The Second Department determined evidence of defendant’s membership in a gang, including expert evidence, was properly admitted in light of defense counsel’s argument defendant had no motive to assault correction officers. People v Murray, 2014 NY Slip Op 02957, 2nd Dept 4-30-14
Although deemed harmless error, the Second Department determined the show-up identification of the defendant was unduly suggestive. The defendant had already been arrested when he was pulled to a standing position in front of the victim for identification (for the second time). At that point there were no “exigent circumstances” to justify the procedure used:
While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, “the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure” … . “The People’s burden consists of two elements. First, the People must demonstrate that the showup was reasonable under the circumstances. Proof that the showup was conducted in close geographic and temporal proximity to the crime will generally satisfy this element of the People’s burden'” … . However, “[t]he People also have the burden of producing some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive” … .
The People established that the showup “was conducted in close geographic and temporal proximity to the crime” … . However, they failed to demonstrate that the procedure was not unduly suggestive. The fact that a defendant is handcuffed and in the presence of police officers, standing alone, does not render a showup unduly suggestive …, even where “the victim had been told that the police had a suspect in custody” … . Here, however, the complainant was given two opportunities to identify the same man as the perpetrator. The second time, police officers pulled the defendant into a standing position and escorted him to where the complainant was standing. At that juncture, the defendant was under arrest and Officer Fallace acknowledged that “[t]here was no rush at that point.” Therefore, there were no exigent circumstances justifying the procedures employed. The above-described circumstances, when “viewed cumulatively,” establish that “the showup identification was unduly suggestive” … . Further, there was no hearing or finding on the question of whether the complainant’s in-court identification had an independent source … . People v Ward, 2014 NY Slip Op 02809, 2nd Dept 4-23-14
The Second Department determined Supreme Court properly refused to grant summary judgment in favor of an attorney in an action based upon serious allegations of malpractice in connection with a real estate transaction. Amony other allegations, it was claimed that the attorney allowed an employee to pose as him and caused the plaintiffs to (unknowingly) sign documents accepting the premises as is. In affirming Supreme Court’s finding that a question of fact had been raised about the “conspiracy to commit fraud” allegations, the Second Department explained the nature of a civil conspiracy:
“New York does not recognize civil conspiracy to commit a tort . . . as an independent cause of action” … . However, “a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme” … . “The allegation of conspiracy carries no greater burden, but also no less, than to assert adequately common action for a common purpose by common agreement or understanding among a group, from which common responsibility derives. Therefore, under New York law, [i]n order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement. A bare conclusory allegation of conspiracy is usually held insufficient”… . Blanco v Polanco, 2014 NY Slip Op 02735, 2nd Dept 4-23-14
The Second Department determined defendant had presented enough evidence to justify a hearing on whether his counsel was ineffective for failure to inform him of an earlier, more lenient, plea offer. The court explained the legal principles involved:
…[T]he United States Supreme Court held in Missouri v Frye ( _____ US _____, _____, 132 S Ct 1399, 1410) that counsel’s failure to advise a criminal defendant of a beneficial plea agreement constitutes ineffective assistance of counsel under the Sixth Amendment … where the defendant establishes that there was a reasonable probability that he or she would have accepted the earlier plea offer had it been communicated to him or her, that the election to go to trial or accept a different plea agreement resulted in a harsher penalty, and that, if the prosecution had the discretion to cancel the earlier proposed plea agreement or the trial court had the discretion to refuse to accept it, there was a reasonable probability that neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. In Lafler v Cooper ( _____ US _____, _____, 132 S Ct 1376, 1391), which was decided on the same day as Missouri v Frye, the United States Supreme Court concluded that the remedy for a claim of ineffective assistance of counsel that results in a harsher sentence than that initially proposed to the defendant pursuant to a plea agreement is to direct the People to reoffer the plea agreement.
Given the defendant’s detailed allegations on the record, which had first been brought to the Supreme Court’s attention more than one month before the defendant pleaded guilty, the court should have addressed the contention. Accordingly, we remit the matter to the Supreme Court, Queens County, for a hearing and a report on the defendant’s contention that the People had previously made a more lenient plea offer than the one which he ultimately accepted. The defendant has the burden of establishing that the People made that plea offer, including a determinate term of imprisonment of three years in connection with a plea of guilty to a lesser count …, that his first assigned counsel did not adequately inform him of that offer …, that there is a sufficient likelihood that he would have accepted the offer had counsel adequately communicated it to him …, and that there is a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement… . People v Maldonado, 2014 NY Slip Op 02800, 2nd Dept 4-23-14
The Second Department determined plaintiffs, who were injured when assaulted by NYC firefighters in a restaurant, had made allegations against the city and the fire department which raised questions of fact about negligent hiring, supervision, training and retention. The firefighters, including supervisors, had just come from a New York City Fire Department annual dinner held at another restaurant. Apparently two firefighters (Reilly and Warnock) attacked the plaintiffs after a drink had been accidentally spilled on a firefighter. The court explained that the doctrine of respondeat superior would not apply because the firefighters were not acting within the scope of their employment at the time of the assault. But the court determined the causes of action against the City defendants for negligent hiring, supervision, training and retention could go forward!
“The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment” … . “An employee’s actions fall within the scope of employment where the purpose in performing such actions is to further the employer’s interest, or to carry out duties incumbent upon the employee in furthering the employer’s business'” … . “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment” … . Where, however, an employee’s actions are taken for wholly personal reasons, which are not job related, the actions cannot be said to fall within the scope of employment … . In instances where vicarious liability for an employee’s torts cannot be imposed upon an employer, a direct cause of action against the employer for its own conduct, be it negligent hiring, supervision, or other negligence, may still be maintained … .
Here, the Supreme Court properly granted that branch of the City defendants’ motion which was for summary judgment dismissing the causes of action alleging vicarious liability. The City defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the tortious conduct of Reilly and Warnock was not within the scope of their employment … . In opposition, the plaintiffs failed to raise a triable issue of fact … . However, as to the causes of action alleging negligent hiring, supervision, training, and retention, the City defendants did not establish their entitlement to judgment as a matter of law. They failed to submit any evidence demonstrating that they did not know or have reason to know of Reilly’s or Warnock’s alleged propensity for assaultive conduct … . Furthermore, the City defendants failed to submit evidence demonstrating that any such alleged negligence was not a proximate cause of the injured plaintiffs’ injuries … . Selmani City of New York, 2014 NY Slip Op 02764, 2nd Dept 4-23-14
The Second Department determined plaintiff had raised a question of fact about whether games played at a summer day camp were adequately supervised. The complaint alleged the injury was caused when plaintiff was pushed by an older child, and futher alleged the five teens who were supposed to be supervising the game were sitting together on a bench, not paying any attention to the game:
“[S]chools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision” … . Whether such supervision was adequate and if, inadequate, whether it was a proximate cause of the subject injuries are generally questions for the trier of fact to resolve … . “An injury caused by the impulsive, unanticipated act of a fellow [camper or] student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” … . Osmanzai v Sports & Arts in Schools Found Inc, 2014 NY Slip Op 02760, 2nd Dept 4-23-14
The Second Department, in a full-fledged opinion by Justice Hinds-radix, determined Supreme Court had properly entered a default judgment against the Motor Vehicle Accident Indemnification Corporation (MVAIC). Plaintiff was a pededstrian who was allegedly struck by a driver who drove plaintiff to the hospital but then left without identifying himself. Because the driver was unknown, plaintiff sued MVAIC directly pursuant to Insurance Law 5218. MVAIC argued that Insurance Law 5214 prohibited the entry of a default judgment against it. The Second Department determined Insurance Law 5214 did not apply, and a default judgment was properly entered against the MVAIC pursuant to CPLR 5015:
This case does not fall within the scope of Insurance Law § 5214 because it does not involve a claim against MVAIC stemming from a judgment entered upon the default or consent of an uninsured defendant. Rather, MVAIC was involved because the identity of the offending motorist was unknown, which permitted the plaintiff, with the approval of the court, to commence an action against MVAIC directly, pursuant to Insurance Law § 5218. Insurance Law § 5218 authorizes a court to permit the commencement of an action against MVAIC directly, if, inter alia, “all reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator and either the identity of the motor vehicle and the owner and operator cannot be established, or the identity of the operator, who was operating the motor vehicle without the owner’s consent, cannot be established” (Insurance Law § 5218[b][5]…). Where an action is commenced directly against MVAIC, the concerns underlying the enactment of Insurance Law § 5214protecting MVAIC from the defaults of, or possible collusion by, uninsured defendantsare not implicated. Thus, Insurance Law § 5214 “does not bar the entry of a default judgment against MVAIC in an action in which MVAIC is the named defendant and has defaulted” … . Archer v Motor Veh Acc Indem Corp, 2014 NY Slip Op 02732, 2nd Dept 4-23-14
In affirming the grant of summary judgment to the seller of property, the Second Department explained the doctrine of “caveat emptor.” The complaint alleged the plaintiffs became aware of flooding problems and mechanical problems after the closing.
” New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller’s agent to disclose any information concerning the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller or the seller’s agent which constitutes active concealment'” … . “If however, some conduct (i.e., more than mere silence) on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property” … . ” To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller’s agents thwarted the plaintiff’s efforts to fulfill his [or her] responsibilities fixed by the doctrine of caveat emptor'” … . Here, in opposition to the respondent’s prima facie showing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact as to whether the respondent engaged in conduct that would constitute active concealment. Mo v Rosen, 2014 NY Slip Op 02758, 2nd Dept 4-23-14
The Second Department determined that alleged building code violations concerning the slope of stairs and the height of a handrail were not sufficiently connected to the accident to withstand summary judgment. Plaintiff testified she did not know the cause of her fall down the exterior stairs:
…[Plaintiff] testified that she did not know what caused her to fall and stated that she “pitch[ed]” forward … . … The plaintiff submitted the affidavit of an expert who opined that the subject stairs were built in violation of the New Rochelle Building Code since, inter alia, the steps were sloped forward more than 2% and the handrail was lower than required. However, the plaintiff did not testify that she fell because of the slope of the steps or because she was unable to grasp the handrail due to its height. Consequently, the plaintiff failed to present evidence to connect the alleged building code violations to her fall … . Maglione v Seabreeze By Water Inc, 2014 NY Slip Op 02756, 2nd Dept 4-23-14
The Second Department determined an allegation that a municipality planted a tree near a sidewalk and failed to maintain the tree roots did not support a negligence action based upon the creation of a dangerous condition:
…[T]he plaintiff alleged in his notice of claim, complaint, and bill of particulars that the Town affirmatively created the subject dangerous condition through various specified acts of negligence. “[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . The Supreme Court, in denying the Town’s motion, concluded that it failed to meet its prima facie burden since it did not demonstrate that it did not affirmatively create the condition alleged. However, the Supreme Court erred in so concluding. The evidence submitted in support of the motion established that the planting of a tree or trees adjacent to the sidewalk where the accident occurred, and the alleged failure to maintain the roots of the tree or trees, would at most constitute nonfeasance, not affirmative negligence … . In opposition, neither the plaintiff nor the defendants …raised a triable issue of fact as to whether the Town created the condition alleged through an affirmative act of negligence. Lipari v Town of Oyster Bay, 2014 NY Slip Op 02755, 2nd Dept 4-23-14
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