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QUESTION OF FACT WHETHER WHEEL STOP IN PARKING LOT WAS AN OPEN AND OBVIOUS CONDITION.

The Second Department determined a question of fact had been raised whether a wheel stop in a parking area was an open and obvious condition. A photograph demonstrated the wheel stop was partially obstructing a walkway:

Here, the defendants submitted the expert affidavit of a forensic engineer who determined that “the parking lot was a safe walking surface and adequately illuminated at night,” and that the wheel stop on which the injured plaintiff tripped “was an open and obvious condition” located “within a designated parking space” and not a pedestrian walkway. However, the photographs upon which the defendants’ expert partially relies depict the wheel stop as extending directly in front of, and thus partially obstructing, a designated pedestrian walkway. Thus, the defendants failed to satisfy their initial burden of showing that they neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . Rivera v Queens Ballpark Co., LLC, 2015 NY Slip Op 09087, 2nd Dept 12-9-15

MONTHLY COMPILATION INEX ENTRIES FOR THIS CASE:

NEGLIGENCE (QUESTION OF FACT WHETHER WHEEL STOP WAS OPEN AND OBVIOUS)/SLIP AND FALL (QUESTION OF FACT WHETHER WHEEL STOP WAS OPEN AND OBVIOUS)/OPEN AND OBVIOUS CONDITION (WHEEL STOP NOT OPEN AND OBVIOUS AS A MATTER OF LAW)/WHEEL STOP (QUESTION OF FACT WHETHER WHEEL STOP WAS OPEN AND OBVIOUS)

JUSTIFICATION DEFENSE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, CONVICTION REVERSED.

The Second Department determined the defense request for a jury instruction on the justification defense should have been granted. There was evidence of a struggle for a knife and defendant feared for his life:

A person is justified in using deadly physical force against another if he or she reasonably believes such to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force by such other person … . “A trial court must charge the jury with respect to the defense of justification whenever, viewing the record in the light most favorable to the defendant, there is any reasonable view of the evidence which would permit the jury to conclude that the defendant’s conduct was justified” … . A failure to give a justification charge under such circumstances constitutes reversible error … .

Here, the defendant requested a justification charge to the jury based, inter alia, upon his trial testimony that during his altercation with the decedent, there was a struggle for the Swiss Army-style knife attached to his key chain that he then used to inflict the fatal wounds. The defendant also testified that he feared for his life during the altercation. Under these circumstances, considering the record in the light most favorable to the defendant, the Supreme Court erred in failing to provide the jury with the requested justification charge … . People v Austin, 2015 NY Slip Op 09112, 2nd Dept 12-9-15

CRIMINAL LAW (FAILURE TO GIVE JUSTIFICATION DEFENSE JURY INSTRUCTION REQUIRED REVERSAL)/JUSTIFICATION DEFENSE (FAILURE TO CHARGE JURY REQUIRED REVERSAL)/JURY INSTRUCTIONS (FAILURE TO GIVE JUSTIFICATION DEFENSE JURY INSTRUCTION REQUIRED REVERSAL)

INSUFFICIENT EVIDENCE DEFENDANT COMMITTED BURGLARY; DEFENDANT, THROUGH AN UNLOCKED DOOR, ENTERED A VESTIBULE THAT WAS NOT RESTRICTED TO USE BY TENANTS.

The Second Department reversed defendant’s burglary conviction because of insufficient evidence defendant entered the victim’s dwelling. Defendant entered a vestibule through an unlocked door and there was no indication the area was restricted to use by tenants only:

To be guilty of burglary in the first degree, a person must, among other things, knowingly enter or remain unlawfully in a dwelling (see Penal Law § 140.30). Here, while the evidence at trial showed that the defendant entered the vestibule of the victim’s apartment building through an outer door that did not lock, there was no indicia that access to the building or vestibule was restricted to tenants. Thus, the weight of the evidence does not warrant a finding that the defendant knowingly entered the victim’s dwelling … . People v Huggins, 2015 NY Slip Op 09119, 2nd Dept 12-9-15

 

REQUEST FOR STATEMENTS MADE BY WITNESSES WHO DID NOT TESTIFY AT TRIAL (BECAUSE PETITIONER PLED GUILTY) SHOULD HAVE BEEN DENIED; NON-TESTIFYING WITNESS STATEMENTS ARE CONFIDENTIAL; REQUEST FOR GRAND JURY MINUTES SHOULD HAVE BEEN DENIED; ALTHOUGH THE PUBLIC INTEREST IS INVOLVED, PETITIONER DID NOT MAKE THE REQUISITE FACTUAL SHOWING OF A PARTICULARIZED NEED FOR DISCLOSURE.

The Second Department, over an extensive dissent, reversing Supreme Court, determined that petitioner’s request for disclosure of statements made by non-testifying witnesses and the grand jury minutes should not have been granted. In 1988 petitioner pled guilty to several sex offenses. Therefore, none of the witnesses who gave statements in connection the petitioner’s criminal case testified. The Second Department held the statements remained confidential. With respect to the grand jury minutes, the court noted that the public interest was involved, but was not enough to justify disclosure because petitioner did not make a factual showing of a particularized need for disclosure:

” [T]he statements of nontestifying witnesses are confidential and not disclosable under FOIL'” … . Thus, the documents sought by the petitioner, which contain statements of nontestifying witnesses, are not disclosable under FOIL.

Contrary to the petitioner’s contention, the fact that he pleaded guilty and forfeited his right to a trial does not warrant a different conclusion. Under this Court’s jurisprudence, the statements of nontestifying witnesses are confidential, and that “cloak of confidentiality” is removed “once the statements have been used in open court” … . The entry of the petitioner’s plea of guilty did not remove the “cloak of confidentiality” from the statements of the nontestifying witnesses. Thus, those statements remain confidential and are not disclosable under FOIL. * * *

[A] “… party seeking disclosure [of grand jury minutes] will not satisfy the compelling and particularized need threshold simply by asserting, or even showing, that a public interest is involved.” Rather, “[t]he party must, by a factual presentation, demonstrate why, and to what extent, the party requires the minutes of a particular grand jury proceeding to advance the actions or measures taken, or proposed (e.g., legal action, administrative inquiry or legislative investigation), to insure that the public interest has been, or will be, served'” … . …

Despite the public interest involved in this case, the petitioner’s submissions did not establish a compelling and particularized need for disclosure of the grand jury materials … . The petitioner failed to demonstrate, by factual presentation, why, and to what extent, the grand jury materials are necessary to insure that the public interest will be served. In particular, the petitioner failed to sufficiently demonstrate how examination of the grand jury minutes and records will support his claim of actual innocence. Matter of Friedman v Rice, 2015 NY Slip Op 09103, 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

FREEDOM OF INFORMATION LAW [FOIL] (STATEMENTS OF NON-TESTIFYING WITNESSES ARE CONFIDENTIAL)/FREEDOM OF INFORMATION LAW [FOIL] (GRAND JURY MINUTES, NO FACTUAL SHOWING OF PARTICULARIZED NEED FOR DISCLOSURE)/GRAND JURY MINUTES (FOIL REQUEST, NO FACTUAL SHOWING OF A PARTICULARIZED NEED FOR DISCLOSURE)

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MOTHER’S MOTION FOR FINDINGS ALLOWING HER CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED.

Reversing Family Court, the Second Department determined mother’s motion for findings allowing her child to petition for special immigrant juvenile status (SIJS) should have been granted:

… [W]e declare that the child has been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court, and we find that the child is unmarried and under 21 years of age, that reunification with one of his parents is not viable due to parental abandonment, and that it would not be in his best interests to return to El Salvador … . Matter of Tommy E. H. (Anonymous) v Silvia C. (Anonymous), 2015 NY Slip Op 09104, 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

SPECIAL IMMIGRANT JUVENILE STATUS (MOTHER’S MOTION FOR FINDINGS SHOULD HAVE BEEN GRANTED)/IMMIGRATION LAW (MOTHER’S MOTION FOR FINDINGS ALLOWING HER CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED)

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“BEST EVIDENCE RULE” CRITERIA EXPLAINED; NOT MET HERE.

The Second Department determined defendant did not meet the requirements of the best evidence rule and defendant’s summary judgment motion should not have been granted.  Defendant argued that plaintiff’s breach of contract action was time-barred because a pricing offer/customer agreement included a shortened statute of limitations (one year). However, defendant produced only unsigned documents together with an employee’s (Muscillo’s) affidavit saying the original signed document was likely lost. The Second Department explained why that evidence was not sufficient under the best evidence rule:

“The best evidence rule requires the production of an original writing where its contents are in dispute and are sought to be proven” … . “The rule serves mainly to protect against fraud, perjury and inaccuracies . . . which derive from faulty memory'” … . Under an exception to the best evidence rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” … . “Loss may be established upon a showing of a diligent search in the location where the document was last known to have been kept, and through the testimony of the person who last had custody of the original. Indeed, the more important the document to the resolution of the ultimate issue in the case, the stricter becomes the requirement of the evidentiary foundation establishing loss for the admission of secondary evidence” … .

Here, given the significance of the lost original Pricing Offer to the issue of whether the action was time-barred, Muscillo’s conclusory averments were insufficient to explain its unavailability … . The defendant did not submit an affidavit from the person who last had custody of the original 2010 Pricing Offer, or from a person with personal knowledge of the search for it.

Even if the defendant’s submissions were sufficient to establish the unavailability of the original Pricing Offer, Muscillo’s affidavit was insufficient secondary evidence that an original signed agreement ever existed. Amica Mut. Ins. Co. v Kingston Oil Supply Corp., 2015 NY Slip Op 09059, 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

CONTRACT LAW (BEST EVIDENCE RULE, FAILURE TO DEMONSTRATE AGREEMENT TO SHORTENED STATUTE OF LIMITATIONS)/EVIDENCE (BEST EVIDENCE RULE, FAILURE TO DEMONSTRATE AGREEMENT TO SHORTENED STATUTE OF LIMITATIONS)/BEST EVIDENCE RULE (FAILURE TO DEMONSTRATE AGREEMENT TO SHORTENED STATUTE OF LIMITATIONS)

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ASSUMPTION OF RISK DEFENSE DID NOT APPLY TO STUDENT-ATHLETE’S PARTICIPATION IN UNSUPERVISED “HORSEPLAY;” SCHOOL’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment should not have been granted. Plaintiff student was injured when, during an unsupervised period of time prior to the beginning of football practice, a blocking sled was being misused to catapult players into the air. Plaintiff fractured both wrists. The Second Department held there was a question of fact re: the negligent supervision cause of action, and further held that the assumption of risk defense did not apply to the “horseplay” which resulted in plaintiff’s injury. With regard to assumption of the risk, the court wrote:

The doctrine of primary assumption of risk is most persuasively justified for its utility in facilitating ” free and vigorous participation in athletic activities'” … . By placing the risk of participation on the participants themselves, rather than on the sponsor, the doctrine encourages sponsorship, which leads to more opportunities to participate in sports or other recreational activities … . The doctrine of primary assumption of risk is not applicable to the conduct at issue in this case. …[T]he use of the blocking sled to catapult each other into the air is not the sort of “socially valuable voluntary activity” that the doctrine seeks to encourage … . Furthermore, the defendants did not establish that the commonly appreciated risks which are inherent in and arise out of the nature of football generally and flow from such participation on the football team included the risk of sustaining injury after being catapulted through the air by a blocking sled … . Duffy v Long Beach City Sch. Dist.. 2015 NY Slip Op 09065. 2nd Dept 12-9-15

MONTHLY COMPILATIION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (NEGLIGENT SUPERVISION OF STUDENTS)/NEGLIGENCE (ASSUMPTION OF RISK, SCHOOL SPORTS, HORSEPLAY)/NEGLIGENT SUPERVISION (STUDENTS)/ASSUMPTION OF RISK (SCHOOL SPORTS, HORSEPLAY)/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, HORSEPLAY)

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CITY (NYC), NOT ABUTTING LANDOWNERS, RESPONSIBLE FOR MISSING SIDEWALK HYDRANT VALVE COVER PURSUANT TO RULES OF CITY OF NEW YORK DEPARTMENT OF TRANSPORTATION.

The Second Department determined that the city (NYC) was responsible for maintenance of grates or covers on sidewalks pursuant to the Rules of the City of New York Department of Transportation. Therefore plaintiff, who allegedly fell because a sidewalk hydrant valve cover was missing, could not sue the abutting landowners:

Section 7-210 of the Administrative Code of the City of New York imposes liability for injuries resulting from negligent sidewalk maintenance on the abutting property owners. However, Rules of City of New York Department of Transportation (34 RCNY) § 2-07(b) provides that owners of covers or gratings on a street are responsible for monitoring the condition of those covers and gratings and the area extending 12 inches outward from the perimeter of the hardware, and for ensuring that the hardware is flush with the surrounding street surface. “34 RCNY 2-01 includes a sidewalk’ within the definition of street'” … . Accordingly, the City, and not the defendants, was responsible for maintaining the condition of the area where the plaintiff fell … . “[T]here is nothing in section 7-210 of the Administrative Code of the City of New York indicating that the City Council intended to supplant the provisions of 34 RCNY 2-07(b) and to allow a plaintiff to shift the statutory obligation of the owner of the cover or grating to the abutting property owner” … . Torres v Sander’s Furniture, Inc., 2015 NY Slip Op 09091 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

 NEGLIGENCE (CITY [NYC], NOT ABUTTING LANDOWNERS, RESPONSIBLE FOR MAINTENANCE OF SIDEWALK HYDRANT VALVE COVER)/SLIP AND FALL (CITY [NYC], NOT ABUTTING LANDOWNERS, RESPONSIBLE FOR MAINTENANCE OF SIDEWALK HYDRANT VALVE COVER)/MUNICIPAL LAW (CITY [NYC]], NOT ABUTTING LANDOWNERS, RESPONSIBLE FOR MAINTENANCE OF SIDEWALK HYDRANT VALVE COVER)/TRANSPORTATION, NYC DEPARTMENT OF (RESPONSIBLE FOR MAINTENANCE OF SIDEWALK HYDRANT VALVE COVER)

DEFENDANT DID NOT DEMONSTRATE PLAINTIFF DID NOT KNOW THE CAUSE OF HER FALL AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department determined defendant’s motion for summary judgment in a slip and fall case should not have been granted. Plaintiff’s testimony she “felt” liquid on the floor was sufficient evidence plaintiff was aware of the cause of her fall. And defendant failed to demonstrate a lack of constructive notice of the dangerous condition:

Although the defendant presented evidence that it neither created, nor had actual notice of, the alleged condition, it failed to demonstrate that it did not have constructive notice of the alleged condition, as the defendant failed to tender any evidence establishing when the subject area was last inspected and cleaned prior to the accident … . Korn v Parkside Harbors Apts., 2015 NY Slip Op 09071, 2nd Dept 12-9-15

NEGLIGENCE (CAUSE OF FALL, PLAINTIFF’S KNOWLEGE OF)/NEGLIGENCE (CONSTRUCTIVE NOTICE OF DANGEROUS CONDITION, FAILURE TO DEMONSTRATE LACK OF)/SLIP AND FALL (CAUSE OF FALL, PLAINTIFF’S KNOWLEDGE OF; CONSTRUCTIVE NOTICE, LACK OF KNOWLEDGE OF DANGEROUS CONDITION, FAILURE TO DEMONSTRATE)

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MANUFACTURER OF A TUBE SLIDE AND THE PROPERTY OWNER WHERE THE TUBE SLIDE WAS LOCATED ENTITLED TO SUMMARY JUDGMENT; INFANT PLAINTIFF FELL WHEN CLIMBING ON THE OUTSIDE OF THE TUBE SLIDE.

The Second Department determined both the manufacturer (Slip N Slide) of a tube slide (an enclosed plastic spiral tube) and the property owner (Philip Howard) where the tube slide was located were entitled to summary judgment. Infant plaintiff (ten years old) was injured when she fell while climbing on the outside of the tube slide. The Second Department determined the dangers of climbing on the outside of the tube were obvious and the tube slide was not inherently dangerous or defectively designed. In addition, the property owner demonstrated it did not create the hazardous condition or have constructive notice of it:

Contrary to the plaintiffs’ contention, Swing N Slide established its prima facie entitlement to judgment as a matter of law by demonstrating that the tube slide was not inherently dangerous or otherwise defectively designed … . In addition, as here, “there is no liability for failure to warn where [the] risks and dangers are so obvious that they can ordinarily be appreciated by any consumer to the same extent that a formal warning would provide . . . or where they can be recognized simply as a matter of common sense” … . In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of Swing N Slide’s motion which was for summary judgment dismissing the complaint insofar as asserted against … .

Philip Howard also was entitled to judgment as a matter of law. “A landowner has a duty to exercise reasonable care to maintain its premises in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk'” … . “A defendant in a premises liability case may establish its prima facie entitlement to judgment as a matter of law, inter alia, by establishing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient time to remedy it, or that the accident was not foreseeable” … .

Here, Philip Howard demonstrated its prima facie entitlement to judgment as a matter of law by submitting proof that the tube slide, which was neither inherently dangerous nor defectively designed, was installed and maintained in a reasonably safe condition. Moreover, there is no duty imposed upon a landlord to supervise children who are properly upon its premises … . Moseley v Philip Howard Apts. Tenants Corp., 2015 NY Slip Op 09080, 2nd Dept 12-9-15

NEGLIGENCE (PLAINTIFF FELL WHILE CLIMBING ON OUTSIDE OF TUBE SLIDE)/PRODUCTS LIABILITY (PLAINTIFF FELL WHILE CLIMBING ON THE OUTSIDE OF A TUBE SLIDE)

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