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DESPITE THE FACT THAT PLAINTIFF COULD NOT SAY WHICH OF TWO CRACKS IN THE PAVEMENT CAUSED HIS FALL, THE CAUSE OF THE FALL WAS SUFFICIENTLY IDENTIFIED TO WITHSTAND SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted on the ground plaintiff could not identify the cause of his fall. Plaintiff alleged that one of two cracks in the pavement caused the fall:

Plaintiff testified that, on the day of the incident, the weather was clear and there was no snow or debris on the surface of the parking lot. He had parked his car in the parking lot and was approaching the front door of the store when his foot suddenly “hit something along the pavement and . . . stopped,” causing him to fall to the ground. An individual who was walking behind plaintiff came to his aid, helping plaintiff up off the ground and assisting him back to his vehicle. At the time of his fall, plaintiff did not look at the ground to determine the cause. However, he recalled that, after being helped back to his vehicle, he looked back and noticed a cracked area of the pavement where he had fallen. Plaintiff was shown photographs of the parking lot and identified the location of his fall by circling in one of the photographs an uneven area of the pavement with two cracks in close proximity to one another. Upon further questioning, plaintiff was unable to identify which of the two cracks caused the fall, but repeatedly testified that he knew it was one of those two cracks based upon where he landed when he fell.

… Although plaintiff’s statements were not without some inconsistencies, he was steadfast in his testimony that he tripped on one of the two identified cracks in the pavement of the parking lot. Despite Supreme Court’s suggestion to the contrary, plaintiff was not required to state for certain which particular crack caused him to fall in order to withstand summary judgment … . Bovee v Posniewski Enters., Inc., 2022 NY Slip Op 03561, Third Dept 6-2-22

Practice Point: Plaintiff was able to testify that one of two cracks in the pavement was the cause of his fall. The cause was sufficiently identified to withstand summary judgment.​

 

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IN THIS Y-INTERSECTION TRAFFIC ACCIDENT CASE, (1) THE TOWN DEMONSTRATED IT DID NOT HAVE THE REQUIRED WRITTEN NOTICE THAT OVERGROWN FOLIAGE BLOCKED LINES OF SIGHT; (2) QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON THE CAUSES OF ACTION ALLEGING INADQUATE SIGNAGE AND NEGLIGENT ROADWAY DESIGN (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court in this Y-intersection traffic accident case, determined:(1) the cause of action against the town alleging overgrown foliage blocked drivers’ line of sight should have been dismissed because the town demonstrated it did not have written notice of the condition; (2) the written-notice requirement does not apply to the causes of action alleging inadequate signage and negligent design, which properly survived summary judgment:

By its submission of the affidavits of its Town Clerk and Superintendent of Highways who both averred that, after review of the pertinent records, no written notice was received pertaining to any alleged defective or dangerous condition caused by or from overgrown trees … , the Town successfully shifted the burden to plaintiffs to establish an issue of fact as to prior written notice, which plaintiffs failed to do … .

As to plaintiffs’ claims pertaining to inadequate signage and negligent design of the intersection, we agree that prior written notice requirements do not apply to these alleged defects … . * * *

… [T]he record demonstrates that, at the very least, at some point in the modern era the roads were paved and signage was installed. The Town has provided no proof as to when or how often these activities have been undertaken or that they were completed in compliance with the standards in place at the time … .

We further agree that Supreme Court properly rejected the Town’s contention that plaintiffs’ allegations of negligence by the Town were negated by [the drivers’] familiarity with the intersection. …  … [I]t cannot be said that this Y intersection was reasonably safe as a matter of law, nor did the Town conclusively demonstrate that placing the stop sign in a different location would have resulted in the same conduct by [the drivers]. … [T]riable issues of fact exist as to whether the signage at the intersection was a proximate cause of the accident … . Read v Bell, 2022 NY Slip Op 03563, Third Dept 6-2-22

Practice Point: In a traffic accident case, a municipality will not be liable for overgrown foliage which blocks lines of sight if the town has not been provided with written notice of the condition. The written-notice requirement does not apply to causes of action alleging the accident was caused by inadequate signage or negligent roadway design.

 

THE WORKERS’ COMPENSATION BOARD MISINTERPRETED SPECIAL CONSIDERATION 4 TO LIMIT SCHEDULE LOSS OF USE (SLU) OF PLAINTIFF’S LEG TO 10% (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined “special consideration 4” of the Workers’ Compensation Guidelines for Determining Impairment was not properly interpreted, resulting in a schedule loss of use (SLU) for claimant’s leg that is inappropriately low (10%):

Claimant argues that the Board’s interpretation of special consideration 4 and the instructions regarding its application is irrational and runs afoul of the purpose of Workers’ Compensation Law § 15 (3). We agree. “SLU awards are not given for particular injuries, but they are made to compensate an injured worker for his or her loss of earning power or capacity that is presumed to result, as a matter of law, from the residual permanent physical and functional impairments to statutorily-enumerated body members”  … . * * *

Relying on the plain language of the 2018 guidelines, the Board reads special consideration 4 as making no provision for additional values due to flexion or extension deficits, reasoning that the enumerated SLU range already takes into account range of motion deficits…. . …

Although special consideration 4 may arguably be said to rationally limit an SLU value when it is based upon only a finding of chondromalacia patella, the Board’s interpretation of the foregoing instructions results in the obvious inequity identified by claimant and cannot be upheld. To accept the Board’s interpretation would be to sanction an application of the 2018 guidelines that results in claimants with only meniscus tears routinely receiving SLU awards far greater than 7½ to 10% based upon their range of motion deficits … . Matter of Blue v New York State Off. of Children & Family Servs., 2022 NY Slip Op 03565, Third Dept 6-2-22

Practice Point: In determining the schedule loss of use (SLU) for claimant’s leg, the Workers’ Compensation Board misinterpreted “special consideration 4” resulting in an inappropriately low SLE percentage.

 

THE EDUCATION LAW PERMITS, BUT DOES NOT REQUIRE, SCHOOL DISTRICTS TO PROVIDE TRANSPORTATION TO STUDENTS ATTENDING NONPUBLIC SCHOOLS WHEN THE PUBLIC SCHOOLS ARE NOT IN SESSION (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Ceresia, determined that Education Law 3635 should not be interpreted to require school districts to provide transportation to nonpublic schools when public schools are not in session:

As is relevant here, Education Law § 3635 (1) (a) states that “[s]ufficient transportation facilities . . . shall be provided by the school district for all the children residing within the school district to and from the school they legally attend, who are in need of such transportation because of the remoteness of the school to the child or for the promotion of the best interest of such children.” * * *

We reject Supreme Court’s broad view of the statute not only because it runs afoul of the legislative history, but also because it would lead to unreasonable results … . To be sure, the Legislature could not have intended to require school districts to transport nonpublic school students in the summer, on weekends, on state or federal holidays, or on days when public schools are closed for weather-related or other emergency reasons, none of which would be foreclosed by Supreme Court’s interpretation. … [W]e hold that Education Law § 3635 (1) (a) permits, but does not require, school districts outside New York City to transport nonpublic school students to and from school on days when the public schools are closed. Matter of United Jewish Community of Blooming Grove, Inc. v Washingtonville Cent. Sch. Dist., 2022 NY Slip Op 03566, Third Dept 6-2-22

Practice Point: Here the legislative history of Education Law 3635 was consulted to determine that school districts are permitted, but not required, to provide transportation to nonpublic-school students went the public schools are not in session.

 

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THIS JUVENILE DELINQUENCY PROCEEDING STEMMED FROM ALLEGATIONS RESPONDENT COMMITTED VIOLENT ACTS AGAINST THE MOTHER OF HIS CHILD; THE PROCEEDING SHOULD NOT HAVE BEEN DISMISSED “IN FURTHERANCE OF JUSTICE;” CRITERIA EXPLAINED (THIRD DEPT). ​

The Third Department, reversing Family Court, determined this juvenile delinquency proceeding should not have been dismissed “in furtherance of justice.” The respondent was charged with acts of violence against the mother of his child:

Dismissal in the furtherance of justice is an extraordinary remedy that must be employed “sparingly, that is, only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution . . . would be an injustice” … . In determining such a motion, the statutory factors which must be considered, individually and collectively, are as follows: “(a) the seriousness and circumstances of the crime; (b) the extent of harm caused by the crime; (c) any exceptionally serious misconduct of law enforcement personnel in the investigation and arrest of the respondent or in the presentment of the petition; (d) the history, character and condition of the respondent; (e) the needs and best interest of the respondent; (f) the need for protection of the community; and (g) any other relevant fact indicating that a finding would serve no useful purpose” … . “At least one of these factors must be readily identifiable and sufficiently compelling to support the dismissal” …

According to the sworn statement of the victim — the mother of respondent’s child — respondent became verbally abusive toward her when she got pregnant, and physically abusive after their child was born, including pinching, punching and slapping her, once when she was holding the child. On the date in question, respondent threw a full, eight-ounce baby bottle at the victim, which hit her in the face, when she asked him to feed the child, who was crying. The victim stated that, although she was bleeding heavily, respondent and his father discouraged her from seeking medical attention. When she eventually did go to the hospital the next day, a cut on her face was glued shut by a doctor and she was told to return for X rays after the swelling had abated. The victim indicated that she felt unsafe living with the child in the home of respondent and his father. Matter of James JJ., 2022 NY Slip Op 03555, Third Dept 6-2-22

Practice Point: The allegations of violence in this juvenile delinquency proceeding were deemed too serious to warrant dismissal of the juvenile delinquency proceeding “in furtherance of justice.” This remedy should be used sparingly and at least one of the statutory factors for dismissal in furtherance of justice must be readily identifiable.

 

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DEFENDANT’S PLEA COLLOQUY NEGATED AN ESSENTIAL ELEMENT (JURAT) OF HIS PERJURY CONVICTIONS; PLEA VACATED (THIRD DEPT).

The Third Department, vacating the plea to perjury, determined defendant’s plea colloquy negated an essential element of the crime:

… [W]e conclude that defendant is entitled to challenge the plea because he made statements during the colloquy that negated an essential element of the crime … . “A person is guilty of perjury in the third degree when he [or she] swears falsely” … . “A person ‘swears falsely’ when he [or she] intentionally makes a false statement which he [or she] does not believe to be true . . . under oath in a subscribed written instrument” … . An “‘[o]ath’ includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated” … . The document in question was captioned as an “Affidavit of Financial Information.” The preamble begins with the representation that defendant, “being duly sworn, deposes and says the following under penalty of perjury.” The following statement is included above defendant’s signature: “I have carefully read the foregoing statements contained in this Affidavit of Financial Information. They are true and correct.” The document includes defendant’s signature and a jurat completed by defendant’s attorney in July 2017 … . The same is true for the amended affidavit signed in August 2017.

During the plea allocution, defendant explained that he received the affidavit from his attorney by e-mail “and then [he] filled it out on e-mail as well and sent it right back to him.” No statement was made that the attorney actually administered an oath to defendant before he signed the affidavits. Given defendant’s limited explanation of the affidavit sequence, County Court was obligated to further inquire as to the oath element before accepting the plea … . People v Marone, 2022 NY Slip Op 03543, Third Dept 6-2-22

Practice Point: Here the defendant’s plea colloquy negated an essential element of the crime. The judge should have inquired further before accepting the plea. Plea vacated.

 

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THE JUDGE’S LAW CLERK WAS THE DISTRICT ATTORNEY WHO PROSECUTED DEFENDANT; THE JUDGE SHOULD NOT HAVE DECIDED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his conviction should not have been considered by the judge whose law clerk was the District Attorney at the time of defendant’s conviction:

As one of the grounds raised in his CPL article 440 motion, defendant argued that he was deprived of his right to appear before the grand jury due to the actions of the District Attorney. The parties do not dispute that, at the time that defendant’s CPL article 440 motion was decided, the judge’s law clerk was the former District Attorney who had prosecuted defendant. That said, defendant contends that the judge should have recused himself from deciding defendant’s motion. We agree. “Not only must judges actually be neutral, they must appear so as well” … . In view of the law clerk’s direct involvement in defendant’s case during her tenure as the District Attorney and the allegations made in the CPL article 440 motion about her conduct while she was prosecuting him, as well as taking into account the need to maintain the appearance of impartiality, it was an improvident exercise of discretion for the judge to decide defendant’s motion … . People v Roshia, 2022 NY Slip Op 03546, Third Dept 6-2-22

Practice Point: The judge should not have decided defendant’s motion to vacate his conviction because the judge’s law clerk was the DA who prosecuted defendant.

 

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THERE WAS NO EVIDENCE DEFENDANT SHARED THE ATTACKERS’ INTENT TO ROB THE VICTIM; DEFENDANT’S ROBBERY CONVICTIONS UNDER AN ACCOMPLICE-LIABILITY THEORY REVERSED (THIRD DEPT). ​

The Third Department, reversing defendant’s robbery convictions, determined the evidence defendant shared the attackers’ intent to rob the victim was legally insufficient. Defendant had set up a drug purchase from the victim. When the victim arrived, he was attacked and robbed by four masked men. Although the victim testified defendant was one of the masked men, there was strong evidence to the contrary:

The People … did not have any direct evidence demonstrating that defendant knew of or shared an intent to forcibly steal property from the victim … . Indeed, there was no evidence that defendant had prior knowledge of a plan to rob the victim … . People v Smith, 2022 NY Slip Op 03547, Third Dept 6-2-22

Practice Point: Although the defendant sent the victim to the address where the victim was to sell marijuana to a buyer, there was no evidence defendant was aware the buyer intended to attack and rob the victim. Therefore, there was no evidence defendant shared the robbers’ intent and his robbery convictions under an accomplice-liability theory were reversed.

 

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THE JURY WAS NOT INSTRUCTED TO STOP DELIBERATIONS IF IT FOUND THE JUSTIFICATION DEFENSE APPLIED TO THE TOP COUNT (MURDER); DEFENDANT’S MANSLAUGHTER CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THE ISSUE WAS NOT PRESERVED) (THIRD DEPT).

The Third Department, reversing defendant’s manslaughter conviction in the interest of justice, determined the jury instruction on the justification defense was flawed. The instruction did not explain that if the justification defense was the basis for acquittal on the top count (murder here) the jury must not consider the lesser counts:

… Supreme Court inadequately charged the jury regarding his justification defense. Although this issue is unpreserved inasmuch as defendant failed to raise it during the charge conference and did not object to the final charge … , we nevertheless find it appropriate to exercise our interest of justice jurisdiction to take corrective action and reverse defendant’s conviction … .

Where … a defendant raises a claim of self-defense, the trial court commits reversible error if it fails to “instruct the jury that, if it finds the defendant not guilty of a greater charge on the basis of justification, it is not to consider any lesser counts” … . This error was compounded by the verdict sheet, which directed the jury to consider manslaughter in the first degree if the jury found defendant not guilty of murder in the second degree; the verdict sheet did not contain a qualifier if the acquittal of murder was based on the defense of justification … . Even though … “the jury may have acquitted on the top charge[] without relying on defendant’s justification defense, it is nevertheless impossible to discern whether acquittal of the top count[] was based on the jury’s finding of justification so as to mandate acquittal on the lesser count[] to which justification also applied” … .People v Harris, 2022 NY Slip Op 03548, Third Dept 6-2-22

Practice Point: If the justification defense is to be considered by the jury, the jury must be instructed to stop any further deliberations (re: the lesser counts) if the justification defense is deemed to apply to the top count. Here the issue was not preserved by an objection to the jury instruction, but the Third Department reversed in the interest of justice.

 

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THE SENTENCING JUDGE DID NOT SEPARATELY PRONOUNCE A SENTENCE FOR EACH CONVICTION; MATTER REMITTED (THIRD DEPT).

The Third Department, remitting the matter for resentencing, noted the sentencing judge did not pronounce sentence separately for the two counts:

… [W]e are …  obliged to remit for resentencing. The sentencing transcript reflects that County Court imposed a single sentence upon defendant and “failed to pronounce sentence separately on each of the two counts [of] which [she was convicted], as required by CPL 380.20” … . As a result, the matter must be remitted so that County Court can pronounce sentence on each count … . People v Robbins, 2022 NY Slip Op 03549, Third Dept 6-2-22

Practice Point: A sentencing judge must pronounce a sentence separately for each conviction.

 

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