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(HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT).

The Second Department determined it was (harmless) error to allow a detective to identify the person depicted in a video as the defendant:

Generally, “lay witnesses must testify only to the facts and not to their opinions and conclusions drawn from the facts,” as it is the jury’s province “to draw the appropriate inferences arising from the facts” … . While, under the proper circumstances, the court has the discretion to allow a lay witness to express his or her opinion that an individual depicted in a surveillance video is the defendant … , here, there was no basis for concluding that the police detective was more likely than the jury to correctly determine whether the defendant was depicted in the video …. The detective had arrested the defendant more than two weeks after the crime, and, at that time, briefly interviewed the defendant. “There was no evidence that [the] defendant had changed his appearance prior to trial, and the record is devoid of any other circumstances suggesting that the jury—which had ample opportunity to view [the] defendant—would be any less able than the detective to determine whether [the] defendant was, in fact, the individual depicted in the video” … . People v Reddick, 2018 NY Slip Op 05608, Second Dept 8-1-18

CRIMINAL LAW (IDENTIFICATION, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))/VIDEO (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))/IDENTIFICATION (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))

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DEFENDANT NOT GIVEN THE OPPORTUNITY TO EXPLAIN HIS REQUEST TO WITHDRAW HIS GUILTY PLEA, DEFENSE COUNSEL INDICATED THERE WAS NO REASON FOR THE WITHDRAWAL, MATTER REMITTED FOR CONSIDERATION OF THE REQUEST WITH NEW COUNSEL (SECOND DEPT).

The Second Department determined defendant should have been given an opportunity to explain the reasons for his request to withdraw his plea and defense counsel should not have indicated he did not believe there was a basis for the request. Matter was remitted for consideration of the request with new counsel:

“The nature and extent of the fact-finding procedures prerequisite to the disposition of [motions to withdraw a plea of guilty] rest largely in the discretion of the Judge to whom the motion is made” … . While in “rare instance[s]” a defendant will be entitled to an evidentiary hearing, often “a limited interrogation by the court will suffice” … , and when a motion “is patently insufficient on its face, a court may simply deny the motion without making any inquiry” … . Nevertheless, “[t]he defendant should be afforded reasonable opportunity to present his contentions and the court should [*2]be enabled to make an informed determination” … .

Moreover, “a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea” … . Counsel “takes a position adverse to his client,” depriving him or her of meaningful representation, “when stating that the defendant’s motion lacks merit” … . People v Caputo, 2018 NY Slip Op 05481, Second Dept 7-25-18

CRIMINAL LAW (DEFENDANT NOT GIVEN THE OPPORTUNITY TO EXPLAIN HIS REQUEST TO WITHDRAW HIS GUILTY PLEA, DEFENSE COUNSEL INDICATED THERE WAS NO REASON FOR THE WITHDRAWAL, MATTER REMITTED FOR CONSIDERATION OF THE REQUEST WITH NEW COUNSEL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT NOT GIVEN THE OPPORTUNITY TO EXPLAIN HIS REQUEST TO WITHDRAW HIS GUILTY PLEA, DEFENSE COUNSEL INDICATED THERE WAS NO REASON FOR THE WITHDRAWAL, MATTER REMITTED FOR CONSIDERATION OF THE REQUEST WITH NEW COUNSEL (SECOND DEPT))/PLEA, WITHDRAWAL OF  (DEFENDANT NOT GIVEN THE OPPORTUNITY TO EXPLAIN HIS REQUEST TO WITHDRAW HIS GUILTY PLEA, DEFENSE COUNSEL INDICATED THERE WAS NO REASON FOR THE WITHDRAWAL, MATTER REMITTED FOR CONSIDERATION OF THE REQUEST WITH NEW COUNSEL (SECOND DEPT))

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AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the affidavit submitted in support of a warrant application for a DNA swab was insufficient and the motion to suppress should have been granted:

To establish probable cause, a search warrant application must provide sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place'”… . Here, as the People correctly concede, the affidavit of the detective submitted in support of the search warrant application was conclusory and insufficient to establish probable cause to issue the warrant … . The detective stated that he believed evidence related to the victim’s murder may be found in the defendant’s saliva based on his interview of witnesses, information supplied to him by fellow police officers, and his review of police department records. However, the detective did not identify the witnesses or indicate what information he obtained from them, and did not specify what police department records he reviewed, or what information was contained in the records. People v Augustus, 2018 NY Slip Op 05480, Second Dept 7-25-18

CRIMINAL LAW (EVIDENCE, DNA, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/DNA (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SEARCH AND SEIZURE (DNA, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, DNA, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SEARCH WARRANT (DNA, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))

ACTION ALLEGING INJURY FROM A FALLING TREE ON DEFENDANT’S PROPERTY SHOULD HAVE BEEN DISMISSED, DEFENDANT DEMONSTRATED A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT).

The Second Department determined a lawsuit alleging injury from a falling tree on defendant’s property should have been dismissed. Defendant property owner (Alice) demonstrated a lack of notice of the condition of the tree:

“In cases involving fallen trees, a property owner will only be held liable if [she or] he knew or should have known of the defective condition of the tree” … . “Constructive notice in such a case can be imputed if the record establishes that a reasonable inspection would have revealed the dangerous condition of the tree” … . Here, Alice established her prima facie entitlement to judgment as a matter of law by submitting evidence that she lacked actual or constructive notice of the alleged defective condition of the tree … . Pagan v Jordan, 2018 NY Slip Op 05477, Second Dept 7-25-18

NEGLIGENCE (FALLING TREES, ACTION ALLEGING INJURY FROM A FALLING TREE ON DEFENDANT’S PROPERTY SHOULD HAVE BEEN DISMISSED, DEFENDANT DEMONSTRATED A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))/TREES (FALLING TREES, NEGLIGENCE, ACTION ALLEGING INJURY FROM A FALLING TREE ON DEFENDANT’S PROPERTY SHOULD HAVE BEEN DISMISSED, DEFENDANT DEMONSTRATED A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))

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NEGLIGENCE ACTION STEMMING FROM AN ALLEGED BREACH OF CONTRACT SHOULD HAVE BEEN DISMISSED, CRITERIA FOR A VALID NEGLIGENCE CAUSE OF ACTION IN THIS CONTEXT EXPLAINED (SECOND DEPT).

The Second Department determined a negligence cause of action, which was based upon a breach of contract allegation, should have been dismissed:

 “[A] simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” … . “This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract” ,,, , “Merely charging a breach of a duty of due care’, employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim” … . “[W]here [a] plaintiff is essentially seeking enforcement of the bargain, the action should proceed under a contract theory” … .

Here, the complaint did not allege facts that would give rise to a duty owed to the plaintiff that is independent of the duty imposed by the parties’ agreement. Ocean Gate Homeowners Assn., Inc. v T.W. Finnerty Prop. Mgt., Inc., 2018 NY Slip Op 05475, Second Dept 7-25-18

NEGLIGENCE (CONTRACT LAW, NEGLIGENCE ACTION STEMMING FROM AN ALLEGED BREACH OF CONTRACT SHOULD HAVE BEEN DISMISSED, CRITERIA FOR A VALID NEGLIGENCE CAUSE OF ACTION IN THIS CONTEXT EXPLAINED (SECOND DEPT))/CONTRACT LAW (NEGLIGENCE ACTION STEMMING FROM AN ALLEGED BREACH OF CONTRACT SHOULD HAVE BEEN DISMISSED, CRITERIA FOR A VALID NEGLIGENCE CAUSE OF ACTION IN THIS CONTEXT EXPLAINED (SECOND DEPT))

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REAR MOST DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER IN FRONT STOPPED SUDDENLY AND DID NOT SIGNAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the rear-most driver (plaintiff) in this rear-end collision case raised a question of fact whether defendant stopped suddenly and did not signal:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . There can be more than one proximate cause of an accident … , and a defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident … . “[N]ot every rear-end collision is the exclusive fault of the rearmost driver. The frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision”… .

Here, in support of her motion for summary judgment, the defendant submitted an affidavit in which she averred that she brought her vehicle to a gradual stop to make a left turn onto … . She activated her left turning signal and had been stopped for at least 35 seconds, waiting for traffic to clear, when her vehicle was struck in the rear by the plaintiff’s vehicle. … In opposition, the plaintiff averred that the defendant made a sudden stop and failed to give proper signals, as required by Vehicle and Traffic Law § 1163. The plaintiff’s affidavit was sufficient to raise a triable issue of fact as to whether the defendant negligently caused or contributed to the accident … . Martinez v Allen, 2018 NY Slip Op 05462, Second Dept 7-25-18

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR MOST DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER IN FRONT STOPPED SUDDENLY AND DID NOT SIGNAL (SECOND DEPT))/TRAFFIC ACCIDENTS  (REAR MOST DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER IN FRONT STOPPED SUDDENLY AND DID NOT SIGNAL (SECOND DEPT))/REAR END COLLISIONS (TRAFFIC ACCIDENTS, REAR MOST DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER IN FRONT STOPPED SUDDENLY AND DID NOT SIGNAL (SECOND DEPT))

PLAINTIFF WAS NOT ENGAGED IN CONSTRUCTION WORK OR IN A CONSTRUCTION AREA WHEN HE WAS INJURED, HE WAS BRINGING IN SUPPLIES WHICH WERE BEING STOCKPILED AND WERE NOT FOR IMMEDIATE USE, THEREFORE THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the owner of the building (Sussex) and plaintiff’s employer (Berkoff) were entitled to summary judgment in this Labor Law 240 (1), 241 (6) and 200 action. Plaintiff was injured when he fell bringing in boxes of tile and thin set using a hand truck. Plaintiff was not performing construction work within the mean of Labor Law 240 (1) and 241 (6) because the material he was bringing in were not for immediate use. Both defendants established they did not supervise plaintiff’s work or have notice of any dangerous condition:

Sussex and Berkoff each established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against Sussex. The evidence supporting the motions established that at the time of the accident, the plaintiff was not engaged in construction work within the meaning of Labor Law § 240(1), and was not working in a construction area within the meaning of Labor Law § 241(6), since the building materials were not being “readied for immediate use” … , but were instead being “stockpil[ed] for future use” … . …

Sussex and Berkoff each established, prima facie, both that Sussex did not create or have actual or constructive notice of the alleged condition which caused the plaintiff’s injury, and that it did not supervise or control the means and methods of the plaintiff’s work … . Kusayev v Sussex Apts. Assoc., LLC, 2018 NY Slip Op 05458, Second Dept 7-25-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS NOT ENGAGED IN CONSTRUCTION WORK OR IN A CONSTRUCTION AREA WHEN HE WAS INJURED, HE WAS BRINGING IN SUPPLIES WHICH WERE BEING STOCKPILED AND WERE NOT FOR IMMEDIATE USE, THEREFORE THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT))/CONSTRUCTION (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS NOT ENGAGED IN CONSTRUCTION WORK OR IN A CONSTRUCTION AREA WHEN HE WAS INJURED, HE WAS BRINGING IN SUPPLIES WHICH WERE BEING STOCKPILED AND WERE NOT FOR IMMEDIATE USE, THEREFORE THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT))

DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG-BITE CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this dog-bite case should have been granted. The defendants demonstrated they did not have notice of the dog’s vicious propensities:

Aside from the limited exception set forth in Hastings v Sauve (21 NY3d 122, 125-126) regarding a farm animal that strays from the place where it is kept… , which is not at issue here, “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” … . …

To recover upon a theory of strict liability in tort for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities, and that the owner of the dog knew or should have known of the dog’s vicious propensities … . Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others … . “Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that their dog did not have vicious propensities and, in any event, that they neither knew nor should have known that their dog allegedly had vicious propensities … .  Cintorrino v Rowsell, 2018 NY Slip Op 05446, Second Dept 7-25-18

ANIMAL LAW (DOG-BITE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG-BITE CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/DOG-BITE (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG-BITE CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

DISCOVERY VIOLATIONS WARRANTED DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department determined plaintiff’s complaint was properly dismissed because of plaintiff’s discovery violations:

“The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is within the broad discretion of the motion court” … . ” The drastic remedy of striking a pleading is warranted where the party’s failure to comply with court-ordered discovery is willful and contumacious'” … . “The willful or contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders” …  and the absence of a reasonable excuse for these failures … . ” Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be disturbed'” … .

Here, the willful and contumacious character of the plaintiff’s conduct can be inferred, initially, from his inadequate verified bill of particulars and response to the notice for discovery and inspection, both served nearly one year after service of the demand for a verified bill of particulars and the notice for discovery and inspection. Thereafter, the plaintiff failed to comply with the Supreme Court’s directive at the January 8, 2016, conference to produce any outstanding discovery within 30 days, and this failure to comply was followed by further noncompliance after the February 24, 2016, conference. Moreover, the plaintiff failed to respond in any manner to the other discovery demands. Westervelt v Westervelt, 2018 NY Slip Op 05519, Second Dept 7-25-18

CIVIL PROCEDURE (DISCOVERY VIOLATIONS WARRANTED DISMISSAL OF THE COMPLAINT (SECOND DEPT))/DISCOVERY  (DISCOVERY VIOLATIONS WARRANTED DISMISSAL OF THE COMPLAINT (SECOND DEPT))

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment in this rear-end collision case should have been granted. The court noted that a plaintiff is not longer required to demonstrate the absence of comparative fault to be entitled to summary judgment. Plaintiff was in the first stopped car. The car behind plaintiff (CCAP/Rosenthal) was also stopped but was struck from behind by a third car (Auto Mall/Edri):

A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries … . A plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case … . A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence … .

The plaintiff’s affidavit submitted in support of his motion established his prima facie entitlement to judgment as a matter of law. The plaintiff’s affidavit demonstrated that he was stopped for between 5 and 10 seconds due to traffic related conditions before his vehicle was struck in the rear by the CCAP/Rosenthal vehicle. The plaintiff’s affidavit also demonstrated that the vehicle operated by Edri struck the rear of the stopped vehicle owned by CCAP and operated by Rosenthal, which propelled that vehicle into the rear of the plaintiff’s stopped vehicle. In opposition, Auto Mall and Edri failed to raise a triable issue of fact regarding a nonnegligent explanation for the rear-end collision. Furthermore, the contention of Auto Mall and Edri that the plaintiff’s motion was premature pursuant to CPLR 3212(f) is unpersuasive. Auto Mall and Edri failed to demonstrate how discovery may lead to relevant evidence or that facts essential to opposing the motion were exclusively within the plaintiff’s knowledge or control … . Tsyganash v Auto Mall Fleet Mgt., Inc., 2018 NY Slip Op 05517, Second Dept 7-25-18

NEGLIGENCE (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE (SECOND DEPT))/TRAFFIC ACCIDENTS (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE (SECOND DEPT))/REAR-END COLLISIONS (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE (SECOND DEPT))

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