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DEFAMATORY STATEMENTS RELATING TO ISSUES OF BROAD PUBLIC INTEREST POSTED ON FACEBOOK MAY BE ENCOMPASSED BY THE ANTI-SLAPP STATUTE; HERE, HOWEVER, THE STATEMENTS (ALLEGATIONS OF SEXUAL ABUSE) RELATED TO A PURELY PRIVATE MATTER AND, THEREFORE, WERE NOT ENCOMPASSED BY THE STATUTE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Love, determined (1) Facebook is a “public forum” within the meaning of the anti-SLAPP statute, and (2) the allegedly defamatory statements defendants posted on Facebook involved a “purely private matter,” not an issue of broad public interest, and therefore was not encompassed aby the anti-SLAPP statute. Therefore plaintiff’s defamation per se cause of action properly survived dismissal:

… [T]he defendants … posted a series of responses to a post on the personal Facebook page of the plaintiff … alleging that the plaintiff had sexually abused [one of the defendants] approximately 17 years prior when she was 4 years old … . * * *

Based upon the intent of the Legislature to redefine New York’s anti-SLAPP statute as broadly as possible, and the interpretation in decisions by other state courts of their similar state anti-SLAPP statutes defining Facebook and other social media applications as public forums, we conclude that Facebook is a public forum within the meaning of Civil Rights Law § 76-a(1). …

… [T]his action is not subject to the anti-SLAPP statute because the defendants’ statements published on the plaintiff’s Facebook page concerned “a purely private matter” … and were “directed only to a limited, private audience” … . Although the defendants made generic reference to issues of broad public interest, their primary focus was not an issue of broad public interest. Nelson v Ardrey, 2024 NY Slip Op 04147, Second Dept 8-7-24

Practice Point: Facebook is a “public forum” within the meaning of the anti-SLAPP statute.

Practice Point: Statements which relate to purely private matters, here Facebook posts alleging sexual abuse, as opposed to statements relating to a broad public interest, are not encompassed by the anti-SLAPP statute.

 

PLAINTIFF, AN INNOCENT PASSENGER IN THIS TRAFFIC ACCIDENT CASE, WAS ENTITLED TO SUMMARY JUDGMENT DISMISSSING DEFENDANT’S AFFIRMATIVE DEFENSES AS AGAINST HER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that plaintiff (Brizan), a passenger in a car involved in an accident, was entitled to summary judgment dismissing defendant’s affirmative defenses alleging comparative negligence, contributory negligence and culpable conduct on Brizan’s part:

The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers (see CPLR 3212[g] …). Brizan demonstrated, prima facie, that she did not engage in any culpable conduct that contributed to the happening of the accident … . Husbands v City of New York, 2024 NY Slip Op 04126, Second Dept 8-7-24

Practice Point: An innocent passenger in a traffic accident is not subject to the affirmative defenses raised by the defendant against the driver of the car in which plaintiff was riding.​

 

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CLAIMANT FELL ATTEMPTING TO MOVE FROM AN UPPER WALKWAY TO A LOWER WALKWAY; CLAIMANT WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) AND LABOR LAW 241(6) CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimant construction-worker’s motions for summary judgment pursuant to Labor Law 240(1) and Labor Law 241(6) should have been granted. Claimant was attempting to move from a walkway on one level to a walkway on a lower level when the handrail swung away from him, the walkway shifted, and he fell. The defendant’s failure to provide a ladder warranted summary judgment on the Labor Law 240(1) cause of action. And the violation of two Industrial Code provisions warranted summary judgment on the Labor Law 241(6) cause of action:

Although the defendant contended that the sole proximate cause of the accident was the claimant’s decision to use the wooden pallet, rather than a readily available ladder, to descend from the upper walkway, the defendant failed to submit sufficient evidence to raise a triable issue of fact as to whether a proper ladder was readily available to the claimant or whether the claimant had been instructed to use a ladder rather than the wooden pallet installed between the walkway levels … . …

… [T]he defendant violated 12 NYCRR 23-1.7(f) by failing to provide “ladders or other safe means of access” from walkway levels on the work site and that this violation was a proximate cause of the accident. ,,, [T]he defendant violated 12 NYCRR 23-1.15(a) by failing to provide a safety railing that was “securely supported.” Chiarella v New York State Thruway Auth., 2024 NY Slip Op 04122, Second Dept 8-7-24

Practice Point: Defendant in the Labor Law 240(1) cause of action did not demonstrate a ladder was readily available. Therefore defendant did not demonstrate claimant’s failure to use a ladder to move from an upper walkway to a lower walkway was the sole proximate cause of claimant’s fall.

 

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THE JUDGE SHOULD HAVE DECLARED A MISTRIAL AFTER THE JURY’S REPEATED COMMUNICATIONS EXPLAINING THEY COULD NOT REACH A UNANIMOUS VERDICT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the judge should have ordered a mistrial after the jury’s repeated communications stating they could not reach a unanimous verdict:

The jury sent its third note regarding deadlock on the fourth day of deliberations, which not only stated that the jurors were “hopelessly deadlocked,” but also that “[a] unanimous decision would only be able to be achieved by the abandonment” of the jurors’ “firm . . . convictions,” and that “any change in their decisions would be untrue and unjust” … . Thus, the jury unequivocally informed the court that any unanimous verdict would be the result of jurors abandoning their genuine beliefs about the defendant’s guilt or innocence in order to achieve a unanimous verdict, which demonstrated that it would have served no purpose to provide additional instructions to the jury to continue deliberating … . Moreover, portions of the court’s instructions delivered after that note were potentially coercive, including the court’s statements that “some of you are locked into your positions and you’re fixed in those positions and inflexible and that’s contrary to what jurors have to do during jury deliberations,” and that “when you were selected as jurors you promised me that you would deliberate and discuss your views with your other jurors, so if you refuse to deliberate or close off your mind then you’re violating your promise and your oath to me” … . Notably, the jury returned a unanimous verdict later on the same day the court gave those instructions. Thus, under the circumstances, the court should have discharged the jury and declared a mistrial. People v Calixte, 2024 NY Slip Op 04079, Second Dept 7-31-24

Practice Point: Here the jury sent out three articulate and detailed notes explaining they could not reach a unanimous verdict. The judge should have declared a mistrial.

 

THE NEWSPAPER’S FOIL REQUEST FOR POLICE DISCIPLINARY RECORDS, INCLUDING RECORDS OF UNSUBSTANTIATED ALLEGATIONS AND RECORDS CREATED BEFORE THE REPEAL OF CIVIL RIGHTS LAW 50-A, SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner-newspaper’s FOIL request for police disciplinary records, including records of allegations ruled unsubstantiated and records created before the repeal of Civil Rights Law 50-a, should have been granted:

… [T]he Supreme Court erred in concluding that the privacy exemption under Public Officers Law § 87(2)(b) creates a blanket exemption allowing the respondents to categorically withhold the disciplinary records of unsubstantiated allegations of misconduct … . Inasmuch as the respondents withheld the requested records containing unsubstantiated allegations of misconduct in their entirety and did not articulate any particularized and specific justification for withholding any of the records, the respondents did not meet their burden of establishing that the privacy exemption applies … . The respondents further failed to establish that “identifying details” in the records containing unsubstantiated allegations or complaints of misconduct “could not be redacted so as to not constitute an unwarranted invasion of personal privacy” … .

… [E]ffective June 12, 2020, the New York State Legislature repealed Civil Rights Law § 50-a and amended the Public Officers Law to make specific provisions relating to the disclosure of law enforcement disciplinary records and the types of redactions to be made thereto prior to disclosure … . Thus, the statutory exemption under Public Officers Law § 87(2)(a) no longer applies to law enforcement personnel records. The bill repealing Civil Rights Law § 50-a also made several amendments to FOIL concerning disciplinary records of law enforcement agencies … . Of particular relevance here, Public Officers Law § 86 was amended by adding subdivisions (6) and (7), defining “[l]aw enforcement disciplinary records” and a “[l]aw enforcement disciplinary proceeding.”

Here, as the petitioner made the subject FOIL requests after the legislative amendments were enacted, the petitioner was not seeking retroactive application of the statutory amendments to a pending FOIL request … . Moreover, for the reasons set forth in Matter of Newsday, LLC v Nassau County Police Dept. (222 AD3d at 92-93), we reject the respondents’ contention that in amending the Public Officers Law to provide for the disclosure of records relating to law enforcement disciplinary proceedings, the Legislature intended to exclude from disclosure any law enforcement disciplinary records that were created prior to June 12, 2020 … .. Matter of Gannett Co., Inc. v Town of Greenburgh Police Dept., 2024 NY Slip Op 04071, Second Dept 7-31-24

Practice Point: Absent proof of some privacy exemption, police disciplinary records, including those involving unsubstantiated allegations and those created before the repeal of Civil Rights Law 50-a, may be provided pursuant to a FOIL request.

 

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THE BANK DID NOT DEMONSTRATE IT WAS THE HOLDER OR ASSIGNEE OF THE NOTE AT THE TIME THE ACTION TO RECORD THE MORTGAGE WAS BROUGHT; THE BANK DID NOT HAVE STANDING TO BRING THE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing in 2017 to record a mortgage securing a note issued in 2008:

A plaintiff has standing where it is the holder or assignee of the underlying note at the time the action is commenced … . “Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the . . . action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident” … . “[A]n assignment of a note and mortgage need not be in writing and can be effectuated by physical delivery” .. .

Here, the affidavits of Fernandez were insufficient to establish the plaintiff’s standing to record the mortgage. Although Fernandez’s second affidavit provided a proper foundation for the admission of business records, and attached a business record … , “[i]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . The business record attached to Fernandez’s second affidavit failed to establish, prima facie, that the plaintiff had possession of the note prior to commencing the instant action, as it failed to mention the defendant or otherwise identify the note to which it was referring. Moreover, the business record identifies itself merely as a “Certification.” It does not state when the note was either delivered to or assigned to the plaintiff. Bayview Loan Servicing, LLC v Healey, 2024 NY Slip Op 04054, Second Dept 7-31-24

Practice Point: Here the note was issued in 2008 and plaintiff bank sought to record the mortgage in 2017. The bank did not have standing to record the mortgage because it did not present proof it was the holder or assignee of the note when the action was brought.​

 

ALTHOUGH PLAINTIFF FAILED TO TIE OFF HIS LANYARD, THAT FAILURE WAS NOT THE SOLE PROXIMATE CAUSE OF HIS INJURY; PLAINTIFF FELL WHEN A PLANK ON THE SCAFFOLD BROKE; PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was wearing a safety harness with a lanyard when a coworker asked for help in securing the scaffold to the wall. Plaintiff was not able to hook his lanyard to the scaffold because he was carrying a pipe and a clamp, the lanyard was only four feet long, and he had to walk 20 feet to the wall. A plank on the scaffold broke and plaintiff fell. Supreme Court found that were questions of fact whether plaintiff was the sole proximate cause of his injury and whether he was a recalcitrant worker. Because the plank broke, plaintiff’s actions or omissions could not be the sole proximate cause of his injury:

… [T]he plaintiffs established, prima facie, that Labor Law § 240(1) was violated and that the violation was a proximate cause of the injured plaintiff’s injuries. The undisputed evidence established that the injured plaintiff was subjected to the elevation-related risk of the wooden plank which broke suddenly, causing the injured plaintiff to fall … .

In opposition to the plaintiffs’ prima facie showing, the defendants failed to raise a triable issue of fact as to whether the injured plaintiff’s own conduct was the sole proximate cause of his injuries. Since the plaintiffs established a violation of Labor Law § 240(1) and that the violation was a proximate cause of the injured plaintiff’s fall, the injured plaintiff’s comparative negligence, if any, is not a defense to the cause of action alleging a violation of that statute … . Further, the defendants did not present evidence that the injured plaintiff was recalcitrant in the sense that he was instructed to tie and untie his lanyard to traverse the scaffold and refused to do so … . Amaro v New York City Sch. Constr. Auth., 2024 NY Slip Op 04052, Second Dept 7-31-24

Practice Point: As long as an elevation hazard is a cause of plaintiff’s injury (here a scaffold plank broke), whether an act or omission on plaintiff’s part (here the failure to hook up his lanyard) contributed to his injury is not an issue under Labor Law 240(1).

 

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HERE THE RELATION-BACK DOCTRINE SHOULD HAVE BEEN APPLIED TO ADD DEFENDANT DESIGN, WHICH HAD A UNITY OF INTEREST WITH DEFENDANT EISENBACH, DESIGN’S CEO; THE PLAINTIFF HAD AGREED TO DISCONTINUE THE TIMELY ACTION AGAINST EISENBACH BASED ON MISREPRESENTATIONS MADE ON EISENBACH’S BEHALF (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court, determined the relation-back doctrine should have been applied to add a defendant, Design, to the law suit. The CEO of Design, Eisenbach, had been timely sued but the action was discontinued based upon misrepresentations made to plaintiff’s counsel on behalf of Eisenbach. Because of that unusual circumstance, based on the unity of interest between Design and its CEO, Eisenbach, plaintiff should have been allowed to add Design as a defendant after the statute of limitations had run for all parties (including Eisenbach):

These appeals involve the application of the relation-back doctrine to an unusual set of facts. Here, the plaintiffs seek to interpose untimely claims against a proposed corporate defendant by relating those claims back under CPLR 203(c) and (f) to an individual defendant who had been timely sued, discontinued from the action before the statute of limitations had run, and re-added as a defendant after the applicable statute of limitations had expired for all parties. Normally, the relation-back doctrine may only be applied when the party being added relates back to another party which has already been timely sued and which is a continuing defendant in the case. Under the peculiar circumstances of this case, where no party objected to, raised any contentions concerning, or appealed the granting of leave to re-add the previously discontinued individual as a party defendant, the relation-back doctrine may be applied. * * *

… [T]here is a fair reading of the record that had Eisenbach not been discontinued from the action based upon inaccurate representations, Design’s role at the construction site would have been revealed and an action timely commenced against it. Further, with Eisenbach named as an original defendant in the action, Design knew or should have known that but for a mistake as to the identity of the parties, it would have been named as a party defendant as well. Bisono v Mist Enters., Inc., 2024 NY Slip Op 03873, Second Dept 7-24-24

Practice Point: Usually the relation-back doctrine can be applied only to add a party with a unity of interest with a timely sued defendant. Here, although the defendant had been timely sued, the action had been discontinued based upon misrepresentations made by the defendant to the plaintiff. Under that unique circumstance, the relation-back doctrine was deemed available to the plaintiff.

 

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PRIMARILY BECAUSE OF CREDIBILITY ISSUES CONCERNING THE IDENTIFICATION OF THE DEFENDANT, THE SECOND DEPARTMENT REVERSED THE ROBBERY CONVICTION AS AGAINST THE WEIGHT OF THE EVIDENCE; THERE WAS A DISSENT (SECOND DEPT).

The Second Department, over a dissent, determined the defendant’s robbery conviction, which was based primarily on the complainant’s identification evidence, was against the weight of the evidence:

Here, an acquittal would not have been unreasonable since the defendant did not possess the complainant’s wallet, no physical evidence tied him to the scene of the theft or to the Lincoln in which the complainant had been abducted, and the clothing that the defendant was wearing did not match the description of the perpetrator’s clothing. Moreover, upon the exercise of our factual review power (see CPL 470.15[5]), we find that the rational inferences that can be drawn from the trial evidence do not support the convictions beyond a reasonable doubt. Initially, while the People speculate that the defendant could have put on the sweater at some time after he stole the complainant’s wallet, by the complainant’s version of events, the defendant was either engaged in a struggle with the complainant or under the constant watch of the complainant and his friend from the moment of the theft. Furthermore, the taxicab driver candidly admitted that he lost sight of the Lincoln and never saw it again, which cannot be reconciled with the complainant’s testimony that the two vehicles were “bumper to bumper” the entire time the taxicab followed the Lincoln.

The testimony of the complainant and his friend that they saw the defendant exiting the Lincoln cannot be credited.

The testimony of the complainant and his friend suffered other credibility issues. People v Delvalle, 2024 NY Slip Op 03896, Second Dept 7-24-24

Practice Point: Credibility issues can support the reversal of a conviction as against the weight of the evidence.

 

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PLAINTIFF BICYCLIST’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; BUT PLAINTIFF’S MOTION TO DISMISS DEFENDANT DRIVER’S CONTRIBUTORY NEGLIGENCE AFFIRMATIVE DEFENSE WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff bicyclist’s motion for summary judgment on liability in this traffic accident case should have been granted. However, plaintiff’s motion to dismiss defendant’s contributory negligence affirmative defense was properly denied. Defendant suddenly backed up in and attempt to parallel park and struck plaintiff. The court noted that Supreme Court properly refused to consider an uncertified police report submitted by defendant in opposition to summary judgment:

The plaintiff … demonstrated that the defendant reversed her vehicle on the roadway “without taking proper precautions” in violation of Vehicle and Traffic Law § 1211(a) … . In opposition, the defendant failed to raise a triable issue of fact. “The defendant did not submit an affidavit describing the events surrounding the accident which rebutted the version of events presented in the plaintiff’s affidavit” … . Further, “[c]ontrary to the defendant[‘s] contention, the [Supreme Court] properly declined to consider a particular uncertified police accident report in determining the motion as it would have provided the sole basis for denying summary judgment” …

“With few exceptions . . . , a person riding a bicycle on a roadway is entitled to all of the rights and bears all of the responsibilities of a driver of a motor vehicle” (… Vehicle and Traffic Law § 1231). Therefore, “[a] bicyclist is required,” inter alia, “to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position” … . Dieubon v Moore, 2024 NY Slip Op 03881, Second Dept 7-24-24

Practice Point: Backing up without taking precautions violates the Vehicle and Traffic Law and constitutes negligence per se.

Practice Point: A bicyclist must use reasonable care for his or her safety and may therefore be contributorily negligent in a car-bicycle collision.

 

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