You are here: / Second Department

Tag Archive for: Second Department

,

Assault by Another Student—Question Whether School District Had Notice of Dangerous Conduct Precluded Summary Judgment to Plaintiff

In reversing the trial court’s grant of summary judgment to the plaintiff on the issue of liability, the Second Department determined there was a question of fact concerning whether the defendant school district adequately supervised students (the plaintiff was assaulted by another student):

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Braunstein v Half Hollow Hills Cent. Sch. Dist., 2013 NY Slip Op 02039, 2012-04442, Inex No 23108/09, 2nd Dept. 3-27-13

THIRD PARTY ASSAULT

, ,

Lawsuit Prohibited by Unambiguous Release

In reversing the trial court, the Second Department determined a medical malpractice complaint should have been dismissed based on the unambiguous language of a release signed by the plaintiff:

The action should have been dismissed as against defendants-appellants based on the unambiguous language in the release, which clearly intended to put an end to the action …. Given the unambiguous terms of the release, the motion court should not have considered extrinsic evidence… . Bernard v Sayegh, 2013 NY Slip Op 02027, 8619, 111756/06, 1st Dept. 3-26-13

 

Petition for Retention for Involuntary Psychiatric Treatment Granted

In determining the hospital’ petition for retention of a patient for involuntary psychiatric care should have been granted, the Second Department wrote:

Paulina D. is a 23-year-old woman who suffers from severe anorexia nervosa. She has been at Elmhurst Hospital (hereinafter the Hospital) “continually” for 15 months. At one point during that period, Paulina D. weighed only 52 pounds. Orders were issued directing her involuntary admission and retention at the Hospital pursuant to Mental Hygiene Law §§ 9.27 and 9.33. In January 2013, the Hospital petitioned for an order authorizing Paulina D.’s continued involuntary retention pursuant to Mental Hygiene Law § 9.33. …

“Pursuant to Mental Hygiene Law § 9.33, the Supreme Court may authorize the retention of a patient in a hospital for involuntary psychiatric care upon proof by clear and convincing evidence that the patient is mentally ill and in need of further care and treatment, and that the patient poses a substantial threat of physical harm to himself [or herself] or others” … .  Matter of Paulina D, 2013 Slip Op 01988, 2012-02212, Index No 500039/13, 2nd Dept 3-22-13

 

,

Prior Written Notice of Defect Not Needed Where It Is Alleged Municipality Created Dangerous Condition.

In finding the plaintiff had raised a question of fact about whether the municipality affirmatively created a dangerous condition (a curved section of fence alongside a roadway), the Second Department wrote:

Where, as here, a municipality has enacted a prior written notice statute, it may not be subject to liability for personal injuries caused by a defective street or sidewalk condition absent proof of prior written notice or an exception thereto … . “The Court of Appeals has recognized two exceptions to this rule, namely, where the locality created the defect or hazard through an affirmative act of negligence [and] where a “special use” confers a special benefit upon the locality'” … .

The affirmative creation exception “[is] limited to work by the City that immediately results in the existence of a dangerous condition” … . Thus, while the eventual emergence of a dangerous condition as a result of wear and tear and environmental factors does not constitute an affirmative act of negligence …, where, as here, the allegedly dangerous condition would have been immediately apparent, the affirmative creation exception applies … . Laracuente v City of New York, 2013 NY Slip Op 01810, 2011-09475, Ind No 17543/06, Second Dept. 3-20-13

 

 

,

No Notice of Defect Needed Where Municipality Affirmatively Created It.

The Second Department reversed the grant of summary judgment to the defendant village because the village did not rule out the possibility that the sidewalk defect had been affirmatively created by negligent design and construction, an exception to the requirement that the village have prior notice of a sidewalk defect before a personal injury suit will be allowed:

Here, the defendant established that it did not receive prior written notice of the alleged dangerous condition. Nonetheless, it failed to demonstrate its prima facie entitlement to judgment as a matter of law. “[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” … . Here, the plaintiff’s pleadings alleged that the defendant affirmatively created the dangerous condition that caused the accident through negligence in the design and construction of the sidewalk … . Under these circumstances, the defendant was required to eliminate all triable issues of fact as to whether it affirmatively created the alleged dangerous condition through negligent design and construction to sustain its prima facie burden … . The defendant failed to do so, and therefore, its motion for summary judgment should have been denied without regard to the sufficiency of the plaintiff’s opposition papers …. Carlucci v Village of Scarsdale, 2013 NY Slip Op 01798, 2012-09179, Second Dept. 3-20-13

slip and fall

, , ,

False Arrest, Malicious Prosecution, and 1983 Actions Allowed to Proceed

In reversing the trial court’s grant of summary judgment to the defendants in an action for false arrest, malicious prosecution and violation of 42 USC 1983, the Second Department wrote:

…[I]n opposition to the Allstate defendants’ prima facie showing, the plaintiff raised triable issues of fact as to whether the Allstate defendants affirmatively induced law enforcement officials to act by taking an active part in the arrest and procuring it to be made, or by engaging in active, officious, and undue zeal to the point where the law enforcement officials were not acting of their own volition … . The plaintiff’s submissions were also sufficient to raise triable issues of fact as to whether the Allstate defendants intentionally provided false information to law enforcement officials or withheld material information …, thereby permitting an inference of actual malice … . The plaintiff’s submissions additionally raised triable issues of fact as to whether the Allstate defendants “engaged in a conspiracy with state officials to deprive [plaintiff] of federal rights” … . Accordingly, the Supreme Court should have denied the Allstate defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. Robles v City of New York, 2013 NY Slip Op 01814, 2011-11017, Index No 27364/07, 2nd Dept. 3-20-13

 

Liability of Prime Contractors and Subcontractors Explained

In affirming the motion court’s grant of summary judgment to the defendant prime contractor and defendant subcontractors, the Second Department clearly described the relevant proof requirements for Labor Law 200, 240 (1), 241 (6) and common-law negligence causes of action.  Giovanniello v E W Howell, Co., LLC, 2013 NY Slip Op 01805, 2011-11465, Ind No 26676/09, 2nd Dept. 3-20-13

 

, ,

Weight of Evidence Review Applies to More than Just Credibility—It Also Applies to Failure to Prove Elements Beyond a Reasonable Doubt

The Second Department determined the conviction for “criminal sexual act in the first degree” was against the weight of the evidence because the relevant testimony, although credible, did not prove all the elements of the crime beyond a reasonable doubt:

The defendant correctly contends that his conviction of criminal sexual act in the first degree is against the weight of the evidence. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] …, we essentially sit as the “thirteenth juror” and “decide[ ] which facts were proven at trial” … . Here, we take no issue with the credibility of the People’s witnesses, or the jury’s decision to credit the complainant’s version of events over that of the defendant. However, weight of the evidence review is not limited to issues of credibility … . Rather, “in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution’s witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt” … .  People v Ross, 2013 NY Slip Op 01860, 2009-00582, Ind No 11304/07, 2nd Dept. 3-20-13

 

, ,

Conviction of Endangering Welfare of a Child Against Weight of Evidence; Defendant Did Not Open Door to Questioning About Prior Bad Acts Ruled Off Limits in Sandoval Hearing; Rape Shield Law Exception Applied

In reversing the conviction, the Second Department determined that the acquittal on a rape count rendered the conviction on a related “endangering the welfare of a child” count “against the weight of the evidence.”  The Second Department also ruled that questions posed by defense counsel did not “open the door” to questioning by the prosecutor about prior “bad acts” which the trial court had ruled off limits in a Sandoval hearing.  The Second Department further ruled that an exception to the “rape shield law” was applicable and evidence the complainant had sex with defendant’s brother should have been admitted because it was relevant to a defense-theory alleging the brother had committed acts with which the defendant was charged. In ordering a new trial on one of the counts, the Second Department found that “the cumulative effect of certain trial errors deprived defendant of a fair trial…”.  In discussing the Sandoval error, the Second Department wrote: 

The purpose of a Sandoval hearing is to provide the defendant with “definitive advance knowledge of the scope of cross-examination as to prior conduct to which he will be subjected,” so that the defendant can decide whether to take the witness stand … . In the interest of fairness, a trial court’s authority to change its Sandoval ruling is limited once the defendant has decided to testify in good faith reliance on that ruling … . “When a defendant testifies to facts that are in conflict with the precluded evidence, he opens the door on the issue in question, and he is properly subject to impeachment by the prosecution’s use of the otherwise precluded evidence” … .

With respect to the rape shield law, the Second Department wrote:

A woman’s character or reputation for chastity is irrelevant to a charge that she was sexually abused … . Thus, the Rape Shield Law, codified in CPL 60.42, provides that “[e]vidence of a victim’s sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense defined in article one hundred thirty of the penal law [i.e., sex offenses].” CPL 60.42 also provides five statutory exceptions. The first four exceptions allow the admission into evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances, which are inapplicable here … . The fifth exception, however, “vest[s] discretion in the trial court” … . Pursuant to CPL 60.42(5), evidence of a victim’s prior sexual conduct may be introduced upon a determination by the court that such evidence is “relevant and admissible in the interests of justice” (CPL 60.42[5]…). The Court of Appeals has recognized that, “in the interests of justice,” evidence of a complainant’s sexual conduct may be admissible if it is relevant to a defense … . In contrast, such evidence must be precluded if it does not tend to establish a defense to the crime, and will only harass the victim and possibly confuse the jurors … .  People v Fisher, 2013 NY Slip Op 01847, 2011-06453, Ind No 3421/09, 2nd Dept. 3-20-13​

 

 

Challenges for Cause Should Have Been Granted 

In reversing the conviction, the Second Department determined two juror challenges for cause should have been granted because the jurors indicated they would tend to give added weight to the testimony of police officers and the court did not seek unequivocal assurances the jurors could set aside their bias. Defendant’s co-defendant’s judgment of conviction was reversed for the same reasons.

[The following quotation is from the decision reversing the co-defendant’s, Bernard Brothers’, judgment of conviction:

…[T]he County Court erred in denying the defendant’s challenges for cause with respect to two prospective jurors. One of the prospective jurors was a volunteer for the Police Athletic League who knew many police officers, including those assigned to the precinct in which the crime occurred. While he initially stated, “I think I could keep an open mind,” and he did not “think” that the fact that police officers from the precinct would testify at the trial would affect his ability to sit fairly on the case, he subsequently agreed that he “might” give police testimony a “leg up,” and accord such testimony “a little built in credibility.” Another prospective juror indicated that he would be inclined to accept the testimony of police officers as truthful unless there was a “reason that’s brought up that would make me think otherwise,” that he would have to have “a sense of inconsistency” with respect to the testimony of police officers, and that “unless there is a reason why they would lie or not tell the truth,” he would accept the testimony of police officers. It is undisputed that, after the County Court denied the challenges for cause to these two prospective jurors, the defendant exercised peremptory challenges and subsequently exhausted all of his peremptory challenges.

The two prospective jurors had “a state of mind that [was] likely to preclude [them] from rendering an impartial verdict” (CPL 270.20 [1] [b]), and they did not provide to the County Court “an unequivocal assurance” that they could “set aside any bias and render an impartial verdict based on the evidence” … . Accordingly, the County Court should have granted the challenges for cause with respect to these two prospective jurors, and the matter must be remitted to the County Court, Suffolk County, for a new trial.  People v Brothers, 95 AD3d 1227]

People v Buggsward, 2013 NY Slip Op 01843, Second Dept 3-20-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy