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Plaintiff-Pedestrian’s Acts Constituted Sole Proximate Cause

The Second Department determined defendants were entitled to summary judgment dismissing the complaint because plaintiff’s acts constituted the sole proximate cause of his injuries.  Plaintiff stepped out between two cars in an attempt to cross the street:

Under the circumstances presented here, the … defendants established their entitlement to judgment as a matter of law by demonstrating that the conduct of the plaintiff in crossing the street at a location other than at an intersection, while emerging from between stopped cars, was the sole proximate cause of the accident, and that [defendant] was free from fault despite the plaintiff’s allegation that she failed to avoid a collision with the plaintiff … . Balliet v North Amityville Fire Dept., 2015 NY Slip Op 07943, 2nd Dept. 11-4-15

 

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Defense Request to Review Psychiatric Records of Prosecution Witness Properly Denied; Evidence of Shooting of Prosecution Witness Properly Admitted to Show Defendant’s Consciousness of Guilt

The Second Department determined Supreme Court properly reviewed in camera the psychiatric records of a prosecution witness and properly denied the defense request to review the records. The Second Department further determined that evidence defendant’s brother (and a member of the same gang defendant belonged to) shot a prosecution witness was properly admitted to show defendant’s consciousness of guilt:

Psychiatric records are confidential, but they may be disclosed upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality … . The proper procedure in such a case is for the court to order production of the records and to inspect them in camera … .

Here, the Supreme Court, after inspecting the records in camera, properly balanced the interests of justice against the witness’s need for confidentiality and providently exercised its discretion in denying the defendant’s application for disclosure of the records and use of the records in cross-examination … . * * *

Contrary to the defendant’s contentions, the Supreme Court did not improvidently exercise its discretion when it permitted the prosecution witness to testify to the circumstances leading up to and culminating in him being shot by two persons directly connected to the defendant. “Certain post crime conduct is [viewed as] indicative of consciousness of guilt, and hence of guilt itself'” … . Consciousness of guilt evidence includes evidence of coercion and harassment of witnesses … and “[e]vidence that a third party threatened a witness with respect to testifying at a criminal trial is admissible where there is at least circumstantial evidence linking the defendant to the threat” … .

Here, there was sufficient circumstantial evidence linking the defendant to the plot to shoot the witness … and the evidence of the defendant’s gang membership was relevant to establish the relationship between the actors … . Under the circumstances, the probative value of the evidence as to the defendant’s consciousness of guilt outweighed the prejudice … . People v Viera, 2015 NY Slip Op 07998, 2nd Dept 11-4-15

 

Police Did Not Have Sufficient Information to Justify Pursuit of Defendant; Street Stop (DeBour) Criteria Clearly Explained

The Second Department determined defendant’s motion to suppress the weapon he discarded during a police pursuit should have been granted. The police approached defendant after seeing him make several adjustments to his waistband. When defendant ran, the police pursued him. Because the police, based on their observations, could make only a level one inquiry (which the defendant had a right to ignore), the pursuit was not justified. The court offered a clear explanation of the criteria for street stops (DeBour criteria):

“On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance” … , the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity … . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality … . The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion … . The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime … . The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime … .

In order to justify police pursuit, the officers must have “reasonable suspicion that a crime has been, is being, or is about to be committed” … . Reasonable suspicion has been defined as “that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand” … . A suspect’s “[f]light alone . . . even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” … . However, flight, “combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” … . People v Clermont, 2015 NY Slip Op 07989, 2nd Dept 11-4-15

 

Need for Appointment of a Guardian of Property Not Demonstrated, Criteria Explained

The Second Department, reversing Supreme Court, determined the appellant’s sister, Marie F., did not meet her burden of proving by clear and convincing evidence appellant was incapacitated. The sister had been appellant’s property guardian and, in being removed, requested that another guardian be appointed. The court explained the relevant criteria:

“Mental Hygiene Law article 81 confers upon the court the discretion to determine whether a guardian should be appointed for an alleged incapacitated person” … . “In exercising its discretion to appoint a guardian for an individual’s property . . . , a court must make a two-pronged determination: first, that the appointment is necessary to manage the property or financial affairs of that person, and, second, that the individual either agrees to the appointment or that the individual is incapacitated’ as defined in Mental Hygiene Law § 81.02(b)” … . A person is incapacitated when the person is likely to suffer harm because: (1) the person is unable to provide for property management, and (2) the person cannot adequately understand and appreciate the nature and consequences of such inability (see Mental Hygiene Law § 81.02[b]). A determination that a person is incapacitated under the provisions of Mental Hygiene Law article 81 “must be based on clear and convincing evidence” (Mental Hygiene Law § 81.12[a]). When a party seeks to terminate a guardianship, “the burden of proof shall be on the person objecting to such relief” (Mental Hygiene Law § 81.36[d]).

Here, although Marie F. wished to be removed as guardian, she was the only person who objected to the termination of the guardianship position and asked the Supreme Court to appoint a new guardian. However, Marie F. failed to meet her burden of proving by clear and convincing evidence that the appellant was incapacitated. The hearing testimony demonstrated that the appellant managed her own checking account, paid bills relating to her apartment with her social security disability income, and was taking steps to challenge the Medicaid lien. While the appellant was currently unemployed, she holds a Master’s degree and testified that she was “interviewing consistently.” Although Marie F. testified that the appellant had delusions and difficulty maintaining employment, her testimony was vague, unsupported by additional evidence, and did not rise to the level of clearly and convincingly demonstrating the appellant’s inability to provide for property management and a lack of understanding about the nature and consequences of such inability. Similarly, although Marie F. testified as to the appellant’s spending habits, she failed to sufficiently demonstrate that the appellant’s expenditures over the years were wasteful and thereby indicative of an inability on the part of the appellant to provide for her own property management and understand her budgetary constraints.

Since the record does not contain clear and convincing evidence that the appellant was unable to manage her finances or understand and appreciate her limitations, the Supreme Court erred in determining that the appellant was incapacitated, appointing a new guardian of her property, and denying her motion to terminate the guardianship. Matter of Deborah P. (Marie F.), 2015 NY Slip Op 07977, 2nd Dept 11-4-15

 

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Attorney Whose Testimony Would Support Client Should Have Been Disqualified Under Advocate-Witness Rule, However, the Motion to Disqualify the Attorney’s Firm Was Properly Denied

The Second Department noted that an attorney (Wohlman) should have been disqualified under the advocate-witness rule but the motion to disqualify the attorney’s firm and “of counsel” was properly denied. The attorney’s testimony would not be prejudicial to the client:

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to disqualify Derek Wolman from representing the defendant in this action, since Wolman’s testimony will be necessary regarding “a significant issue of fact” in the dealings between the plaintiff and the defendant (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]…). Contrary to the defendant’s contention, the fact that Wolman’s testimony is necessary to and will support the defendant’s case does not preclude application of the advocate-witness rule (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7…).

However, the Supreme Court providently exercised its discretion in denying those branches of the plaintiff’s motion which were to disqualify Davidoff Hutcher & Citron, LLP, (hereinafter DHC), Candace C. Carponter, and Candace C. Carponter, P.C., from representing the defendant in this action. Wolman is a member of DHC, and Candace C. Carponter and her P.C. appeared as “of counsel” to DHC. Under rule 3.7(b)(1) of the Rules of Professional Conduct (see 22 NYCRR 1200.0), which are not binding authority and provide guidance only … , “[a] lawyer may not act as an advocate before a tribunal if another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client” (22 NYCRR 1200.0, rule 3.7[b][1]). Here, the plaintiff did not argue that Wolman’s testimony would be prejudicial to the defendant. Rather, the plaintiff argued that Wolman’s testimony would support the defendant’s case. Thus, the plaintiff failed to establish any basis for disqualifying DHC, Carponter, or Carponter’s P.C. They can continue to represent the defendant despite the fact that Wolman, their colleague, is a necessary witness … . NY Kids Club 125 5th Ave., LLC v Three Kings, LLC, 2015 NY Slip Op 07958, 2nd Dept 11-4-15

 

Defendant Who Was Not Served Because Current Address Not on File with Secretary of State Entitled to Vacate Default Judgment Pursuant to CPLR 317

The Second Department determined defendant’s motion to vacate a default judgment should have been granted pursuant to CPLR 317, even though that ground was not raised below. Apparently defendant did not keep a current address on file with the Secretary of State. Therefore, although the Secretary of State was served, defendant did not receive notice of the suit in time to defend:

… [A]lthough the defendant did not cite CPLR 317 in support of its motion, this Court may, under the circumstances presented here, consider CPLR 317 as a basis for vacating the default (see CPLR 2001…). CPLR 317 permits a defendant who has been “served with a summons other than by personal delivery” to defend the action upon a finding by the court that the defendant “did not personally receive notice of the summons in time to defend and has a meritorious defense” (CPLR 317…). Here, there was no evidence that the defendant or its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend this action … . Proof that additional copies of the summons and complaint were delivered to an employee of the tenant occupying premises owned by the defendant was insufficient to establish that the defendant received notice of the summons and complaint … . Furthermore, there is no basis in the record to conclude that the defendant deliberately attempted to avoid service, especially since the plaintiff had knowledge of the defendant’s actual business address … . Moreover, the defendant met its burden of demonstrating the existence of a potentially meritorious defense … . Schacker Real Estate Corp. v 553 Burnside Ave., LLC, 2015 NY Slip Op 07963, 2nd Dept 11-4-15

 

Late Motion to Amend Answer Should Have Been Granted, No Prejudice

The Second Department determined Supreme Court should have granted plaintiff’s motion to amend the answer by adding an affirmative defense. The court noted that, absent prejudice, mere lateness is not a sufficient ground for denial of the motion:

Permission to amend a pleading should be “freely given” (CPLR 3025[b]…). Leave to amend an answer to assert an affirmative defense should generally be granted where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that it would prejudice or surprise the opposing party … . Here, the defendant sufficiently alleged that the driver of his vehicle did not have his permission or consent to operate his vehicle at the time of the subject accident … . The proposed affirmative defense set forth allegations based on factual matters that are not palpably insufficient or patently devoid of merit … .

Furthermore, mere lateness is not a basis for denying an amendment unless the lateness is coupled with ” significant prejudice to the other side'” … . Although the defendant waited over 1 ½ years before moving for leave to amend the answer, there was no showing that the plaintiff would be significantly prejudiced, as discovery was ongoing … . Jeboda v Danza, 2015 NY Slip Op 07951, 2nd Dept 11-4-15

 

Criteria for Determining If Land Is Overvalued Explained

n finding that petitioner did not meet its burden of demonstrating the tax assessor overvalued petitioner’s land, the Second Department explained the analytical criteria:

“In an RPTL article 7 tax certiorari proceeding, a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority. Consequently, a taxpayer challenging the accuracy of an assessment bears the initial burden of coming forward with substantial evidence that the property was overvalued by the assessor. In the context of tax assessment cases, . . . the substantial evidence standard requires the taxpayer to demonstrate the existence of a valid and credible dispute regarding valuation. If the taxpayer satisfies this threshold burden, the presumption disappears and the court must weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued” … .

Here, while the petitioner’s submissions were sufficient to demonstrate a “valid and credible dispute regarding valuation” of the properties in the relevant years …, they were insufficient to meet the petitioner’s burden to show that the properties were overvalued by the respondent. Matter of Peaceful Val. Land Stewardship, LLC v Johnson, 2015 NY Slip Op 07846, 2nd Dept 10-28-15

 

Two-Justice Dissent Argued Termination of Father’s Parental Rights Was Not In the Best Interests of the Child

The Second Department, over a two-justice dissent, determined father had abandoned the child and his parental rights were properly terminated. The dissent argued that, because of new facts revealed after the order appealed from was issued, and because the mother’s parental rights were not terminated, severing the child from his father was not in the child’s best interests:

FROM THE DISSENT

A petition to terminate parental rights on the ground of abandonment may be denied where, despite evidence that the parent abandoned the child during the six-month period prior to the filing of the petition, the record nevertheless demonstrates that termination would not be in the best interests of the child … . Here, my colleagues in the majority conclude that the father’s failure to take prompt action to assert paternity after the mother informed him that he might be the child’s father in the six months prior to the filing of the petition constituted abandonment. However, that finding does not mandate granting the petition to terminate parental rights where, as here, new facts arose after the filing of the petition, and after the issuance of the order appealed from, which demonstrate that termination of the father’s parental rights is not in the child’s best interests … . * * *

.[T]here are no facts in this record which indicate that a relationship between the child and his father will be harmful to the child … . * * * It appears from this record that terminating the father’s parental rights would serve no purpose other than to sever any potential ties between the child and his father and paternal kindred. Matter of Jake W.E. (Jonathan S.), 2015 NY Slip Op 07840, 2nd Dept 10-28-15

 

 

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Anti-Social Personality Disorder (ASPD) Alone Will Not Support Civil Commitment of Sex Offender

The Second Department noted that the diagnosis that a sex offender suffers from anti-social personality disorder (ASPD) is insufficient to justify civil commitment:

A diagnosis of anti-social personality disorder (hereinafter ASPD) “has so little relevance to the controlling legal criteria of Mental Hygiene Law § 10.03(i) that it cannot be relied upon to show mental abnormality for [Mental Hygiene Law] article 10 purposes” … . Since ASPD was the sole diagnosis underlying the jury’s finding that the appellant suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), the finding was not supported by legally sufficient evidence, and the petition must be dismissed … .  Matter of State of New York v Odell A., 2015 NY Slip Op 07851, 2nd Dept 10-28-15

 

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