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ROBBERY CONVICTION UNSUPPORTED BY PROOF OF INTENT TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE OWNER OF PROPERTY; HEARING NECESSARY TO ASSESS DEFENDANT’S SPEEDY TRIAL ARGUMENTS; PROSECUTOR’S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL.

The Second Department, reversing defendant's conviction, determined: (1) the robbery conviction was not supported by legally sufficient evidence of an intent to permanently, as opposed to temporarily, deprive the owner of property; (2) the trial court needed to hold a hearing to revisit defendant's motion to dismiss on speedy trial grounds; and (3) the prosecutor's summation, in which the prosecutor repeatedly gave the jury the impression the defendant had the burden of proof and vouched for the People's witnesses, deprived defendant of a fair trial. The decision has substantive discussions of all three issues. With respect to prosecutorial misconduct, an issue reached in the interest of justice, the court wrote:

“[S]ummation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command” … . “Rather, [t]here are certain well-defined limits'” … . “Among other things, [the prosecutor] must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused'” … .

Here, the prosecutor repeatedly shifted the burden of proof to the defendant, first, by telling the jurors that they could only form a reasonable doubt if they believed the defense offered by the defendant … , and then, by repeatedly telling the jurors or implying that they would have to find that the People's witnesses lied in order to believe that defense … . In essence, one of the prosecutor's themes in his summation was that the jurors had to determine whether they believed the People's witnesses or whether they believed the defendant (who testified), and only if they believed the defendant could they form a reasonable doubt about the defendant's guilt. Such an impression was clearly improper and prejudicial. The prosecutor additionally denigrated the defense … , and vouched for the credibility of the police witnesses based upon their position as law enforcement officers … . People v Cantoni, 2016 NY Slip Op 04232, 2nd Dept 6-1-16

CRIMINAL LAW  (ROBBERY CONVICTION UNSUPPORTED BY PROOF OF INTENT TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE OWNER OF PROPERTY; HEARING NECESSARY TO ASSESS DEFENDANT'S SPEEDY TRIAL ARGUMENTS; PROSECUTOR'S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL)/ROBBERY  (ROBBERY CONVICTION UNSUPPORTED BY PROOF OF INTENT TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE OWNER OF PROPERTY)/SPEEDY TRIAL (HEARING NECESSARY TO ASSESS DEFENDANT'S SPEEDY TRIAL ARGUMENTS)/PROSECUTORIAL MISCONDUCT (PROSECUTOR'S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR'S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL)

EVIDENCE OF PHYSICAL INJURY NOT SUFFICIENT TO SUPPORT ROBBERY IN THE SECOND DEGREE.

The Second Department determined the evidence of physical injury was not sufficient to support robbery in the second degree and reduced defendant's conviction to robbery third degree:

“Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). “Although the question of whether physical injury has been established is generally for the jury to decide, there is an objective level . . . below which the question is one of law'” … .

The subject incident occurred as the complainant, a doctor, was on her way to work at Brooklyn Hospital. The complainant testified that during the incident the defendant and another man shoved her and pulled her to the ground, then took her purse. After the incident, the complainant “collected [herself]” and then resumed walking to the hospital. The complainant testified that she sustained a laceration and a welt on the back of her head, scratches and bruises on her elbow, and other bruises. At the hospital, she was given painkillers, ice, and bandages. The complainant was not able to work for the rest of that day, but returned to work the next day. She testified that she was “sore for several days.” Under these circumstances, there was insufficient evidence from which a jury could infer that the complainant suffered substantial pain or impairment of her physical condition … . People v Stokes, 2016 NY Slip Op 04245, 2nd Dept 6-1-16

CRIMINAL LAW (EVIDENCE OF PHYSICAL INJURY NOT SUFFICIENT TO SUPPORT ROBBERY IN THE SECOND DEGREE)/ROBBERY (EVIDENCE OF PHYSICAL INJURY NOT SUFFICIENT TO SUPPORT ROBBERY IN THE SECOND DEGREE)/PHYSICAL INJURY (ROBBERY SECOND DEGREE, EVIDENCE OF PHYSICAL INJURY NOT SUFFICIENT TO SUPPORT ROBBERY IN THE SECOND DEGREE)

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FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a.

The Second Department determined the assertion of a frivolous claim for punitive damages in a property-injury case warranted the award of $10,000 to each defendant pursuant to CPLR 8303-a:

CPLR 8303-a provides, in pertinent part, that where, as here, a plaintiff has commenced a “frivolous” claim in an action to recover damages for injury to property, “the court shall award to the successful party, costs and reasonable attorney's fees not exceeding ten thousand dollars.” Baxter v Javier, 2016 NY Slip Op 04165, 2nd Dept 6-1-16

CIVIL PROCEDURE (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)/FRIVOLOUS CLAIMS (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)/ATTORNEYS (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)/PUNITIVE DAMAGES (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)

COURT’S LIMITED POWER TO REVIEW AN ARBITRATION AWARD SUCCINCTLY STATED.

In affirming an arbitration award, the Second Department succinctly stated its review powers in this context:

Unless an arbitration award violates a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on the arbitrator's powers, it may not be vacated … . Where the parties to a contract agree to submit disputes to an arbitrator, “[c]ourts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies” … . Absent a provision to the contrary in an arbitration agreement, arbitrators are not bound by principles of substantive law or rules of evidence … . Thus, an arbitration award will not be vacated even where the court concludes that the arbitrator's interpretation of the agreement misconstrues or disregards its plain meaning or misapplies substantive rules of law … . Matter of T & C Home Design, LLC v Stylecraft Corp., 2016 NY Slip Op 04228, 2nd Dept 6-1-16

ARBITRATION (COURT'S LIMITED POWER TO REVIEW AN ARBITRATION AWARD SUCCINCTLY STATED)

VISITATION PROPERLY GRANTED TO GRANDMOTHER DESPITE ANIMOSITY BETWEEN GRANDMOTHER AND FATHER.

The Second Department determined Family Court properly found grandmother was entitled to visitation. Animosity between father and grandmother is not a sufficient basis for denial of visitation:

” When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry'”  … . “First, it must find that the grandparent has standing, based on, inter alia, equitable considerations” … . “If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child” … . “In considering whether a grandparent has standing to petition for visitation based upon circumstances show[ing] that conditions exist which equity would see fit to intervene' (Domestic Relations Law § 72 [1]), an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,' among other factors” … . The court must also consider ” the nature and basis of the parents' objection to visitation'” … . Matter of Seddio v Artura, 2016 NY Slip Op 04063, 2nd Dept 5-26-16

FAMILY LAW (VISITATION PROPERLY GRANTED TO GRANDMOTHER DESPITE ANIMOSITY BETWEEN GRANDMOTHER AND FATHER)/GRANDMOTHER, VISITATION RIGHTS (VISITATION PROPERLY GRANTED TO GRANDMOTHER DESPITE ANIMOSITY BETWEEN GRANDMOTHER AND FATHER)

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ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK.

The Second Department, reversing Supreme Court, determined defendant property owner could not be held liable for the condition of a NYC-owned tree well within the abutting sidewalk:

Administrative Code of the City of New York § 7-210(a) places the duty to maintain a sidewalk in a reasonably safe condition on the owner of the property abutting the sidewalk, and provides for civil liability for injuries proximately caused by the failure to so maintain the sidewalk. However, the statute does not extend that duty of maintenance to City-owned tree wells or provide for civil liability for injuries occurring in City-owned tree wells … . Thus, liability may be imposed on the abutting landowner in such instances only where she or he has “affirmatively created the dangerous condition, negligently made repairs to the area, [or] caused the dangerous condition to occur through a special use of that area” … . Gibbons v City of New York, 2016 NY Slip Op 04019, 2nd Dept 5-25-16

NEGLIGENCE (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/MUNICIPAL LAW (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/SLIP AND FALL (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/SIDEWALKS (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)/TREE WELLS (ABUTTING PROPERTY OWNER NOT LIABLE FOR CONDITION OF CITY OWNED TREE WELL WITHIN SIDEWALK)

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INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiffs' motion for leave to file a late notice of claim against defendant school district should have been denied. Although infancy tolls the one-year-ninety-days statute of limitations, it does not toll the 90-day period for filing a notice of claim. The motion for leave to file a late notice was not made until more than four years after the expiration of the 90-day filing period:

Here, the plaintiffs failed to establish that the defendant had “acquired actual knowledge of the essential facts constituting the claim” within 90 days of the accident or a reasonable time thereafter (General Municipal Law § 50-e[5]). The school's principal prepared an accident claim form on the day of the accident, and the infant plaintiff's parents completed the medical claim portion of that form a couple of weeks after the accident. Contrary to the plaintiffs' contention, this form, which merely indicated that the infant plaintiff lost his left front tooth and part of his right front tooth when he hit his mouth on the gymnasium floor in an attempt to “duck from a ball” during physical education class, did not establish that the defendant had timely, actual knowledge of the essential facts underlying the claims that it was negligent in supervising the students, in failing to provide a safe play area, and in allowing the infant plaintiff to engage in an inappropriate activity … . Accordingly, the defendant had no reason to conduct a prompt investigation into the purported negligent supervision and alleged unsafe condition of the gymnasium floor … . Horn v Bellmore Union Free Sch. Dist., 2016 NY Slip Op 04021, 2nd Dept 5-25-16

NEGLIGENCE (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/CIVIL PROCEDURE (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/EDUCATION-SCHOOL LAW (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/MUNICIPAL LAW (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)

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STUDENT ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL.

The Second Department determined plaintiff-student assumed the risk of being struck by a baseball during his high-school team’s practice:

“The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'” … . “An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks” … . “Defendant’s duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . “[I]t is not necessary to the application of the doctrine that the injured plaintiff may have foreseen the exact manner in which the injury occurred so long as he or she is aware of the potential for injury of the mechanism from which the injury results'” … . Kaminer v Jericho Union Free Sch. Dist., 2016 NY Slip Op 04024, 2nd Dept 5-25-16

 

NEGLIGENCE (STUDENT ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL)/ASSUMPTION OF THE RISK (STUDENT ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL)/EDUCATION-SCHOOL LAW (STUDENT ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN REAR-END COLLISION CASE.

The Second Department determined plaintiff's motion for summary judgment in this rear-end collision case was properly granted, despite defendant's (McCrowell's) claim plaintiff stopped 150 feet from the car in front:

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting McCrowell's deposition testimony, the injured plaintiff's deposition testimony, and the injured plaintiff's affidavit, which demonstrated that the injured plaintiff's vehicle was stopped in heavy traffic when it was struck in the rear by the appellants' vehicle … .

In opposition, the appellants failed to raise a triable issue of fact. McCrowell's statement in his affidavit that the injured plaintiff brought his vehicle to a stop at least 150 feet behind the stopped vehicle in front of him did not adequately rebut the inference of negligence given McCrowell's deposition testimony that he was able to bring his vehicle to a stop behind the injured plaintiff's vehicle on two occasions prior to the accident in heavy stop-and-go traffic without incident during the one minute that the injured plaintiff was traveling in front of McCrowell's vehicle … . Even if the injured plaintiff's vehicle came to a sudden stop, “vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead” … . Melendez v McCrowell, 2016 NY Slip Op 04028, 2nd Dept 5-25-16

NEGLIGENCE (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN REAR-END COLLISION CASE)/REAR-END COLLISION (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN REAR-END COLLISION CASE)

PLAINTIFF DID NOT KNOW SOURCE OF FALLING WOOD WHICH STRUCK HIM, THEREFORE PLAINTIFF COULD NOT DEMONSTRATE, AS MATTER OF LAW, A VIOLATION OF LABOR LAW 240(1).

The Second Department determined plaintiff's motion for summary judgment on a Labor Law 240(1) cause of action was properly denied. Plaintiff was struck by a falling piece of wood, but did not know what caused the wood to fall:

To prevail on a motion for summary judgment in a section 240(1) “falling object” case, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking … . In addition, the plaintiff “must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … .

… The evidence submitted by the plaintiff was insufficient to establish that the wood fell because of the absence or inadequacy of a safety device. The plaintiff's mere belief that the wood that struck him was a part of the hoist mechanism is insufficient to establish that it was a component of the safety device itself … . Moreover, under the circumstances, including that the plaintiff did not see where the wood fell from, the plaintiff did not establish, prima facie, that his injuries were proximately caused by the absence or inadequacy of a safety device or other violation of the statute … . Pazmino v 41-50 78th St. Corp., 2016 NY Slip Op 04032, 2nd Dept 5-25-16

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF DID NOT KNOW SOURCE OF FALLING WOOD WHICH STRUCK HIM, THEREFORE PLAINTIFF COULD NOT DEMONSTRATE, AS MATTER OF LAW, A VIOLATION OF LABOR LAW 240(1))/FALLING OBJECTS (LABOR LAW, PLAINTIFF DID NOT KNOW SOURCE OF FALLING WOOD WHICH STRUCK HIM, THEREFORE PLAINTIFF COULD NOT DEMONSTRATE, AS MATTER OF LAW, A VIOLATION OF LABOR LAW 240(1))

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