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THERE WAS GOOD CAUSE FOR THE 31 YEAR DELAY IN INDICTING DEFENDANT FOR MURDER (SECOND DEPT).

The Second Department determined there was good cause for a 31 year delay in indicting the defendant for murder:

Cecil Schiff (hereinafter the decedent) was murdered in September 1980 during a robbery of his apartment. With no eyewitnesses and no match to latent fingerprints that were recovered from the crime scene, the investigation stalled. In 2008, a detective with the New York City Police Department’s Latent Print Unit randomly selected the case for fingerprint analysis, and determined that the defendant’s fingerprints matched three fingerprints recovered from a jewelry box and two other boxes found in the decedent’s bedroom. Further investigation revealed that the defendant, who was a 17-year-old high school student at the time of the murder, was absent from school on the day of the murder. The defendant was arrested and indicted in 2012, more than 31 years after the crime was committed.  * * *

… [A] significant amount of the delay was due to a lack of evidence identifying a viable suspect. After the defendant’s fingerprints were matched to the fingerprints recovered from the three boxes in the decedent’s bedroom, further investigation was conducted. The People had a good-faith basis to wait until they had sufficient evidence to arrest the defendant. Accordingly, we agree with the Supreme Court’s determination that the People met their burden of demonstrating good cause for the delay … . The reasons for the delay establishing the People’s good cause, the nature of the crime, and the fact that there was no period of pre-indictment incarceration in connection with this matter outweigh the extent of the delay. The court appropriately balanced the requisite factors in denying the defendant’s motion to dismiss the indictment … . People v Mattison, 2018 NY Slip Op 04569, Second Dept 6-20-18

​CRIMINAL LAW (PRE-INDICTMENT DELAY, THERE WAS GOOD CAUSE FOR THE 31 YEAR DELAY IN INDICTING DEFENDANT FOR MURDER (SECOND DEPT))/PRE-INDICTMENT DELAY (THERE WAS GOOD CAUSE FOR THE 31 YEAR DELAY IN INDICTING DEFENDANT FOR MURDER (SECOND DEPT))/DELAY, PRE-INDICTMENT (THERE WAS GOOD CAUSE FOR THE 31 YEAR DELAY IN INDICTING DEFENDANT FOR MURDER (SECOND DEPT))

CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT).

The Second Department vacated defendant’s conviction of attempted assault in the second degree, noting that the crime is a legal impossibility:

The crime of attempted assault in the second degree is a legal impossibility (see Penal Law § 120.05[3]; People v Campbell, 72 NY2d 602, 605…). As correctly conceded by the People, the inclusion of that nonexistent crime in the superior court information constituted a nonwaivable jurisdictional defect, necessitating vacatur of the defendant’s conviction of attempted assault in the second degree, vacatur of the sentence imposed thereon, and dismissal of that count of the superior court information … . People v Jones, 2018 NY Slip Op 04565, Second Dept 6-20-18

​CRIMINAL LAW (CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT))/ASSAULT (CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT))/ATTEMPTED ASSAULT  (CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT))

PLAINTIFF INJURED WHEN LAWN CHAIR SANK INTO A HOLE CONCEALED BY GRASS, QUESTION OF FACT WHETHER LANDOWNER HAD ACTUAL NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department determined defendant property owner’s motion for summary judgment should not have been granted. Plaintiff was injured when she sat down in a lawn chair which sank into a hole concealed by grass:

Landowners have a duty to maintain their property in a reasonably safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, and the burden of avoiding the risk… . Contrary to the defendants’ contention, viewing the evidence in the light most favorable to the plaintiff, the defendants failed to demonstrate, prima facie, that the alleged concealed hole in the lawn was a ” naturally occurring topographic condition,'” inherent in the nature of the property, that the defendants ” could not reasonably be expected to remedy'” … .

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating, prima facie, that they did not create the allegedly dangerous condition or have actual or constructive notice of it prior to the subject accident… . However, in opposition, the plaintiff raised a triable issue of fact, at least, as to whether the defendants had actual notice of the condition prior to the accident. Mustafaj v Macri, 2018 NY Slip Op 04554, Second Dept 6-20-18

​NEGLIGENCE (PLAINTIFF INJURED WHEN LAWN CHAIR SANK INTO A HOLE CONCEALED BY GRASS, QUESTION OF FACT WHETHER LANDOWNER HAD ACTUAL NOTICE OF THE CONDITION (SECOND DEPT))/LAWN CHAIRS (NEGLIGENCE, PLAINTIFF INJURED WHEN LAWN CHAIR SANK INTO A HOLE CONCEALED BY GRASS, QUESTION OF FACT WHETHER LANDOWNER HAD ACTUAL NOTICE OF THE CONDITION (SECOND DEPT))

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TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT)

The Second Department determined defendant landlord’s motion for summary judgment in this negligence action by a tenant was properly denied. Plaintiff was injured attempting to move a heavy radiator that was in the common area outside his apartment. Plaintiff’s family members had complained that the radiator obstructed the path from the apartment to the staircase, but the radiator had remained there for months:

… [T]he defendant landlord moved for summary judgment dismissing the complaint insofar as asserted against it, contending that the plaintiff’s conduct was the sole proximate cause of the accident. …

The defendant landlord failed to establish, prima facie, that it was not foreseeable that the plaintiff would attempt to move the heavy radiator and that the plaintiff’s conduct constituted a superseding and intervening act which severed any nexus between the defendant landlord’s alleged negligence and the plaintiff’s injuries … . Munoz v Kiryat Stockholm, LLC, 2018 NY Slip Op 04552, Second Dept 6-20-18

​NEGLIGENCE (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/SOLE PROXIMATE CAUSE (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/SUPERSEDING CAUSE (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/FORESEEABILITY (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))

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APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim in this sidewalk slip and fall case should have been granted. Petitioner’s counsel served a timely notice on the city but the abutting owner was the NYC Housing Authority (NYCHA). The notice was served on the NYCHA two weeks after the expiration of the 90-day period:

… [W]hile the petitioner’s counsel’s error concerning the identity of the responsible public corporation does not provide a reasonable excuse for the delay in giving notice … , the absence of a reasonable excuse is not, standing alone, fatal to the petitioner’s application …. Notably, considering that the petitioner’s application was made approximately two weeks after the expiration of the 90-day period, NYCHA acquired actual knowledge of the essential facts constituting the claim within a “reasonable time” after the expiration of the 90-day period (General Municipal Law § 50-e[5]…).

Moreover, the petitioner met her initial burden of showing that the late notice will not substantially prejudice NYCHA, thereby requiring NYCHA “to rebut that showing with particularized evidence” … . NYCHA’s conclusory assertion of substantial prejudice was insufficient to rebut the petitioner’s showing. Matter of Ramos v New York City Hous. Auth., 2018 NY Slip Op 04547, Second Dept 6-20-18

​MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT))

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PETITIONER WAS REQUIRED TO FILE A NOTICE OF CLAIM PURSUANT TO CPLR 9802 IN AN ACTION SEEKING A DECLARATORY JUDGMENT THAT A LOCAL LAW WAS INVALID, DECLARATORY JUDGMENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s (BT Holdings’) cause of action for a declaratory judgment declaring a local law invalid should have been dismissed because petitioner did not file a notice of claim as required by CPLR 9802:

Contrary to BT Holdings’ contention, the notice of claim requirements of CPLR 9802 apply to the causes of action for declaratory relief … . Matter of BT Holdings, LLC v Village of Chester, 2018 NY Slip Op 04544, Second Dept 6-20-18

​MUNICIPAL LAW (NOTICE OF CLAIM, PETITIONER WAS REQUIRED TO FILE A NOTICE OF CLAIM PURSUANT TO CPLR 9802 IN AN ACTION SEEKING A DECLARATORY JUDGMENT THAT A LOCAL LAW WAS INVALID, DECLARATORY JUDGMENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, CIVIL PROCEDURE, PETITIONER WAS REQUIRED TO FILE A NOTICE OF CLAIM PURSUANT TO CPLR 9802 IN AN ACTION SEEKING A DECLARATORY JUDGMENT THAT A LOCAL LAW WAS INVALID, DECLARATORY JUDGMENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, NOTICE OF CLAIM, PETITIONER WAS REQUIRED TO FILE A NOTICE OF CLAIM PURSUANT TO CPLR 9802 IN AN ACTION SEEKING A DECLARATORY JUDGMENT THAT A LOCAL LAW WAS INVALID, DECLARATORY JUDGMENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/DECLARATORY JUDGMENT (MUNICIPAL LAW, CIVIL PROCEDURE, NOTICE OF CLAIM,  PETITIONER WAS REQUIRED TO FILE A NOTICE OF CLAIM PURSUANT TO CPLR 9802 IN AN ACTION SEEKING A DECLARATORY JUDGMENT THAT A LOCAL LAW WAS INVALID, DECLARATORY JUDGMENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

DEFENDANT SELLER DID NOT DEMONSTRATE PLAINTIFF BUYER COULD NOT BE READY, WILLING AND ABLE TO CLOSE ON THE PROPERTY BY POINTING TO REQUIREMENTS IN THE COMMITMENT LETTER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant seller did not demonstrate the plaintiff buyer would not have been ready, willing and able to close on the property in this specific performance action. Pointing to the requirements of the plaintiff’s commitment letter was not enough to warrant summary judgment in defendant’s favor:

Even when a seller repudiates a contract, the buyer asserting a cause of action for specific performance or to recover damages for breach of contract must demonstrate that he or she was ready, willing, and able to perform… . As the movant on a motion for summary judgment, however, it was the defendant’s burden to demonstrate the absence of any issues of fact and make a prima facie showing that the plaintiff would not and could not perform … . Here, the defendant did not meet its prima facie burden. The defendant relied solely upon the nonconforming commitment letter, which does not conclusively demonstrate that the plaintiff would not have been able to satisfy the conditions prior to or at the closing. Mendoza v Sterling Props., Inc., 2018 NY Slip Op 04543, Second Dept 6-20-18

REAL ESTATE (SPECIFIC PERFORMANCE, DEFENDANT SELLER DID NOT DEMONSTRATE PLAINTIFF BUYER COULD NOT BE READY, WILLING AND ABLE TO CLOSE ON THE PROPERTY BY POINTING TO REQUIREMENTS IN THE COMMITMENT LETTER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT))/SPECIFIC PERFORMANCE (REAL ESTATE,  DEFENDANT SELLER DID NOT DEMONSTRATE PLAINTIFF BUYER COULD NOT BE READY, WILLING AND ABLE TO CLOSE ON THE PROPERTY BY POINTING TO REQUIREMENTS IN THE COMMITMENT LETTER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT))/COMMITMENT LETTER (REAL ESTATE, SPECIFIC PERFORMANCE, DEFENDANT SELLER DID NOT DEMONSTRATE PLAINTIFF BUYER COULD NOT BE READY, WILLING AND ABLE TO CLOSE ON THE PROPERTY BY POINTING TO REQUIREMENTS IN THE COMMITMENT LETTER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT))

QUESTION OF FACT WHETHER LADDERS WERE AVAILABLE, PLAINTIFF FELL WHEN AN INVERTED BUCKET HE WAS STANDING ON TIPPED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined there was a question of fact whether ladders were available at the work site such that plaintiff did not need to stand on an inverted bucket to install sheetrock. Plaintiff was injured when the bucket tipped and he fell:

“Under Labor Law § 240(1), owners and general contractors, and their agents, have a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites” … . “To prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries” … . “Liability under section 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident. In such cases, plaintiff’s own negligence is the sole proximate cause of his injury”… .

Here, the plaintiff failed to establish 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. In support of his motion, the plaintiff submitted transcripts of his deposition, in which he testified that there were ladders and Bakers scaffolds kept on the job site. Lorde v Margaret Tietz Nursing & Rehabilitation Ctr., 2018 NY Slip Op 04542, Second Dept 6-20-18

​LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER LADDERS WERE AVAILABLE, PLAINTIFF FELL WHEN AN INVERTED BUCKET HE WAS STANDING ON TIPPED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION PROPERLY DENIED (SECOND DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER LADDERS WERE AVAILABLE, PLAINTIFF FELL WHEN AN INVERTED BUCKET HE WAS STANDING ON TIPPED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION PROPERLY DENIED (SECOND DEPT))

STATUTORY CRITERIA OF CPLR 3216 NOT MET, COURT SHOULD NOT HAVE DISMISSED ACTION FOR NEGLECT TO PROSECUTE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the statutory criteria in CPLR 3216 were not met and the court should not have dismissed the action for neglect to prosecute:

The Supreme Court issued a compliance conference order dated December 3, 2014, directing the plaintiff to serve and file a note of issue on or before May 15, 2015, and warning that the failure to do so “shall result in dismissal of the action for unreasonably neglecting to proceed, without further notice.” …

“A court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met” … . “Effective January 1, 2015, the Legislature amended, in several significant respects, the statutory preconditions to dismissal under CPLR 3216” … . One such precondition is that where a written demand to resume prosecution of the action is made by the court, as here, “the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Here, the compliance conference order did not set forth any specific conduct constituting neglect by the plaintiff. Accordingly, since one of the statutory preconditions to dismissal was not met, the court should not have directed dismissal of the complaint pursuant to CPLR 3216 … . Goetz v Public Serv. Truck Renting, Inc., 2018 NY Slip Op 04534, Second Dept 6-20-18

​CIVIL PROCEDURE (STATUTORY CRITERIA OF CPLR 3216 NOT MET, COURT SHOULD NOT HAVE DISMISSED ACTION FOR NEGLECT TO PROSECUTE (SECOND DEPT))/CPLR 3216 (STATUTORY CRITERIA OF CPLR 3216 NOT MET, COURT SHOULD NOT HAVE DISMISSED ACTION FOR NEGLECT TO PROSECUTE (SECOND DEPT))/NEGLECT TO PROSECUTE (STATUTORY CRITERIA OF CPLR 3216 NOT MET, COURT SHOULD NOT HAVE DISMISSED ACTION FOR NEGLECT TO PROSECUTE (SECOND DEPT))

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