CPLR 5015(a)(3) and (4)

March 16, 2015,

The defendants, his brother, and his father were the principal shareholders of the corporate defendant. For several years prior to 1974 the corporation owned a restaurant in Staten Island, together with the real property upon which it was located. During this time, the brother had been the president and chief operating officer of the restaurant, while his brother defendant and his father apparently had not been actively involved in the business.

Sometime in January 1974 the president of the plaintiff real estate broker, approached the brother to discuss a possible sale of the restaurant and the real property upon which it was situated, as well as a private residence immediately adjacent thereto which was owned by him, his wife, and his father. Within a few weeks, a contract of sale was prepared and executed under which the restaurant, the property upon which it was located and the adjacent private residence were to be sold to a buyer produced by the plaintiff. Thereafter, on or about April 25, 1974, the transaction was consummated with the transfer of all of the stock of the corporate defendant together with the private residence, to the buyer. As part of the financial arrangements for the transaction the buyer gave a purchase money mortgage to defendant and the other parties. Thereafter, the purchase money mortgage was foreclosed and the real properties were conveyed to the buyer and his sons, as tenants in common.

Plaintiff commenced the instant accident action against the seeking to recover the balance allegedly due under the brokerage agreement. Following service of the summons and complaint upon him, the brother retained an attorney, to appear on his behalf and purportedly to appear as well on behalf of his brother, his father, and the corporation. Following his retention, the attorney filed a notice of appearance and an answer on behalf of all the defendants and later interposed an amended answer and filed a demand for a bill of particulars on their behalf.

On March 14, 1983, the parties--the defendants now purportedly appearing by one counsel to the other attorney entered into a stipulation in open court providing for settlement of the action for the sum of $17,000. It was further provided that if payment was not made within 30 days, Skyline could enter a default judgment against the defendants for the entire amount alleged to be due, to wit, $39,000. Thereafter, on May 10, 1983, following the defendants' failure to pay the settlement amount within the allotted time, a judgment was entered pursuant to the parties' stipulation against the defendants in the sum of $39,000. Based upon that judgment, Skyline's counsel thereafter issued an execution, with notice to garnishee, to three individuals who were indebted to the defendant under a mortgage and petitioned the court for entry of a judgment directing the mortgagors to pay plaintiff the sum of $39,152 in satisfaction of the outstanding judgment against the defendants.

Thereafter, by order to show cause dated October 24, 1983, defendant moved, inter alia, for an order pursuant to CPLR 5015(a)(3) and (4), vacating the judgment insofar as entered against him. In support of his application, he alleged that he had never been served with process in the action and that he had first become aware of the action and of the judgment therein in June of 1983 when execution was levied upon the mortgage payments due to him. He claimed that without his knowledge or consent his brother had apparently retained the attorney to defend the action and that Fitzpatrick had entered an appearance on his behalf without his knowledge or authorization and without his ever having been advised of the pendency of the action.

A New York Premises Liability Lawyer said that, by order dated March 13, 1984, Special Term directed that a hearing be held on the issues of whether proper service was effected upon defendant and whether the attorney had had authority to appear on his behalf. Following the hearing, Special Term concluded that personal service had never been effected upon Frank and that it, therefore, lacked personal jurisdiction over him. Accordingly, Special Term vacated the judgment as against defendant.

The issue in this case is whether an attorney's unauthorized appearance conferred personal injury jurisdiction over the individual for whom the attorney purported to appear when that individual neither had been served with process nor had become aware of the fact that an action had been brought against him until subsequent to judgment.

We conclude that, under such circumstances, personal jurisdiction is not acquired and the judgment entered as a result of such an unauthorized appearance must be vacated.

While Special Term's determination as to the lack of personal service was, in our view, correct, we do not agree that the question of the attorney’s authority to appear on defendant’s behalf is moot. For the reasons stated herein, we find it necessary to reach that issue and upon our review thereof we conclude that vacatur of the judgment as against defendant was appropriate. Accordingly, we affirm.

At the outset, we address the issue of whether jurisdiction was acquired over the defendant by proper service of process. In New York, a civil action is generally commenced and jurisdiction acquired by service of a summons (CPLR 304). While there are a number of methods by which a summons may be served upon a natural person, the method claimed to have been utilized at bar to effect service was personal delivery of the summons pursuant to CPLR 308(1). It is well established that the burden of proving that personal jurisdiction was acquired rests at all times upon the plaintiff in the action. Ordinarily, a proper affidavit of a process server attesting to personal delivery of a summons to a defendant is sufficient to support a finding of jurisdiction. Where, however, as here, there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing.

To Be Cont...

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Columbia University–New York Hospital...cont

March 2, 2015,

Plaintiff's obstetrical expert opined that during plaintiff's mother's near 24–hour labor, plaintiff experienced multiple late decelerations indicative of placental insufficiency causing fetal hypoxia. He opined that it was a departure for staff to deliver plaintiff vaginally with Pitocin augmentation under these circumstances. He explained that diminished beat-to-beat heart rate variability, coupled with late decelerations, enhances the likelihood that the fetus is experiencing significant hypoxia. Plaintiff's expert examined the fetal heart monitoring strips in great detail and opined that by 11:52 P.M. on December 10, 2003, at the latest, prompt injury delivery was essential to prevent further hypoxic-ischemic insult.

Plaintiff's pediatric neurologist noted that in addition to plaintiff's initial hypotonic, or “floppy” state, there was facial bruising, cephalohematoma, abdominal petechiae and separated sutures, all indicative of a traumatic delivery in addition to a period of hypoxia-ischemia.

The very neurological report relied on by defendants in moving for summary judgment indicates that plaintiff suffers from a developmental disorder of receptive and expressive language development, that he has a disorder of articulation, and that he is fidgety, with a short attention span. Although at the time of the examination, plaintiff was 4 1/2 years old, he was unable to count to 10 consistently or to sing the alphabet song.

In opposition, plaintiff submitted affirmations from an obstetrician and gynecologist based in Texas, and a pediatric neurologist practicing in White Plains, New York. The doctor found various departures but limited his findings of causation to the following: He opined that once the mother was admitted on the morning of December 9, 2003 and defendants employed a fetal heart rate monitor, defendants should have abandoned their plan for a vaginal birth and instead delivered plaintiff by cesarean section.

The doctor opined in conclusory fashion that the hypoxic-ischemic stress and other trauma that occurred during the delivery resulted in permanent accident brain damage, primarily to the neocortex, which in turn caused plaintiff's speech and language disorder. However, he failed to support this opinion with a radiological study of plaintiff's brain or any other medical record demonstrating brain damage other than language delay. His assertions that “[t]here is nothing in [plaintiff's] medical history, other than the abnormal labor and delivery, that would account for his deficits in speech and language” and that the deficits resulted from his permanent brain damage are entirely conclusory. In fact, the record shows that plaintiff's cousins suffer from similar language deficits.

Columbia University–New York Hospital

February 27, 2015,

In this birth injury action, Plaintiff claims that defendants deviated from good and accepted medical practice by failing to perform a cesarean section during his birth on December 10, 2003, and that this failure caused him to sustain a hypoxic event, which is responsible for expressive and language deficits and a developmental disorder that were diagnosed when he was about 4 1/2 years old.

A Bronx County Injury attorney said that the court granted defendants' motion for summary judgment primarily on the ground that expert evidence disclosed that no hypoxic event occurred during plaintiff's birth and that plaintiff failed to raise a triable issue of fact because his main expert was unqualified to give an opinion, pursuant to the “locality rule”.
The court found that, while the locality rule may not apply here, defendants were correctly granted summary judgment because plaintiff did not raise factual issues as to either a departure or a resulting injury.

Defendants submitted the affirmation of a doctor, chairperson of the Department of Obstetrics and Gynecology at Columbia University–New York Hospital. He, basing her opinion on the medical records and testimonial evidence, a neurological evaluation of plaintiff in July 2008, and the complaint and bill of particulars, opined that defendants did not deviate from good and accepted medical practice, that no hypoxic incident occurred, and that no injury could be reasonably attributed to any act or omission by defendants.

He pointed to the post-delivery assessment of arterial and venous umbilical cord blood gases, both of which fell within normal limits. She also noted that plaintiff, whose delivery was complicated by shoulder dystocia and a nuchal cord, was discharged from the hospital three days after his birth, at which time he was “active, alert, voiding and stooling appropriately and feeding on demand.”

With respect to the delivery and subsequent treatment, the doctor found that medical defendants effectively managed the delivery complications, including both the shoulder dystocia and the nuchal cord. She noted that a Doctor successfully performed a procedure called a “Wood's screw maneuver” to address the dystocia and deliver the shoulder, and added that nuchal cords occur in about 25% of all births and have no bearing on whether to perform a cesarean delivery.

To Be Cont...

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CPLR §2221 and 4404(a) ...cont

February 25, 2015,

The jury's failure to award damages for past pain and suffering that adequately compensates plaintiff for the pain and suffering and loss of enjoyment of life she experienced from the date of the accident to the date when the jury rendered its verdict, which covered a period of approximately six years, constitutes substantial injustice. In addition, the evidence presented by him regarding the permanency of her medical condition was not challenged by medical testimony offered by defendant disputing the permanency of her condition. Therefore, this court also finds that the failure to award damages for future pain and suffering, future loss of earnings, and loss of consortium is against the weight of credible evidence.

The determination that a jury's award deviates materially from what would be reasonable compensation requires an evaluation of prior awards in similar personal injury cases which is utilized to provide guidance to the court in resolving disputed contentions regarding the adequacy or inadequacy of a verdict. The "deviates materially" standard although directed specifically to reviews undertaken by appellate courts has been applied to the trial court when post trial motions, inter alia, are addressed to excessive or inadequate awards.

The trial court, therefore, in reviewing a jury award must consider the nature of the injury sustained by the plaintiff, plaintiff's age, the physical condition of the plaintiff prior to the occurrence, the permanency of the injury sustained, plaintiff's ability to return to gainful employment, the pain, both physical and emotional, experienced and to be experienced in the future, and the extent of future hospitalization. The essence of this process was summarized by the Court of Appeals, where the court observed: "It goes without saying that [the] court, lacking clairvoyance, in evaluating a verdict intended to compensate for a projected long lifetime of pain, suffering, helplessness and all other tangible and intangible losses that were sure to follow, faced an unusually difficult judgmental responsibility, for the fulfillment of which no less than a sophisticated elasticity will ever do. In no two cases are the quality and quantity of such damages identical. As has been pointed out by pragmatists and theorists who have wrestled with the problem of how damages in such cases may justly be arrived at, evaluation does not lend itself to neat mathematical calculation."

Plaintiff's motion is therefore granted to the extent of directing a new trial on damages unless within 20 days after services of a copy of this order with notice of entry, defendant stipulates to the entry of a judgment as follows: (a) the sum of $250,000 for past pain and suffering; (b) the sum of $300,000 for past lost wages; (c) the sum of $500,000 for future pain and suffering; (d) the sum of $300,000 for future lost wages, and as to plaintiff's husband the sum of $50,000.
Accordingly, the court held that the defendant's cross motion is denied.

CPLR §2221 and 4404(a) ...cont

February 22, 2015,

The Board also recognized the potential danger to teachers and employees such as plaintiff by limiting class sizes to no more than twelve (12) students who exhibited adverse social tendencies such as engaging in physical assaults. The presence of a security guard in the cafeteria, the site of the initial physical engagement between the two students, one of whom was part of the twelve students assigned to the calss teacher clearly is a recognition by the Board that inaction could lead to harm to teachers and plaintiff. However, no guard was present in the cafeteria where the student remained with his teacher, after he left the cafeteria with the twelve (12) students and the class teacher. Moreover, no evidence was offered by the Board explaining the student’s ability to move freely about the school without supervision.

Plaintiffs' expert, testified that the school administrators, including the principal and assistant principal, departed from accepted educational practices and established administrative procedures by failing to provide for the orderly supervision of students when moving from the cafeteria to their class room nor were procedures implemented by the school administrators to prevent students from roaming freely about the school. In addition, plaintiffs' expert testified that procedures were not in place to have paraprofessionals in the cafeteria when the fighting incident occurred or to monitor the whereabouts of students who had engaged in physical contact with other students causing personal injury.

The jury in the case at bar found defendant negligent in failing to prevent the student, from leaving the cafeteria and that defendant's negligence was a proximate cause of plaintiff's injury. The jury's verdict found the Board of Education negligent in failing to prevent the student, Mr. Peal, who left the cafeteria unattended to continue his fight with the student in the teacher’s class and that such negligence was the proximate cause of plaintiff’s injury. The jury then awarded plaintiff $ 100,000 for past pain and suffering and $300,000 for lost wages. However, the jury failed to award damages for future pain and suffering and failed to provide a recovery for future lost wages even though plaintiff had a work life expectancy of 11 years. In addition, the jury refused to compensate plaintiff's husband for past loss of services and loss of society of his wife.

Obviously, the jury concluded that plaintiff was injured as a result of her fall on the landing in the school where she worked as a counselor. The jury's failure to award future damages, and future lost wages and their conclusion, by not awarding plaintiff's husband damages for loss of consortium, is contrary to a fair interpretation of the uncontroverted evidence and constitutes a material deviation from what would be reasonable compensation. No medical evidence was offered by defendant to refute evidence by him that she is incapable of returning to work. A jury's verdict may be set aside and a new trial granted when the jury's determination is palpably incorrect and a substantial injustice would occur would the verdict be sustained.

To Be Cont...

CPLR §2221 and 4404(a) ...cont

February 19, 2015,

A Bronx Personal Injury Lawyer said that, it is undisputed that plaintiff commenced having seizures which she testified never occurred before the incident involving the altercation between the two students at the school where she worked as a psychologist. Zimmerman also sought treatment at Westchester Medical Center and later commenced treatment with a neurologist to relieve her seizures. Later, because her seizures continued, she consulted with the doctor, at Columbia University, as a result of developing gastrointestinal problems attributable to medications to control her seizures which caused further complications regarding her ongoing seizures.

The issue in this case is whether defendant’s motion, pursuant to CPLR §2221 and 4404(a) to set aside the verdict and remand this action for a new trial on liability and damages should be granted.

Here, defendant refers this Court to several cases which allegedly support its contention that plaintiffs' complaint be dismissed since plaintiffs failed to establish a breach of a special duty. The plaintiffs in one case sustained personal injury arising from a landlord tenant dispute which had been previously mediated by the police. The Judge writing on behalf of a unanimous court reviewed the determination from the court below which upheld tort claims brought against the City of New York based upon a special relationship between the police department and the plaintiffs who were injured in an altercation with their neighbor. Reversing the Court below, the court held that: "As a general rule, a municipality may not be held liable for injuries resulting from a simple failure to provide police protection". The exception to this rule has been applied to a narrow class of slip and fall cases where proof of a special relationship is presented between the "municipality and claimant." The court then determined, based on facts which are significantly different than the facts presented in the cast at bar that plaintiff's claim must fail.

Thus, while the decision rendered is quite informative, the plaintiffs in the said case who sued the City were not employees of the Board of Education, assigned to work in an atmosphere fraught with danger that manifestly was recognized by the State of New York when the Commission of Education promulgated rules establishing a ratio between a teacher and the number of emotionally disabled students that would compose a class size. Moreover, the Board in the case at bar, implicitly recognized the need to protect its teachers and employees such as plaintiff whose assigned tasks and responsibilities manifestly required the Board to hire security guards to protect its employees such as the plaintiff. The duty of the Board to provide adequate protection was intended to insure the safety of teachers and professional counselors such as plaintiff.

To Be Cont...

CPLR §2221 and 4404(a)

February 17, 2015,

A Bronx Personal Injury Lawyer said that, plaintiffs move, pursuant to CPLR 4404(a), to set aside the jury's verdict and directing a new trial unless defendant stipulates to increasing the jury's verdict regarding: (a) damages to plaintiff for past pain and suffering including loss of enjoyment of life; (b) awarding plaintiff damages for future pain and suffering; (c) awarding plaintiff damages for future lost wages; and d) awarding to plaintiff, the husband of the injured plaintiff, damages for the loss of services and society of his wife. Defendant cross moves for an order, pursuant to CPLR §2221 and 4404(a) to set aside the verdict and remand this action for a new trial on liability and damages.

The essential facts in this case arise from an accident that occurred on October 26, 2001 at a Special Education School located in the Bronx. At that time, plaintiff was employed by defendant as a school counselor. Her educational background includes receiving B.A. and M.A. degrees in school psychology and advanced training as a school psychologist and counselor. The student body which attended the school, where plaintiff was assigned, is composed of students who are behaviorally and or emotionally disturbed, some who have attention disorder deficits and students who are otherwise handicapped.

On October 26, 2001, the day when the incident occurred upon which plaintiffs' action is premised, plaintiff, was assisting another teacher with escorting a class of twelve (12) students from the school cafeteria to their classroom located on another floor in the school. The event which preceded this circumstance was a fight that occurred in the school cafeteria between two students. It is unclear how long the two students were fighting but this altercation occurred in the presence of plaintiff, the class teacher, and a school guard who was in the cafeteria. It is clear that the two protagonists were separated and the student, who apparently started the altercation was not one of the students assigned to the teacher’s class. After the fighting stopped, the said student was sent back to his own class. The class teacher then decided to move her students from the cafeteria to their classroom on another floor. As injury plaintiff and the students with the teacher were walking up a stairway to return to their classroom, plaintiff noticed, the student who was involved in the prior altercation, "racing up the steps" and upon catching up to the class, he again began fighting with the student in the teacher’s class who was involved in the prior altercation that occurred in the cafeteria. At this point plaintiff was on the landing and while attempting to separate the two combatants, she was pushed and fell backward on the landing, struck her head and rendered unconscious. He was removed from the school by ambulance to St. Barnabas Hospital where she was treated for four days before being released.

To Be Cont...

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Criminal Procedure Law (“CPL”) § 730.30...cont

February 15, 2015,

The trial under Indictment No. 1826–08 proceeded first. In September 2009, the defendant, represented by Mr. Moore, was found guilty after a jury trial held before this Court of one count of Assault in the Second Degree, two counts of Aggravated Criminal Contempt, and two counts of Endangering the Welfare of a Child. During the trial, the Court provided “real-time” reporting to the defendant, who communicated with his attorney through hand-written notes. The defendant was sentenced to a term of imprisonment of seven years, followed by three years post-release supervision on the Assault count to run concurrent with an indeterminate sentence of 2 1/3 to 7 years' incarceration on the two Aggravated Criminal Contempt counts and one year jail on the two Endangering counts.

A Bronx Brain Injury Lawyer said that, thereafter, the prosecution of the defendant continued with respect to the pending robbery indictment. The Court continued to provide the services of a “real-time” reporter during calendar calls. Shortly after his conviction, the defendant requested new counsel with respect to that indictment, and the Court granted the application. That same day, the defendant advised the Court by letter that he wished to represent himself. When the Court asked the defendant to take some time to consider his request, the defendant agreed and, on a subsequent date, requested an adjournment for that purpose. On February 3, 2010, however, the defendant informed the Court that he was reiterating his request to represent himself.

According to the report of the neurological examination, the defendant's inability to speak reflected a lack of effort, not a neurological dysfunction. When the examiner asked the defendant to speak, he did not move his palate, yet other testing demonstrated that he was capable of moving his palate. His purported inability to speak did not reflect cerebral dysfunction and his writing reflected normally functioning language centers. The defendant's claim that he could not whistle was “inexplicable,” as whistling does not require language function nor vocal cord contraction. The examiner saw no evidence of dissymmetry or an inability to move his face. Finally, the examiner noted that although the defendant claimed to be deaf, he “intermittently responded to verbal commands and localized to voice.”

It is possible for a person to have a delusion that he or she cannot speak and hear. The doctor formed the opinion, however, that the defendant did not suffer from such a delusion based on several factors. First, a delusion is constant; yet, records the doctor reviewed in connection with his 2010 evaluation, including records of the Department of Corrections from Riker's Island in 2008 and 2009 and Downstate Correctional Facility in 2010, include references to instances when the accident defendant spoke and appeared to hear. In addition, the defendant, who is in his 30s, denied ever having received any psychological treatment, yet, delusional disorders normally develop in a person's late teens or early 20s. Moreover, the defendant's claim that he could not hear or speak arose in the context of a serious legal situation, which suggests that the defendant is malingering. Finally, he has refused attempts to determine his physical ability to hear, which is more consistent with malingering than with a delusional disorder.

The issue in this case is whether a defendant forfeits his right to self-representation when he feigns an inability to speak and hear.

The Sixth and Fourteenth Amendments to the United States Constitution guarantee a defendant in a criminal trial not only the right to proceed with counsel, but also the right to proceed without counsel when the defendant clearly asserts his or her right in a timely manner and knowingly, intelligently and voluntarily chooses to do so The right to represent oneself, however, is not absolute. The right to self-representation does not include the “right to abuse the dignity of the courtroom,” nor the right to “engage in serious and obstructionist misconduct.” Put another way, the right to self-representation is not to be used “as a tactic for delay, for disruption, for distortion of the system, or for manipulation of the trial process.” These limitations are necessary because “even at the trial level the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer.”

The New York State Constitution likewise recognizes a defendant's right to self-representation. The right to self-representation under New York law is likewise not unlimited. Our Court of Appeals has held that a defendant must be permitted to invoke his or her right to self-representation, “provided (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues.” In elaborating on the third prong, the Court of Appeals wrote that a defendant may forfeit the right to self-representation by “engaging in disruptive or obstreperous conduct.” Further, “when a defendant's conduct is calculated to undermine, upset or unreasonably delay the progress of the trial he forfeits his right to self-representation.”

Thus, for example, in a 2006 case decision the Appellate Division, First Department, upheld the trial court's decision to revoke permission for a defendant to represent himself, where the “defendant had been disruptive, feigned mental illness, feigned physical ailments and repeatedly asked to leave the courtroom and claimed illness when summoned back.” Similarly, the Appellate Division, Third Department, held in a 2010 decision, that a trial court properly denied a defendant his right to self-representation, not only because he failed to waive his right intelligently, but also because a fair and orderly trial would not be feasible, in light of the defendant's position that, among other things, he was entitled to absolute immunity because he was “Almighty God” and “King of the United States,” and that he had been born on a day the earth spun backwards. That Court also upheld the decision of another trial judge, who concluded that a defendant had forfeited his right to self-representation, when the defendant became belligerent and criticized the court, demanded a change of venue and stated that he would defend himself from his cell.

In the instant matter, as testified to by the doctor, the personal injury defendant has engaged in a course of conduct—feigning an ability to speak and hear—over the course of three years with the intent to delay the criminal proceedings pending against him. The defendant's ruse has resulted in the delay of individual calendar calls because of the cumbersome accommodations, and his ruse has resulted in the delay of the start of trial, because it necessitated extensive examinations and an evidentiary hearing. Based on the prolonged length of the calendar calls, if the Court were to continue to provide “real-time” reporting and allow the defendant, representing himself, to communicate with the Court through hand-written notes, a trial that should last about two weeks could stretch to two months or beyond. Every stage of the trial—jury selection, opening statements, examination of witnesses, argument over evidentiary issues, charging conference, summations—would suffer from needless extreme delay.

If the defendant were not feigning his inability to speak and hear, the Court would be required to “reasonably accommodate” his needs through whatever means necessary, even if such means dramatically lengthened the duration of the trial. See Americans with Disabilities Act of 1990. Further, if the defendant caused a delay in the proceedings simply through unskilled lay participation, the Court would not be permitted to withhold the defendant his right to self-representation on that basis. The defendant's conduct, however, is intentional and with no purpose other than to cause delay. This Court will not burden a jury, the witnesses, the lawyers or our over-stressed court system with a prolonged trial merely to accommodate a malingering defendant whose goal is to interfere with the efficient administration of his trial. McIntyre is clear: “When a defendant's conduct is calculated to undermine, upset or unreasonably delay the progress of the trial he forfeits his right to self-representation.” Because this Court finds that the defendant's conduct is calculated to unreasonably delay the proceedings and is preventing the fair and orderly exposition of the issues, it concludes that the defendant has forfeited his right to self-representation.

This Court has advised the defendant that should he abandon his ruse before the trial commences, this matter can be revisited. The foregoing constitutes the Decision and Order of the Court.

Criminal Procedure Law (“CPL”) § 730.30

February 13, 2015,

A Bronx Personal Injury Lawyer said that, at an evidentiary hearing held in connection with this issue, an examining psychologist expressed the opinion that the defendant was pretending to have such disabilities “as a means to interfere with the efficient resolution” of these proceedings. Based on the psychologist's testimony and his reports, which were admitted as exhibits at the hearing, the Court finds that the defendant has engaged in intentional conduct that “is calculated to undermine, upset or unreasonably delay the progress of the trial.” As a result, the defendant has forfeited his right to self-representation

On April 26, 2011, following the evidentiary hearing, the Court orally announced its conclusion that the defendant had forfeited his right to self-representation and stated that it would issue a written decision with its formal Findings of Fact and Conclusions of Law. This is the Court's written decision.

On May 7, 2008, the defendant was arrested and charged with Assault in the Second Degree, Criminal Contempt in the First Degree and related charges stemming from incidents that allegedly occurred on October 23, 2006, April 30, 2008, and May 5, 2008. He was also charged with Robbery in the First Degree and related charges for an accident that allegedly occurred on June 12, 2007, involving a different complainant. Finally, the defendant was charged with Assault in the Second Degree and related charges under Docket No. 2008BX029168 for acts he allegedly committed at the time of his arrest.

On May 23, 2008, the defendant was charged with Assault in the Second Degree, Criminal Contempt in the First Degree and related charges in connection with the allegations of criminal conduct on October 23, 2006, April 30, 2008, and May 5, 2008. On May 30, 2008, under Indictment No. 2052–08 (the instant matter), the defendant was charged with Robbery in the First Degree and related charges in connection with the alleged June 12, 2007, incident, and Assault in the Second Degree and related charges in connection with the alleged May 7, 2008, incident. Both matters were handled together at the calendar calls. On July 15, 2008, the counsel asked to be relieved from the representation of the defendant. After that application was granted, on July 21, 2008.

Upon his arrest on May 7, 2008, the defendant maintained to law enforcement personnel and through counsel to the Court that he was unable to hear and speak. For initial calendar calls, the Court utilized the services of a sign language interpreter. On March 30, 2009, counsel informed the Court, however, that the interpreter had stated to him that the defendant did not know any commonly used sign language and that they communicated through gestures and the defendant's reading lips. Counsel requested that the Court provide the defendant at trial with the services of a “real-time” reporter, so that the defendant could read the proceedings on a computer screen as they were being transcribed by the court reporter.

On April 6, 2009, the Court ordered the defendant to undergo a competency examination pursuant to Criminal Procedure Law (“CPL”) § 730.30 because of a concern that the defendant did not understand the proceedings. By separate reports dated May 13, 2009, two examiners—a forensic psychiatrist, and a forensic psychologist—found the defendant fit to proceed with the criminal actions. As discussed below, both examiners concluded that the injury defendant likely was feigning his inability to hear and speak.3 In the absence of a motion for a hearing on the defendant's fitness, on May 27, 2009, the Court directed that the criminal actions proceed against the defendant as required under CPL § 730.30(2).

To Be Cont...

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CPLR 32122...cont

February 11, 2015,

Labor Law §241 (6) "requires owners and contractors, except owners of one or two-family dwellings who contract for but do not direct or control the work, to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor".

This section imposes a no-ndelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers engaged in the inherently dangerous work of construction, excavation or demolition. In order to recover, a claimant need not prove that the owner or contractor exercised supervision or control over the work being performed. However, the worker must allege and prove that the owner or contractor violated a rule or regulation of the Commissioner of the Department of Labor which sets forth a specific standard of conduct, as opposed to a general reiteration of the common law.

As to defendant 305-307 West, summary dismissal of plaintiff's Labor Law §241(6) claims against it based on the homeowners' exception is warranted. In 1980, the Legislature amended Labor Law §241 to exempt "owners of one and two-family dwellings who contract for but do not direct or control the work" from the absolute liability imposed by these statutory provisions. Here, it is undisputed that 305-307 West's building was being renovated as a single-family dwelling for the photographer and her family. The record also establishes that 305-307 West, as the owner of that building, did not direct or control the work being performed on the renovation project. Moreover, plaintiff does not address the applicability of the homeowners' exemption to 305-307 West. Accordingly, 305-307 West is shielded by the homeowner exemption from the absolute liability of Labor Law §241 and dismissal of this claim as asserted against 305-307 West is warranted.

Contrary to the defendants' contention, 12 NYCRR 23-1.7(d) contains specific directives that are sufficient to sustain a cause of action under Labor Law §241(6). And, defendants failed to establish that 12 NYCRR 23.1-7 (d)(1) does not apply to this case on the ground that his incident was not caused by a slipping hazard. The roof where the injury occurred served as a floor, walkway, scaffold or platform within the meaning of this provision. That plaintiff did not fall is not dispositive, as there is no such requirement under the statute. This section prohibits the "use" of walking surfaces in a slippery condition, "which may cause slippery footing". Furthermore, the evidence in the record indicates that the combination of snow and rain resulted in the slippery condition of the sloped roof, such that plaintiff was unable to get traction to secure his footing.

In this regard, contrary to Thames's contentions, plaintiff's affidavit that he slipped does not "completely contradict" his deposition testimony, wherein he stated that the roof was covered with half an inch of snow and the conditions were slippery. Thus, it cannot be said that plaintiff's affidavit has been tailored to avoid the consequences of his sworn deposition testimony. An issue of fact exists as to whether accident defendants failed to provide plaintiff with safe, non-slippery footing, in violation of section 23-1.7 (d), and whether such violation caused or contributed to plaintiff's injury. Thus, dismissal of the plaintiff's Labor Law §241(6) claim predicated on the alleged violation of section 23-1.7 (d) is unwarranted as against the defendants.

Accordingly, the court held that in light of this issue of fact, defendant’s motion to dismiss the contractor’s third-party complaint and the Owners' cross-claim for contractual indemnification is denied. For the same reasons, the portion of the Owners' motion for summary judgment on their cross-claim for contractual indemnification against defendant is likewise denied.

CPLR 32122...cont

February 8, 2015,

The issue in this case is whether the Owners and the general contractor, were negligent and violated Labor Law §§200, 240, 241(6).

A defendant moving for summary judgment must establish that the "cause of action has no merit" sufficient to warrant the court as a matter of law to direct judgment in its favor. Defendant must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact. "The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact".

At the outset, the Court notes that plaintiff does not address the dismissal of his Labor Law §240 (1) claim. As such, plaintiff's Labor Law §240(1) claim is dismissed, as unopposed. Labor Law §200 codifies the common-law duty imposed on an owner or general contractor to provide construction site workers with a safe work site. "An implicit precondition to this duty is that the party to be charged with that obligation 'have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition'". "To support a finding of liability under Labor Law § 200 a plaintiff must show that the defendant supervised and controlled the plaintiff's work, or had actual or constructive knowledge of the alleged unsafe condition in an area over which it had supervision or control, or created the unsafe condition". Thus, "in addition to liability for a dangerous condition arising from the methods employed by a subcontractor, over which the owner or general contractor exercises supervision and/or control, liability can also arise when the accident is caused by a dangerous condition at the worksite, that was either created by the owner or general contractor or about which they had prior notice and failed to remedy it.

Here, to the extent that plaintiff's common-law negligence and Labor Law 200 claims are based upon an allegedly dangerous condition of snow on the pitched roof, both Thames and the Owners established their entitlement to summary judgment as a matter of law. Specifically, Thames and the Owners established that they lacked actual or constructive notice of the alleged dangerous condition of the snow accumulation. And, even if arguably the roof was sloped in the area where plaintiff and his co-workers walked, the various deposition testimonies indicate that no one from the Owners or the general contractor was present at the subject work site on the day of plaintiff's incident. And, there is no indication that anyone reported any snow or ice condition to either the Owners or the general contractor.

Plaintiff submitted no evidence indicating that defendants possessed actual knowledge of the dangerous condition of snow accumulation on the roof. Further, plaintiff failed to demonstrate a triable issue as to whether defendants had constructive notice of the condition. "To constitute constructive notice, a condition must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendants to discover and remedy it". Plaintiff's testimony, that when he and his co-workers entered onto the roof, there was a half or a quarter of an inch "snow accumulation" and that it was raining and snowing "throughout the day" on the day of the incident, is insufficient to raise an issue of fact as to whether Thames or the Owners had any notice that snow was accumulating on the roof where plaintiff's personal injury occurred.

In the instant case, plaintiff submitted no evidence that the alleged condition existed for a sufficient length of time prior to the accident. While he testified that it was raining and snowing "throughout the day" of the incident, which as the record indicates, happened in the afternoon, plaintiff also indicated that it was snowing for short periods of time and then raining for half hour. This inability of plaintiff to make the required showing "creates the possibility that the condition may have emanated only moments before the accident, through no fault or with no knowledge of the defendant, any other conclusion being pure speculation". Accordingly, since plaintiff failed to raise any issue of fact as to whether defendant had notice of the condition which allegedly caused plaintiff's injury, the portion motion by the Owners and the general contractor for summary judgment dismissing plaintiff's Labor Law §200 and common-law negligence claims against them is granted.

To Be Cont...

CPLR 32122

February 6, 2015,

A New York Spinal Injury Lawyer said that, in this personal injury action, defendants building owners and the general contractor separately move pursuant to CPLR 32122 to dismiss plaintiff's complaint against them. The third-party defendant Air-conditioning Company moves to dismiss the third-party complaint of the general contractor and all cross-claims asserted against it by the Owners. The Owners also seek the dismissal of all cross-claims against them and summary judgment on their cross-claims against the general contractor and defendant Air-conditioning Company for contractual indemnification.

On January 3, 2006, plaintiff, an employee of defendant Air-conditioning Company, allegedly was injured while moving an air-conditioning condenser unit (the "condenser") on the roof of the building located at 311 West 11th Street, New York, New York (the "Building"), which is owned by 311 West, of which the well-known photographer is the sole principal. Plaintiff claims that while moving the condenser with two of his co-workers, the condenser shifted back causing the plaintiff to twist his back.

At that time, the adjoining building at 305-307 West 11th Street, a Greenwich Street, owned by 305-307 West, was being renovated to serve as a single-family residence for the photographer and her family (the "Project"). Sometime before 2005, defendant Air-conditioning Company was hired to install the heating and air-conditioning systems in the Building. In June 2005, the general contractor was hired for the ongoing renovation of the 305-307 West 11th Street building pursuant to a contract (the "Construction Contract"). Thereafter, in September 2005, they entered into a contract with the defendant Air-conditioning Company to install the heating and air-conditioning system at the 305-307 West building.

At his deposition, plaintiff testified that on January 3, 2006, plaintiff and two of his coworkers, were instructed by defendant Air-conditioning Company's Vice President to move the subject condenser unit from the roof of 311 West 11th Street onto the adjoining roof of 305-307 West 11th Street building. The plan was to move the condenser, which was approximately four feet square, five to six feet tall and weighing 80 pounds, from one side of the roof to the other side. Plaintiff and his two co-workers lifted the unit and began walking up the slope to get to the other side of the roof. According to plaintiff, there was snow and ice on the roof. At some point, the condenser shifted and began falling back onto plaintiff. Plaintiff was unable to "get his footing" to stabilize himself and violently twisted his back to prevent the condenser from falling. Plaintiff and his co-workers immediately regained control of the condenser and carried it to the adjoining roof. Neither plaintiff nor the condenser fell at the time of the slip and fall accident.

A New York Workers Compensation Lawyer said that, as a result of the accident, plaintiff commenced this action against the Owners and the general contractor, alleging that they were negligent and violated Labor Law §§200, 240, 241(6). In turn, the general contractor commenced a third-party action against defendant Air-conditioning Company for contractual indemnification and also asserted cross-claims against the Owners for contribution and common law indemnification.

A New York Personal Injury Lawyer said that, the Owners cross-claimed against the general contractor for contractual and common law indemnification, contribution and for failure to procure insurance pursuant to contract, and against Sound for contribution and contractual and common law indemnification. All defendants now move for summary judgment to dismiss plaintiff's complaint and the various cross-claims asserted against each other.

To Be Cont...

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