New York Law Review

Tag: 2012

  • Grucci v. Grucci, 20 N.Y.3d 893 (2012): Establishing Initiation of Criminal Proceeding in Malicious Prosecution

    Grucci v. Grucci, 20 N.Y.3d 893 (2012)

    In a malicious prosecution claim, the plaintiff must demonstrate that the defendant commenced or continued the underlying criminal proceeding, and a jury finding that the defendant did not initiate the prosecution precludes a finding of malicious prosecution.

    Summary

    Michael Grucci sued his ex-wife, Christine, for malicious prosecution after he was acquitted of criminal contempt charges stemming from alleged violations of an order of protection. Michael claimed Christine initiated the criminal proceedings maliciously. At trial, the court excluded certain evidence, including an audiotape and testimony concerning Christine’s statements. The jury found that Christine did not initiate the criminal prosecution. The New York Court of Appeals affirmed, holding that the jury’s finding that Christine did not initiate the criminal proceeding was supported by the evidence, and the evidentiary rulings did not warrant reversal because the excluded evidence was not relevant to the initiation issue.

    Facts

    Michael and Christine Grucci divorced in 1998. Michael was later charged with harassing Christine, leading to a protective order. He was subsequently accused of violating the order and indicted on criminal contempt charges for allegedly placing Christine in fear of death or injury by telephone and harassing her with repeated calls. Michael was acquitted after a bench trial where the court found Christine’s testimony not credible. Michael then sued Christine for malicious prosecution.

    Procedural History

    The County Court acquitted Michael of the criminal contempt charges. Michael then sued Christine for malicious prosecution in the trial court. The trial court entered judgment dismissing Michael’s complaint based on the jury’s finding that Christine did not initiate the criminal prosecution. The Appellate Division affirmed the trial court’s decision. The New York Court of Appeals granted Michael permission to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether the trial court committed reversible error by (1) refusing to admit an audiotape of a conversation between Christine and Michael’s brother, Anthony, (2) excluding testimony from Anthony regarding Christine’s state of mind during that conversation, (3) denying the admission of grand jury testimony, and (4) preventing testimony that Christine lied to obtain the order of protection, and whether the jury’s verdict that Christine did not initiate the criminal proceeding was supported by sufficient evidence.

    Holding

    No, because (1) Michael failed to properly authenticate the audiotape; (2) Michael failed to properly argue the admissibility of Anthony’s testimony regarding Christine’s statements as admissions of a party opponent, and the omission of the testimony was not crucial; and (3) the trial court permitted Michael’s attorney to freely use Christine’s prior testimony to impeach her. Yes, because the assistant district attorney testified that the decision to prosecute rested with the District Attorney’s office, and there was sufficient evidence to support the jury’s verdict that Christine did not initiate the contempt proceeding.

    Court’s Reasoning

    The Court of Appeals held that the trial court did not abuse its discretion in excluding the audiotape because Michael failed to provide clear and convincing proof of its genuineness and that it had not been altered, as required by People v. Ely, 68 N.Y.2d 520 (1986) (“The predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered”). The court noted the absence of proof regarding who recorded the conversation, how it was recorded, or the chain of custody. The court also found that while Christine’s alleged statements to Anthony could have been admissible as admissions of a party opponent, Michael’s attorney never made that argument to the judge. Regarding the grand jury testimony, the court noted that Michael’s attorney was permitted to use Christine’s prior testimony to impeach her. The court found sufficient evidence to support the jury’s verdict that Christine did not initiate the contempt proceeding, noting the assistant district attorney’s testimony that the decision to prosecute rested with the District Attorney’s office and not the complainant. The court cited Colon v. City of New York, 60 N.Y.2d 78, 82-83 (1983) regarding the presumption of probable cause in cases with a grand jury indictment, which requires the plaintiff to prove that the indictment was procured by fraud, perjury, or other bad-faith conduct.

  • East Midtown Plaza Housing Co. v. Cuomo, 19 N.Y.3d 164 (2012): Martin Act Applicability to Mitchell-Lama Privatization and Voting Rights

    East Midtown Plaza Housing Co. v. Cuomo, 19 N.Y.3d 164 (2012)

    The Martin Act applies to the proposed privatization of a Mitchell-Lama cooperative apartment complex, and a vote to determine whether the cooperative withdraws from the Mitchell-Lama program must be counted on a per-apartment basis when the certificate of incorporation so specifies.

    Summary

    East Midtown Plaza, a Mitchell-Lama cooperative, sought to privatize. The Attorney General required the filing of a cooperative offering plan under the Martin Act and mandated a per-apartment vote, based on the certificate of incorporation. East Midtown challenged this, arguing the Martin Act didn’t apply and the vote should be per share under Business Corporation Law. The Court of Appeals held that the Martin Act does apply because privatization constitutes a new offering of securities due to substantial changes in shareholder rights, including the ability to sell at market rates. The court further held that the vote was correctly counted on a per-apartment basis due to the cooperative’s certificate of incorporation. This decision ensures that shareholders are fully informed about the risks and benefits of privatization and protects the voting rights established in the cooperative’s governing documents.

    Facts

    East Midtown Plaza, a 746-unit Mitchell-Lama cooperative, sought to withdraw from the program. A 2004 vote favored privatization on a per-share basis but not per-apartment. The Attorney General required a cooperative offering plan under the Martin Act and mandated a per-apartment vote based on the certificate of incorporation. A revised 2008 plan avoided a physical exchange of shares, but a 2009 vote mirrored the 2004 result. East Midtown sought to declare the plan effective based on a per-share count, which the Attorney General rejected.

    Procedural History

    East Midtown filed an Article 78 proceeding to compel the Attorney General to accept the privatization plan and recognize the per-share vote. Supreme Court denied the petition. The Appellate Division affirmed. The Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether the Martin Act (General Business Law art 23-A) applies to the privatization of a Mitchell-Lama cooperative apartment complex.

    2. Whether the shareholder vote to privatize East Midtown should be counted on a one-vote-per-apartment basis or a one-vote-per-share basis.

    Holding

    1. Yes, because the privatization of East Midtown’s cooperative apartment complex results in substantial changes to the nature of its shareholders’ interests, constituting an “offering or sale” of securities under the Martin Act.

    2. Yes, because East Midtown’s certificate of incorporation expressly provides that its shareholders “shall be entitled to one vote at any and all meetings of stockholders for any and all purposes regardless of the number of shares held by such holder, except as otherwise provided by statute,” and the Business Corporation Law does not mandate a different method of vote calculation in this context.

    Court’s Reasoning

    The Court reasoned that the Martin Act, aimed at preventing fraudulent securities practices, should be liberally construed. Citing federal precedents, the court emphasized that changes in the rights of existing securities holders can amount to a “purchase or sale” if there is a “significant change in the nature of the investment or in the investment risks as to amount to a new investment” (Gelles v TDA Indus., Inc., 44 F.3d 102, 104 [2d Cir 1994]). Privatization enables residents to sell shares at market rates, a significant change from the Mitchell-Lama program where resale prices are capped. The court dismissed the argument distinguishing the 2004 and 2008 plans as elevating form over substance, stating, “the end result under either proposal is the same—privatization and market value resale potential.”

    Regarding the voting rights, the Court noted that Business Corporation Law § 612(a) establishes a default rule of one vote per share “unless otherwise provided in the certificate of incorporation.” East Midtown’s certificate explicitly provided for one vote per apartment. The Court rejected East Midtown’s argument that Business Corporation Law § 1001 mandated a per-share vote, reasoning that § 1001 focuses on *who* can authorize dissolution, not *how* the votes are weighted. “In substance, the one-vote-per-apartment rule set forth in East Midtown’s certificate of incorporation entitles the holder of shares to one vote at stockholder meetings.” The Court also found that an HPD regulation requiring two-thirds approval of outstanding shares was compatible with the certificate of incorporation’s voting method.

  • People v. Walker, 20 N.Y.3d 122 (2012): Impoundment and Inventory Search After Driver’s Arrest

    People v. Walker, 20 N.Y.3d 122 (2012)

    When a driver is arrested and the vehicle is impounded, police are not constitutionally required to inquire whether a passenger is licensed and authorized to drive the vehicle before conducting an inventory search.

    Summary

    The New York Court of Appeals held that a state trooper was not required to inquire whether the defendant’s passenger was licensed and authorized to drive the car before impounding it after arresting the defendant for driving with a revoked license. The Court also found that the subsequent inventory search of the vehicle was valid. The trooper stopped the car because the passenger wasn’t wearing a seatbelt and discovered the driver’s license was revoked. The court reasoned that imposing a duty to investigate alternative drivers would create an undue administrative burden on law enforcement. The court affirmed the lower court’s decision upholding the denial of the motion to suppress the handgun found during the search.

    Facts

    A state trooper stopped a vehicle driven by the defendant because the passenger was not wearing a seatbelt. The defendant provided registration and identification but no driver’s license. A computer check revealed the defendant’s license was revoked. The registration was not in the name of the defendant or the passenger. The trooper decided to arrest the defendant and impound the car, which belonged to the defendant’s sister. Prior to towing, the trooper conducted an inventory search, discovering a handgun on the floorboard. The trooper testified the search was conducted per New York State Police written policy.

    Procedural History

    The defendant was indicted for criminal possession of a weapon. The trial court denied the defendant’s motion to suppress the handgun. The defendant pleaded guilty, preserving the right to appeal the suppression ruling. The Appellate Division affirmed the trial court’s decision. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether a police officer is required to inquire if a passenger is licensed and authorized to drive a vehicle before impounding it after arresting the driver.

    2. Whether the inventory search of the vehicle was conducted lawfully.

    Holding

    1. No, because imposing such a requirement on police would create an administrative burden and involve them in difficult decisions.

    2. Yes, because the inventory search was conducted pursuant to established procedures and met the constitutional minimum.

    Court’s Reasoning

    The Court reasoned that police may impound a car and conduct an inventory search when they act pursuant to reasonable police regulations administered in good faith, citing Colorado v. Bertine. The trooper testified that state police procedure requires towing when the operator’s license is suspended or revoked, and the registered owner is not present. The Court deemed this a reasonable procedure, especially since neither the defendant nor the passenger offered that the passenger was licensed and authorized to drive the car. The Court declined to impose a constitutional requirement on the trooper to raise the question, as that would create an administrative burden and involve police in making difficult decisions. The Court acknowledged differing views among jurisdictions regarding police obligations in such situations. The Court cited 3 Wayne R. LaFave, Search and Seizure § 7.3 [c] (4th ed 2004). Regarding the inventory search, the Court acknowledged the argument that the written policy was not produced and the trooper’s description was vague. The Court emphasized that while a meaningful inventory list is required according to People v. Johnson, courts should not micromanage inventory search procedures. The Court found the inventory sufficient, citing Colorado v. Bertine and stating that the reasonable expectation of privacy is diminished when a car is lawfully impounded.

  • J. D’Addario & Co., Inc. v. Embassy Indus., Inc., 20 N.Y.3d 115 (2012): Contractual Language Trumps Statutory Interest

    J. D’Addario & Co., Inc. v. Embassy Indus., Inc., 20 N.Y.3d 115 (2012)

    When parties explicitly agree in a contract that a specific remedy is the “sole remedy” for a breach, that agreement supersedes the statutory requirement to award interest under CPLR 5001(a), provided the contract language is clear and complete.

    Summary

    J. D’Addario & Co. contracted to purchase property from Embassy Industries. The contract stipulated that if the purchaser defaulted, the seller’s sole remedy would be retention of the down payment as liquidated damages and that the seller would have no further rights. After a dispute arose and D’Addario defaulted, Embassy sought to recover statutory interest on top of the down payment. The New York Court of Appeals held that the explicit language in the contract, specifying the down payment as the “sole remedy,” precluded Embassy from recovering statutory interest under CPLR 5001(a), reinforcing the principle that clear contractual terms govern the remedies available to the parties.

    Facts

    Embassy Industries agreed to sell commercial real property to J. D’Addario & Company for $6.5 million, with a $650,000 down payment held in escrow. The contract contained a liquidated damages clause stating that if the purchaser (D’Addario) defaulted, the down payment would be the seller’s (Embassy’s) “sole remedy” and the purchaser’s “sole obligation.” The contract further stated that Embassy would have “no further rights or causes of action” against D’Addario. D’Addario purported to terminate the contract due to concerns about groundwater contamination and did not attend the closing. Embassy declared D’Addario in default and retained the down payment.

    Procedural History

    D’Addario sued to recover the down payment. Embassy counterclaimed, alleging D’Addario’s default. The Supreme Court awarded Embassy the down payment plus statutory interest. The Appellate Division modified the judgment, vacating the award of statutory interest. The Court of Appeals granted Embassy leave to appeal, limited to the issue of statutory interest.

    Issue(s)

    Whether contractual language specifying a “sole remedy” for breach of contract overrides the statutory requirement to award interest under CPLR 5001(a).

    Holding

    No, because the parties agreed that retention of the down payment would be the seller’s sole remedy, and the seller would have no further rights against the purchaser. This explicit agreement superseded the general rule requiring statutory interest under CPLR 5001(a).

    Court’s Reasoning

    The Court of Appeals emphasized that CPLR 5001(a) mandates statutory interest in breach of contract cases where the parties have not specified an exclusive remedy. The purpose of prejudgment interest is to compensate the wronged party for the loss of use of the money. However, parties are free to “chart their own course” in civil disputes and agree on how damages are computed. In this case, the contract clearly stated that the down payment was the “sole remedy” and that the seller had “no further rights.” This unambiguous language demonstrated the parties’ intent to waive any right to statutory interest. The court distinguished this case from *Manufacturer’s & Traders Trust Co. v Reliance Ins. Co.*, where no breach had occurred. Here, D’Addario breached the contract. The Court noted that parties should routinely decide in advance whether statutory interest is to be paid on amounts held in escrow to avoid litigation.

  • American Building Supply Corp. v. Petrocelli Group, Inc., 19 N.Y.3d 730 (2012): Insured’s Duty to Read Policy vs. Broker’s Negligence

    American Building Supply Corp. v. Petrocelli Group, Inc., 19 N.Y.3d 730 (2012)

    An insured’s failure to read an insurance policy does not automatically bar a negligence action against a broker who allegedly failed to procure the specifically requested coverage.

    Summary

    American Building Supply Corp. (ABS) sued its insurance broker, Petrocelli Group, for negligence and breach of contract, alleging failure to procure adequate insurance. ABS claimed it specifically requested coverage for employee injuries, which the obtained policy excluded. The New York Court of Appeals held that factual issues existed regarding the specific coverage request. The Court further held that ABS’s failure to read the policy upon receipt did not automatically bar the lawsuit against the broker, especially when ABS allegedly made a specific request and the policy obtained arguably made no sense considering ABS’s business operations. The Court reasoned that while reading the policy is good practice, the insured is entitled to rely on the broker’s expertise.

    Facts

    ABS sells building materials. It hired Petrocelli Group to procure general liability insurance. ABS asserts it specifically requested coverage for employee injuries at its Bronx location, where only employees were present. Petrocelli renewed a policy that contained a cross-liability exclusion, barring coverage for employee injuries. An employee was injured, and the insurer disclaimed coverage based on the exclusion. ABS then sued Petrocelli for failing to procure the requested coverage.

    Procedural History

    The Supreme Court denied Petrocelli’s motion for summary judgment, finding a factual issue on whether ABS made a specific request for employee injury coverage. The Appellate Division reversed, holding that ABS’s failure to read the policy precluded recovery. The Court of Appeals reversed the Appellate Division’s decision, reinstating the Supreme Court’s order denying summary judgment to the broker.

    Issue(s)

    1. Whether an insurance broker can be liable for negligence or breach of contract for failing to procure specifically requested insurance coverage.
    2. Whether an insured’s failure to read and understand an insurance policy upon receipt bars a claim against the insurance broker for failing to procure the requested coverage.

    Holding

    1. Yes, because insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so, provided a specific request for coverage was made. A general request is insufficient.
    2. No, because the failure to read the policy may give rise to a defense of comparative negligence but should not bar an action against a broker, especially where specific coverage was requested and the policy obtained appears illogical given the insured’s business operations.

    Court’s Reasoning

    The Court of Appeals reasoned that issues of fact existed as to whether ABS specifically requested coverage for its employees, and whether Petrocelli, being aware of such a request, failed to procure the requested coverage. The court found that ABS’s deposition testimony supported its claim of a specific request. Since only employees entered the premises, the coverage defendant obtained, which excluded coverage for injuries to employees, “hardly made sense.”

    The Court addressed the issue of whether an insured’s receipt of an insurance policy without complaint bars recovery. While prior appellate decisions varied, the Court adopted a more lenient approach. It held that the insured has a right to “look to the expertise of its broker with respect to insurance matters” (Baseball Off. of Commr. v Marsh & McLennan, 295 AD2d 73, 82 [1st Dept 2002]). The failure to read the policy, at most, may give rise to a defense of comparative negligence but should not bar the action altogether. The Court emphasized that summary judgment was inappropriate given the factual disputes over the specific coverage request and the circumstances surrounding the insurance procurement.

  • State v. Shannon S., 19 N.Y.3d 102 (2012): Mental Abnormality Definition in Civil Confinement of Sex Offenders

    19 N.Y.3d 102 (2012)

    In the context of civil confinement for dangerous sexual offenders, a “mental abnormality” under New York’s Mental Hygiene Law need not be limited to diagnoses explicitly listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

    Summary

    The case addresses whether the State presented sufficient evidence to show that Shannon S. suffered from a mental abnormality, thus justifying his civil confinement as a dangerous sex offender. Shannon S. argued that because his diagnosis (Paraphilia NOS) was not specifically delineated in the DSM, it could not serve as a basis for civil confinement. The New York Court of Appeals disagreed, holding that the statutory definition of mental abnormality is broader than the DSM, and the evidence presented by the State adequately demonstrated a mental abnormality that predisposed Shannon S. to commit sex offenses.

    Facts

    Shannon S. had an extensive criminal record involving sexual offenses against nonconsenting or underage adolescent victims, dating back to 1992. These offenses included sexual abuse, rape, and criminal sexual acts. After being released from prison in 2002, he began a sexual relationship with a 16-year-old, leading to further charges. While incarcerated, Dr. Hadden, a psychologist, diagnosed Shannon S. with Paraphilia NOS (Not Otherwise Specified), antisocial personality disorder, and alcohol abuse. Dr. Hadden concluded that Shannon S. suffered from a mental abnormality that predisposed him to commit sexual offenses.

    Procedural History

    The State filed a petition for civil management of Shannon S. under Article 10 of the Mental Hygiene Law. The Supreme Court found probable cause and ordered detention pending trial. After a nonjury trial, the Supreme Court concluded that Shannon S. suffered from a mental abnormality and ordered a dispositional hearing. At that hearing, he was deemed a dangerous sex offender and ordered to be committed to a secure treatment facility. The Appellate Division affirmed, and the New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the evidence is legally sufficient to support a determination that an individual suffers from a mental abnormality under the Mental Hygiene Law, absent a diagnosis of a mental disease or disorder listed within the Diagnostic and Statistical Manual (DSM).

    Holding

    No, because the plain language of Mental Hygiene Law § 10.03 (i) does not require that a diagnosis be limited to mental disorders enumerated within the DSM. The court held that a mental abnormality need not be identified in the DSM to meet the statutory requirement.

    Court’s Reasoning

    The court reasoned that states have developed specialized terms to define mental health concepts, and civil confinement statutes are intended to have legal, not strictly medical, significance. The court emphasized that there will inevitably be an imperfect fit between legal concerns and clinical diagnoses. The court found that Mental Hygiene Law § 10.03(i) does not require diagnoses to be limited to those listed in the DSM. The court acknowledged the concern that diagnoses lacking scientific foundation could lead to indefinite confinement without a meaningful way to cure or mitigate the disorders, but stated that Paraphilia NOS is a viable predicate mental disorder that comports with due process. The reliability of a Paraphilia NOS diagnosis is a factor for the fact-finder to consider. The court noted that the State’s experts based their diagnosis on Shannon S.’s history of sexual offenses against adolescent victims, lack of compunction, and inability to understand the inappropriateness of his conduct. His compulsive engagement in sexual conduct with pubescent females, despite criminal sanctions, supported the finding of a mental abnormality involving a strong predisposition to commit sex offenses and an inability to control such behavior. The court stated, “the science of psychiatry, which informs but does not control ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek precisely to mirror those of the law”.

  • People v. Solomon, 20 N.Y.3d 91 (2012): Disqualification Due to Concurrent Representation of Witness

    People v. Solomon, 20 N.Y.3d 91 (2012)

    A criminal defendant is deprived of effective assistance of counsel when their attorney concurrently represents a prosecution witness with conflicting interests, absent a valid waiver, regardless of the attorney’s apparent performance.

    Summary

    Solomon was convicted of sex offenses against his daughter. His attorney also represented a police officer, Kuebler, who testified against him regarding a confession. Although Solomon purportedly waived the conflict, the waiver was deemed invalid due to an inadequate inquiry. The New York Court of Appeals reversed Solomon’s conviction, holding that the concurrent representation of Solomon and a key prosecution witness with conflicting interests constituted a denial of effective assistance of counsel, irrespective of the attorney’s apparent competence during cross-examination. The Court emphasized the inherent conflict in such a situation and the defendant’s right to an attorney with undivided loyalty.

    Facts

    Solomon was charged with multiple sex offenses against his daughter. During the investigation, he made a partial confession to Detectives Smith and Kuebler. Before the Huntley hearing regarding the confession’s voluntariness, Solomon’s attorney disclosed that she also represented Detective Kuebler in an unrelated civil matter. Solomon stated he waived any conflict. Kuebler testified at the hearing and trial, recounting Solomon’s confession to having sex with his daughter. The motion to suppress the statement was denied.

    Procedural History

    The trial court convicted Solomon. The Appellate Division affirmed, finding the waiver inadequate but concluding that the conflict did not affect the defense. The New York Court of Appeals granted leave to appeal and reversed the Appellate Division’s decision.

    Issue(s)

    Whether the defendant was denied effective assistance of counsel when his attorney simultaneously represented a prosecution witness whose interests conflicted with those of the defendant, and whether the defendant validly waived that conflict.

    Holding

    Yes, because the attorney’s concurrent representation of the defendant and a prosecution witness with adverse interests, without a valid waiver, constitutes a denial of effective assistance of counsel, regardless of the attorney’s apparent performance. The waiver was invalid because the trial court’s inquiry was insufficient to ensure the defendant understood the risks.

    Court’s Reasoning

    The Court of Appeals found the trial court’s inquiry into the conflict of interest inadequate to establish a valid waiver, as it did not fully inform Solomon of the potential risks. The Court distinguished between potential and actual conflicts of interest. While a mere potential conflict may not always require reversal, an actual conflict, where the attorney simultaneously represents clients with opposing interests, does. Here, an actual conflict existed because Kuebler’s testimony about Solomon’s confession directly opposed Solomon’s interest in discrediting that testimony. The court stated, “[a] defendant is denied the right to effective assistance of counsel guaranteed by the Sixth Amendment when, absent inquiry by the court and the informed consent of defendant, defense counsel represents interests which are actually in conflict with those of defendant.” The Court emphasized that when an actual conflict exists and is not waived, prejudice is presumed; the defendant need not show that the attorney’s performance was deficient. The court noted the “very awkward position” of an attorney subject to conflicting loyalties and reaffirmed a defendant’s right to an attorney whose paramount responsibility is to that defendant alone. Prior cases finding no ineffective assistance involved only potential, not actual, conflicts, or successive, not concurrent, representation. The court concluded that the simultaneous representation of adverse interests, absent a valid waiver, inherently deprives the defendant of effective assistance of counsel.

  • Custodi v. Town of Amherst, 20 N.Y.3d 83 (2012): Primary Assumption of Risk Limited to Sponsored or Designated Venues

    Custodi v. Town of Amherst, 20 N.Y.3d 83 (2012)

    The doctrine of primary assumption of the risk, which can negate a defendant’s duty of care, is generally limited to sporting events, sponsored athletic or recreational activities, or activities at designated venues.

    Summary

    Robin Custodi was injured while rollerblading when she fell after her skate struck a two-inch height differential where a driveway met a drainage culvert. She sued the homeowners, alleging negligence. The New York Court of Appeals held that the primary assumption of risk doctrine did not apply because Custodi was not engaged in a sporting event, sponsored activity, or using a designated venue. The court emphasized the need to narrowly circumscribe the assumption of risk doctrine to avoid undermining comparative fault principles. The decision clarifies that landowners owe a general duty of care to maintain their premises in a reasonably safe condition for non-pedestrians like rollerbladers, absent specific circumstances invoking assumption of risk.

    Facts

    Robin Custodi, an experienced rollerblader, was rollerblading in her residential neighborhood. She navigated around a truck blocking the street by skating onto a driveway entrance to reach the sidewalk. She then attempted to re-enter the street using the Muffoletto’s driveway. As she neared the end of the driveway, her skate allegedly struck a two-inch height differential where the driveway met a drainage culvert, causing her to fall and break her hip.

    Procedural History

    Custodi sued the homeowners (Muffolettos) for negligence. The Supreme Court granted the homeowner’s motion for summary judgment, dismissing the complaint based on assumption of risk. The Appellate Division reversed, reinstating the complaint, finding that assumption of risk did not apply and that there was a triable issue of fact regarding proximate cause. The Appellate Division granted leave to appeal to the Court of Appeals.

    Issue(s)

    Whether the doctrine of primary assumption of the risk applies to bar a negligence claim where the plaintiff was injured while rollerblading on a residential driveway and the injury was allegedly caused by a height differential between the driveway and a drainage culvert.

    Holding

    No, because the primary assumption of the risk doctrine is generally limited to sporting events, sponsored athletic or recreational activities, or athletic and recreational pursuits that take place at designated venues.

    Court’s Reasoning

    The Court of Appeals analyzed the application of the assumption of risk doctrine in light of CPLR 1411, which established comparative negligence. The Court acknowledged that a limited form of assumption of risk, “primary” assumption of risk, survived CPLR 1411. This doctrine operates by negating the defendant’s duty of care to the plaintiff. However, the Court emphasized that the doctrine should be narrowly applied. The Court noted that prior cases applying assumption of risk involved sporting events or recreational activities sponsored or supported by the defendant, or occurring at a designated athletic or recreational venue. Citing Trupia v. Lake George Cent. School Dist., the Court stated that assumption of the risk “must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation” (14 NY3d at 395). Extending the doctrine to injuries on streets and sidewalks would unduly diminish the duty of landowners to maintain their premises in a reasonably safe condition. The Court distinguished the case from those involving designated recreational venues, emphasizing that the plaintiff was simply rollerblading in her neighborhood. The court stated, “As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues.” The Court found it unnecessary to decide if any other exceptions existed. The Court emphasized that the defendants did not argue that their duty did not extend to altering the height differential, thus the negligence issue remained for litigation.

  • People v. Alvarez, 19 N.Y.3d 78 (2012): Preservation Requirement for Public Trial Violations

    People v. Alvarez, 19 N.Y.3d 78 (2012)

    A defendant must preserve the argument that they were deprived of the right to a public trial when family members were excluded from the courtroom during voir dire by raising a timely objection; otherwise, the claim is waived on appeal.

    Summary

    These consolidated appeals address whether a defendant must preserve the argument that his right to a public trial was violated when family members were excluded from the courtroom during voir dire. In Alvarez, defense counsel moved for a mistrial after discovering the defendant’s parents were excluded during jury selection. In George, defense counsel did not object when the court stated spectators might be asked to leave during jury selection. The New York Court of Appeals held that preservation is required. The Court affirmed in George because the issue was unpreserved, but reversed in Alvarez and remitted for a new trial because the issue was adequately preserved by a timely objection and motion for mistrial.

    Facts

    Alvarez: Alvarez was charged with weapon possession. Before trial, Alvarez declined a plea offer after discussing it with his mother. During jury selection, Alvarez’s parents were excluded from the courtroom. Defense counsel moved for a mistrial based on the denial of a public trial, which the court denied, stating the courtroom was filled with prospective jurors and family members are usually asked to step out initially.

    George: George was charged with robbery and larceny. Prior to jury selection, the court stated that spectators might have to leave when potential jurors entered due to limited seating. Defense counsel thanked the judge without objecting. After preliminary instructions, some prospective jurors were excused, and the court asked remaining jurors to move forward, freeing seats for the public and instructing a court officer to inform spectators they could re-enter.

    Procedural History

    Alvarez: The Appellate Division modified the conviction, vacating convictions for criminal possession of a weapon in the fourth degree, but otherwise affirmed, finding the public trial argument unpreserved and without merit. Leave to appeal was granted. The Court of Appeals reversed.

    George: The Appellate Division affirmed the conviction, finding the public trial argument unpreserved and without merit. Leave to appeal was granted. The Court of Appeals affirmed.

    Issue(s)

    1. Whether a defendant must preserve an objection to the exclusion of family members from the courtroom during voir dire to raise a public trial violation on appeal.

    Holding

    1. Yes, because errors of constitutional dimension, including the right to a public trial, must be preserved with a timely objection.

    Court’s Reasoning

    The right to a public trial extends to voir dire. While proceedings may be closed when necessary to protect an overriding interest, the court must consider alternatives to closure. The Court relied on Presley v. Georgia, which held that the Sixth Amendment guarantees the right to a public trial during voir dire, and trial courts must consider alternatives to closure, even if the parties do not offer them. However, Presley did not address the preservation requirement. The Court stated, “Bringing a public trial violation to a judge’s attention in the first instance will ensure the timely opportunity to correct such errors.” Since George raised no objection, his claim was unpreserved. In Alvarez, the defense counsel’s protest immediately after the violation was sufficient to preserve the issue. The appropriate remedy would have been to grant a mistrial and restart jury selection. The Court emphasized that preservation is crucial to give the trial court an opportunity to address and correct the error promptly.