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ALLOWING A POLICE OFFICER TO NARRATE A VIDEO ALLEGEDLY DEPICTING THE DEFENDANT COMMITTING ASSAULT WAS REVERIBLE ERROR; THE FUNCTION OF THE JURY WAS USURPED (SECOND DEPT).

The Second Department, vacating some of defendant’s convictions, determined it was error to allow a police officer to interpret the video alleged to depict defendant committing assault:

… [T]he trial court should have precluded the testimony of a police detective regarding his opinion as to what a video of the assault on the first victim depicted. Such testimony improperly usurped the jury’s function by interpreting, summarizing, and marshaling the evidence, and was improperly admitted into evidence as relevant to the detective’s investigation. Rather than aiding the jury in understanding the investigation, the detective improperly narrated the video and the detective’s interpretation of the video, which was not necessarily supported by the video itself, also improperly “instruct[ed] the jury on the existence of the facts needed to satisfy the elements of the charged offense” … . The error cannot be deemed harmless with regard to the convictions of assault in the first degree and gang assault in the first degree, which stemmed from the assault upon the first victim, and with regard to the conviction of criminal possession of a weapon in the third degree, since the evidence of the defendant’s guilt of those crimes, without reference to the error, was not overwhelming, and it cannot be said that there is no significant probability that the jury would have acquitted the defendant on those charges had it not been for the error … . People v Ramos, 2023 NY Slip Op 03709, Second Dept 7-5-23

Practice Point: It was the jury’s role to interpret a video of the assault. Allowing a police officer to narrate the video usurped the function of the jury.

 

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DEFENSE COUNSEL DID NOT OBJECT TO AN ACCOMPLICE’S TESTIMONY ABOUT THE GUILTY PLEA ENTERED BY A NON-TESTIFYING PARTICIPANT IN THE SHOOTING (DEFENDANT WAS THEREBY DEPRIVED OF THE RIGHT TO CONFRONT A WITNESS AGAINST HIM); DEFENSE COUNSEL DID NOT REQUEST THE ACCOMPLICE JURY INSTRUCTION (WHICH REQUIRES CORROBORATION OF THE ACCOMPLICE’S TESTIMONY) OR THE MISSING WITNESS JURY INSTRUCTION; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. An accomplice, Brenda, testified that another accomplice, Roberto, had pled guilty for his role in the shooting and Roberto’s cooperation agreement was placed in evidence with Brenda on the stand. Brenda also testified that defendant made incriminating statements after the shooting. Although the prosecution had informed defense counsel Roberto would be called as a witness, Roberto was not called. Defendant was therefore deprived of right to confront Roberto. In addition, the accomplice jury instruction was not requested or given and the missing witness jury instruction was not requested or given:

… [D]efense counsel failed to object to evidence elicited by the People pertaining to the guilty plea of Roberto, a nontestifying alleged accomplice, including the introduction into evidence of the cooperation agreement in which Roberto agreed to give “meaningful and truthful information” concerning the shooting. The admission of this evidence violated the defendant’s Sixth Amendment right to confront the witnesses against him … . * * *

… [D]efense counsel failed to request either an accomplice-in-law or accomplice-in-fact jury instruction with respect to Brenda’s testimony. Since accomplice testimony is “marked by obvious self-interest,” a defendant “‘may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense'” … . * * *

… [D]efense counsel failed to timely request a missing witness charge … . People v Alvarenga, 2023 NY Slip Op 03704, Second Dept 7-5-23

Practice Point: Defense counsel was deemed ineffective (1) for failing to assert defendant’s right to confront the witnesses against him when an accomplice testified about a non-testifying participant in the shooting, (2) for failing to request the accomplice jury instruction, and (3) in failing to request the missing witness jury instruction.

 

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MOTHER WAS AWARE OF THE GROUND FOR DISQUALIFYING FATHER’S ATTORNEY FOR YEARS BEFORE THE MOTION TO DISQUALIFY WAS MADE; MOTHER THEREBY WAIVED ANY OBJECTION TO FATHER’S COUNSEL (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined mother’s motion to disqualify father’s attorney should not have been granted because mother was aware of the ground for the motion in 2019 and did not move to disqualify until 2022. She was deemed to have waived any objection to father’s attorney:

The Family Court improvidently exercised its discretion in granting that branch of the mother’s motion which was to disqualify the father’s attorneys on the basis that the father’s current wife, the children’s stepmother, works as a paralegal in the law office that employs the father’s attorneys. * * *

Where a party seeks to disqualify its adversary’s counsel in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time … . If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation … . …

Here, the mother was aware of the employment of the father’s current wife at the law firm representing the father since 2019. Accordingly, the mother’s failure to move to disqualify the father’s attorneys until April 2022 constituted a waiver of her objection to the father’s legal representation … . In any event, the mother failed to demonstrate that the children will be prejudiced by the father being represented by his current attorneys. There is no evidence that during the course of her employment, the father’s current wife worked on the father’s case or that she otherwise communicated with the children about the case … . Matter of Marotta v Marotta, 2023 NY Slip Op 03694, Second Dept 7-5-23

Practice Point: If a party is aware of the ground for disqualification of the opposing party’s counsel but does not make a timely motion to disqualify (here years had passed), the moving party will be deemed to have waived any objection to opposing counsel.

 

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BECAUSE, BASED ON A LINE OF DUTY REPORT, THE CITY HAD TIMELY KNOWLEDGE OF THE CIRCUMSTANCES AND LOCATION OF PETITIONER’S SLIP AND FALL, THE CITY WAS NOT PREJUDICED BY A DELAY IN FILING THE NOTICE OF CLAIM; THE PETITION FOR LEAVE TO FILE THE LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE THE ABSENCE OF A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim in a slip and fall case should have been granted, despite petitioner’s failure to provide a reasonable excuse for the delay. The city had timely notice of the incident based on a line of duty report, and the city, because it had timely notice, was not prejudiced by the delay:

The line-of-duty injury report prepared and filed shortly after the petitioner’s accident provided the City with timely actual knowledge of the essential facts constituting the claim. Further, its specificity regarding the location and circumstances of the incident permitted the City to readily infer that a potentially actionable wrong had been committed … .

Furthermore, as the City acquired timely knowledge of the essential facts constituting the claim, the petitioner met his initial burden of showing that the City would not be prejudiced by the late notice of claim … . In response to the petitioner’s initial showing, the City failed to come forward with particularized evidence demonstrating that the late notice of claim substantially prejudiced its ability to defend the claim on the merits … .

Since the City had actual knowledge of the essential facts underlying the claim and no substantial prejudice to the City was demonstrated, the petitioner’s failure to provide a reasonable excuse for the delay in serving the notice of claim did not serve as a bar to granting leave to serve a late notice of claim … .  Matter of Brown v City of New York, 2023 NY Slip Op 03693, Second Dept 7-5-23

Practice Point: Where the municipality, by virtue of a report, has timely and specific knowledge of a potential claim, a petition for leave to file a late notice of claim may be granted even where, as here, the petitioner does not have a reasonable excuse for the delay.

 

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BECAUSE PETITIONER HAD SUBSTANTIALLY PREVAILED ON THE FOIL CAUSE OF ACTION, PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS, DESPITE THE FACT THAT MUCH OF THE LEGAL REPRESENTATION WAS BY PRO BONO COUNSEL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the petitioner was entitled to attorney’s fees and litigation costs because petitioner had substantially prevailed on its FOIL causes of action. The fact that much of the legal representation was pro bono was not a bar to recovery:

… [T]he petitioner substantially prevailed on its FOIL cause of action, and the Town had no reasonable basis for denying access to the responsive documents. Accordingly, the petitioner was entitled to an award of reasonable attorneys’ fees and litigation costs incurred on the FOIL cause of action … . The fact that much of the petitioner’s representation was undertaken by pro bono counsel did not affect the petitioner’s entitlement to reasonable attorneys’ fees and litigation costs under the statute … . Matter of Ateres Bais Yaakov Academy of Rockland v Town of Clarkstown, 2023 NY Slip Op 03692, Second Dept 7-5-23

Practice Point: A party who “substantially prevails” on a FOIL cause action is entitled to attorney’s fees and litigation costs, even when much of the legal work was done by pro bono counsel.

 

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IN THIS SIDEWALK/CURB SLIP AND FALL CASE, THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE CONDITION AND THE ABUTTING PROPERTY OWNER DEMONSTRATED HE DID NOT CREATE THE CONDITION OR CAUSE THE CONDITION BY SPECIAL USE (SECOND DEPT).

​The Second Department, reversing Supreme Court in this sidewalk/curb slip and fall case, determined (1) the defendant village did not have written notice of the alleged dangerous condition. and (2), the defendant abutting property owner did create the condition or cause the condition by special use. Therefore the complaint against both defendants should have been dismissed:

… [T]he Village correctly contends that, contrary to the Supreme Court’s conclusion, it was not required to establish both that it lacked prior written notice of the defect and that it had not created the defect … . Rather, upon the Village’s prima facie showing that it lacked prior written notice of the defect, the burden shifted to the plaintiff to demonstrate that an exception to the prior written notice statute applied … . As the plaintiff did not meet this burden, the court should have granted the Village’s motion, in effect, for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.

… Scipione [defendant abutting property owner] demonstrated, prima facie, that he did not create the defect, that he did not cause the defect to occur because of a special use, and that the relevant section of the Village Charter did not make abutting landowners liable for injuries caused by sidewalk defects … . With respect to the issue of special use, Scipione’s evidence showed that the intended use of the step on which the plaintiff allegedly fell was “the normal intended use of the public way,” and that he did not “derive[ ] a special benefit from that property unrelated to the public use” … . Morales v Village of Ossining, 2023 NY Slip Op 03690, Second Dept 7-5-23

Similar “written notice” issue and result in O’Connor v City of Long Beach, 2023 NY Slip Op 03702, Second Dept 7-5-23

Practice Point: Here the village demonstrated it did not have written notice of the sidewalk/curb defect which caused plaintiffs fall. Therefore the action against the village should have been dismissed.

Practice Point: Here the abutting property owner demonstrated he did not create the sidewalk/curb defect and did not cause the defect by special use. Therefore the action against the property owner should have been dismissed.

 

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THE AFFIDAVITS AND REAL ESTATE CONTRACT SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH UTTERLY REFUTED THE ALLEGATIONS OF UNLAWFUL DISCRIMINATION IN THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging unlawful discrimination in a real estate deal should not have been dismissed because the documentary evidence did not utterly refute the allegations in the complaint. After the real estate purchase offer was signed by both parties and the down payment was made, defendant’s attorney returned the down payment check with a letter saying that the defendant was no longer interested in selling to the plaintiff:

Here, neither the affidavits submitted in support of the defendant’s motion nor the purported contract between the defendant and another purchaser constituted documentary evidence within the intendment of CPLR 3211(a)(1) … , and the defendant’s evidentiary submissions were “insufficient to utterly refute the plaintiff’s factual allegations” … . Moreover, accepting the facts as alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference … , the complaint sufficiently stated a cause of action alleging unlawful discrimination pursuant to Administrative Code § 8-107(5). Jeffrey v Collins, 2023 NY Slip Op 03686, Second Dept 7-5-23

Practice Point: The affidavits and real estate contract submitted in support of the motion to dismiss did not utterly refute the allegations in the complaint and therefore did not support dismissal of the complaint based on documentary evidence.

 

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IN A SLIP AND FALL CASE, EVIDENCE OF GENERAL CLEANING AND INSPECTION PRACTICES DOES NOT PROVE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT MUST PROVE THE AREA WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE FALL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant City of New York did not demonstrate when the area where plaintiff slipped and fell was last cleaned or inspected. Therefore the city did not demonstrate a lack of constructive notice of the dangerous condition:

… [T]he defendants failed to establish … that they did not have constructive notice of the alleged hazardous snow and ice condition that caused the plaintiff to fall. The evidence submitted by the defendants in support of their motion did not show when the staircase was last cleaned or inspected in relation to when the subject accident occurred, but rather merely described their general cleaning and inspection practices for the staircase … . Islam v City of New York, 2023 NY Slip Op 03685. Second Dept 7-5-23

Practice Point: Once again an appellate court reiterates that proof of general cleaning or inspection practices does not prove a lack of constructive notice of the condition which caused a slip and fall.

 

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THE PROOF THE FORECLOSURE NOTICE WAS MAILED IN ACCORDANCE WITH RPAPL 1304 WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the mortgage company in this foreclosure action did not demonstrate compliance the the notice requirements of RPAPL 1304:

… [T]he copy of the notice contains no indication that it was sent by registered or certified mail, or by first-class mail … . Nor is there “[a] copy of any United States Post Office document indicating that the notice was sent by registered or certified mail as required by the statute” … . … [The affiant] did not attest to having any personal knowledge of, or familiarity with, [the company’s] actual standard mailing procedures during the relevant time period, which were designed to ensure that items are properly addressed and mailed … . Accordingly, [the affiant’s] assertion in his affidavit that the RPAPL 1304 notice was sent to the defendant on March 14, 2013, at the address of the mortgaged premises, “by registered or certified and first-class mail,” was unsubstantiated and conclusory … . Ditech Servicing, LLC v McFadden, 2023 NY Slip Op 03452, Second Dept 6-28-23

Practice Point: Yet another instance of the failure to prove the notice of foreclosure was mailed in accordance with RPAPL 1304.

 

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THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT CASE SUFFICIENTLY ALLEGED CLAIMANT’S INJURY, DEFENDANT’S FAILURE TO PROTECT CLAIMANT WHILE IN FOSTER CARE AND THE TIME THE CLAIM AROSE (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the Notice of Claim in this Child Victims Act proceeding sufficiently described claimant’s injury, the state’s failure to protect claimant while in foster care, and the time when the claim arose:

… [T]he claim sufficiently provided the defendant with a description of the manner in which the claimant was injured, and how the defendant was negligent in allegedly failing to protect the claimant from sexual abuse while a resident in a state-certified foster care facility. The claimant is not required to set forth the evidentiary facts underlying the allegations of negligence in order to satisfy the section 11(b) “nature of the claim” requirement … . As the claim is sufficiently detailed to allow the defendant to investigate and ascertain its liability, it satisfies the nature of the claim requirement of Court of Claims Act § 11(b)… .

… The claim alleges that the claimant was sexually abused repeatedly in 1992 and 1993, on numerous and regular occasions, including conduct taking place in his room three to four times a week. This Court has stated recently in the context of the CVA, that “[w]e recognize that in matters of sexual abuse involving minors, as recounted by survivors years after the fact, dates and times are sometimes approximate and incapable of calendrical exactitude” … . Thus a claimant commencing a claim pursuant to the CVA is not required to allege the exact date on which the sexual abuse occurred … . As the claim here sufficiently alleges the time when the abuse occurred, the Court of Claims properly declined to dismiss the claim on that ground … . Davila v State of New York, 2023 NY Slip Op 03451, Second Dept 6-28-23

Practice Point: In this Child Victims Act case against the state alleging the failure to protect claimant in foster care, the Notice of Claim sufficiently alleged the injury, defendant’s negligence and the time the claim arose.

 

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