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Trial Court’s Failure to Properly Characterize the Nature of the Jury’s Request for “Clarification” of Certain Counts Was a Reversible Mode of Proceedings Error

The Second Department determined Supreme Court committed a reversible mode of proceedings error when it mischaracterized the meaning of a jury note.  The note requested clarification of the criminal possession of a weapon counts.  The court explained the note as a request for a readback of the relevant jury instructions:

…[T]he jury requested “clarification on the counts of criminal possession of a weapon in the second degree.” Notwithstanding the foregoing, in the presence of the defendant, counsel, and the jury, the Supreme Court mischaracterized that note as asking “to have read to us the counts of” criminal possession of a weapon in the second degree. In apprising counsel of the contents of that note, the Supreme Court omitted the word “clarification.” The court proceeded to provide the jury with certain legal instructions on the counts of criminal possession of weapon in the second degree. The jury’s request for “clarification” was not a request for a “mere ministerial readback” of the Supreme Court’s charge … . Meaningful notice of a jury’s note “means notice of the actual specific content of the jurors’ request. Manifestly, counsel cannot participate effectively or adequately protect the defendant’s rights if this specific information is not given” … . Under these circumstances, the Supreme Court’s mode of proceedings error requires reversal of the judgment and a new trial (see People v Patterson, 39 NY2d 288, 295-296). People v Thomas, 2014 NY Slip Op 02090, 2nd Dept 3-26-14

 

Plaintiff Sufficiently Raised Issue of “Actual Innocence” in Motion to Vacate His Conviction to Warrant Hearing—Affidavits from Alibi Witnesses Identified Before Trial

The Second Department determined defendant had presented sufficient evidence of “actual innocence” to support his motion to vacate his conviction to warrant a hearing:

…[O]n remittal, the Supreme Court should hold a hearing to address the defendant’s claim that the judgment of conviction should be vacated because the defendant is “actually innocent” of the crimes of which he was convicted (see CPL 440.10[1][h]; People v Hamilton, _____ AD3d _____, 2014 NY Slip Op 00238 [2d Dept 2014]). As we recognized in Hamilton, a prima facie showing of actual innocence is made out when there is ” “a sufficient showing of possible merit to warrant a fuller exploration'”” by the court… . Here, the defendant made the requisite prima facie showing. Specifically, in support of his claim of actual innocence, he submitted affidavits from alibi witnesses who, although they had been identified before trial in a notice of alibi (see CPL 250.20[1]), had not testified at trial. People v Jones, 2014 NY Slip Op 02079, 2nd Dept 3-26-14

 

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Dismissal of Deported Defendant’s Appeal (Without Prejudice) Appropriate Where Defendant’s Continued Participation in the Proceedings Would Be Required Should the Appeal Be Successful

The Second Department determined defendant’s appeal of his motion to vacate his conviction should be dismissed without prejudice because he had been deported and his continued participation in the proceedings would be required if the appeal were successful, distinguishing People v Ventura, 17 NY3d 675, where dismissal was not appropriate because the defendant’s participation in the case was no longer required. People v Harrison, 2014 NY Slip Op 02076, 2nd Dept 3-26-14

 

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Mother Entitled to Hearing/Children May Be Eligible for Special Immigrant Status

The Second Department reversed Family Court and sent the mother’s custody petition back for a hearing.  The mother alleged father had abandoned the children and the children, due to their immigration status, could be returned to El Salvador where they could be victimized by family and gangs. Mother argued the children could apply for special immigrant status if she were awarded custody:

The Family Court erred in dismissing the petition in which the mother sought orders of custody for her two teenaged children. A natural parent has standing to seek legal custody of his or her child (see Domestic Relations Law § 70[a]; Family Ct Act § 511…). According to the petitioner, the children’s father has abandoned the children and, due to their immigration status, they could be returned to El Salvador where they have been subjected to abuse by family members and threats by gang members. The petitioner has alleged that awarding her custody would be in the best interests of the children, since it would enable the children to apply for special immigrant juvenile status… . Matter of Sanchez v Bonilla, 2014 NY Slip Op 01761, 2nd Dept 3-19-14 

 

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Supreme Court Should Not Have Reformed Settlement Agreement/Criteria for “Mutual Mistake” Not Met

The Second Department determined Supreme Cout should not have found that mutual mistake required reformation of a settlement agreement.  The court explained the operative criteria:

“Marital settlement agreements are judicially favored and are not to be easily set aside” … . Although a mutual mistake by the parties may form the basis for reformation of a marital settlement agreement, “the mistake must be so material that . . . it goes to the foundation of the agreement'” … . “[T]o overcome the heavy presumption that a deliberately prepared and executed written instrument manifested the true intention of the parties, evidence of a very high order is required” … . The party seeking reformation must show clearly and beyond doubt that there has been a mutual mistake, and must show “with equal clarity and certainty the exact and precise form and import that the instrument ought to be made to assume, in order that it may express and effectuate what was really intended by the parties'” … . Hackett v Hackett, 2014 NY Slip Op 01715, 2nd Dept 3-19-14

 

Bicyclist’s Negligence as a Matter of Law Did Not Warrant Summary Judgment to Defendant (Bus Driver, etc.)/There Can Be More than One Proximate Cause of an Accident

The Second Department determined that the fact that the plaintiff was riding his bicycle the wrong way on a one-way street (negligence as a matter of law)  did not mandate summary judgment for the defendant bus driver (Wright).  There can be more than one proximate cause to an accident and defendant failed to demonstrate it was free from fault:

Although the plaintiff concedes that he was negligent as a matter of law by traveling the wrong way on Adams Street in violation of Vehicle and Traffic Law § 1127(a) …, there can be more than one proximate cause of an accident, and the proponent of a motion for summary judgment has the burden of establishing freedom from comparative fault as a matter of law … .

Here, the defendants failed to make a prima facie showing as a matter of law that Wright was free from any comparative fault in the happening of the accident. There are triable issues of fact as to whether Wright failed to see what was there to be seen through the proper use of his senses …, failed to exercise due care to avoid the collision (see Vehicle and Traffic Law § 1146[a]…), or was traveling at a reasonable and prudent speed as he approached the intersection in light of the conditions then present … . Espiritu v Shuttle Express Coach Inc, 2014 NY Slip Op 01707, 2nd Dept 3-1914

 

“General Supervision” of Work Site Did Not Trigger Liability Under Labor Law 241(6)

The Second Department determined  a company (Draghi) hired by the home builder (Majestic)  to do framing work and general supervision was not liable to plaintiff (who was injured when he tripped while using stilts to work on the ceiling) under Labor Law 241(6):

Draghi demonstrated its prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action insofar as asserted against it by establishing that it was not an owner, general contractor, or statutory agent of the owner or general contractor … . Draghi did not hire any contractors and was not charged with “the duty of co-ordinating all aspects of [the] construction project” … . Rather, Draghi merely assumed a role of “general supervision,” pursuant to which it checked the progress of the work and reported to Magestic … . Draghi demonstrated that it did not have the ability to control the activity which brought about the plaintiff’s injury … . Thus, Draghi established that it could not be held liable under Labor Law § 241(6)… . Gonzalez v Magestic Fine Custom Home, 2014 NY Slip Op 01713, 2nd Dept 3-19-14

 

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County Not Entitled to Dismissal of Suit Seeking Refund of Taxes Declared Wrongly Collected by the Court of Appeals

The Second Department determined that the plaintiffs’ action seeking the refund of taxes wrongfully collected on “mass property” was properly allowed to proceed.  “Mass property” includes things like power lines, poles, transformers, etc. The defendants had been collecting ad valorem taxes on the mass property for garbage collection.  Ultimately the Court of Appeals held that such taxes could not be collected on mass property, which did not produce garbage.  The defendants argued that they were not obligated to refund the taxes paid and moved to dismiss on that ground.  In affirming the denial of that motion, the Second Department explained that the invalidation of the ad valorem tax did not meet the criteria for when a court holding should be given only prospective application in the context of taxation:

…[W]here a municipality has reasonably relied upon a widespread and longstanding practice … or a statute is later invalidated …, and where applying the invalidation retroactively would call into question “a settled assessment roll or property rights based thereon,” a court may exercise its discretion by giving its holding only prospective application … . Here, the County defendants’ submissions have not demonstrated that awarding the plaintiffs the refunds they seek would call into question settled assessment rolls or property rights based thereon. Keyspan Generation LLC v Nassau County, 2014 NY Slip Op 01721, 2nd Dept 3-19-14

 

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County Not Necessary Party In Suit to Recover Taxes Wrongfully Paid to Town

The Second Department determined plaintiff [Verizon] could seek the refund of wrongfully collected taxes against the town which collected them and the town could then seek reimbursement from the county.  The county was not a necessary party in the action brought by the plaintiff.  Plaintiff was the owner of “mass property” (power lines, poles, transformers, etc) which had been subject to taxes for refuse collection.  The Court of Appeals ruled “mass property,” which produced no garbage, could not be so taxed:

Pursuant to the County Guaranty, the County is liable for refunds of tax payments made in connection with levies for special ad valorem taxes … . However, in the actions at bar, Verizon chose to seek refunds from the Town, to which the payments had been made, rather than from the County directly. That was proper in light of our determination that the County is not a necessary party to actions seeking refunds of tax payments made in connection with levies for special ad valorem taxes … . Accordingly, while the Town may seek indemnification from the County pursuant to the County Guaranty, the Supreme Court correctly determined that the Town is liable for these refunds in the first instance, and can be sued directly by a taxpayer. Thus, the Supreme Court did not err in entering the judgments against the Town defendants.  New York Tel Co v Supervisor of Town of Hempstead, 2014 NY Slip Op 01726, 2nd Dept 3-19-14

 

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Plaintiff Arrested Without a Warrant Based Upon Illegally Seized Evidence Granted Summary Judgment in False Arrest/Imprisonment Action

The Second Department determined plaintiff was entitled to summary judgment on his false arrest/imprisonment cause of action. Plaintiff was arrested without an arrest warrant based upon evidence seized in an illegal search:

“In order to prevail on a cause of action seeking to recover damages for false arrest or imprisonment, a plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged” … . ” The existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim'” … .When an arrest is made without a warrant, a presumption arises that it was unlawful, and a defendant must then show that a factual question exists as to whether the arrest was based on probable cause … . Evidence which is illegally obtained in violation of a plaintiff’s rights may not be used to establish probable cause … . Fakoya v City of New York, 2014 NY Slip Op 01709, 2nd Dept 3-19-14

 

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