … ….

Contrary to the Town's contention, there is evidence in the record that the foliage which allegedly obscured the stop sign was located within the right-of-way of a Town road. …

The Town further failed to eliminate triable issues of fact as to whether any such obstruction of the stop sign was a proximate cause of the accident. “Such proximate cause may be found only where it is shown that it was the very [obstruction] of the stop sign . . . which rendered the driver[ ] unaware of the need to stop before proceeding across the intersection'”… . Where the driver “had all the warning, all the notice of danger, that a stop sign would have afforded,” there is no basis for finding that the obstruction of a sign caused the driver “to do anything other than [he or] she would have done had it been present” … .

The Town failed to demonstrate, prima facie, that despite the obstructed stop sign, the plaintiff, who was lost in an unfamiliar area, “had all the warning, all the notice of danger, that a stop sign would have afforded”… . In particular, the Town presented no definitive evidence of either the plaintiff's knowledge of the need to stop at the intersection, or conditions necessitating that she bring her vehicle to a complete stop prior to entering the intersection. Viewing the record evidence in the light most favorable to the plaintiff, and resolving all reasonable inferences in her favor … , the Town failed to eliminate issues of fact as to whether the obstruction of the stop sign contributed, to some degree, to the happening of the accident. Rivera v Town of Wappinger, 2018 NY Slip Op 05953, Second Dept 8-29-18

NEGLIGENCE (ALTHOUGH PLAINTIFF TURNED RIGHT INTO DEFENDANT DRIVER'S PATH AT AN INTERSECTION, DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM FAULT AND DEFENDANT TOWN DID NOT DEMONSTRATE FOLIAGE OBSTRUCTING A STOP SIGN DID NOT CONTRIBUTE TO THE ACCIDENT, DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (ALTHOUGH PLAINTIFF TURNED RIGHT INTO DEFENDANT DRIVER'S PATH AT AN INTERSECTION, DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM FAULT AND DEFENDANT TOWN DID NOT DEMONSTRATE FOLIAGE OBSTRUCTING A STOP SIGN DID NOT CONTRIBUTE TO THE ACCIDENT, DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (TRAFFIC ACCIDENTS, ALTHOUGH PLAINTIFF TURNED RIGHT INTO DEFENDANT DRIVER'S PATH AT AN INTERSECTION, DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM FAULT AND DEFENDANT TOWN DID NOT DEMONSTRATE FOLIAGE OBSTRUCTING A STOP SIGN DID NOT CONTRIBUTE TO THE ACCIDENT, DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT).

The Second Department determined the questioning of defendant, without repeating the Miranda warnings, was appropriate. Defendant had not unequivocally invoked his right to remain silent the night before and the questioning continued the next morning. The court noted that the admission of evidence of prior uncharged crime was not error because the evidence completed the narrative. The court further noted that defendant should have been allowed to interview a prosecution witness without the presence of a prosecutor or a detective. The error was deemed harmless however:

The defendant's morning statement was properly admitted at trial. Had the defendant unequivocally and unqualifiedly invoked her right to remain silent the previous evening, the request would have had to be scrupulously honored … , and further interrogation would have had to cease… . Under such circumstances, further inquiry can be made, but only if a significant period of time has passed and the police reiterate the requisite warnings … . However, since the defendant in this case had not unequivocally and unqualifiedly invoked her right to remain silent … and remained in continuous custody in the interim, police and prosecutors were free to resume their questioning of the defendant within a reasonable time, and to do so without repeating the Miranda warnings … . The further questioning at issue here was within a reasonable time under this Court's precedent … . People v Wisdom, 2018 NY Slip Op 05950, Second Dept 8-29-18

CRIMINAL LAW (RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))/MIRANDA  (RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))/MOLINEUX (CRIMINAL LAW, RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))/SUPPRESS, MOTION TO (RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))

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CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN ‘EXCESSIVE SENTENCE’ APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT’S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT).

The Second Department noted that Criminal Procedure Law 450.10(1), which purports to prohibit an “excessive sentence” appeal after a guilty plea, is unconstitutional in that it limits the jurisdiction of the Appellate Division, in violation of the NYS Constitution. But the court went on to find that defendant's waiver of appeal was valid and precluded contesting his sentence:

CPL 450.10(1) provides a criminal defendant with the right to appeal a judgment “unless the appeal is based solely upon the ground that a sentence was harsh or excessive when such sentence was predicated upon entry of a plea of guilty and the sentence imposed did not exceed that which was agreed to by the defendant as a condition of the plea.” As the People acknowledge, the Court of Appeals has held that this provision is unconstitutional because “it imposes a limitation or condition on the jurisdiction of the Appellate Division of Supreme Court in contravention of NY Constitution, article VI, § 4(k)” … . * * *

Here, the record of the plea proceeding demonstrates that the defendant understood that the appeal waiver was separate and distinct from those rights automatically forfeited upon a plea of guilty and that the defendant was voluntarily relinquishing that right in consideration for the promised sentence … . Furthermore, the record of the plea proceeding demonstrates that the defendant received an explanation of the nature of the right to appeal and the consequences of waiving that right … . People v Swen, 2018 NY Slip Op 05949, Second Dept 8-29-18

CRIMINAL LAW (CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))/APPEALS (CRIMINAL LAW, CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))/SENTENCING (APPEALS, CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))

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RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, over a dissent, reversed defendant's convictions for reckless endangerment and reckless assault. Defendant had picked up a gun that his friend (Morales) had brought to his house. In handling the gun it went off injuring his friend's leg. His friend was asleep when the gun fired. Defendant immediately said he was sorry, put the gun in a garbage can and accompanied his friend to the hospital. The Second Department determined the convictions were against the weight of the evidence because there was insufficient proof that defendant acted recklessly:

… [T]he People failed to prove beyond a reasonable doubt that the defendant was aware of and consciously disregarded a substantial risk that his conduct would cause physical injury to another person. The People did not introduce evidence that the defendant was familiar with weapons, or the particular gun. Indeed, the gun was brought to the defendant's home by Morales, and it is undisputed that the gun discharged as the defendant handled it out of curiosity. There was no evidence from which it could be inferred that the defendant knew the gun was loaded with live ammunition, or even knew how the particular gun operated. There was no evidence introduced that the defendant was aware of and consciously disregarded the risk that the gun might misfire … . Indeed, Morales testified that the defendant appeared “scared” when the gun discharged and that the defendant immediately stated that he was “sorry.” The defendant attempted to dispose of the gun and helped the victim get medical care. Contrary to the People's contention, there was no testimony that the defendant was pointing the gun at Morales when it discharged, and there was no evidence introduced establishing that the only way the pellets could have struck Morales's leg was by pointing the gun directly at Morales. People v Marin, 2018 NY Slip Op 05942, Second Dept 8-29-18

CRIMINAL LAW (RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/APPEALS (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/RECKLESSNESS (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))

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POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined defendant's motion to suppress a handgun and statements should not have been granted in this street stop case. The Second Department found that the officer who stopped the defendant properly responded to an escalating situation which culminated in the defendant's flight and abandonment of a backpack containing the handgun:

There is no dispute that upon receiving a radio transmission of an anonymous tip that a man of a specific description wearing a black backpack and possessing a gun was traveling on the B6 bus toward Canarsie, the responding police officer had a common-law right of inquiry upon encountering the defendant exiting that bus and matching the description … . The responding officer testified at the suppression hearing that he approached the defendant and asked something to the effect of, “Hey, what's up, man, you know, you got a second for the police?” The defendant's eyes widened, he appeared visibly nervous, and he started to back up. The defendant then thrust his right hand in his right pants pocket and refused to comply with the officer's command to remove it. These actions by the defendant escalated the encounter to justify the officer drawing his weapon, placing it across his own chest in a “depressed position,” and attempting to forcibly remove the defendant's hand from his pocket as a self-protective measure … . Further, the defendant's subsequent flight, coupled with all of the other indicia of criminality, justified the police pursuit …  and, ultimately, the recovery of a semi-automatic handgun from the defendant's backpack, which he abandoned in a nearby bodega … . People v King, 2018 NY Slip Op 05941, Second Dept 8-29-18

CRIMINAL LAW (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STREET STOPS (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUPPRESS, MOTION TO (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SEARCH AND SEIZURE  (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT).

The Second Department determined the defamation action, based upon a complaint made to the Society for the Prevention of Cruelty to Animals (SPCA) was properly dismissed. The complaint did not include the allegedly defamatory statement (a pleading failure) and the statement enjoyed qualified privilege. A remark posted on the Internet, which stated that defendant (Studer) had “seen and heard” horror stories about plaintiffs' treatment of animals, was nonactionable opinion:

… [W]ith respect to the plaintiffs' contention that Studer was liable for defamation based on the statements she made to the SPCA, since the amended complaint failed to set forth “the particular words complained of,” that branch of Studer's motion which was for summary judgment dismissing so much of the defamation cause of action as was based on those statements should have been granted (CPLR 3016[a]…). In any event, the record supports the Supreme Court's determination that Studer demonstrated, prima facie, that the allegedly defamatory statements enjoyed a qualified privilege. Protection from defamation is afforded where the person making the statements does so fairly “in the discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own affairs, in a matter where his [or her] interest is concerned” …  Here, since the evidence establishes that Studer made the statements to the SPCA in a good faith effort to obtain the aid of a law enforcement agency in addressing a potentially unsafe environment which children in her community frequented, the statements are subject to a qualified privilege … . …

We also agree with the Supreme Court's determination to reject the plaintiffs' contention that Studer was liable for defamation based on the Internet post. Studer established, prima facie, that this post constituted a nonactionable expression of opinion inasmuch as it consisted of imprecise, subjective characterizations which could not be objectively verified … . New York Horse Rescue Corp. v Suffolk County Socy. for the Prevention of Cruelty to Animals, 2018 NY Slip Op 05934, Second Dept 8-29-18

DEFAMATION (DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT))/CIVIL PROCEDURE (DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT))/CPLR 3016 (DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT))/PRIVILEGE (DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT))

POSSIBLE CONFUSION ABOUT WHICH MICHAEL YACUBICH AT THE SAME ADDRESS WAS THE “MIKE YACUBICH” SEEKING TO BE PLACED ON THE BALLOT FOR ASSEMBLY WAS NOT A PROPER GROUND FOR INVALIDATING THE DESIGNATING PETITION (SECOND DEPT).

The Second Department, reversing Supreme Court , determined petitioner's designating petition for the nomination of the Republican Party as a candidate for the Assembly should not have been invalidated on the ground that there were two voters registered at petitioner's address with similar names (father and son). Father and son are named Michael Yacubich and petitioner sought to be placed on the ballot as Mike Yacubich:

The Board exceeded its authority when it invalidated the designating petition on the ground that it could not identify which registered voter was the candidate. As amplified by the testimony of one of the Commissioners, the Board perceived that the similarity between the two names was confusing. “[B]oards of election have no power to deal with questions of fact or with objections involving matters not appearing upon the face of the petition, and . . . such extrinsic matters, if any, are to be determined in court proceedings only” … . “[T]he board's power to determine the validity of a [designating or] nominating petition extends only to ministerial examination and the board may not go behind a petition designating candidates for primary election” … . Candidates are permitted to run for office using a familiar name or nickname … . Similar to objections raising allegations of fraud  … , the issue of whether a candidate's name is confusing because it is similar to another voter's name involves a matter extrinsic to the designating petition itself and, thus, is a matter for judicial consideration and not for the Board of Elections. Accordingly, the Board lacked the authority to rule on the objection based upon its perception that the petition was confusing because of the candidate's name, which should have been raised through a judicial proceeding to invalidate. Matter of Yacubich v Suffolk County Bd. of Elections, 2018 NY Slip Op 05912, Second Dept 8-24-18

ELECTION LAW (POSSIBLE CONFUSION ABOUT WHICH MICHAEL YACUBICH AT THE SAME ADDRESS WAS THE “MIKE YACUBICH” SEEKING TO BE PLACED ON THE BALLOT FOR ASSEMBLY WAS NOT A PROPER GROUND FOR INVALIDATING THE DESIGNATING PETITION (SECOND DEPT))

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AS A MATTER OF PUBLIC POLICY, AN ACTION ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CANNOT BE BROUGHT AGAINST A MUNICIPALITY (SECOND DEPT).

The Second Department, in an action for false arrest and related causes of action, all of which were dismissed, noted that an action for intentional infliction of emotional distress cannot, as a matter of public policy, be brought against a municipality:

… [W]e agree with the Supreme Court's determination granting that branch of the defendants' motion which was to dismiss the cause of action to recover damages for intentional infliction of emotional distress with respect to the City, as “public policy bars claims sounding in intentional infliction of emotional distress against a governmental entity”… . Moreover, the defendants established their prima facie entitlement to judgment as a matter of law dismissing that cause of action insofar as asserted against [the arresting officer] by establishing that [the officer]i did not engage in extreme or outrageous conduct … . Ball v Miller, 2018 NY Slip Op 05813, Second Dept 8-22-18

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (MUNICIPAL LAW, AS A MATTER OF PUBLIC POLICY, AN ACTION ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CANNOT BE BROUGHT AGAINST A MUNICIPALITY (SECOND DEPT))/MUNICIPAL LAW (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AS A MATTER OF PUBLIC POLICY, AN ACTION ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CANNOT BE BROUGHT AGAINST A MUNICIPALITY (SECOND DEPT))

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