By Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.8424-8425. & M-6152. PEOPLE, ap — v. Jayvon McKinney, def-res — Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for ap — The Bronx Defenders, Bronx, (Joshua Occhiogrosso-Schwartz of counsel), for res — Order, Supreme Court, Bronx County (Alvin Yearwood, J.), entered on or about July 7, 2017, which granted defendant’s motion to inspect grand jury minutes and upon inspection, dismissed the indictment, unanimously reversed, on the law, the motion denied and the indictment reinstated. Appeal from order, same court and Justice, entered on or about November 21, 2017, which effectively granted reargument and adhered to the original decision, unanimously dismissed as academic.The court erroneously dismissed an indictment charging defendant with crimes committed in two incidents, both recorded in videotapes presented to the grand jury, on the ground that a police officer who witnessed neither incident, but knew defendant from the area, identified him in each videotape. This testimony was not impermissible and it did not render the grand jury proceedings defective. The detective testified from his personal knowledge. Moreover, unlike trial jurors who can normally observe a defendant in court, grand jurors do not have that means of making a comparison between a videotape and a defendant’s appearance. In so holding, we express no opinion on the admissibility of a similar identification at trial. The “exceptional remedy of dismissal” (People v. Huston, 88 NY2d 400, 409 [1996]) was not warranted.Finally, we note that, there was no basis for dismissing those counts of the indictment relating to a November 7, 2016 crime, because the grand jury presentation included defendant’s confession to that crime.We have considered and rejected defendant’s remaining arguments for affirmance.M-6152 - People of the State of New York v. Jayvon McKinneyMotion to dismiss appeal denied.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By Friedman, J.P., Sweeny, Webber, Gesmer, Singh, JJ.8951. Nakia Lewis, plf-res, v. New York City Housing Authority, def-ap — Herzfeld & Rubin, P.C., New York (Linda M. Brown, of counsel), for ap — Alexander J. Wulwick, New York, for res — Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered March 29, 2018, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. Plaintiff testified at her deposition and General Municipal Law §50-h hearing that at around noon on the alleged date of the accident, she went to visit a friend, who lived in the same building, one floor up on the fifth floor. When plaintiff entered the fourth floor stairwell, she saw a NYCHA maintenance employee sweeping the stairs. She observed a bucket and mop on the fifth floor landing. The employee told her not to go up the stairs and to use a second staircase. They exchanged words before plaintiff ascended the stairs to the fifth floor.Plaintiff’s friend did not answer the door. Plaintiff returned to her apartment using the same staircase. The NYCHA maintenance employee was now sweeping the stairwell on the fifth floor. Plaintiff did not see any water on the stairs before she started walking down to the fourth floor. As plaintiff proceeded, she first heard water and then saw waterrunning down the stairs between her legs. She turned around and saw the NYCHA maintenance employee holding a dripping mop over the landing. Plaintiff continued to walk down. She suddenly felt herself slip and allegedly fell down the rest of the staircase (cf. Brown v. New York Marriot Marquis Hotel, 95 AD3d 585 [1st Dept 2012] [where plaintiff acknowledged that before she fell, she observed the open door, yellow cone, and liquid, which led her to suspect that the steps were wet, but she proceeded to descend them in any event]). On this record, there are triable issues of fact as to whether the employee’s actions were a proximate cause of plaintiff’s accident.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
