The Second Department determined the “zone of danger” theory of recovery for witnessing the death of someone in the plaintiff’s “immediate family” did not allow recovery for witnessing the death of a man, not plaintiff’s biological father, who was the only person plaintiff had ever known as a father figure. Thompson vs Dhaiti, 2011-11215, Index No. 24951/09 Second Dept. 2-13-13
When an insured settles with a tortfeasor in violation of a condition requiring his or her insurer’s written consent to settle, and fails to preserve the insurer’s subrogation rights, the insurer is prejudiced, and the insured is prohibited from asserting a claim for underinsured motorist benefits …”. Matter of Travelers Home and Marine Insurance Company vs Kanner, 2012-02625, Index No. 16172/11 Second Dept. 2-13-13
In a prison disciplinary proceeding, the hearing officer’s refusal to provide the inmate with the instructions for the operation of the machine which was used to test his urine for the presence of drugs required annulment of the determination the prisoner had used a controlled substance. Matter of Marshall vs Fischer, 2012-01538, Index No. 6260/11 Second Dept. 2-13-13
This decision includes a clear discussion of the doctrines of res judicata and collateral estoppel, the (non)application of those doctrines to a “nominal party,” and the (non)application of those doctrines to a prior proceeding with a lower standard of proof. Matter of Sherwyn Toppin Marketing Consultants, Inc. vs New York State Liquor Authority, 2012-01119, Index No. 24980/11 Second Dept. 2-6-13
“The protection against lawsuits brought by injured workers that is afforded to employers by Workers’ Compensation Law [sections] 22 and 29(6) also extends to entities that are alter egos of the entity which employs the plaintiff …”. Quizhpe vs Luvin Construction Corp., 2012-01175, Index No. 21761/06 Second Dept. 2-6-13
A new trial was ordered and the defendant’s motion to suppress identification evidence was granted by the Second Department. A police radio broadcast described a robbery in progress by two males wearing black jackets, one wearing blue jeans, the other wearing black jeans. The complainant described the robbers only as “wearing dark clothing,” one taller than the other, and one with a hood. The Court held that these descriptions were not sufficient to provide reasonable suspicion to stop and detain the defendant, who was dressed in a dark gray and dark green camouflage jacket and was standing alone 20 blocks from the crime scene. People v Polhill, 2010-01680, Ind. No. 943/09 Second Dept. 1-30-13
DeBour, street stops
In a full-fledged opinion by Justice Skelos, the Second Department struck down a so-called “program” which had been put in place by the Queens County District Attorney’s Office. Pursuant to the “program,” a “preamble” was read to the defendant just before the Miranda warnings were given. The Second Department determined the preamble rendered the Miranda warnings ineffective. The Court noted that the defendant was told of his privilege against self-incrimination only after being told (in the preamble) that this was his “only opportunity” to refute what others have said, to correct any misperceptions, and to try to help himself. The preamble suggested that the prosecutor would not investigate his version of events if he declined to speak with the prosecutor at that time. Conversely the preamble suggested that, if the defendant agreed to be interviewed, the prosecutor would assist him with such an investigation. This suggestion, the Second Department held, “is contrary to the very purpose of the warning that anything a suspect says can be used against him … . In essence, the preamble suggests that invoking [the right to remain silent] will bear adverse, and irrevocable, consequences.” People v Dunbar, 2010-04786, Ind. No. 1217/09 Second Dept. 1-30-13
In a Grand Larceny 3rd case, based on the theft of cell phones, the value of the stolen phones was proved by the testimony of the store manager who did not provide “a basis of knowledge” for her statement of value. The Second Department noted that “ ‘[c]onclusory statements and rough estimates of value’ that are unsupported by a basis of knowledge are insufficient…”. The conviction was reduced to petit larceny, which requires no proof of value. People v Sutherland, 2011-06497, Ind. No. 12436/08 Second Dept. 1-23-13
The Second Department determined the trial judge committed reversible error when he answered a juror’s questions in the robing room outside the presence of the defendant, the lawyers and the other jurors. The questions included “when the defendant could be deemed to be responsible ‘by the law’ ….”. Because the questions were not “ministerial’ and related to “the substantive legal and factual issues of the trial…” the error affected the “organization of the court or the mode of proceedings prescribed by law.” Preservation is not required for such a “mode of proceedings” error. People v Rivera, 2009-11428, Ind. No. 9921/07 Second Dept. 1-23-13
The Second Department held that the letter from the buyer’s attorney to the seller’s attorney stating that the buyer was prepared to close “on any date … within the next ten days,” and that the buyer would make himself available “at any time and location so designated by you,” and requested that the seller’s attorney “contact me within the next ten days to schedule a closing” did not make “time of the essence” because “it did not clearly and distinctly set a new date and time for closing, and it did not inform the defendant that he would be considered in default if he did not perform by a given date…”. Latora v Ferreira, 2011-09673, Index No. 20462/05 Second Dept. 1-23-13