Latest decisions from the Appellate Division, Second Department

May 9, 2024 Robert Abruzzese, Courthouse Editor

This week, the Appellate Division, Second Department, issued rulings on cases, including dismissing a mandamus proceeding against a Brooklyn judge, reversing a lower court's decision on NYCTA's liability in a bus accident, granting summary judgment in a Brooklyn stove fire lawsuit, affirming the denial of a motion to vacate a robbery conviction, and upholding a decision on comparative negligence in a Manhattan traffic collision. Brooklyn Eagle photo by Rob Abruzzese

Appellate Division dismisses mandamus proceeding against Brooklyn judge

The Appellate Division, Second Department, has dismissed a proceeding brought by Giuseppe Lubrano against Justice Esther Morgenstern of the Supreme Court, Kings County. The decision upheld the denial of Lubrano’s request for mandamus relief, which sought to compel Justice Morgenstern to vacate an order from a family case and to recuse herself from further proceedings.

Lubrano, representing himself, filed the CPLR article 78 petition, arguing that Justice Morgenstern had erred in her judicial duties in the case of Lubrano v. Lubrano. He also sought poor-person relief to waive the filing fees associated with his petition.

The court granted Lubrano’s request for a waiver of the filing fee but denied all other relief, finding that he had not adequately stated a cause of action for mandamus, which is an extraordinary remedy reserved for compelling a public official to perform a ministerial act where there is a clear legal right to the requested action.

The panel, including Justices Betsy Barros, Linda Christopher, Janice Taylor and Carl Landicino, concurred with the decision and explained that mandamus cannot be used to compel a judge to act in a particular manner in judicial proceedings, as such decisions typically involve judicial discretion rather than ministerial duties.

Mandamus relief is a legal remedy that compels a public official to perform a mandatory or ministerial duty they are legally obligated to carry out, typically used when no other adequate legal remedies are available.

– Giuseppe Lubrano v. Esther Morgenstern –

Appellate Division reverses lower court’s decision on NYC transit authority liability

The Appellate Division, Second Department, has overturned a decision by the Kings County Supreme Court regarding an accident involving the New York City Transit Authority (NYCTA) and other related defendants. The lower court had initially granted summary judgment favoring the plaintiff, Gladstone Yearwood, who sustained injuries as a passenger during a bus collision.

Yearwood’s lawsuit stemmed from an incident where the bus he was on, owned by the NYCTA along with MTA Bus Company and Metropolitan Transportation Authority, rear-ended another vehicle. The Supreme Court had also dismissed a defense claim based on the emergency doctrine, which the defendants cited due to the sudden stop of another vehicle that purportedly caused the collision.

The Appellate Division found that the defendants successfully raised a triable issue of fact regarding a non-negligent explanation for the crash, supported by an affidavit from the bus driver and surveillance video evidence. This development led the appellate court to rule that the summary judgment on liability was improperly granted and that the affirmative defense should not have been dismissed. The case has been sent back to the Kings County Supreme Court for further proceedings.

– Yearwood v. New York City Transit Authority –

Summary judgment granted in Brooklyn stove fire appeal

The Appellate Division, Second Department, has reversed a decision by the Kings County Supreme Court in the personal injury lawsuit of Qi Zhong Weng against Jian Juan Wang and other property owners. The appellate court granted the defendants’ motion for summary judgment, effectively dismissing the complaint that had accused the property owners of negligence relating to a stove fire.

In March 2019, Weng sustained injuries from a fire that erupted while he was using a gas stove in a Brooklyn apartment. Weng alleged that the fire was due to a defective condition of the stove, which the property owners had negligently maintained. The Supreme Court initially denied the defendants’ motion for summary judgment, which led to their appeal.

Upon review, the Appellate Division found that the defendants had demonstrated the absence of any dangerous or defective condition with the stove that could have caused the accident. The court cited evidence, including a fire incident report from the New York City Fire Department, which attributed the cause of the fire to “cooking carelessness” rather than a mechanical fault. Affidavits from a professional engineer and a certified fire investigator supported the defendants’ argument by confirming the absence of any defects or gas leaks in the stove.

Consequently, the appellate court concluded that the plaintiff, Weng, did not present sufficient evidence to contest these findings, leading to the dismissal of his claims.

– Qi Zhong Weng v. Jian Juan Wang –

Appellate Division upholds denial of motion to vacate robbery conviction

The Appellate Division, Second Department, has affirmed the Kings County Supreme Court’s decision to deny Russell Haynesworth’s motion to vacate his robbery conviction without a hearing. The decision stems from Haynesworth’s appeal by permission from an order dated October 7, 2022.

Haynesworth was convicted of first-degree robbery in July 2014, with the judgment later modified by the Appellate Division in September 2017 to reduce his sentence. Following this modification, Haynesworth filed a motion under CPL 440.10, arguing that the prosecution’s theory at trial deviated from what was presented to the grand jury, alleging an unconstitutional constructive amendment of the indictment.

The Supreme Court, led by Judge William M. Harrington, dismissed the motion, finding no basis for the claim that the trial theory differed unlawfully from the grand jury presentation. The Appellate Division’s review confirmed that the grand jury and trial proceedings provided consistent theories that were well communicated to the defense, ensuring Haynesworth was fairly aware of the charges against him throughout the process.

– The People v. Russell Haynesworth –

Decision on comparative negligence in Manhattan traffic collision case upheld

The Appellate Division, Second Department, affirmed a decision by the Kings County Supreme Court involving a vehicular collision between Rebecca Lopez and a tractor-trailer operated by Richard Dwayne Moore. The court upheld the lower court’s denial of Lopez’s motion for summary judgment dismissing the defendants’ affirmative defenses of culpable conduct and comparative negligence.

The incident, which occurred near the intersection of West 179th Street and Broadway in Manhattan, resulted in a lawsuit by Lopez to recover damages for personal injuries. While the Supreme Court had previously found Moore negligent, it denied Lopez’s motion to dismiss comparative negligence defenses, which indicates a potential shared fault in the accident.

The Appellate Division’s decision explained the concept that multiple factors can contribute to vehicular accidents, leaving room for a jury to consider the extent of each party’s fault. The appellate justices concurred and said that disputes over comparative negligence often require thorough examination of all evidence, which is best assessed by a jury.

– Mora v. Moore –