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Insufficient Evidence of Depraved Indifference Assault and Assault on a Police Officer

The Second Department determined there was insufficient evidence to support defendant’s convictions for depraved indifference assault and assault on a police officer.  The facts did not demonstrate defendant acted with depraved indifference, nor was the injured police officer engaged in a “lawful duty” when he stopped defendant’s car in the absence of reasonable suspicion of criminal activity:

Under these facts, where the defendant was attempting to get away from the officers’ unlawful questioning, where the injuries were caused not by the direct crash, but when the police car pivoted after being hit, and where it all happened in an instant, “the evidence did not establish the degree of depravity and indifference to human life required for depraved indifference [assault]” ….  * * *

A person commits the crime of assault on a police officer when, “with intent to prevent a . . . police officer . . . from performing a lawful duty, he [or she] causes serious physical injury to” the officer (Penal Law § 120.08). “To sustain a conviction of assault in the second [or first] degree under Penal Law § 120.05(3), the People must establish that the injured police officer was engaged in a lawful duty at the time of the assault by the defendant” … .Here, the police conduct in pulling in front of the defendant’s parked vehicle so as to block his ability to pull out of the parking space “constituted a stop, which required reasonable suspicion that the defendant [was] either involved in criminal activity or posed some danger to the police”…. However, Sergeant Pagnotta’s testimony was clear that, at no time prior to the positioning of the police car so as to block the defendant’s vehicle, nor during the ensuing encounter after Sergeant Pagnotta got out of the police car and approached the window of the defendant’s vehicle, was the defendant observed to be engaged in any criminal activity, or in any activity that would have aroused reasonable suspicion.  People v Hurdle, 2013 NY Slip Op 03849, 2nd Dept, 5-29-13

 

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Grabbing and Spinning a Person Does Not Constitute Unlawful Imprisonment​

The Second Department determined that grabbing a woman by the waist, spinning her around and releasing her did not amount to unlawful imprisonment:

…[T]he evidence was legally insufficient to establish, beyond a reasonable doubt, that the appellant committed acts which, if committed by an adult, would have constituted the crime of unlawful imprisonment in the second degree (see Penal Law § 135.05). At the fact-finding hearing, the complaining witness testified that the appellant grabbed her by the waist and spun her around, and that, when she ordered him to release her, he immediately complied. This evidence was legally insufficient to establish, beyond a reasonable doubt, that the appellant “restrict[ed] a person’s movements intentionally and unlawfully in such manner as to interfere substantially with [her] liberty by moving [her] from one place to another, or by confining [her] either in the place where the restriction commence[d] or in a place to which [s]he ha[d] been moved, without consent and with knowledge that the restriction [was] unlawful” (Penal Law § 135.00; see Penal Law § 135.05…).  Matter of Terry JP, 2013 NY Slip Op 03844, 2nd Dept, 5-29-13

 

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Town Failed to Demonstrate It Did Not Create Dangerous Condition—Summary Judgment in Favor of Town Denied—Exception to Written Notice Requirement​

The Second Department determined, in a slip and fall case, the town did not demonstrate (in support of its motion for summary judgment) that it did not create the alleged dangerous condition (an allegedly inadequate cover on a catch basin):

If one of the recognized exceptions applies, written notice [of a defect] is not required…. Here, the plaintiff clearly alleged in her pleadings that the Town’s construction of the catch basin was faulty in that an inadequate cover was installed on the catch basin. Consequently, the Town was required to address that issue satisfactorily as part of its initial burden on its motion for summary judgment…. The Town failed to establish, prima facie, that it had not created the dangerous condition by placement of an inadequate cover on the catch basin; in this respect, a defendant does not establish its entitlement to summary judgment merely by pointing out gaps in the plaintiff’s case …. In the absence of the required showing, the Town’s motion was properly denied, without regard to the sufficiency of the plaintiffs’ papers submitted in opposition….  Giaquinto v Town of Hempstead, 2013 NY Slip Op 03814, 2nd Dept, 5-29-13

 

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Defendant Did Not Demonstrate Plaintiff was Special Employee​

The Second Department determined the defendant did not demonstrate plaintiff was its special employee and therefore plaintiff was not restricted to Workers’ Compensation as his remedy:

In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee’s work, the method of payment, the furnishing of equipment, and the right to discharge…. “A significant and weighty factor . . . is who controls and directs the manner, details and ultimate result of the employee’s work'”….

Contrary to the determination of the Supreme Court, the defendant failed to come forward with sufficient evidence of a special employment relationship to demonstrate its prima facie entitlement to judgment as a matter of law, since its submissions on the motion did not establish, inter alia, that it controlled and directed the manner, details, and ultimate result of the plaintiff’s work… . Nolan v Irwin Contr, Inc, 2013 NY Slip Op 03648, 2nd Dept, 5-22-13

 

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Question of Fact About Whether Release Procured by Fraud or Duress

In upholding the denial of defendant’s (Countrywide’s) motion for summary judgment based upon the execution of a release, the Second Department determined that the allegations of fraud and duress in procurement of the release raised a question of fact:

 The Countrywide defendants’ motion was properly denied. Although the plaintiff’s execution of the release in favor of the defendants was “a jural act of high significance” …, “a motion to dismiss should be denied where fraud or duress in the procurement of the release is alleged”… . Here, the plaintiff sufficiently alleged that the Countrywide defendants procured the release by means of fraud or duress, so as to warrant denial of their motion.   Warmhold v Zagarino, 2013 NY Slip Op 03668, 2nd Dept, 5-22-13

 

Theory of Damages in Contract Action​

The Second Department explained the theory underlying damages for breach of contract and noted that damages are usually ascertained as of the date of the breach:

It has long been recognized that the theory underlying damages for breach of contract is to make good or replace the loss caused by the breach… . Damages are intended to return the parties to the point at which the breach arose and to place the nonbreaching party in as good a position as it would have been had the contract been performed (…Restatement [Second] of Contracts §§ 347, comment a; § 344). Thus, damages for breach of contract are ordinarily ascertained as of the date of the breach… .. Seidman v Industrial Recycling Props, Inc, 2013 NY Slip Op 03659, 2nd Dept, 5-22-13

 

Unambiguous Release Is a Jural Act of High Significance Which Must Be Enforced

In explaining the legal principles underlying the enforcement of releases, the Second Department wrote:

Public policy favors the enforcement of settlements …, and a release is “a jural act of high significance without which the settlement of disputes would be rendered all but impossible” ….. Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release…, and should not “be converted into a starting point for renewed litigation” …


“[A] release is governed by principles of contract law”…, and a release “that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms”…. “Whether or not a writing is ambiguous is a question of law to be resolved by the courts” … . Inter-Reco, Inc v Lake Park 175 Froehlich Farm, LLC, 2013 NY Slip Op 03637, 2nd Dept, 5-22-13

 

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Civil Versus Criminal Contempt Explained in Context of Imposition of Fines or Monetary Penalties

In a divorce proceeding plaintiff sought a contempt finding and the imposition of monetary penalties or fines in connection with defendant’s failure to comply with a court order.  The Second Department explained the principles underlying civil versus criminal contempt as follows:

“[U]nlike fines for criminal contempt where deterrence is the aim and the State is the aggrieved party entitled to the award, civil contempt fines must be remedial in nature and effect. The award should be formulated not to punish an offender, but solely to compensate or indemnify private complainants”…. In the instant matter, the Supreme Court held the defendant in civil contempt. “Coercive penalties designed to modify the contemnor’s behavior, generally speaking, are civil in nature, while penalties meant to punish the contemnor for past acts of disobedience are criminal…. Thus, a fine “is considered civil and remedial if it either coerces the recalcitrant party into compliance with a court order, or compensates the claimant for some loss . . . If a fine is not compensatory, it is civil only if the contemnor is given an opportunity to purge” … . Here, where the plaintiff failed to prove an actual loss, any penalty that punished the defendant for her past acts of disobedience would have been within the rubric of a criminal contempt and thus improper within this civil contempt adjudication … .  Ruesch v Ruesch, 2013 NY Slip Op 03655, 2nd Dept, 5-22-13​

 

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Subpoena Can Not Be Used for Discovery Purposes​

The Second Department noted that a subpoena duces tecum may not be used for discovery purposes:

“[A] subpoena duces tecum may not be used for purposes of discovery or to ascertain the existence of evidence”…. Here, the subpoena duces tecum served by the defendants improperly sought production of certain materials that the defendants had failed to seek during the discovery process, or that had previously been the subject of an unsuccessful motion to compel disclosure. Under these circumstances, the Supreme Court properly granted the separate motions of the plaintiff and the third-party defendant to quash the subpoena duces tecum … . Wahab v Agris & Brenner, LLC, 2013 NY Slip Op 03667, 2nd Dept, 5-22-13

 

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Expert’s Affidavit Should Have Been Considered in Summary Judgment Motion Even though Expert Had Not Been Disclosed​

In a slip and fall case, the defendant moved for summary judgment.  Because the plaintiff’s expert had not been previously disclosed, Supreme Court refused to consider the expert’s affidavit.  In reversing, the Second Department wrote:

 “[A] party’s failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party’s experts in the context of a timely motion for summary judgment” …. Under the circumstances of this case, it was an improvident exercise of discretion to refuse to consider the affidavit of the plaintiff’s expert submitted in opposition to the respondents’ motion … . Salcedo v Weng Qu Ju, 2013 NY Slip Op 03656, 2nd Dept, 5-22-13