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Mischaracterization of a Jury Note Required Reversal

The Second Department determined that the trial court’s mischaracterization of a jury note required reversal:

The Supreme Court mischaracterized the contents of the note to counsel as merely requesting a readback of the elements of the charged offenses rather than as indicating the jury’s apparent erroneous impression that proof of a single element of each crime was sufficient to render a guilty verdict … . In thus mischaracterizing the note, the Supreme Court did not afford defense counsel the opportunity to participate in the formulation of the court’s response to the jury’s confusion. “Since defense counsel was not afforded the opportunity to provide suggestions, [s]he was prevented from participating meaningfully at this critical stage of the proceedings” … . “In the absence of record proof that the trial court complied with its core responsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal” (People v Tabb, 13 NY3d 852, 853), despite defense counsel’s failure to object to the court’s treatment of the jury note … . Furthermore, meaningful notice of the contents of a jury note must take place on the record … . Accordingly, contrary to the People’s contention, a reconstruction hearing to determine whether counsel was provided with the note off the record would be neither appropriate nor helpful … . People v Giraldo, 2014 NY Slip Op 02309, 2nd Dept 4-2-14

 

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

 

“Forum Non Conveniens” Dismissal Proper

The Second Department explained the criteria for dismissal of an action on “forum non conveniens” grounds:

“The doctrine of forum non conveniens permits a court to dismiss an action when, although it may have jurisdiction over a claim, the court determines that in the interest of substantial justice the action should be heard in another forum'” … . “On a motion to dismiss on the ground of forum non conveniens, the burden is on the movant to demonstrate the relevant private or public interest factors that militate against a New York court’s acceptance of the litigation” … . “Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts” … .

Here, the Supreme Court did not improvidently exercise its discretion in granting that branch of the defendant’s motion which was to dismiss the complaint on the ground of forum non conveniens. The fact that the witnesses, with the exception of the plaintiff, and evidence are located in Pennsylvania, the fact that Pennsylvania is the situs of the underlying events, the availability of Pennsylvania as an alternative forum, and the burden on the New York courts of retaining a case to which it does not have a substantial nexus militate in favor of dismissal of the action on the ground that Pennsylvania is the more convenient forum … . Wild v University of Pa, 2014 NY Slip Op 02038, 2nd Dept 3-26-14

 

Res Judicata Doctrine Precluded Suit Despite Naming Additional Parties and Alleging Different Causes of Action and Legal Theories

The Second Department determined the doctrine of res judicata precluded plaintiff’s action, notwithstanding the additional parties named (found to be in privity the the parties named in the prior action) and the different causes of action and legal theories alleged:

“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” … . Generally, to establish privity the interests of the nonparty must have been represented by a party in the prior proceeding … . The Court of Appeals has observed that privity is an “amorphous concept,” not easily applied…, but persons in privity include those whose interests are represented by a party to the previous action and those “[whose] own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of, the rights of the party to the prior litigation” … .”

The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims'” … . Thus, the doctrine of res judicata “operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding, as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding” … . In determining whether a factual grouping constitutes a transaction for res judicata purposes, a court must apply a pragmatic test and analyze how the facts are related as to time, space, origin or motivation, whether they form a convenient trial unit and whether treating them as a unit conforms to the parties’ expectations or business understanding … . For the doctrine of res judicata to be applied, there must have been, in the prior proceeding, a final judgment on the merits … . “An order granting a summary judgment motion is on the merits and has preclusive effect” … . Bayer v City of New York, 2014 NY Slip Op 02005, 2nd Dept 3-26-14

 

Basketball Player Assumed Risk of Running Into Glass Doors Behind Baseline

The Second Department determined a basketball player assumed the risk of the injuries suffered when his arm went through a glass door located behind the baseline.  The glass door constituted an open and obvious condition:

The doctrine of primary assumption of risk provides that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . This encompasses risks associated with the construction of the playing field, and any open and obvious conditions on it … . If the risks are known by or perfectly obvious to the participant, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be.

Here, based in part on the proximity of the court to the entrance doors, the defendants established their entitlement to judgment as a matter of law by demonstrating that the injured plaintiff had assumed the obvious and inherent risk of coming into contact with the pane of glass in the entrance door by electing to play basketball on that court… .  Perez v New York City Dept of Educ, 2014 NY Slip Op 02022, 2nd Dept 3-26-14

 

Passengers in Car Struck from Behind Entitled to Summary Judgment Despite Issue of Comparative Fault on the Part of the Driver of the Car in which They Were Passengers

The Second Department determined plaintiffs, who were passengers in a car struck from behind by the defendant (Farrell), were entitled to summary judgment in spite of the possible comparative negligence of the driver of the car in which they were passengers (Moncion):

Both plaintiffs established their entitlement to judgment as a matter of law by demonstrating, prima facie, that the vehicle in which they were passengers was struck in the rear by Farrell’s vehicle … . “A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” … . In opposition to the plaintiffs’ prima facie showings, Farrell failed to provide a nonnegligent explanation for the rear-end collision. Although Farrell submitted evidence sufficient to raise a triable issue of fact as to whether Moncion was comparatively at fault in causing the accident … , that evidence was insufficient to defeat the plaintiffs’ motions for summary judgment since Farrell failed to raise a triable issue of fact as to whether either one of the plaintiffs was at fault in the happening of the accident. Upon establishing his or her freedom from fault, the right of an innocent passenger to an award of summary judgment on the issue of liability against one driver is not barred or restricted by potential issues of comparative fault as between that driver and the driver of another vehicle involved in the accident … . Rodriguez v Farrell, 2014 NY Slip Op 02027, 2nd Dept 3-26-14

 

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Question of Fact Whether Out of Possession Landlord, Based on the Terms of the Lease, Had a Duty to Keep the Premises Safe (Labor Law 200)

The Second Department determined the provisions of a lease raised a question of fact about whether an out-of-possession landlord had a duty to keep the premises safe:

“Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work” … .  * * * …[T]o the extent that the plaintiff’s claims were based on a dangerous condition on the premises, specifically the structural design, construction, and condition of a portion of the floor, the defendants failed to establish their prima facie entitlement to judgment as a matter of law. “An out-of-possession landlord generally will not be responsible for injuries occurring on its premises unless the landlord has a duty imposed by statute or assumed by contract or a course of conduct” … . Here, the lease submitted by the defendants in support of their motion provided, among other things, that the defendants were required to “repair the damaged structural parts of the Premises,” that they were “not required to repair or replace any equipment, fixtures, furnishings or decorations unless originally installed by Landlord,” and that they retained the “right to enter into and upon said premises, or any part thereof . . . for the purpose of . . . making such repairs or alterations therein as may be necessary for the safety and preservation thereof.” Based on these provisions, under the circumstances of this case, the defendants failed to establish as a matter of law that they did not have a duty imposed by contract to remedy the specific dangerous or defective condition alleged here. Thus, to prevail on their motion, the defendants were required to establish that they neither created the alleged dangerous or defective condition nor had actual or constructive notice thereof … . Here, the defendants failed to establish, prima facie, that they did not create the dangerous or defective condition alleged by the plaintiff to have contributed to his fall.  Quituizaca v Tucchiarone, 2014 NY Slip Op 02024, 2nd Dept 3-26-14

 

“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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