The Tort of Malicious Prosecution

On November 20, 2012, the New York State Court of Appeals - NYS's highest court - issued its opinion in the case of Grucci v. Grucci.  Divorce generates heat and, in this case, fire as well. An ex-wife obtained an order of protection against her ex-husband. The ex-wife then complained to the Police alleging that her husband was harassing her by repeated telephone calls with no legitimate purpose and that he put her in fear of death and injury during these telephone conversations. The ex-wife gave a sworn written statement to the police that the ex-husband threatened to have her killed.  The evidence was presented to a grand jury which indicted the ex-husband. After a trial, the ex-husband was found not guilty so the ex-husband sued his ex-wife for malicious prosecution in a civil lawsuit. He alleged that she lied about the harassment and threats. This time, the wife won.

The opinion of the Court of Appeals listed the elements that a plaintiff must prove to establish the tort of malicious prosecution:

1. the defendant commenced or continued a criminal proceeding against the plaintiff
2. the prosecution terminated in plaintiff's favor
3. probable cause was absent and
4. actual malice

The ex-husband lost the civil case when the jury found that the ex-wife did not commence or continue the criminal prosecution. Even though the ex-wife gave a sworn written statement, the ex-husband, for some reason, called the DA who prosecuted the criminal case to testify who said that a standing policy existed in which the police had no discretion whether or not to make an arrest in a domestic violence incident and that the District Attorney makes the decision to prosecute not the victim of domestic violence." The Court of Appeals indicated that such evidence supported the jury's findings.

The ex-husband complained on appeal that the trial court excluded evidence that would have showed the jury that the ex-wife's sworn statement to the Police was false. A dissenting judge on the Court of appeals said that if the complainant engages in bad faith conduct that results in a prosecution, she has "commenced" the prosecution. The majority of the Court of Appeals said that the ex-husband did not present enough evidence that would have made the excluded evidence admissible at trial.

What was the key evidence? During the pendency of the case the brother of the ex-husband recorded a conversation with the wife in which she allegedly admitted that she did not feel threatened by her ex-husband and allegedly lied to the police for a different reason. The trial court excluded the audio tape from consideration because the ex-husband did not lay a proper foundation for the admission into evidence of the audio tape. To lay a proper foundation for the admission of the audio tape into evidence, the Court of Appeals explained, clear and convincing evidence needed to be presented proving that the tapes were genuine and had not been altered. Such evidence would consist of testimony that showed who recorded the conversation, how it was recorded (e.g., the equipment used) or the chain of custody of the audio tape during the time between when the conversation took place and the trial. All the ex-husband offered as a foundation was to have a party to the conversation, the brother, identify the voices on the audio tape and to state that the audio tape was fair and accurate.

The Court of Appeals also said something interesting. It said that even though the State of New York was prosecuting the criminal case against the ex-husband, the statements of the ex-wife to the brother of the ex-husband could have been introduced into evidence as "admissions of a party opponent". However, the Court of Appeals said, this argument was never made to the trial judge.

Thus, the ex-husband seems to have lost this case by failing to present the proper evidence. A false statement from a complaining witness from which arises a criminal prosecution still is the first prong of a malicious prosecution case. However, in this case it seems, the ex-husband did not prove it.

Workplace Safety at Elevated Construction Sites

The risk of death or serious injury at workplaces continues to be a threat:

• On the job accidents took the lives of 37 New York State construction workers in 2010 alone (NYS Dept of Labor)

• OSHA inspectors found violations of work site safety standards in 67% of NYS construction site inspections in 2008.

Devastating accidents can be prevented. Too often, prevention takes a back seat to corporate profits.

We need to make sure that New York Construction workers are kept safe from construction accidents.

New York's Scaffold Law is one of the most effective and important workplace safety statutes in the nation.

The Scaffold Law applies to elevated construction activities and provides that an owner or contractor is strictly liable for injuries resulting from their own failure to proved the prescribed safety equipment and training. The Scaffold law takes into account that many deaths and injuries associated with working at elevated construction sites could be avoided melely by requiring that the site owners and contractors provide vital safety equipment which properly protects workers.

New York protects its workers from irresponsible acts of contractors and owners who put their workers in harms way.

Should you be injured in a contstruction accident of any type, including those occuring at an elevation, you should seek legal counsel to discuss your rights.

At Bosco and Mascolo, Esqs LLP we have handled many worker injury cases that occurred at construction sites. Should you be in this situation, you should contact us to discuss your construction accident and your rights in such a case.

Dog Bites and Parties at which alcohol is served to minors

On Nov 16, 2012, the Appellate Division of the Supreme Court (4th Dept) decided the case of  Murphy v. Cominsk. Here is what happened. The parents were out of town.  Their child, a minor, decided to host a party at which alcohol was served. The guests, also minors, became rowdy. The rowdiness at the party agitated the family dog which bit the plaintiff.

It is illegal in the State of New York to serve alcohol to a minor. New York State has a law called the Dram Shop Act found in General Obligations Law §§ 11-100 and 11-101 that protects minors from alcohol.

The Plaintiff argued that the defendant was liable via New York's Dram Shop Act. The Defendant argued that the Dram Shop Act did not provide plaintiff an avenue to liability. In a dog bite case, the only avenue to liability was via a dog's known, vicious propensities. The Defendants cited the case of Petrone v Fernandez, 12 NY3d 546, a Court of Appeal case - the Court of Appeals is New York State's highest court - in which the Court of Appeals expressed the opinion that liability for a dog bite only arises if the dog had known, vicious propensities, that is, the dog was defective and its owner knew about it. There is no liability for negligence in the context of a dog bite, e.g., the dog was unleashed.

The Appellate Division of the Supreme Court (4th Dept) agreed with the plaintiff and disagreed with the defendant. Because alcohol and minors were involved, liability arises from a dog bite.

The lesson from this case is that parents ought to think twice before leaving their minor children who like to party home alone.

P.S.

The Court makes an interesting comment about causation in Dram Shop cases. In a Dram Shop case, a plaintiff does not have the burden of proving "proximate causation". All a plaintiff needs to prove is "some reasonable or practical connection between the [furnishing] of alcohol and the resulting injuries".

Bosco and Mascolo, Esqs. LLP handles cases involving vicious animals including dog bites. We also handle cases in which alcohol contributes to the injuries and other losses.

The Parts of a Premise Case - Slips, Trips and Falls

Has an accident in which you have slipped, tripped and fallen punched a hole into your health or into your pocketbook?

What do I mean by a hole? There are both physical holes and monetary holes. A person who enjoys good health but loses it due to an accident experiences a hole when her good health is taken away and a void is created that is filled by pain and suffering. A person who has a job and enjoys an income but loses it due to an accident experiences a monetary hole. Holes have two significant properties: depth and duration. A hole can be shallow or deep and can be temporary or permanent. Here is a question for your to ponder: Is a 3 foot hole that lasts for one day equal to a 1 foot hole that lasts for 3 days?

In certain circumstances, the law of the State of New York gives you the right to have the holes gouged out of your life filled. What are the circumstances in which you have a right that the holes in your life be filled in a trip, slip and fall?

A trip, slip and fall case has, generally speaking, the following parts:

1. a defect or some sort of problem
2. knowledge of the defect
3. an opportunity to correct it
4. a failure to do so and
5. an injury from the defect

A plaintiff must present evidence that proves each of these elements of a premise's case. If a plaintiff proves most but not all, he or she loses the entire case. Coming close is not good enough. That is why it is easier to be a defendant than a plaintiff. All a defendant needs to do is knock out one of these elements in order to win.

Bosco and Mascolo, Esqs. LLP are accident lawyers who handle all types of slip, trip and fall cases.

Table Saw Amputates the finger of a Book Shelf Maker - $500,000.00 Settlement

In January 2012, our client was working at his Dad's House making a bookcase when the table saw he was using chopped off his finger. By October 2012, the case was settled for $500,000.00.   His dad's house was insured by Allstate. His Dad bunked into our client while our client was doing the work.  We sued our client's dad and Allstate settled the case.