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Absence of Adequate Reason for Errata Sheet (CPLR 3116(a)) Altering Deposition Testimony Precluded Its Acceptance

Plaintiff was injured when he fell while using a ladder at the plumbing business where he worked. The ladder was owned by plaintiff’s employer and the property was owned by an out-of-possession landlord.  During his deposition, plaintiff said he had no idea why the ladder slid out from under him when he attempted to step on a shelf.  In reversing Supreme Court and dismissing the complaint, the Second Department determined plaintiff’s post-deposition errata sheet could not be considered in opposition to the defendant’s motion for summary judgment because plaintiff did not provide an adequate reason for the alteration of his deposition testimony:

In his post-deposition errata sheet, the injured plaintiff radically changed much of his earlier testimony, with the vague explanation that he had been “nervous” during his deposition. CPLR 3116(a) provides that a “deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of reasons given by the witness for making them.” Since the injured plaintiff failed to offer an adequate reason for materially altering the substance of his deposition testimony, the altered testimony could not properly be considered in determining the existence of a triable issue of fact as to whether a defect in, or the inadequacy of, the ladder caused his fall… . In the absence of the proposed alterations, the injured plaintiff’s deposition testimony was insufficient to raise a triable issue of fact with respect to the defectiveness or inadequacy of the ladder so as to warrant the denial of summary judgment. Likewise, in opposition to the defendants’ prima facie showing that the trust was an out-of-possession landlord with no duty to repair or maintain the ladder or the floor, the plaintiffs failed to raise a triable issue of fact. Ashford v Tannenhauser, 2013 NY Slip Op 05508, 2nd Dept 7-31-13

 

Absence of 90-Day Demand to Serve a Note of Issue Precluded Dismissal of Lawsuit Based on Gross Laches (12-Year Delay)

In a full-fledged opinion by Justice Chambers, the Second Department determined that the doctrine of laches was not available to dismiss a pre-note-of-issue case which had been dormant for 12 years.  In this slip and fall case, the incident occurred in 1992, issue was joined, plaintiffs served a bill of particulars, but plaintiffs failed to appear at a June 1996 status conference. The action was “marked off” the calendar and later marked “disposed.”  In October, 2008, the plaintiffs moved restore the action to the active pre-note-of-issue calendar. Supreme Court denied the motion to dismiss based on laches “concluding that it lacked the power to dismiss the … complaint.”  The Second Department affirmed, explaining:

At the outset, we note that we summarized the law applicable to the issue in this case in Lopez v Imperial Delivery Serv. (282 AD2d 190), where we explained the interplay among three case management devices: CPLR 3404, 22 NYCRR 202.27, and CPLR 3216. In Lopez, we made clear that none of these devices applies to a pre-note-of-issue case where, as here, there has been no order dismissing the complaint pursuant to 22 NYCRR 202.27, and the defendant has never made a 90-day written demand on the plaintiff to serve and file a note of issue pursuant to CPLR 3216… . In this case, the [defendant] attempts to avoid the holding in Lopez by relying on the doctrine of laches as the basis for dismissing the complaint. * * *

…[T]he Court of Appeals concluded in Airmont Homes that dismissal for either gross laches or failure to prosecute was not available in the absence of compliance with CPLR 3216 (see Airmont Homes v Town of Ramapo, 69 NY2d at 902). To allow dismissal under the circumstances of this case based on the doctrine of laches would be tantamount to permitting dismissal for general delay, which the courts lack inherent authority to do, and which is inconsistent with the legislative intent underlying CPLR 3216 [which requires a 90-day demand to serve and file a note of issue]. …

Although an extensive delay in prosecuting an action may, at times, prejudice a defendant’s ability to defend against a suit, a defendant has the statutory means of avoiding such prejudicial delay by serving a 90-day demand … . Laches, which is an equitable doctrine, does not provide an alternate route to dismissal where a defendant has not served the 90-day demand statutorily required to prompt resumption of the litigation … .  Arroyo v Board of Educ of City of NY, 2013 NY Slip Op 05507, 2nd Dept 7-31-13

 

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Income of Mother’s Cohabiting Fiance Should Not Have Been Considered in Determining Mother’s Entitlement to Assigned Counsel

In finding mother was deprived of her right to counsel in a guardianship proceeding, the Second Department determined the income of mother’s cohabiting fiance should not have been considered:

…[T]he Family Court erred in considering the income of the mother’s cohabiting fiancé in making a determination as to whether she was needy and, therefore, entitled to appointment of counsel …. Furthermore, nothing in the record supports a finding that the mother waived her right to counsel … . Thus, the mother was deprived of her right to counsel (see Family Ct Act § 262[a][v]…).  Matter of Angel L, 2013 NY Slip Op 05528, 2nd Dept 7-31-13

 

Money Available to Father from Relatives for Children’s College Expenses Should Have Been Considered in Allocating those Expenses between Mother and Father

The Second Department determined the Support Magistrate’s failure to take into account money received by the father from relatives for the children’s college required the case to be remitted to determine father’s and mother’s shares of the college expenses:

In determining a parent’s child support obligation, a court need not rely upon a party’s own account of his or her finances, but may impute income on the basis of the party’s past income or earning capacity …, or on the basis of “money, goods, or services provided by relatives and friends” (Family Ct Act § 413[1][b][5][iv][D]…). “A Support Magistrate is afforded considerable discretion in determining whether to impute income to a parent” …, and we accord deference to a support magistrate’s credibility determinations … . However, “a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion” … .

While the record supports the conclusion that the mother should share in the college expenses of the subject children, the Support Magistrate improvidently exercised her discretion by failing to impute additional income to the father for money he received from his family for the subject children’s college expenses. The father’s testimony established that the funds he received from his family to pay for the subject children’s college expenses were not loans that he was obligated to repay. Thus, the mother’s objections to so much of the order … as directed her to pay the father the principal sum of $28,210.02 in arrears for college expenses and to pay for 67% of the subject children’s future college expenses should have been granted… .  Matter of Kiernan v Martin, 2013 NY Slip Op 05527, 2nd Dept 7-31-13

 

Family Court Should Have Granted Change-of-Custody Petition

The Second Department determined Family Court erred in not granting father’s petition for a modification of a custody arrangement. Father was awarded temporary custody while the mother dealt with abuse or neglect allegations which were eventually determined to be “unfounded.”  The father then petitioned for sole residential custody:

The evidence presented at the hearing on the father’s petition established that, while living with the father …, the child, who has special needs, had thrived both at home and in school. It would be disruptive to remove the child from the father’s house and his established routine … . Moreover, the father is ensuring that the child maintains a strong and continuing relationship with the mother. The continuation of a liberal visitation schedule will provide the mother with a meaningful opportunity to maintain a close relationship with the child … . We note that the attorney for the child supports the award of sole residential custody of the child to the father… .  Matter of Ellis v Burke, 2013 NY Slip Op 05524, 2nd Dept 7-31-13

 

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Verdict Set Aside as Irreconcilably Inconsistent (Jury Found Defective Sidewalk Was Not Proximate Cause of Plaintiff’s Fall)

The Second Department, over a dissent, set aside a verdict in a slip and fall case which found that the defendant’s (City of New York’s) negligence was not the proximate cause of the fall.  Plaintiff fell on a portion of sidewalk which “was all patched” and which had “a hole in it.”  The court explained:

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors … . Where a jury verdict with respect to negligence and proximate causation is irreconcilably inconsistent, that verdict must be set aside as contrary to the weight of the evidence … .

Contrary to the contention of the defendant City of New York, the plaintiff sufficiently identified the sidewalk defect which allegedly caused her fall … . Under the circumstances of this case, for the jury to find the City negligent for failing to repair a sidewalk defect while on notice of its existence, yet to find that this negligence was not a proximate cause of the plaintiff’s injuries, was contrary to the weight of the evidence and irreconcilably inconsistent… .  Wallace v City of New York, 2013 NY Slip Op 05523, 2nd Dept 7-31-13

 

Walkway Defect Trivial as a Matter of Law

In finding a one-half inch defect in a walkway was trivial as a matter of law (in a slip and fall case), the Second Department explained the legal principles as follows:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case’ and is generally a question of fact for the jury” … . However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . “In determining whether a defect is trivial, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury'” … . “[T]here is no minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” … .  Schiller v St Francis Hosp Roslyn NY, 2013 NY Slip Op 05521, Second Dept 7-31-13

 

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Method of Service of Citation Should Be Calculated to Provide Notice Based Upon Facts Known To Court

The Second Department determined a decree (admitting decedent’s will to probate) issued by Surrogate’s Court should have been vacated on the ground that decedent’s daughter (Ross) was never properly served with the citation and, therefore, the court never obtained personal jurisdiction over her.  The Second Department explained that Surrogate Court should have fashioned a method of service, based upon the unique facts of the case known to the court, that was best calculated to notify Ross:

An elementary and fundamental requirement of due process in any proceeding which is accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”… . In making a determination as to whether notice is “reasonably calculated,” the unique information about an intended recipient must be considered, “regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case” … . Here, given that the Surrogate’s Court was aware that Ross and her family would be away from her home in Sloatsburg until sometime in late September 2008, and was vacationing in Long Beach Island during that time, and given that there was no indication that Ross’s address in Long Beach Island was unavailable, in order for notice of the probate proceeding to be reasonably calculated to reach Ross, the Surrogate’s Court should have at least directed that the supplemental citation be mailed to Ross’s address in Long Beach Island, instead of solely directing that the supplemental citation be mailed to Ross’s address in Sloatsburg.  Matter of Skolnick, 2013 NY Slip Op 05463, 2nd Dept 7-24-13

 

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Defendant’s Statements Made in Pre-Trial Plea Negotiations Should Not Have Been Admitted at Trial

The Second Department determined the prosecutor should not have been allowed to introduce at trial statements made by the defendant in plea negotiations (the error was deemed harmless however):

The defendant and the People executed an agreement, whereby they agreed that the People could introduce those statements against the defendant at a trial, inter alia, “to rebut any evidence” offered by him or on his behalf. At the trial, the Supreme Court found that the defendant had triggered this provision of the agreement and permitted the People to introduce the subject statements.

Statements made during the course of plea negotiations can be used against a defendant only if the People specifically bargained for that…. Under the circumstances of this case, the Supreme Court improperly found that the defendant’s trial attorney offered evidence and raised factual issues which triggered the agreement… .  People v Thompson, 2013 NY Slip Op 05473, 2nd Dept 7-24-13

 

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Padilla v Kentucky, Which Held Attorney’s Failure to Inform Client of Immigration Consequences of Plea Was Ineffective Assistance, Not Applied Retroactively Under New York Constitution

The Second Department determined Padilla v Kentucky, 559 US 356, which held an attorney’s failure to inform his or her client of the immigration consequences of a plea constituted ineffective assistance of counsel, should not be applied retroactively under the New York Constitution:

In People v Pepper (53 NY2d 213, cert denied sub nom. New York v Utter, 454 US 1162), the Court of Appeals addressed the issue of whether a new rule should be retroactively applied under the New York Constitution. It recognized three factors a court should weigh to determine whether to retroactively apply a new rule: (1) the purpose to be served by the new standard, (2) the extent to which law enforcement authorities relied upon the old standard, and (3) the effect a retroactive application of the new standard would have on the administration of justice (see id. at 220). The Court of Appeals explained that “the extent of the reliance and the nature of the burden on the administration of justice are of substantial significance only when the answer to the retroactivity question is not to be found in the purpose of the new rule itself” (id.). Thus, a new rule that goes “to the heart of a reliable determination of guilt or innocence” will be retroactively applied “where otherwise there could be a complete miscarriage of justice” (id. at 221). However, a new rule which is “only collateral to or relatively far removed from the fact-finding process at trial” (id.), will have only prospective application. Although the Supreme Court in Padilla held that the Sixth Amendment requires criminal defense counsel to inform their clients whether a guilty plea carries a risk of deportation, this new rule, rather than going to the heart of a reliable determination of guilt or innocence, instead concentrates on the defendant’s appreciation of the immigration consequences that may flow from an otherwise proper plea allocution … .

Retroactive application of Padilla is also not warranted under the second and third Pepper factors. With regard to law enforcement reliance, prior to Padilla, a defendant could prevail on an ineffective-assistance-of-counsel claim only if it was established that counsel rendered incorrect advice regarding the immigration consequences of the guilty plea and that the defendant was prejudiced thereby … . The failure to advise a defendant of the possibility of deportation did not constitute ineffective assistance of counsel …, and such failure to advise did not “affect the voluntariness of a plea of guilty or the validity of a conviction” (CPL 220.50[7]). Thus, under the old standard, prosecutors could recommend acceptance of plea allocutions even where the defendant had not been advised of the immigration consequences of entering into the plea …. As to the third factor, retroactive application of the Padilla rule would potentially lead to an influx of CPL 440.10 motions to vacate the convictions of defendants whose guilty pleas were properly entered and accepted by courts under the old standard …, thus adversely affecting the criminal justice system. Accordingly, we further find that under New York law, the Padilla rule should not be retroactively applied to cases like this one where the convictions became final prior to March 31, 2010, the date Padilla was decided.  People v Andrews, 2013 NY Slip Op 05469, 2nd Dept 7-24-13

 

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