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PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 42 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL.

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action under 18 USC 1983, against the county, for violation of his right to a speedy trial:

We reject the County’s argument that it cannot be held liable pursuant to 42 USC § 1983 for the alleged misconduct of the office of the District Attorney. Where, as here, a complaint alleges a failure to train and supervise employees regarding legal obligations, “liability for the District Attorney’s actions in his role as a manager of the District Attorney’s office rests with the county” …  and a claim pursuant to 42 USC § 1983 may therefore be maintained against the County for the conduct of the District Attorney’s office insofar as the District Attorney acted as a County policymaker … . Moreover, here, the complaint sufficiently alleges that the District Attorney’s office failed to train and supervise its assistant district attorneys with respect to the constitutional speedy trial rights of the accused persons with whom they interacted, to the extent that they manifested deliberate indifference to those rights … . Victor v County of Suffolk, 2017 NY Slip Op 03796, 2nd Dept 5-10-17

CRIMINAL LAW (PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)/CIVIL RIGHTS LAW (18 USC 1983) (SPEEDY TRIAL, PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)/MUNICIPAL LAW (SPEEDY TRIAL, PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)/SPEEDY TRIAL (CIVIL RIGHTS VIOLATION, PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)

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PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL.

The Second Department, reversing defendant’s conviction, determined prosecutorial misconduct deprived defendant of a fair trial:

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… [T]he prosecutor acted as an unsworn witness when he addressed the impeachment of one of the People’s main witnesses, a sister of the complainant (hereinafter the sister). During cross-examination, the sister was impeached by inconsistent testimony she gave in the grand jury proceeding. During summation, the prosecutor argued to the jury that defense counsel had “selected certain portions out of context in the grand jury minutes,” and that the jury “didn’t get the entire grand jury minutes” … . These comments were particularly prejudicial. The sister’s testimony, and thus her credibility, were crucial to the People’s proof against the defendant, which was less than overwhelming. The prosecutor’s comments suggested, without any evidentiary support, that the jury should disregard the sister’s grand jury testimony, in which she failed to name the defendant as a participant in the subject assault, because there was more to the testimony than they knew.

In addition, in reference to the father of the complainant and the sister, who was present during the subject assault but was not called to testify, resulting in a missing witness charge, the prosecutor improperly suggested, and invited the jury to speculate, that the father would have given testimony supportive of his children had he been called to testify … . People v Ramirez, 2017 NY Slip Op 03780, 2nd Dept 5-10-17

 

CRIMINAL LAW (PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL)/PROSECUTORIAL MISCONDUCT (PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL)

JUROR MISCONDUCT REQUIRED A NEW TRIAL, JURORS SHARED INFORMATION FROM A FORMER DA AND A FORMER POLICE OFFICER DURING DELIBERATIONS.

The Second Department, reversing defendant’s conviction, determined juror misconduct required a new trial. During deliberations two jurors shared information concerning trial evidence which was provided in one case by a former assistant district attorney and in the other by a retired police officer:

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… [O]ne of the jurors improperly shared the views of her husband, who was a retired assistant district attorney, by telling the other jurors that he told her that everything the prosecutors said was true, that law enforcement officers would not lie, that the accomplice could never have come up with such an extravagant story in such a limited amount of time, and that crime scene videos didn’t show everything. Moreover, the evidence established that the juror’s comments regarding her husband’s statements influenced one juror who testified at the hearing. Additionally, another juror testified that during deliberations she sent a text message to her uncle, a retired police officer, and asked him if a nine millimeter bullet could fit into a .40 caliber gun. Her uncle told her “no,” and the following day she shared that information with the jury. People v Plowden, 2017 NY Slip Op 03779, 2nd Dept 5-10-17

CRIMINAL LAW (JUROR MISCONDUCT REQUIRED A NEW TRIAL, JURORS SHARED INFORMATION FROM A FORMER DA AND A FORMER POLICE OFFICER DURING DELIBERATIONS)/JURORS (CRIMINAL LAW, JUROR MISCONDUCT REQUIRED A NEW TRIAL, JURORS SHARED INFORMATION FROM A FORMER DA AND A FORMER POLICE OFFICER DURING DELIBERATIONS)

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MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY CASE PROPERLY GRANTED, THE JURY FOUND DEFENDANT NEGLIGENT BUT WENT ON TO FIND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY.

The Second Department determined plaintiff’s motion to set aside the verdict in this personal injury case was properly granted. The jury found defendant negligent but went on to find the negligence was not the proximate cause of the injury:

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… [T]he plaintiff … was injured when an ammunition reloading device, owned by the defendant, exploded as the plaintiff attempted to remove what was purportedly a “dead” cartridge from the device. The defendant had inadvertently jammed a live round in the device two months earlier and had attempted to remove the combustible components before bringing it to the plaintiff and seeking his assistance in removing the jammed cartridge. * * *

… [T]here existed no valid line of reasoning and permissible inferences from which the jury could rationally have found that the defendant’s negligent conduct was not a proximate cause of the plaintiff’s injuries. Piro v Demeglio, 2017 NY Slip Op 03785, 2nd Dept 5-10-17

 

CIVIL PROCEDURE (MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY CASE PROPERLY GRANTED, THE JURY FOUND DEFENDANT NEGLIGENT BUT WENT ON TO FIND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY)/NEGLIGENCE (CIVIL PROCEDURE, MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY CASE PROPERLY GRANTED, THE JURY FOUND DEFENDANT NEGLIGENT BUT WENT ON TO FIND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY)/VERDICT, MOTION TO SET ASIDE (CIVIL PROCEDURE, MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY CASE PROPERLY GRANTED, THE JURY FOUND DEFENDANT NEGLIGENT BUT WENT ON TO FIND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY)

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LETTER TERMINATING ATTORNEY-CLIENT RELATIONSHIP CANNOT BE THE BASIS FOR A MOTION TO DISMISS A LEGAL MALPRACTICE COMPLAINT AS BARRED BY DOCUMENTARY EVIDENCE.

The Second Department determined defendant-attorneys’ motion to dismiss based on documentary evidence was properly denied. Plaintiff alleged the attorneys missed a statute of limitations deadline. The attorneys submitted a letter purporting to terminate the attorney-client relationship with plaintiff prior to the expiration of the statute of limitations. The court found that the letter was not the type of document upon which a motion to dismiss the complaint can be based:

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“A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law”… . The evidence submitted in support of such motion must be ” documentary'” or the motion must be denied … . In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be “unambiguous, authentic, and undeniable” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” … . “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” … . Prott v Lewin & Baglio, LLP, 2017 NY Slip Op 03786, 2nd Dept 5-10-17

CIVIL PROCEDURE (MOTION TO DISMISS ON DOCUMENTARY EVIDENCE, LETTER TERMINATING ATTORNEY-CLIENT RELATIONSHIP CANNOT BE THE BASIS FOR A MOTION TO DISMISS A LEGAL MALPRACTICE COMPLAINT AS BARRED BY DOCUMENTARY EVIDENCE)/ATTORNEYS (LEGAL MALPRACTICE, LETTER TERMINATING ATTORNEY-CLIENT RELATIONSHIP CANNOT BE THE BASIS FOR A MOTION TO DISMISS A LEGAL MALPRACTICE COMPLAINT AS BARRED BY DOCUMENTARY EVIDENCE)/LEGAL MALPRACTICE (LETTER TERMINATING ATTORNEY-CLIENT RELATIONSHIP CANNOT BE THE BASIS FOR A MOTION TO DISMISS A LEGAL MALPRACTICE COMPLAINT AS BARRED BY DOCUMENTARY EVIDENCE)

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QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the statute of limitations in this medical malpractice action was tolled by the continuous treatment doctrine:

“Under the continuous treatment doctrine, the 2½ year period does not begin to run until the end of the course of treatment, when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint'” … . The doctrine “applies when further treatment is explicitly anticipated by both physician and patient,” which is generally “manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, . . . for the purpose of administering ongoing corrective efforts for the same or a related condition” …  Further “[i]ncluded within the scope of continuous treatment’ is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment” ,,, ,

In the present case, [defendant doctor] testified at his deposition that when he discussed treatment options with the plaintiff, he advised the plaintiff that a new treatment process was available outside the United States and that he was cautiously optimistic that, at some time in the foreseeable future, he could offer it to the plaintiff in New York. The plaintiff, who was aware that the treatment process was the subject of a study aimed at obtaining FDA approval, testified at his deposition that he was waiting for the new treatment process to become available. After being told, in November 2008, that his only options were to wait for the new treatment or seek treatment outside the country, the plaintiff returned to the defendants for treatment of the same condition on March 9, 2011, and, in fact, received treatment for the same condition from the defendants continuing until December 2012. Freely v Donnenfeld, 2017 NY Slip Op 03491, 2nd Dept 5-3-17

NEGLIGENCE (MEDICAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (CONTINUOUS TREATMENT DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/CIVIL PROCEDURE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, STATUTE OF LIMITATIONS,  QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, STATUTE OF LIMITATIONS, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

ALLEGATION PLAINTIFF STOPPED SUDDENLY NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE.

The Second Department determined defendant driver’s allegation that plaintiff stopped suddenly was not enough to defeat plaintiff’s motion for summary judgment in this rear-end collision 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 … . To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault … . Here, the plaintiff established her prima facie entitlement to judgment as a matter of law through the submission of her own affidavit, in which she averred that her vehicle was stopped on Northern Boulevard at its intersection with 157th Street, when it was struck in the rear by the defendants’ vehicle. This affidavit demonstrated, prima facie, that Veliz was negligent and that she was not comparatively at fault in the happening of the subject accident.

In opposition, the defendants failed to raise a triable issue of fact. The evidence submitted by the defendants that the plaintiff stopped her vehicle suddenly was insufficient to raise a triable issue of fact as to whether the plaintiff’s actions contributed to the happening of the accident, and it did not provide the defendants with a nonnegligent explanation for the rear-end collision … . Nikolic v City-Wide Sewer & Drain Serv. Corp., 2017 NY Slip Op 03524, 2nd Dept 5-3-17

NEGLIGENCE (ALLEGATION PLAINTIFF STOPPED SUDDENLY NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE)/TRAFFIC ACCIDENTS (ALLEGATION PLAINTIFF STOPPED SUDDENLY NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE)/REAR-END COLLISIONS (ALLEGATION PLAINTIFF STOPPED SUDDENLY NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE)

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ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS’ HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED.

The Second Department determined the homeowners, who were living out-of-state while their home was being renovated, did not meet their burden of proof for summary judgment in this slip and fall case brought under Labor Law 200. Plaintiff, an electrician, alleged he slipped and fell on ice in the defendants’ driveway. The defendants didn’t demonstrate when the driveway was last inspected or what the condition of the driveway was when plaintiff fell, so the motion was denied without reference to plaintiff’s responding papers:

The Supreme Court properly determined that the homeowners had a duty to keep their property in a reasonably safe condition and provide workers with a safe place to work, even though they were residing out of state at the time of the accident … . In addition, contrary to the homeowners’ contention, the plaintiff’s alleged injuries stem from a dangerous condition on the premises … , and not from the manner in which work was performed … . Further, the court properly concluded that the homeowners failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition in the driveway … . The evidence submitted in support of the homeowners’ motion, which included transcripts of the plaintiff’s and their own deposition testimony, failed to establish when they or the company they contracted with to provide snow removal on the driveway last inspected the driveway, or what the driveway looked like on the day of the accident … . DeFelice v Seakco Constr. Co., LLC, 2017 NY Slip Op 03481, 2nd Dept 5-3-17

LABOR LAW-CONSTRUCTION LAW (ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS’ HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED)/NEGLIGENCE (LABOR LAW 200, ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS’ HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED)/SLIP AND FALL (LABOR LAW 200, ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS’ HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED)

INSURED’S REFUSAL TO COOPERATE WITH INSURER RELIEVED INSURER OF LIABILITY FOR DEFAULT JUDGMENT AGAINST THE INSURED.

The Second Department, reversing Supreme Court’s judgment after a bench trial, determined defendant insurer demonstrated the insured refused to cooperate with the insurer’s defense in this oil-spill case, relieving the insurer of liability for the default judgment against the insured:

An insurer that seeks to disclaim coverage based on its insured’s alleged noncooperation is required to demonstrate that “it acted diligently in seeking to bring about its insured’s cooperation, that its efforts were reasonably calculated to obtain its insured’s cooperation, and that the attitude of its insured, after the cooperation of its insured was sought, was one of willful and avowed obstruction'” … . The insurer has a “heavy” burden of proving lack of cooperation … . The inference of noncooperation must be “practically compelling” … .

Based on the evidence adduced at trial, we find that American States met its heavy burden of proving that its insured breached the subject policy by failing to cooperate in the defense of the underlying action. American States made diligent efforts, through written correspondence, numerous telephone calls, and a visit to the insured’s home, that were reasonably calculated to bring about the insured’s cooperation. Further, its insured’s attitude, after his cooperation was sought, was one of willful and avowed obstruction. Among other trial evidence, there was testimony from an investigator who met with the insured at the insured’s home. The investigator testified that the investigator told the insured that the insured risked losing coverage under the policy if the insured refused to cooperate. The insured, while acknowledging that he knew that he had attorneys defending him and that a default judgment could be entered against him if he failed to appear at a deposition, made statements to the effect that he would cooperate only if he were paid for certain work he claimed to have performed, and that the plaintiff could “just get in line” were it to obtain a judgment against him. West St. Props., LLC v American States Ins. Co., 2017 NY Slip Op 03555, 2nd Dept 5-3-17

 

INSURANCE LAW (INSURED’S REFUSAL TO COOPERATE WITH INSURER RELIEVED INSURER OF LIABILITY FOR DEFAULT JUDGMENT AGAINST THE INSURED)/DISCLAIMER (INSURANCE LAW, REFUSAL TO COOPERATE IN DEFENSE, INSURED’S REFUSAL TO COOPERATE WITH INSURER RELIEVED INSURER OF LIABILITY FOR DEFAULT JUDGMENT AGAINST THE INSURED)

INJURED PARTY DID NOT TIMELY NOTIFY INSURER OF HIS CLAIM, INSURER NOT OBLIGATED TO SATISFY DEFAULT JUDGMENT AGAINST THE INSURED.

The Second Department determined the injured party (Glanz) did not timely notify the insurer (New York Marine) of the claim against the insured. Therefore, the insurer was not obligated to satisfy the default judgment entered against the insured:

“Insurance Law § 3420(a)(2) expressly permits an injured party to recover any unsatisfied judgment against an insured, directly from the insurer” … . Insurance Law § 3420(a)(3) requires the injured party to demonstrate that he or she acted diligently in attempting to ascertain the identity of the insurer, and thereafter expeditiously notified the insurer … . “In determining the reasonableness of an injured party’s notice, the notice required is measured less rigidly than that required of the insureds” … . “The injured person’s rights must be judged by the prospects for giving notice that were afforded him [or her], not by those available to the insured” …  “What is reasonably possible for the insured may not be reasonably possible for the person he [or she] has injured. The passage of time does not of itself make delay unreasonable” … .

Here, New York Marine made a prima facie showing that Glanz failed to act diligently in attempting to ascertain New York Marine’s identity and in expeditiously notifying it of his claim … . In opposition, Glanz failed to raise a triable issue of fact … . Glanz v New York Mar. & Gen. Ins. Co., 2017 NY Slip Op 03494, 2nd Dept 5-3-17

 

INSURANCE LAW (INJURED PARTY DID NOT TIMELY NOTIFY INSURER OF HIS CLAIM, INSURER NOT OBLIGATED TO SATISFY DEFAULT JUDGMENT AGAINST THE INSURED)

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