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Civil Contempt Finding Appropriate—Defendant Failed to Comply With Order to Pay Attorney’s Fees

The Second Department explained the criteria for civil contempt.  The order which was not complied with here required defendant to pay attorney’s fees in a divorce proceeding:

To prevail on a motion to punish for civil contempt, the movant must establish (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct” … . The movant has the burden of proving contempt by clear and convincing evidence … . Here, where it is undisputed that the defendant did not comply with the clear mandate of the court’s order …, the plaintiff met his burden on the motion … . Moreover, under the circumstances of this case, less drastic enforcement measures than seeking to hold the defendant in contempt would have been ineffectual … . Hayes v Barroga-Hayes, 2014 NY Slip Op 03488, 2nd Dept 5-14-14

 

Equitable Subrogation in the Context of Funds from One Mortgage Loan Used to Pay Off Another Explained

The Second Department explained the doctrine of equitable subrogation. Plaintiff had given two valid mortgages to one bank, and another bank subsequently used a portion of the proceeds of its loan to satisfy those mortgages:

Under the doctrine of equitable subrogation, where the “property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder” … . Harris v Thompson, 2014 NY Slip Op 03487, 2nd Dept 5-14-14

 

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City Administrative Code Provision Requiring a Building Owner to Maintain and Be Responsible for the Safe Condition of a Building Is Not Specific Enough to Form the Basis of Negligence Cause of Action

The Second Department determined plaintiffs did not raise a question of fact on a premises liability cause of action based upon alleged city administrative code violations, but did raise a question of fact concerning the building owner’s common law negligence.  Infant plaintiff fell over a railing on a landing to a set of stairs outside of the apartment building:

Administrative Code §§ 27-375 and 27-376 do not apply to the subject exterior stairs because the stairs were not [*2]”used as exits in lieu of interior stairs” (Administrative Code § 27-376…). “Exit” is defined by the Administrative Code as a “means of egress from the interior of a building to an open exterior space” (Administrative Code of City of NY § 27-232). The stairway was outside the parameters of the building and did not provide a means of egress from the interior of the building to an open exterior space … . Moreover, the plaintiffs’ contention that the stairs violated Administrative Code §§ 27-127 and 27-128 is without merit. Those sections “merely require that the owner of a building maintain and be responsible for its safe condition,” and do not constitute a sufficiently specific statutory predicate for liability … . In addition, Administrative Code § 17-123, which concerns window guards, is inapplicable to the facts of this case. Friedman v 1953 Realty Co, 2014 NY Slip Op 03480, 2nd Dept 5-14-14

 

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Plaintiff Did Not Raise an Issue of Fact Re: Vicious Propensities of Defendants’ Dog

The Second Department determined plaintiff failed to raise a question of fact about the vicious propensities of a dog which was alleged to have bitten plaintiff:

“To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities” … . “Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, [the fact that the dog was kept as a guard dog,] and a proclivity to act in a way that puts others at risk of harm” … .

The defendants separately established their respective prima facie entitlement to judgment as a matter of law on their respective motions by demonstrating, through their deposition testimony, as well as the plaintiff’s, that they “were not aware, nor should they have been aware, that this dog had ever bitten anyone or exhibited any aggressive behavior” … . Indeed, the defendants testified that they had no knowledge that the dog involved in this alleged attack on the plaintiff had ever growled at, chased, bitten, or attacked anyone prior to the subject incident … .

The plaintiff failed to raise a triable issue of fact in opposition. Henry v Higgins, 2014 NY Slip Op 03489, 2nd Dept 5-14-14

 

Defendants Who Struck Plaintiff’s Vehicle When Plaintiff Pulled Out of a Parking Lot Entitled to Summary Judgment

The Second Department determined summary judgment had been properly granted to the defendants (“Dunn defendants”).  The defendant driver had the right of way and struck plaintiff’s vehicle when plaintiff pulled out of a parking lot.  The court explained the operative principles:

There can be more than one proximate cause of an accident and, thus, on their motion for summary judgment, the Dunn defendants had the burden of establishing freedom from comparative negligence … . While a driver is required to “see that which through proper use of [his or her] senses [he or she] should have seen” …, a driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield to the driver with the right-of-way… .. In addition, “a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … .

Here, the Dunn defendants established their prima facie entitlement to judgment as a matter of law by establishing that the injured plaintiff failed to yield the right-of-way to the Dunn vehicle, which was legally proceeding westbound on Montauk Highway with the right-of-way, and that Danielle Costella Dunn was free from comparative negligence since she had only had seconds to react … . Kenda v Dunn 2014 NY Slip Op 03494, 2nd Dept 5-14-14

 

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Defendant Was Convicted of Bribing Three Witnesses to Recant their Statements Identifying Defendant’s Brother as the Shooter in a Killing;

Evidence of the Murder of Another Witness Who Identified Defendant’s Brother as the Shooter, Evidence which Was Not Linked by Trial Evidence to the Defendant But which Was Likely to Raise Suspicion About the Defendant’s Involvement, Was Allowed in Defendant’s Bribery Trial to Explain the Subsequent Actions of the Three Witnesses Defendant Was Accused of Bribing

The Second Department, over a substantial dissent, determined defendant was not deprived of a fair trial by the introduction of evidence of a murder which was not tied to the defendant, but which may have raised serious questions about the defendant’s involvement in the minds of the jurors.  The defendant was accused of bribing three witnesses who had identified defendant’s brother as the shooter in a killing which  took place in a park. That shooting was witnessed by three teen-aged girls and a man named Gibson. The defendant met with all three girls and paid them money.  They all recanted their statements about defendant’s brother’s involvement in the park shooting. On the day before defendant’s brother’s trial, Gibson was shot and killed.  A man confessed to that shooting and the defendant was never linked to the Gibson killing. Evidence of the Gibson killing was allowed in evidence to demonstrate the state of mind of the three teen-aged girls who, after learning of Gibson’s killing, recanted their recantations and stood by their original statements identifying the defendant’s brother as the park shooter.  The court determined the evidence of the Gibson killing was not Molineux evidence because the jury was never told of any link between the Gibson killing and the defendant.  Therefore, the court reasoned, the Gibson killing was not a prior uncharged crime or bad act done by the defendant.  The court, however, seemed to use the analysis required under Molineux and found that the evidence of the Gibson killing was admissible to explain the girls’ actions and to explain why they and their families were relocated after the Gibson killing:

Evidence of uncharged crimes is generally excluded under the Molineux rule (People v Molineux, 168 NY 264) for policy reasons, because such evidence may induce the jury to base a finding of guilt on collateral matters, or to convict a defendant because of his or her past criminal history … . Nevertheless, evidence of prior uncharged crimes may be received if it is relevant to some issue other than the defendant’s criminal disposition … . The purposes for which uncharged crime evidence may properly be admitted include completing the narrative of the events charged in the indictment and providing necessary background information … . “Where there is a proper nonpropensity purpose, the decision whether to admit evidence of the defendant’s prior bad acts rests upon the trial court’s discretionary balancing of probative value and unfair prejudice” … .

However, “[t]he Molineux rule was created to address a particular prejudice inherent to a particular type of proof: evidence of a defendant’s prior crimes and bad acts” … . That type of prejudice is not present in this case, because evidence that Gibson was murdered two days before he was scheduled to testify against Sykes did not constitute proof that the defendant committed an uncharged crime or bad act. * * *

Even if the evidence of Gibson’s death could arguably be viewed as suggesting that the defendant committed an uncharged crime, it was properly admitted to explain why the girls, having recanted their original statements identifying [defendant’s brother] as [the park] killer, admitted to the police that they had made false recantations, and adhered to their original statements. Indeed, two of the girls testified that Gibson’s murder, two days before the presentation of evidence in the [defendant’s brother’s] trial was to begin, frightened them. The impact of Gibson’s murder on the state of mind of these witnesses was interwoven with the narrative of the charged crimes, and necessary to help the jury understand the case in context, because it explained the girls’ conduct in coming forward to disavow the recorded statements … .   People v Harris, 2014 NY Slip Op 03532, 2nd Dept 5-14-14

 

Question of Fact Whether Snow Removal Efforts Created or Exacerbated Icy Condition

The Second Department determined summary judgment should not have been granted in favor of the property owner in a slip and fall case.  The plaintiff slipped on ice on metal vault doors in the sidewalk in front of defendants’ restaurant.  The defendants failed to demonstrate that their snow removal efforts did not create or exacerbate the condition:

A property owner that elects to engage in snow removal activities must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm … . Contrary to the defendants’ contention, they failed to demonstrate their prima facie entitlement to judgment as a matter of law, as they failed to establish that the snow removal efforts that were undertaken prior to the accident neither created nor exacerbated the allegedly hazardous icy condition which caused the plaintiff to fall.. . Gwinn v Christina’s Polish Rest Inc, 2014 NY Slip Op 03485, 2nd Dept 5-14-14

 

Rape and Incest Counts Rendered Indictment Multiplicitous/Trial Testimony Rendered Counts Duplicitous

The Second Department determined the trial testimony rendered some of the rape and incest counts duplicitous.  The defendant’s daughter testified she was raped once a week for three weeks every month.  The court determined that where the jury found the defendant guilty of all three crimes charged within a particular month, the counts were not duplicitous because the jury would have had to vote unanimously on all three crimes.  However, where the defendant was convicted of only one or two of the crimes charged for a particular month, it was impossible to know whether the jury voted unanimously on the same alleged crimes.  In addition the court noted that some of the counts charging rape and incest were based on the same conduct, rendering the indictment multiplicitous as well:

“Each count of an indictment may charge one offense only” (CPL 200.30[1]). A count that, in violation of the statute, charges more than one offense, “is void for duplicity” … . “The proscription against duplicitous counts . . . seeks [inter alia] to prevent the possibility that individual jurors might vote to convict a defendant of that count on the basis of different offenses,’ in effect, permitting a conviction even though a unanimous verdict was not reached”… . “Where a crime is completed by a discrete act, and where a count in the indictment is based on the repeated occurrence of that act over a course of time, the count includes more than a single offense and is duplicitous” … . “Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented to the grand jury or at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … .

The younger daughter testified that the defendant had sexual intercourse with her once, on Tuesday or Wednesday, every week for the first three weeks of each month during the period at issue, while skipping the fourth week, because she was menstruating. The verdict sheet presented to the jury contained three counts for each month at issue. The first count for each month described the alleged crime as occurring on or about the first of the subject month to on or about the last day of the month. The second count for each month provided the same description as the first count for each month, but also stated that the alleged crime was “separate and distinct from the act mentioned and described” in the first count for that month. The third count provided the same description as the first count for each month, but also stated that the alleged crime was “separate and distinct from the acts mentioned and described” in the first and second counts for that month.

Contrary to the defendant’s contention, where the jury convicted the defendant of all three of the counts for the same month, it is clear, based on the younger daughter’s testimony, that they were unanimous in convicting him of each of the three different crimes. However, as the People correctly concede, where the defendant was convicted of only one or two of the counts charging rape or incest in a particular month, it is impossible to determine whether the jury unanimously found the defendant guilty of the same crime, because neither the wording on the verdict sheet, nor the jury charge, linked “the testimony of vaginal intercourse sequentially or otherwise to the different counts of the indictment”… . People v Jean, 2014 NY Slip Op 03534, 2nd Dept 5-14-14

 

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People Did Not Meet Their Burden of Demonstrating the Legality of the Police Action—Seized Handgun, Identification and Statement Properly Suppressed

The Second Department determined the People did not meet their burden of demonstrating the legality of the police action at the suppression hearing.  The handgun recovered from the defendant’s backpack was properly suppressed:

Where a defendant moves to suppress evidence, the People bear the initial burden of establishing the legality of the police conduct in the first instance, while the defendant bears the ultimate burden of proving, by a preponderance of the evidence, that the challenged evidence should not be used against him or her … . Based on the record before it, the Supreme Court properly suppressed the handgun seized from the backpack in the defendant’s possession, since the People failed to meet their burden of demonstrating the legality of the police conduct. Although the police officers properly initiated a common-law inquiry to obtain explanatory information from a group of six men, which included the defendant, based upon information from an anonymous informant …, reasonable suspicion justifying an intrusive search of the backpack in the defendant’s possession never arose … . Accordingly, the police search of the backpack was improper, requiring suppression of the handgun recovered from the backpack. Additionally, suppression of identification evidence and a statement made by the defendant to law enforcement officials was also required, as such evidence was fruit of the poisonous tree … . People v Nichols, 2014 NY Slip Op 03541, 2nd Dept 5-14-14

 

Injunction Enforcing Restrictive Covenant Properly Granted Despite Substantial Construction In Violation of the Covenant

The Second Department determined plaintiff property owner was entitled to summary judgment in her action to enforce a restrictive covenant in a neighbor’s (Bryant’s) deed.  The restriction was a setback requirement which was violated.  Because plaintiff started her action early on, the fact that the neighbor’s house was substantially constructed did not matter.  The neighbor was on notice when the construction was done:

…[T]he restrictive covenant in Bryant’s deed was part of a common development scheme created for the benefit of all property owners within the subdivision. As such, the plaintiff has standing to enforce the restrictive covenant at issue … .

We … reject Bryant’s assertion that the Supreme Court erred in declining to dismiss the causes of action seeking injunctive relief on the ground that they had been rendered academic. As the plaintiff correctly argues, those causes of action were not rendered academic, despite the substantial completion of the home … . Under the circumstances, the plaintiff acted promptly in commencing this action and Bryant was put on notice that if she proceeded with construction, she would do so at her own risk … .

On the merits, we find that the Supreme Court properly granted the plaintiff’s cross motion for summary judgment. The law has long favored free and unencumbered use of real property, and covenants restricting use are “strictly construed against those seeking to enforce them” … . “[C]ourts will enforce such restraints only where the party seeking enforcement establishes their application by clear and convincing evidence” … . Here, the plaintiff established, prima facie, that the restrictive covenant was applicable and that Bryant’s construction violated that restrictive covenant insofar as the side setback distances were concerned. In opposition to this prima facie showing, Bryant failed to raise a triable issue of fact … .  Hildago v 4-34-68 Inc, 2014 NY Slip Op 03491, 2nd Dept 5-14-14

 

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