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Cross-Examination About Omission from Witness’ Statement to Police Should Have Been Allowed

The Second Department concluded the trial court should have allowed the cross-examination of a witness about a physical characteristic of the defendant the witness had not mentioned to the police:

“[A] witness may not be impeached simply by showing that he [or she] omitted to state a fact, or to state it more fully at a prior time” … . However, impeachment by omission is permissible when the witness omits a critical fact … . “An omission of fact at a prior time is insufficient for impeachment purposes unless it is shown that at th[at] prior time the witness’ attention was called to the matter and that he [or she] was specifically asked about the facts embraced in the question propounded at trial'” … . ” [C]urtailment [of cross-examination] will be judged improper when it keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony'” … . Here, given the eyewitness’s testimony which demonstrated that the defendant’s “squinting,” “partly closed” left eye was a significant factor in his identifying the defendant as the assailant, the trial court erred in precluding the defendant from cross-examining the eyewitness about his omission of this observation of the assailant’s appearance when he described the assailant to the police… . People v Greene, 2013 NY Slip Op 06589, 2nd Dept 10-9-13

 

Defendant’s 440.46 Motion for Resentencing Should Not Have Been Denied

In finding defendant’s motion for resentencing pursuant to CPL 440.46 should have been granted, the Second Department explained the relevant criteria:

Although resentencing is not mandatory, there is a statutory presumption in favor of resentencing (see L 2004, ch 738, § 23; CPL 440.46[3]…). Under the circumstances of this case, the factors relied upon by the Supreme Court in denying the motion–the defendant’s criminal history and parole violations–are insufficient to overcome the statutory presumption. The instant offense and many of the defendant’s prior offenses consisted of low-level drug crimes, and none of the defendant’s recent convictions involved violence or weapons …. The defendant had no disciplinary infractions in prison, and had several positive accomplishments … . While the defendant’s parole violations were a relevant consideration …, they were only one factor to consider, and did not mandate denial of the defendant’s motion …. Under all of the circumstances presented here, “the presumption that the defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like that committed by the defendant was excessively harsh, has not been rebutted” … . People v Green, 2013 NY Slip Op 06588, 2nd Dept 10-9-13

 

Imposition of Enhanced Sentence for Defendant’s Tardiness Disallowed

The Second Department determined Supreme Court should not have imposed an enhanced sentence on the ground defendant was late appearing for his sentencing:

The transcript of the plea proceeding does not indicate that the defendant was given any instructions as to what time he was to appear for sentencing; rather, he was told that he must “com[e] to court on the sentence date.” Under these circumstances, the imposition of an enhanced sentence, without affording the defendant an opportunity to withdraw his plea of guilty, was error… . People v Blades, 2013 NY Slip Op 06584, 2nd Dept 10-9-13

 

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Concept of an Equitable Mortgage Explained, Affirmative Defenses Left Out of Original Answer (Waived) Can Be Included in Amended Answer

The Second Department explained the concept of an “equitable mortgage” and noted that affirmative defenses waived pursuant to CPLR 3211(e) can be included in an answer amended by leave of court:

New York law allows the imposition of an equitable lien if there is an express or implied agreement that there shall be a lien on specific property … . “While [a] court will impose an equitable mortgage where the facts surrounding a transaction evidence that the parties intended that a specific piece of property is to be held or transferred to secure an obligation, it is necessary that an intention to create such a charge clearly appear from the language and the attendant circumstances” … .
Here, the defendant initially did not raise in his answer a defense based upon lack of personal jurisdiction, lack of standing or a capacity to sue, or the statute of limitations. Hence, those affirmative defenses were waived at that point (see CPLR 3211[e]). However, defenses waived under CPLR 3211(e) can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b) so long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay and is not palpably insufficient or patently devoid of merit (see CPLR 3025[b]…). ” Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'”… .  Deutsche Bank Trust Co Ams v Cox, 2013 NY slip Op 06543, 2nd Dept 10-9-13

 

Neither Plaintiff Nor Intervenor Bank Had Standing to Determine Validity of Mortgage

The Second Department determined neither the original plaintiff, nor the bank which attempted to intervene in the action, had standing in an action to determine the validity of a mortgage.  Plaintiff was not the mortgagee and the bank submitted no proof that the note was physically delivered to it, a necessary element of a valid assignment:

The plaintiff failed to establish that either it, or the party it wished to substitute as the plaintiff, had standing to maintain the action. Standing requires an inquiry into whether a litigant has “an interest . . . in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request” … . “In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” … . The instant action, although not an action to foreclose the subject mortgage, was brought on behalf of the purported mortgagee, inter alia, for a judgment declaring the validity of the subject mortgage. The documentary evidence submitted by the appellant in support of her motion to dismiss the complaint established conclusively that the plaintiff was not the mortgagee, a fact which the plaintiff conceded. …

The plaintiff sought to defeat the appellant’s motion to dismiss the complaint by cross-moving, in effect, to amend the complaint to substitute U.S. Bank as the plaintiff. “[A]n amendment which would shift a claim from a party without standing to another party who could have asserted that claim in the first instance is proper since such an amendment, by its nature, does not result in surprise or prejudice to the defendants who had prior knowledge of the claim and an opportunity to prepare a proper defense” (…CPLR 1002[a], 3025[b]). Here, however, the plaintiff failed to show that U.S. Bank had standing and could have asserted the claim in the first instance. The plaintiff submitted only a document executed by MERS, as nominee for the lender Opteum, purporting to assign the mortgage and note to U.S. Bank. To establish the validity of such an assignment, evidence must be submitted establishing that the note was either physically delivered to MERS or assigned to MERS by the lender prior to the commencement of the action … . The plaintiff failed to submit any such evidence. Midland Mtge Co v Imtiax, 2013 NY Slip Op 06550, 2nd Dept 10-9-13

 

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In a Sexual Abuse Proceeding—Effects of Victim’s Exercise of Privilege Against Self-Incrimination and Exclusion of Appellant During Testimony of Victim Explained

In a sexual abuse case, the Second Department affirmed Family Court’s finding of abuse and noted the effect of Judith C.Z.’s exercise of her privilege against self-incrimination and the effect of the appellant’s exclusion from the courtroom during the testimony Judith C. Z.:

The failure of [a witness] to testify does not permit the trier of fact to speculate about what his [or her] testimony might have been nor does it require an adverse inference. It does, however, allow the trier of fact to draw the strongest inference against him [or her] that the opposing evidence in the record permits” … . Under the circumstances presented here, we find no basis to disturb the Family Court’s refusal to draw the negative inference urged by the appellant … .

The appellant’s further contention that the Family Court erred in excluding him from the courtroom during the testimony of Judith C. Z. is without merit. The Family Court reasonably concluded that Judith C. Z. would suffer emotional trauma if compelled to testify in front of the appellant …, and, after properly weighing the respective rights and interests of the parties, thereafter providently exercised its discretion in permitting her to testify via a two-way closed-circuit television set-up. “Because the appellant’s attorney was present during the child’s testimony and cross-examined her on the appellant’s behalf, neither the appellant’s due process right nor his Sixth Amendment right of confrontation was violated by his exclusion from the courtroom during the child’s testimony” … .  Matter of Michael U…, 2013 NY Slip Op 06583, 2nd Dept 10-9-13

 

Dispositional Hearing Should Have Been Held After Neglect Finding

In a neglect proceeding, the Second Department noted a dispositional hearing was required before entering a dispositional order:

…Family Court erred in issuing the orders of disposition without first conducting a dispositional hearing (see Family Ct Act §§ 1045, 1047[a], 1052[a]…). “A dispositional hearing must be held as a condition precedent to the entry of a dispositional order” … . “A dispositional hearing is required so as to permit the Family Court to make an informed determination, from amongst the dispositional alternatives, which is consistent with the best interests of the . . . children” … . At a dispositional hearing, “due process requires that the parties be provided an adequate opportunity to offer evidence” (…see Family Ct Act § 1011). Here, the Family Court did not allow the mother to testify, failed to adduce any evidence from the father, to whom it released two of the children, and conducted no inquiry into dispositional alternatives before making its determination.  Matter of Monique M, 2013 NY Slip Op 06577, 2nd Dept 10-9-13

 

Funeral-Expense Award from NYS Crime Victims Board Should Not Have Been Reduced by 50% Based on the Victim’s Alleged Involvement in Criminal Activity

The Second Department determined that the reimbursement of funeral expenses from the NYS Crime Victims Board should not have been reduced by 50% on the ground that the victim engaged in conduct contributing to the crime.  The court wrote:

… [G]eneral knowledge that narcotics sellers are subject to a greater risk of being violently murdered is not sufficient to supply a record-based relationship between the subject homicide and the victim’s alleged conduct. Under the particular circumstances of this case, the [Office of Victim Services] determination affirming the decision reducing the petitioner’s award by 50% based upon a finding that the victim engaged in culpable conduct “logically and rationally related to the crime by which the victim was victimized” (9 NYCRR 525.3[b]) was “taken without sound basis in reason or regard to the facts”… . Matter of Cox v Office of Victim Servs, 2013 NY Slip Op 06566, 2nd Dept 10-9-13

 

Charging Lien on Settlement Award Allowed—Attorney Withdrew By Mutual Consent

In affirming the validity a charging lien on a settlement award on behalf of an attorney who had withdrawn from the case upon mutual consent the Second Department wrote:

“Pursuant to Judiciary Law § 475, [w]hen an action is commenced, the attorney appearing for a party obtains a lien upon his or her client’s causes of action . . . This lien attaches to any final order or settlement in the client’s favor'” … . ” Where an attorney’s representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains his or her right to enforce the statutory lien'” … . Here, the plaintiff established, prima facie, that his representation … was terminated upon mutual consent, and that there had been no misconduct, discharge for cause, or unjustified abandonment on his part. Tangredi v Warsop, 2013 NY Slip Op 06559, 2nd Dept 10-9-13

 

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Valid Cause of Action Stated in Slip and Fall Suit Against Abutting Property Owner for Obstruction in Sidewalk (Gas Cap Cover)

The Second Department reversed Supreme Court and determined the slip and fall complaint stated a cause of action against the owner of property abutting a sidewalk.  In the sidewalk was a gas cap cover, owned by a utility, and concrete on top of the gas cap created raised area which was alleged to have caused plaintiff to fall.  A Long Beach City Ordinance imposed a duty upon abutting landowners to remove obstructions. The defendant relied heavily on cases construing New York City’s sidewalk law, which differed from the more broadly worded Long Beach ordinance:

The Charter imposes broad obligations on abutting landowners with respect to the condition of sidewalks, and also provides for tort liability on those landowners:

“The owner . . . of lands fronting or abutting on any street . . . shall make, maintain and repair the sidewalk . . . adjoining his lands and shall keep such sidewalk . . . free and clear of and from snow, ice and all other obstructions. Such owner . . . shall be liable for any injury or damage by reason of omission, failure or negligence to make, maintain or repair such sidewalk . . . or to remove snow, ice or other obstructions therefrom, or for a violation or nonobservance of the ordinances relating to making, maintaining and repairing sidewalks . . . and the removal of snow, ice and other obstructions from sidewalks” (Charter § 256 …).

The Code of Ordinances of the City of Long Beach defines “sidewalk” as “any portion of a street between the curbline and the adjacent property line, intended for the use of pedestrians, excluding parkways” (Code of Ordinances of the City of Long Beach § 1-2). Here, the gas cap was located entirely within a sidewalk flag and was level with the sidewalk, and therefore apparently was intended to be traversed by pedestrians. Thus, the plaintiff contends, the concrete above the gas cap is covered by Long Beach’s sidewalk law, at least to the extent that it may have been an “obstruction” on the sidewalk. Klau v Belair Bldg LLC, 2013 NY Slip Op 06548, 2nd Dept 10-9-13

 

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