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Quantity and Nature of Child Pornography Warranted an Upward Departure in a SORA Proceeding

The Second Department determined the quantity and nature of the child pornography in defendant’s possession warranted an upward departure in a SORA proceeding:

…[I]n light of the large quantity of child pornography recovered from the defendant’s possession and the nature of that material, which included, among other things, images and videos depicting the torture of children, the County Court properly determined that there were aggravating factors not adequately taken into account by the SORA guidelines … . Upon making such a determination, the court providently exercised its discretion in granting the People’s application for an upward departure from the presumptive sex offender risk level … . People v Rotunno, 2014 NY Slip Op 03817, 2nd Dept 5-28-14

 

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Suicide Notes Not Protected by Marital Privilege—Substance Had Been Revealed to Third Parties

The Second Department determined that suicide notes left by the defendant were not protected by the marital privilege:

“One spouse may not, without consent, disclose a confidential communication made by the other during marriage (CPLR 4502 [b]; CPL 60.10)” … .. While a suicide note can be a communication made during marriage for the purpose of the privilege …, the spousal privilege falls “when the substance of a communication . . . is revealed to third parties” … . Here, the substance of the communication between the defendant and his wife of his intention to commit suicide through taking large quantities of Xanax was revealed by the defendant to Officer Johnstone, his neighbor, and the nurse who happened upon the scene of the accident. In addition, the defendant left the notes on the kitchen counter and directly addressed his children, as well as his wife, in one of the notes. Thus, the Supreme Court properly determined that the notes were not protected by the marital privilege … . People Jacob, 2014 NY Slip Op 03861, 2nd Dept 5-28-14

 

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Claim Re: Ownership of Real Property Precluded by Laches Defense

The Second Department determined a counterclaim was properly dismissed pursuant to the laches defense.  The counterclaim alleged that a mortgage was void because the property passed by operation of law to the defendants upon the death of the property owner in 1988.  The defense of laches in this context was explained as follows:

“The essence of the equitable defense of laches is prejudicial delay in the assertion of rights” … . ” To establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant'” … . “In order for laches to apply to the failure of an owner of real property to assert his or her interest, it must be shown that [the]; plaintiff inexcusably failed to act when [he or]; she knew, or should have known, that there was a problem with [his or]; her title to the property. In other words, for there to be laches, there must be present elements to create an equitable estoppel'” … . ” Equitable estoppel arises when a property owner stands by without objection while an opposing party asserts an ownership interest in the property and incurs expense in reliance on that belief. The property owner must inexcusably delay in asserting a claim to the property, knowing that the opposing party has changed . . . position to his [or her ]; irreversible detriment'” … . “Moreover, as the effect of delay may be critical to an adverse party, delays of even less than one year have been sufficient to warrant the application of the defense” … . Deutsche Bank Natl Trust Co v Joseph, 2014 NY Slip Op 03794, 2nd Dept 5-28-14

 

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Collateral Estoppel Doctrine Will Not Be Invoked Unless there Has Been at Least One Full Hearing on the Issues Involved

The Second Department, in determining collateral estoppel did not apply to a Notice of Determination that plaintiff was not entitled to unemployment insurance benefits, explained that the collateral estoppel doctrine will not be invoked  unless there has been at least one full hearing on the issues involved:

Pursuant to the doctrine of collateral estoppel, which is otherwise known as issue preclusion, a party may be barred from relitigating an issue which has been decided in another proceeding by a court or in a quasi-judicial administrative forum … . In addition, … “[a];s the consequences of a determination that a party is collaterally estopped from litigating a particular issue are great, strict requirements for application of the doctrine must be satisfied to insure that a party not be precluded from obtaining at least one full hearing on his or her claim” … .

Here, the record does not demonstrate that the Notice of Determination was rendered after a hearing or that it otherwise constitutes a quasi-judicial determination … . Twaddell v Drop & Lock Stor Co Inc, 2014 NY Slip Op 03678, 2nd Dept 5-21-14

 

Rule Against Successive Summary Judgment Motions Does Not Apply to Issue Rejected as Not Properly Before the Court (Raised for the First Time in Reply Papers) in the Original Motion

The Second Department noted that the rule barring successive summary judgment motions does not apply where the issue in the second motion was not properly before the court in the first motion.  Here the defendants had raised the issue the first time in their Reply papers and the court refused to consider it:

We note that the general proscription against successive motions for summary judgment would not bar the defendants from moving for summary judgment dismissing the consolidated complaint because their arguments in support of dismissal … were not properly before the Supreme Court on their original motion … . Vaughn v Veolia Transp Inc, 2014 NY Slip Op 03679, 2nd Dept 5-21-14

 

Burdens of Proof Re: Collateral Estoppel Explained

The Second Department reversed Supreme Court, finding that the injunctive relief sought by defendants was barred by the doctrine of collateral estoppel. The issues had been decided in a prior appeal of a related but separate action.  The court explained the respective burdens of proof as follows:

“The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling” … . “The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action” … . “The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination” … . Zanani v Schvimmer, 2014 NY Slip Op 03680, 2nd Dept 5-21-14

 

Defendants Failed to Make Allegations Sufficient to Demonstrate a Lack of Constructive Notice of the Condition of a Floor Mat (Slip and Fall)—Summary Judgment Should Not Have Been Granted in Favor of Defendants

The Second Department determined the defendants’ motion for summary judgment in a slip and fall case should have been denied.  The defendants failed to make sufficient allegations demonstrating a lack of constructive notice of the condition of a floor mat:

To impose liability upon the laundromat defendants for the plaintiff’s fall, there must be evidence tending to show that those defendants either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time … . To meet their initial burden on the issue of lack of constructive notice, the laundromat defendants must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell … .

Here, the laundromat defendants did not meet their initial burden of establishing their [*2]entitlement to judgment as a matter of law. The laundromat defendants failed to submit evidence sufficient to establish that they inspected the mat within a reasonable time prior to the accident. Thus, they failed to establish, prima facie, that they did not have constructive notice of the alleged hazardous condition of the mat … . Francis v Super Clean Laundromat Inc, 2014 NY Slip Op 03650, 2nd Dept 5-21-14

Same issue and result in Maloney v Farris, 2014 NY Slip Op 03663, 2nd Dept 5-21-14

Same issue and result in Rogers v Bloomingdale’s Inc, 2014 NY Slip Op 03675, 2nd Dept 5-21-14,  noting that evidence of the store’s general cleaning procedures without any specifics about when the area where the fall occurred was last inspected or cleaned does not raise a question of fact about a lack of constructive notice.

 

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Expert Testimony Should Not Have Been Precluded Based Upon the Timing of the Disclosure—Short Adjournment Would Have Eliminated Prejudice—New Trial Ordered

The Second Department determined Supreme Court should not have precluded expert testimony based upon the timing of the expert disclosure:

“CPLR 3101(d)(1)(i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party'”… .

The defendants did not establish that the plaintiffs willfully or intentionally violated a court directive regarding expert disclosure … . Moreover, any prejudice to the defendants from late disclosure would have been limited, inasmuch as the defendants’ own engineer was present when the plaintiffs’ engineer conducted his inspection (\… . A short adjournment of this nonjury trial could have eliminated prejudice entirely … . Under these circumstances, the Supreme Court improvidently exercised its discretion in granting the defendants’ application for preclusion of the plaintiffs’ experts (see id.). Accordingly, a new trial is warranted. Arcamone-Makinano v Britton Prop Inc, 2014 NY Slip Op 03644, 2nd Dept 5-21-14

 

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No Basis for Liability of Snow-Removal Contractor Re: Slip and Fall

The Second Department determined a snow-removal contractor was properly granted summary judgment in a slip and fall case.  The plaintiff did not raise a question of fact about any of the three “Espinal” [98 NY2d 136] situations (which would allow recovery against a contractor with whom plaintiff does not have a contractual relationship):

The Court of Appeals has recognized three situations in which a party such as the defendant may be said to have assumed a duty of care, and thus potentially may be liable in tort to third persons such as the plaintiff: (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced another party’s duty to maintain the premises safely … . * * *

…[T]he plaintiff offered only speculation and conjecture in support of her contention that the defendant launched a force or instrument of harm by creating or exacerbating the ice patch that allegedly caused the plaintiff’s fall …, or that the subject snow removal contract was a comprehensive and exclusive agreement which displaced Communicar’s duty to maintain the premises in a safe condition … . Javid v Sclafmore Constr, 2014 NY Slip Op 03656, 2nd Dept 5-21-14

 

Supreme Court Should Have Proceeded to Second Step of Defendant’s “Batson” Challenge Alleging the Prosecutor’s Exclusion of Jurors on the Basis of Race

The Second Department determined Supreme Court should have proceeded to the second step of a “Batson” challenge alleging the prosecutor was excluding jurors on the basis of race.  The matter was sent back for a completion of the process:

As the United States Supreme Court stated in Batson v Kentucky (476 US 79), “[s];election procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice” (id. at 87). The first step under Batson requires a defendant to make a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose” … . This first step “is not to be onerous,” and is satisfied “by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred” … . When a prima facie showing is made, the burden shifts to the prosecution to provide a race-neutral explanation for the challenged peremptory exclusions … .

The defendant made a prima facie showing of discrimination based on the prosecutor’s exercise of peremptory challenges to exclude the only two prospective jurors who were black, the same race as the defendant. Contrary to the Supreme Court’s finding, under the circumstances of this case, those facts were sufficient to create an inference of purposeful discrimination in the prosecution’s use of peremptory challenges to strike the only two jurors in the venire who were black … .

Accordingly, the Supreme Court should have proceeded with the second step and, if applicable, the third step of the Batson inquiry. People v Chery, 2014 NY Slip Op 03697, 2nd Dept 5-21-14

 

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