FULL SUMMARIES OF SELECTED DECISIONS RELEASED 11-18-24 - 11-22-24 BY THE 1ST, 2ND & 3RD DEPARTMENTS & COURT OF APPEALS
Click on the legal categories to go to all the decision-summaries in those categories on the New York Appellate Digest website, most recent first. Click on the citations to go to the full decisions on the official New York Courts website.
THE CASEWORKER WAS PART OF THE CRIMINAL INVESTIGATION IN THIS “COURSE OF SEXUAL CONDUCT WITH A CHILD” PROSECUTION; THE PEOPLE WERE THEREFORE DEEMED TO HAVE HAD CONTROL OVER OR TO HAVE BEEN IN POSSESSION OF THE CASWORKER’S NOTES; THE NOTES INCLUDED BRADY MATERIAL WHICH SHOULD HAVE BEEN TURNED OVER TO THE DEFENSE BEFORE TRIAL; NEW TRIAL ORDERED (THIRD DEPT).
The Third Department, reversing defendant’s “course of sexual conduct with a child” conviction and ordering a new trial, determined that the caseworker’s notes taken during an interview of the child constituted Brady material which should have been turned over to the defendant before trial. The caseworker was part of the criminal investigation. Therefore the notes were deemed to have been under the People’s control or in the People’s possession. There was a notation by the caseworker to the effect the victim “was acting normal and as if nothing happened…”.:
“[W]hether knowledge of a government official or employee may be imputed to the People . . . turn[s] on whether participation in the criminal probe was an ancillary law enforcement task” and, thus, “while social workers are generally not agents of the police, in situations where they engage in a joint venture with police agencies to collaborate on child abuse or sexual abuse investigations, share information and a common purpose, and have a cooperative working arrangement with police, an agency relationship may exist such that the social workers’ knowledge is imputed to the People” … . *
The People’s provision of this material after the close of all proof deprived defendant of “a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his case” … . People v Baez, 2024 NY Slip Op 05844, Third Dept 11-21-24
Practice Point: When a caseworker is part of a criminal investigation, the caseworker’s notes taken when interviewing a child victim are deemed to be under the control of or possessed by the People, such that any Brady material in the notes must be turned over to the defense prior to trial.
November 21, 2024
THERE WAS NO PROOF THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT IN THE PRESENCE OF COUNSEL; GUILTY PLEA VACATED AND SUPERIOR COURT INFORMATION DISMISSED (THIRD DEPT).
The Third Department, vacating the guilty plea and dismissing the superior court information, determined the record did not demonstrate the defendant signed the waiver of appeal in open court in the presence of counsel:
… [T]he plea minutes are silent as to when the undated waiver was executed by defendant, and during the colloquy County Court referred to defendant as having “signed” the waiver in the past tense … . Neither the waiver nor the plea colloquy confirms that defendant signed the written waiver in the presence of counsel. Further, although County Court indicated in the undated order approving the waiver that it was generally satisfied that the requirements of CPL 195.10 and 195.20 had been met, nothing in the order explicitly confirms “that the waiver was signed in open court” in the presence of counsel . Thus, … the record does not reflect that defendant’s waiver of indictment passes constitutional and statutory muster, and it follows that defendant’s guilty plea must be vacated and the underlying SCI dismissed … . People v Trapani, 2024 NY Slip Op 05846, Third Dept 11-21-24
Practice Point: When a defendant waives his right to an indictment and agrees to plead to a superior court information, the record must reflect the waiver was made in open court and in the presence of counsel. Absent proof of those statutory and constitutional requirements the waiver is invalid.
Similar issue and result in People v Rupp, 2024 NY Slip Op 05845, Third Dept 11-21-24.
November 21, 2024
THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DETERMINE RESTITUTION TO THE PROSECUTOR, MATTER REMITTED FOR A HEARING (THIRD DEPT).
The Third Department, remitting the matter for a restitution hearing despite defendant’s failure to preserve the error, determined the record was insufficient to support the ordered restitution. The judge merely accepted the People’s restitution order, thereby improperly delegating the court’s role to the prosecutor:
… [I]t appears County Court impermissibly delegated its authority to the People to determine the amount of restitution owed and that said amount has no factual predicate in the record before us. “Whenever the court requires restitution . . . to be made, the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim[s] caused by the offense. In making this finding, the court must consider any victim impact statement provided to the court. If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue” (Penal Law § 60.27 [2] …). At the time of sentencing, the People noted that they had submitted a restitution order for the court to sign[*2]. Seemingly reading from that order, the court ordered defendant to pay restitution in the amount of $773, plus a five percent surcharge in the amount of $38.65, for a total sum of $811.65. The restitution order provided to this Court is not accompanied by any documentation, and neither the presentence report nor the victims’ impact statements at sentencing addressed pecuniary losses. Although defendant’s failure to object at the time of sentencing renders his restitution arguments unpreserved … , as the record before us does not include any proof to substantiate the amount of restitution ordered, we find it appropriate to exercise our discretion in the interest of justice and remit for the sole purpose of a restitution hearing … . People v Lester, 2024 NY Slip Op 05848, Third Dept 11-21-24
Practice Point: It is the judge, not the prosecutor, who makes a restitution determination, which must be supported by the record.
November 21, 2024
THE PEOPLE’S FAILURE TO FILE A SECOND FELONY OFFENDER STATEMENT RENDERED THE SENTENCE INVALID AS A MATTER OF LAW (THIRD DEPT).
The Third Department, vacating defendant’s sentence, noted that, absent defendant’s consent, the People’s failure to file a second felony offender statement rendered the sentence invalid as a matter of law:
… [D]efendant first argues that Supreme Court sentenced him illegally as a second felony offender. Although the People note that defendant’s argument is unpreserved, they concede that they neglected to file a second felony offender statement prior to sentencing (see CPL 400.21 [2]). “While we have previously held that substantial compliance with this statute is adequate when the defendant admits the prior felony and that errors or omissions in the statement may be waived by an admission by the defendant, we have also held that compliance with the statute is mandatory and that complete failure to file a second felony offender statement prior to sentencing renders the sentence invalid as a matter of law” … . Accordingly, we vacate the sentence imposed and remit the matter to Supreme Court for the filing of a predicate felony offender statement and resentencing in accordance with the law. People v Kane, 2024 NY Slip Op 05850, Third Dept 11-21-24
Practice Point: Where a defendant does not admit the prior felony, the People’s failure to file a second felony offender statement invalidates the sentence.
November 21, 2024
THERE WAS NO EVIDENCE TO CORROBORATE THE OLDER CHILD’S OUT-OF-COURT ALLEGATIONS OF ABUSE BY FATHER; THE ABUSE AND DERIVATIVE ABUSE PETITION WAS DISMISSED (THIRD DEPT).
The Third Department, reversing Family Court, determined there was no evidence to corroborate the older child’s out-of-court statements. Therefore, the petition alleging abuse of the older child and derivative abuse of the younger siblings was dismissed:
At the hearing, petitioner offered the testimony of the children’s mother, two caseworkers, and the video recording of the oldest child’s interview with the Orange County Department of Social Services caseworker and a State Police investigator. The mother testified that when the oldest child was 17 years of age, she first disclosed the allegations of sexual contact to her. Thereafter, each caseworker testified that the oldest child told them that her father had sexual contact with her from approximately two years of age until she was eight. The caseworkers further testified that the oldest child explained that her memory of the abuse was triggered when she overheard her youngest sister make reference to a secret that she held with her father. The record also reveals that there was no additional evidence of any kind presented by petitioner that corroborated the oldest child’s out-of-court statements. For example, there was no medical evidence of any sort, nor did the mother or anyone else point to any change in the oldest child’s behavior, or indications of inappropriate sexual knowledge or behavior, nor was there any expert testimony to validate the oldest child’s account of sexual abuse, or to explain the nine-year gap between the cessation of the sexual contact and the allegations of same. While there was some testimony by the mother that the child has had nightmares since she was very young and has been diagnosed with anxiety, there was no testimony, expert or otherwise, linking the nightmares or diagnosis to the alleged sexual contact. While Family Court correctly noted that a child’s out-of-court allegations of sexual abuse — as testified to by the caseworkers — can be sufficiently corroborated by the child’s detailed in-court testimony … , petitioner did not present the oldest child as a sworn witness. Finally, there was no cross-corroboration of the oldest child’s statements by her siblings as the two younger children did not disclose any sexual abuse to their mother or during the initial interview. The younger two children did not give sworn testimony at the fact-finding hearing nor were the video recordings of their interviews with the caseworker admitted into evidence. Matter of Gabriella X. (Erick Y.), 2024 NY Slip Op 05856, Third Dept 11-21-24
Practice Point: Although out-of-court allegations of sexual abuse (made to caseworkers and police investigators) may support an abuse finding, the out-of-court statements must be corroborated.
November 21, 2024
FAMILY COURT SHOULD NOT HAVE DELEGATED TO MOTHER THE AUTHORITY TO DETERMINE FATHER’S PARENTING TIME (THIRD DEPT).
The Third Department, reversing (modifying) Family Court, determined mother should not have been given the authority over father’s parenting time:
… Family Court improperly delegated its authority to the mother over the father’s in-person parenting time and telephone and electronic contact with the daughter … . With respect to the father’s telephone and electronic contact with the daughter, inasmuch as the mother agrees that the father should have telephone and electronic contact three times per week, we modify that portion of the order accordingly. With respect to the father’s in-person parenting time, although we are empowered to independently review the record and decide parenting time issues, given the father’s instability, the fact that the mother has relocated to Mississippi and the passage of time, we cannot make that determination here. As such, we remit the matter to Family Court for a hearing for the purpose of fashioning a schedule of supervised in-person parenting time … . Matter of Leslie QQ. v Daniel RR., 2024 NY Slip Op 05857, Third Dept 11-21-24
Practice Point: A Family Court cannot delegate authority over parenting time schedules to mother or father.
November 21, 2024
PLAINTIFF WAS STRUCK BY A FALLING BEAM WHICH SHOULD HAVE BEEN SECURED; PLAINTIFF WAS NOT OTHERWISE PROTECTED FROM FALLING OBJECTS; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).
The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was struck by a falling beam which should have been secured. The fact that plaintiff did not know where the beam came from did not preclude summary judgment:
Plaintiff’s proof showed that the support beam was a load that required securing for the purposes of the undertaking … .Further, the elevated platform was not guarded by a safety device such as netting or enclosure that would have prevented the beam from falling on plaintiff … .
While plaintiff and his coworker did not actually witness where the beam came from, plaintiff “is not required to show the exact circumstances under which the object fell,” provided he can demonstrate that the lack of a protective device called for under Labor Law § 240(1) proximately caused his injuries … A plaintiff’s prima facie case is “not dependent on whether he had observed what had hit him, or whether the object in question was dropped or fell in some other manner ” … . Fromel v W2005/Hines W. Fifty-Third Realty, LLC, 2024 NY Slip Op 05828, First Dept 11-21-24
Practice Point: Being struck by an unsecured falling object, and the failure to provide protection from falling objects, may warrant summary judgment on a Labor law 240(1) cause of action.
November 21, 2024
THE TRIAL JUDGE ERRED IN FAILING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE TO THE MURDER CHARGE; THAT FAILURE ALSO MAY HAVE TAINTED THE CRIMINAL-POSSESSION-OF-A-WEAPON CONVICTION, WHICH REQUIRES THE INTENT TO USE THE WEAPON UNLAWFULLY (CT APP).
The Court of Appeals, reversing defendant’s murder and criminal possession of a weapon convictions, in a full-fledged opinion by Judge Garcia, determined the judge erred by failing to instruct the jury on the justification defense. The victim threatened defendant with a razor just before shooting. The Court of Appeals noted that if the shooting was justified the “intent to use the weapon unlawfully” element of criminal possession of a weapon may not have been proven:
Defendant was charged with criminal possession of a weapon in the second degree, requiring the People to prove that he possessed the gun with the intent to use it unlawfully against another person … . The model Criminal Jury Instruction provides that “a person acts with intent to use a loaded firearm unlawfully . . . when his . . . conscious . . . purpose is to use that loaded firearm unlawfully against another, and that intent need only exist at the very moment that a person engages in an unlawful use of the firearm against another” … . But if the jury in this case was properly instructed on justification, it might have concluded that defendant acted lawfully when he shot and killed the victim in self-defense. If so, then the jury might have also concluded that defendant lacked the requisite intent (to use unlawfully) for the possession charge … . In other words, it is possible the jury here relied solely on evidence of the potentially justified shooting in finding defendant guilty of possession of the weapon with the intent to use it unlawfully.
To be clear, a jury finding of justification as to the use of a firearm does not preclude that jury from finding that the defendant nevertheless possessed the weapon with intent to use it unlawfully … . But with respect to the possessory offense, the jury must be instructed that, while justification is not a defense to that crime, in the event the jury finds that the shooting was justified, that lawful use of the weapon cannot be considered as proof of the unlawful intent element of the possession charge. For example, the jury’s intent determination may rest on defendant’s conduct “during the continuum of time that he possessed it prior to the shooting” … . People v Castillo, 2024 NY Slip Op 05817, CtApp 11-21-24
Practice Point: If a defendant is charged with murder and criminal possession of a weapon and is entitled to a jury instruction on the the justification defense, the jury should be instructed that it cannot find the defendant possessed the weapon with the intent to use it unlawfully solely on the basis of the shooting, if the shooting is deemed justified.
November 21, 2024
DEFENDANT DOCTOR’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS ALL THE ALLEGATIONS IN THE BILL OF PARTICULARS, RENDERING IT CONCLUSORY AND SPECULATIVE (SECOND DEPT).
The Second Department, reversing Supreme Court, determined defendant doctor’s (Buono’s) motion for summary judgment in this medical malpractice action should not have been granted: Buono’s expert’s affidavit did not address all the allegations in the bill of particulars, rendering it conclusory and speculative:
“To prevail on a motion for summary judgment in a medical malpractice action, a defendant must establish, prima facie, either that there was no departure from good and accepted medical practice or that any departure was not a proximate cause of the plaintiff’s injuries” … . “In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s bill of particulars” … . Here, Buono failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice insofar as asserted against him. The plaintiff specifically alleged in his bill of particulars, inter alia, that Buono was negligent in abandoning the plaintiff in the operating room before the procedure was completed. In support of his motion, Buono submitted an affirmation of an expert who opined that Buono did not depart from good and accepted medical practice because, “as an assistant, DR. BUONO was entitled to leave the operating room as soon as his services were no longer required.” That opinion, however, failed to address certain evidence, including medical records and deposition testimony of Brady and Buono, that raised a triable issue of fact as to whether Buono was the assistant or the surgeon performing the procedure. As such, the expert’s opinion is conclusory, speculative, and wholly insufficient to establish Buono’s prima facie entitlement to judgment as a matter of law … . The expert also failed to establish that Buono’s alleged negligence was not a proximate cause of the plaintiff’s injuries. Woehrle v Buono, 2024 NY Slip Op 05815, Second Dept 11-20-24
Practice Point: In a medical malpractice action an expert affidavit in support of a defendant’s motion for summary judgment must address all the allegations in the pleadings or it will be deemed conclusory and speculative.
Similar issue and result in Bonocore v Ravindranath, 2024 NY Slip Op 05824, First Dept 11-21-24.
November 20, 2024
PLAINTIFF DID NOT DEMONSTRATE STANDING TO FORECLOSE; THE NOTE WAS NOT PROPERLY ENDORSED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not establish standing to foreclose. Although the plaintiff proved it had possession of the note at the time the proceeding was brought, it did not demonstrate the note was properly endorsed:
Although the plaintiff established, prima facie, that it had possession of the original “wet ink” note prior to commencing the instant action …, the plaintiff failed to demonstrate that the note was properly endorsed. “Where there is no allonge or note that is either endorsed in blank or specially endorsed to the plaintiff, mere physical possession of a note at the commencement of a[n] . . . action is insufficient to confer standing or to make a plaintiff the lawful holder of a negotiable instrument for the purposes of enforcing the note” … . Here, the instant note bore no endorsements and had no allonges attached. Deutsche Bank Natl. Trust Co. v PJK Holdings, LLC, 2024 NY Slip Op 05787, Second Dept 11-20-24
Practice Point: If standing to foreclose is contested, a plaintiff must show (1) it was in possession of the note at the time the proceeding was brought and (2) the note was properly endorsed in blank or specifically to the plaintiff.
November 20, 2024
DEFENDANTS DID NOT DEMONSTRATE THE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW IN THIS SLIP AND FALL CASE (SECOND DEPT).
The Second Department, reversing Supreme Court, determined defendants in this slip and fall case did not make out a prima facie case that the sidewalk defect was trivial as a matter of law. Therefore defendants’ summary judgment motion should not have been granted:
… [T]he evidence submitted by the defendants, including, inter alia, a transcript of the plaintiff’s deposition testimony, as well as photographs of the allegedly defective sidewalk condition, was insufficient to establish, prima facie, that the height differential was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks the alleged defect posed … . The evidence submitted did not include objective measurements of the dimensions of the defect, specifically the height of the allegedly misleveled sidewalk. The evidence further failed to sufficiently quantify or estimate the dimensions of the defect. The plaintiff identified the photographs as fairly and accurately representing the allegedly defective sidewalk condition as it existed on the date of the accident. While the photographs demonstrated the irregular nature of the sidewalk … , it is impossible to ascertain or to reasonably infer the extent of the defect from the photographs submitted … .
Therefore, the defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law dismissing the complaint on the ground that the defect was trivial and not actionable. Abreu v Pursuit Realty Group, LLC, 2024 NY Slip Op 05781, Second Dept 11-20-24
Practice Point: Here the photos of the sidewalk defect were not supplemented with objective measurements. The proof did not establish the defect was trivial as a matter of law.
November 20, 2024
ALTHOUGH PLAINTIFF’S EXPERT IN THIS ELEVATOR ACCIDENT CASE WAS NOT A PROFESSIONAL ENGINEER, HE HAD BEEN QUALIFIED AS AN EXPERT IN 120 CASES; THE JUDGE SHOULD NOT HAVE SUMMARILY DISQUALIFIED HIM (FIRST DEPT).
The First Department, reversing Supreme Court, determined the trial judge should not have disqualified plaintiff’s expert in this elevator accident case. Although the expert was not a professional engineer, he had been qualified as an expert in over 120 state and federal cases:
Supreme Court erred in summarily disqualifying the opinion of Patrick A. Carrajat as an expert. Although Carrajat was not a professional engineer, he nonetheless had the requisite knowledge and experience to render an opinion on the cause of the accident, as he averred that he had been qualified as an elevator expert and testified as an expert witness 120 times in state and federal courts throughout the country … . Furthermore, challenges regarding an expert witness’ qualifications affect the weight to be accorded the expert’s views, not their admissibility … .
Plaintiff’s expert’s affidavit creates issues of fact as to both the nature of the incident, and the cause of the incident. While defendants’ experts opined that the elevator could not have malfunctioned as plaintiff described, and that the elevator descended to the lobby at regular speed, Carrajat disputed this and posited ways in which the elevator could have malfunctioned that were consistent with plaintiff’s account of the accident. Given the conflicting expert affidavits, the building defendants have not established their entitlement to summary judgment … . Escolastico v Rigs Mgt. Co., LLC, 2024 NY Slip Op 05769, First Dept 11-19-24
Practice Point: Here in this elevator-accident case plaintiff’s expert was not a professional engineer but had been qualified as an expert in over 120 cases. It was reversible error to summarily disqualify him.
November 19, 2024
PLAINTIFF’S BRINGING MULTIPLE MERITLESS LAWSUITS AGAINST DEFENDANT AND HER ATTORNEYS OVER THE COURSE OF TEN YEARS WARRANTED SANCTIONS (FIRST DEPT).
The First Department, reversing (modifying) Supreme Court, determined plaintiff’s bringing several meritless lawsuits against defendant and her attorneys over the course of ten years warranted sanctions:
Supreme Court improvidently exercised its discretion in denying defendant an award of sanctions despite noting that plaintiff’s “conduct was entirely frivolous,” “abusive,” and “fabricated.” The record firmly established that plaintiff engaged in a persistent pattern of extended and largely meritless litigation against defendant … , rendering his conduct frivolous within the meaning of 22 NYCRR 130-1.1(c) and thereby warranting sanctions. Plaintiff’s numerous lawsuits initiated against both defendant and her attorneys—six separate suits between 2010 and 2020, all dismissed at the pleading stage—strongly suggests that those lawsuits, along with the present action, were brought primarily to harass defendant … . Our prior decision holding that sanctions for frivolous conduct were not warranted does not affect our decision to grant the motion for sanctions here, as the result in our prior decision (Ray v Ray, 180 AD3d 472, 474 [1st Dept 2020]) was not based on these particular facts. Ray v Ray, 2024 NY Slip Op 05777, First Dept 11-19-24
Practice Point: Here plaintiff’s multiple meritless lawsuits against defendant and her attorneys warranted sanctions for “frivolous conduct.”
November 19, 2024