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PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiffs’ failure to demonstrate the absence of comparative fault in this rear-end collision case required the denial of plaintiffs’ motion for summary judgment without reference to defendant’s papers:

 

“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” … . 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 … . Here, the plaintiffs’ submissions in support of their motion, which included the defendant’s deposition transcript, failed to eliminate a triable issue of fact as to whether the defendant had a nonnegligent explanation for the collision. According to the defendant, the plaintiffs’ vehicle came to a stop, started again, and came to a second stop for no apparent reason. The defendant claimed that when he braked to avoid a collision, his vehicle skidded on a roadway which was wet from melting snow … . Moluh v Vord, 2016 NY Slip Op 06477, 2nd Dept 10-5-16

NEGLIGENCE (PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (REAR-END COLLISION, PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/COMPARATIVE FAULT (SUMMARY JUDGMENT, PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/SUMMARY JUDGMENT (REAR-END COLLISION PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/REAR-END COLLISIONS (PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)

 

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CHAIN BETWEEN TWO POLES NOT AN OPEN AND OBVIOUS CONDITION, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE PROPERLY DENIED.

The Second Department determined the defendant school district did not demonstrate a chain stretched between two poles, over which plaintiff tripped and fell at a pep rally, was an open and obvious condition. Therefore the school’s motion for summary judgment was properly denied:

There is no duty to warn of a condition which is open and obvious and not inherently dangerous … . “The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question for a jury” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted’ … .

Here, the defendant failed to establish, prima facie, that the chain was open and obvious given the crowd and lighting conditions at the time of the accident … . Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, it is not necessary to review the sufficiency of the plaintiff’s opposition papers … . Simon v Comsewogue Sch. Dist., 2016 NY Slip Op 06486, 2nd Dept 10-5-16

 

NEGLIGENCE (CHAIN BETWEEN TWO POLES NOT AN OPEN AND OBVIOUS CONDITION, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE PROPERLY DENIED)/EDUCATION-SCHOOL LAW (TRIP AND FALL, CHAIN BETWEEN TWO POLES NOT AN OPEN AND OBVIOUS CONDITION, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE PROPERLY DENIED)/SLIP AND FALL (CHAIN BETWEEN TWO POLES NOT AN OPEN AND OBVIOUS CONDITION, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE PROPERLY DENIED)

WHEEL STOP WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS.

The Second Department determined the wheel stop was an open and obvious condition which can not be the basis for liability in a slip and fall case:

While a property owner has a duty to maintain its premises in a reasonably safe manner for its patrons … , there is no duty to protect or warn against an open and obvious condition which is not inherently dangerous … . “A wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm” … .

Here, the defendant … established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff’s deposition testimony and photographic evidence demonstrating that the plaintiff tripped when her foot came into contact with a wheel stop, which was open and obvious and not inherently dangerous, as she attempted to step over it on the way to her car … . Lacerra v CVS Pharmacy, 2016 NY Slip Op 06474, 2nd Dept 10-5-16

NEGLIGENCE (WHEEL STOP WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/SLIP AND FALL (WHEEL STOP WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/WHEEL STOP (WHEEL STOP WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)

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FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED.

The Second Department, reversing Family Court, determined Family Court should have granted mother’s objection to the support magistrate’s finding father did not willfully violate the support order. Proof that support payments were not made is prima facie proof of a willful violation requiring father to come forward with an explanation. Father offered no explanation:

Here, the father’s failure to satisfy his child support obligations constituted prima facie evidence of a willful violation … . This showing shifted the burden to the father to come forward with competent, credible evidence that his failure to pay support in accordance with the terms of the support order was not willful … . The father failed to satisfy this burden. There was no evidence that the father was financially unable to meet his child support obligations. Accordingly, the Family Court should have granted the mother’s objection to so much of the Support Magistrate’s order as determined that the father did not willfully violate the support order. Since the father’s violation of the support order was willful, the court was required to award an attorney’s fee to the mother … . Matter of Torres v Moran, 2016 NY Slip Op 06506, 2nd Dept 10-5-16

FAMILY LAW (FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)/EVIDENCE (FAMILY LAW, FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)/CHILD SUPPORT (FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)

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EVIDENCE OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED.

The Second Department, reversing Family Court, determined the out-of-court statements of the child (Tahjane) were sufficiently corroborated, and the proof of excessive corporal punishment and a history of violence against mother in the children’s presence supported a finding of neglect by father:

Contrary to the Family Court’s determination, the mother’s testimony and medical records provided sufficient corroboration to support the reliability of Tahjane’s out-of-court statements that the father choked her and, together with the petitioner’s progress notes, established the allegation, by a preponderance of the evidence, that the father inflicted excessive corporal punishment on Tahjane … . Further, the court should have drawn a negative inference from the father’s failure to testify … . Accordingly, the petitioner established, by a preponderance of the evidence, that the father neglected Tahjane by inflicting excessive corporal punishment on her.

The petitioner also established, by a preponderance of the evidence, that the father neglected all of the subject children by perpetrating acts of domestic violence against the mother in their presence. Although “exposing a child to domestic violence is not presumptively neglectful” … , a finding of neglect based on an incident or incidents of domestic violence is proper where a preponderance of the evidence establishes that the child was actually or imminently harmed by reason of the parent or caretaker’s failure to exercise a minimum degree of care … . Matter of Nah-Ki B. (Nakia B.), 2016 NY Slip Op 06492, 2nd Dept 10-5-16

FAMILY LAW (EVIDENCE OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)/EVIDENCE (FAMILY LAW, EVIDENCE, INCLUDING OUT OF COURT STATEMENTS BY A CHILD, OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)/HEARSAY (FAMILY LAW, EVIDENCE, INCLUDING OUT OF COURT STATEMENTS BY A CHILD, OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)/NEGLECT (EVIDENCE OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)

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COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE.

The Second Department, reversing a consent order, determined Family Court did not take the necessary steps to ensure father wished to waive his right to counsel in this custody/relocation proceeding. Father had indicated he wished to be represented by legal aid. Legal aid informed the court father did not qualify for their services. Father appeared pro se without any further inquiry by the court:

 

Although the order appealed from recites that it was entered on consent, under the particular facts and circumstances of this case, we are not precluded from reviewing whether the Family Court secured a valid waiver of the father’s right to counsel. The Family Court erred in allowing the father to proceed pro se. When the father expressed a desire to have an attorney appointed, the court should have inquired further into the father’s financial circumstances, including, but not limited to, inquiring about his expenses … . Moreover, the court did not determine whether the father was unequivocally, voluntarily, and intelligently waiving his right to counsel … . Despite the father’s statements at pretrial appearances that he would like to have an attorney appointed, the court presided over the hearing without inquiring into why the father was appearing pro se, or whether he understood the risks and disadvantages of doing so. Matter of Soto v Willis, 2016 NY Slip Op 06505, 2nd Dept 10-5-16

FAMILY LAW (COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/ATTORNEYS (FAMILY LAW, CUSTODY, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/APPEALS (FAMILY LAW, CUSTODY, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/APPEALS (FAMILY LAW, CONSENT ORDER, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)

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HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED.

The Second Department determined several failures to gather proof requested by the inmate (petitioner) deprived petitioner of a fair disciplinary hearing. The determination was annulled and the violation expunged. The hearing officer, inter alia: (1) failed to retrieve a document which could have supported the petitioner’s claim he was not served with the proper disciplinary papers; (2) failed to ascertain the identity of the confidential informant who claimed a weapon was in petitioner’s cell; and (3) failed to ask a witness (petitioner claimed the witness planted the weapon) relevant questions posed by the petitioner:

Considering all of these circumstances, the petitioner did not receive a fair hearing … . While a prison inmate facing a disciplinary hearing is not entitled to the same level of due process as a criminal defendant, there are minimum standards that must be met … . Here, since the petitioner did not receive a fair hearing, the minimum due process standard was not met … . Matter of Harvey v Prack, 2016 NY Slip Op 06497, 2nd Dept 10-5-16

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED)/EVIDENCE (DISCIPLINARY HEARINGS, INMATES, (HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED)

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15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL.

The Second Department determined defendant was entitled to a downward departure based upon a 15-year period during which defendant did not reoffend. Defendant’s SORA risk level was reduced from three to two:

In light of the purpose of SORA, which is to assess the risk that the offender poses while at liberty, lengthy periods during which the defendant has been at liberty after the offense are significant in determining the risk of reoffense and the danger posed in the event of reoffense …  . Since these periods are not taken into account in the risk assessment instrument (hereinafter the RAI), they are a permissible ground for departure … . Here, the defendant committed a sex offense in New Jersey in 1982. In the time between that crime and the SORA hearing, which was held in 2012, after the defendant returned to New York, he was incarcerated in New Jersey for approximately 15 years, and he was also at liberty for approximately the same amount of time without reoffending. In light of the lengthy amount of time without reoffense, we conclude that the RAI overstated the defendant’s risk of reoffense. People v Sotomayer, 2016 NY Slip Op 06482, 2nd Dept 10-5-16

CRIMINAL LAW (15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL)/SEX OFFENDER REGISTRATION ACT (SORA) (15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL)

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SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED.

 

The Second Department, reversing Supreme Court, determined there were no exigent circumstances justifying the warrantless search of a briefcase found on a parked car near where defendant was arrested. Defendant was identified by a store clerk as the person who had just robbed him at gunpoint and a loaded gun was found on defendant’s person upon arrest:

Because “[a]ll warrantless searches presumptively are unreasonable per se, . . . [w]here a warrant has not been obtained, it is the People who have the burden of overcoming this presumption of unreasonableness” … . Under the New York State Constitution, an individual’s right of privacy in his or her personal effects dictates that a warrantless search incident to arrest be deemed unreasonable unless (1) it satisfies certain “spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest” and (2) it is justified by the presence of exigent circumstances … . “Exigency must be affirmatively demonstrated” … . Exigent circumstances may be established by a showing that the search was necessary to ensure the safety of the public or the arresting officer, or that it was necessary to prevent the destruction or concealment of evidence … .

Contrary to the Supreme Court’s determination, the search of the briefcase was not justified as a search incident to a lawful arrest. The People failed to present evidence establishing exigent circumstances at the time of the arrest that would justify the search. The arresting officer did not claim that he searched the briefcase out of concern for the safety of himself or the public and, in any event, the circumstances did not support a reasonable belief that the briefcase contained a weapon … . Additionally, the officer did not claim that he searched the briefcase to prevent the defendant from destroying evidence and, in any event, the facts do not support such a claim. Moreover, despite the People’s contention to the contrary, the error was not harmless, as it cannot be said that there was no significant probability that the jury would have acquitted the defendant of robbery in the first degree had it not been for the error … . People v Houston, 2016 NY Slip Op 06510, 2nd Dept 10-5-16

 

CRIMINAL LAW (SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)

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SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS.

The Second Department, although agreeing with Supreme Court that aspects the damages award in this medical malpractice case were excessive, determined Supreme Court did not have the power to simply reduce the damages amounts. Rather, Supreme Court should have granted the motion to set aside the verdict and ordered a new trial unless the parties stipulate to the reduced damages:

… [I]t was procedurally improper for the Supreme Court to enter a judgment reducing the awards for future medical care, future medications, future physical and occupational therapy from age 21, future speech therapy from age 21, future medical equipment, future medical supplies, future loss of earning capacity, past pain and suffering, and future pain and suffering without granting a new trial on those issues unless the plaintiffs stipulated to reduce the verdict … . Reilly v St. Charles Hosp. & Rehabilitation Ctr., 2016 NY Slip Op 06485, 2nd Dept 10-5-16

CIVIL PROCEDURE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/NEGLIGENCE (MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/MEDICAL MALPRACTICE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/DAMAGES (MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/VERDICT, MOTION TO SET ASIDE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)

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