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Evidence of Prior Crimes Improperly Admitted to Prove Identity and Intent—There Was No Unique Modus Operandi Which Would Prove Identity and Intent Could Be Inferred from the Commission of the Acts Charged

The Second Department reversed defendant’s convictions because the trial court allowed evidence of prior uncharged crimes to provide identity and intent.  The Second Department explained that the crimes did not have a unique modus operandi which could demonstrate the identity of the perpetrator, and the intent to commit the crime (burglary) could readily be inferred from the commission of the acts charged:

Evidence of another crime committed by the defendant, not charged in the indictment, is not admissible if it tends only to demonstrate the defendant’s propensity to commit the crime charged and cannot logically be connected to some specific material issue in the case … . However, where the proffered evidence is relevant to some material fact in the case, other than the defendant’s propensity to commit the crime charged, it is not to be excluded merely because it shows that the defendant had committed other crimes … . Thus, evidence of other crimes may be admitted to show, among other things, motive, intent, the absence of mistake or accident, a common scheme or plan, or the identity of the guilty party … . Here, the County Court granted the People’s application to admit the subject evidence to establish the defendant’s identity through a unique modus operandi and to establish the defendant’s intent.

The identity exception to the Molineux rule “is used in limited circumstances, when the defendant employs some unique, unusual, or distinctive modus operandi in an uncharged crime that is relevant to proving his identity as the perpetrator of the crime charged” … . Although identity was at issue in this case …, the People failed to identify any distinctive modus operandi relevant to proving the defendant’s identity as the perpetrator of the crimes charged. In order to identify the defendant by a distinctive modus operandi, “it is not sufficient to show that he has committed similar acts if the method used is not uncommon,” as such a showing “would be of little probative value in determining whether he committed the crimes charged, and the prejudice would be obvious” … . * * *

Nor was the subject evidence properly admitted under the intent exception to the Molineux rule. Evidence of prior misconduct to prove intent is unnecessary where intent may be easily inferred from the commission of the act itself … . Under the circumstances here, the defendant’s intent could be easily inferred from his acts alone … . Moreover, the defendant did not contest the element of intent before the jury, but rather, denied that he was the person who attempted the burglaries … . The evidence therefore was improperly ruled admissible. People v Wright, 2014 NY Slip Op 07003, 2nd Dept 10-15-14

 

Defendant Failed to Demonstrate the Cause of Plaintiff’s Fall (a Ramp Outside a Building) Was Open and Obvious as a Matter of Law—Summary Judgment Should Not Have Been Granted

The Second Department determined the defendant was not entitled to summary judgment in a slip and fall case. The defendant argued the cause of the fall, a ramp outside the defendant’s building, was open and obvious.  The plaintiff alleged the area was not properly lit and the ramp could not be seen:

At about 5:30 p.m. on December 4, 2008, the injured plaintiff allegedly sustained personal injuries when he tripped and fell over a ramp outside a building owned by the defendant. The injured plaintiff testified at his deposition that, at the time of the accident, it was completely dark. He further testified that, as he was walking through the defendant’s parking lot, he did not see the ramp because its color blended into that of the surrounding pavement and because the parking lot was inadequately lit.

A landowner has a duty to maintain his or her property in a reasonably safe manner to prevent foreseeable injuries … . A landlord, however, has no duty to protect or warn against an open and obvious condition that is not inherently dangerous as a matter of law … . To demonstrate entitlement to summary judgment in a trip-and-fall case, the defendant must establish that it maintained the premises in a reasonably safe condition and that it did not create a dangerous or defective condition on the property or have either actual or constructive notice of a dangerous or defective condition for a sufficient length of time to remedy it … .

Here, the defendant failed to establish, prima facie, that the allegedly dangerous condition was open and obvious … . The issue of whether a dangerous condition is open and obvious is fact-specific …, and cannot be divorced from the surrounding circumstances … . Baron v 305-323- E Shore Rd Corp, 2014 NY Slip Op 06932, 2nd Dept 10-15-14

 

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Severance of Action Against Defendant Which Filed for Bankruptcy Proper

In a medical malpractice case, the Second Department determined Supreme Court properly severed the action against a defendant which had filed for bankruptcy from the actions against the other defendants.  Plaintiff was 86 years old and delaying the proceedings would therefore have prejudiced him:

“In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue. The court may order the trial of any claim or issue prior to the trial of the others” (CPLR 603).

Where a defendant in an action files for chapter 11 bankruptcy relief, the automatic stay provisions of 11 USC § 362(a) do not extend to the nonbankrupt defendants … . Therefore, in such circumstances, it is within the discretion of the trial court to direct a severance of the action as against the bankrupt defendant … . Generally, the balance of the equities lies with plaintiffs when severance is sought because the case against one defendant is stayed pursuant to 11 USC § 362(a), and that is particularly so in this personal injury action where a delay would be prejudicial to the plaintiffs … .

Here, as the prejudice to the 86-year-old injured plaintiff in being required to await the conclusion of the bankruptcy proceeding before obtaining any remedy outweighs any potential inconvenience to the defendants, the Supreme Court providently exercised its discretion in granting the plaintiffs’ motion pursuant to CPLR 603 to sever the action … and directing the action to proceed against the remaining defendants … . Katz v Mount Vernon Dialysis LLC, 2014 NY Slip Op 06947, 2nd Dept 10-15-14

 

Dismissal Under Doctrine of Res Judicata Affirmed

The Second Department affirmed the dismissal of the complaint under the doctrine of res judicata and succinctly explained the underlying principles:

“Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding” … . “The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims” … . Here, the plaintiff’s claims … arose out of the same series of transactions as those at issue in a prior action …, and were, or could have been, raised in that prior action, which was disposed of on the merits in an order of the Supreme Court … . Harris v City of New York, 2014 NY Slip Op 06945, 2nd Dept 10-15-14

 

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Town’s Duty to Maintain Roadways in a Safe Condition Extends to the Maintenance of Trees Not Located on Town Property—Here a Tree Limb Fell Onto Plaintiffs’ Moving Vehicle

The plaintiffs were injured when a limb fell from a tree onto their moving vehicle.  The defendant town moved for summary judgment, alleging that the tree was not located in the town’s right of way and the town did not therefore owe a duty to the plaintiffs.  The Second Department disagreed:

The Town’s duty to maintain its roadways in a reasonably safe condition extends to the maintenance of trees, adjacent to a road, that could reasonably be expected to pose a danger to travelers … . Contrary to the Town’s contention that it owed no duty to the plaintiffs by virtue of the fact that it did not own, maintain, or control the subject tree or the location of that tree, “the exact location of the tree with respect to the Town’s right of way is not dispositive” of the issue of the Town’s duty … . Accordingly, the Town failed to establish its prima facie entitlement to judgment as a matter of law, and the Supreme Court correctly denied the Town’s cross motion for summary judgment dismissing the complaints and all cross claims insofar as asserted against it, regardless of the sufficiency of the opposing papers … . Piscitelli v County of Suffolk, 2014 NY Slip Op 06961, 2nd Dept 10-15-14

 

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Verdict Finding Defendant’s Negligence Was Not the Proximate Cause of the Injury Set Aside as Against the Weight of the Evidence—Criteria Explained

The Second Department affirmed the setting aside of a liability verdict as against the weight of the evidence.  The jury had found the defendant negligent but determined the negligence was not the proximate cause of the injury. The court explained the relevant criteria:

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause … .

Under the circumstances of this case, the jury’s finding that the defendants were negligent but that their negligence was not a substantial factor in causing the subject accident was not supported by a fair interpretation of the evidence … . Accordingly, the Supreme Court properly granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. Batista v Bogopa Serv Corp, 2014 NY Slip Op 06933, 2nd Dept 10-15-14

 

Stipulation of Discontinuance With Prejudice in Federal Action Did Not Bar State Action Under the Doctrine of Res Judicata

The Second Department determined a stipulation of discontinuance (with prejudice) of a federal action did not preclude the state action under the doctrine of res judicata.  The court explained the narrow application of “with prejudice” in this context:

“A stipulation of discontinuance with prejudice has the same preclusive effect as a judgment on the merits” … . “The general rule is that a stipulation of discontinuance with prejudice is afforded res judicata effect and will bar litigation of the discontinued causes of action” … . But the language “with prejudice” is narrowly interpreted when the interests of justice or the particular equities involved warrant such an approach … .

As the Supreme Court found, the gravamen of [plaintiff’s] federal complaint was civil RICO claims. The complaint in the instant action, however, does not allege that [defendant] violated a substantive RICO statute … . “[E]stablishing a RICO violation requires more than proof of common-law fraud or conspiracy to defraud” … . Furthermore, the particular equities involved require that the phrase “with prejudice” in the stipulation of discontinuance be narrowly construed so as not to bar the continued litigation of the instant action … . The record demonstrates that the instant action continued to be actively litigated contemporaneously with the voluntary discontinuance of [the] federal action. The record supports a determination that [plaintiff] never abandoned litigation of his state action and that [defendant] was aware of this fact. Accordingly, the Supreme Court properly determined that the voluntary discontinuance with prejudice by [plaintiff] of his federal action did not operate as a res judicata bar to the litigation of his instant action. Klein v Gutman, 2014 NY Slip Op 06949, 2nd Dept 10-15-14

 

Deliberately-Caused Collision Was Not An Accident from the Standpoint of the Insurer of the Driver Who Caused the Collision—However the Collision Was an Accident from the Standpoint of the Insurer of the Victim of the Deliberate Act—Therefore the Uninsured Motorist Endorsement In the Victim’s Policy Kicked In

The Second Department determined a collision caused by the deliberate act of one driver, Demoliere, was an “accident” for purposes of uninsured motorist endorsement of the policy held by the driver killed by the Demoliere’s deliberate act. The incident was not an accident from the standpoint of Demoliere, and that Demoliere’s insurer was therefore off the hook.  However, from the standpoint of the victim of the deliberate act, the incident was an accident covered by the uninsured motorist endorsement in the victim’s policy:

In State Farm Mut. Auto. Ins. Co. v Langan (16 NY3d 349), the Court of Appeals held that, for the purposes of an uninsured motorist endorsement, when an occurrence is “unexpected, unusual and unforeseen,” from the insured’s perspective, it qualifies as an “accident” (id. at 355 [internal quotation marks omitted]). Here, from the decedent’s perspective, her collision with Demoliere’s vehicle was unexpected, unusual, and unforeseen. Therefore, the occurrence constituted an “accident” within the meaning of the uninsured motorist endorsement of the decedent’s policy … . Matter of Utica Mut Ins Co v Burrous, 2014 NY Slip Op 06986, 2nd Dept 10-15-14

 

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Criteria for Setting Aside a Verdict As a Matter of Law and Setting Aside a Verdict As Against the Weight of the Evidence Explained

The Second Department determined Supreme Court should not have directed a verdict in favor of the plaintiff after a jury verdict in favor of the defendant.  The facts were such that the jury could have found fault on the part of the plaintiff and the defendant, but the jury could not have found the defendant was free from fault.  Therefore, the trial court should not have directed a verdict for the plaintiff, but rather should have found the verdict against the weight of the evidence and ordered a new trial.  The Second Department explained the different criteria for setting aside a verdict as a matter of law and setting aside a verdict as against the weight of the evidence:

CPLR 4404(a) provides, in relevant part, that: “[a]fter a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence” (CPLR 4404[a]). The Court of Appeals has recognized that the setting aside of a jury verdict as a matter of law and the setting aside of a jury verdict as contrary to the weight of the evidence involve two inquiries and two different standards … . For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence, it must find that there is “simply no valid line of reasoning and permissible inferences which could possibly lead . . . to the conclusion reached by the jury on the basis of the evidence presented at trial” … . However, “[w]hether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors” … . ” When a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view'” … . “A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence” … . Thus, rationality is the touchstone for legal sufficiency, while fair interpretation is the criterion for weight of the evidence … . Where a court makes a finding that a jury verdict is not supported by sufficient evidence, it “leads to a directed verdict terminating the action without resubmission of the case to a jury” … . Where a court finds that a jury verdict is against the weight of the evidence, it grants a new trial … . Ramirez v Mezzacappa, 2014 NY Slip Op 06808, 2nd Dept 10-8-14

 

New York’s Transactional Approach to Res Judicata Applies to Issues Which Could Have Been Raised in a Prior Proceeding on the Merits, Even Where Prior Proceeding Was Wrongly Decided

In an action concerning whether plaintiff owned an undivided half interest in property which had been encumbered by a mortgage without plaintiff’s participation, the Second Department determined the complaint was properly dismissed under the doctrine of res judicata because the issues had not been raised in a prior proceeding (even though the issues may have been wrongly decided in that proceeding).  The court explained the relevant legal principles, including New York’s transactional approach to res judicata:

Contrary to the plaintiff’s contention, the Supreme Court properly determined that the doctrine of res judicata precluded the plaintiff from asserting her current claims … . ” Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation'” … . Under New York’s transactional approach to res judicata, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” … . “The rationale for the doctrine is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again; allowing relitigation would undermine the interest of the community and the litigants in finality” … . Indeed, “[t]he policy against relitigation of adjudicated disputes is strong enough generally to bar a second action even where further investigation of the law or facts indicates that the controversy has been erroneously decided, whether due to oversight by the parties or error by the courts” … .

Here, the Supreme Court properly granted the … defendants’ cross motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that it was barred by the doctrine of res judicata. The … defendants demonstrated their prima facie entitlement to judgment as a matter of law by presenting evidence that the plaintiff’s claims against them arose from the same operative facts and concerned the same property as the claim she raised against the … defendants in the 2007 action, which was decided on the merits. Moreover, the … defendants demonstrated that all of the claims asserted against them in this action were raised or could have been raised in the 2007 action. In opposition, the plaintiff failed to raise a triable issue of fact … . Myers v Myers, 2014 NY Slip Op 06805, 2nd Dept 10-8-14

 

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