JUST RELEASED

April Page IV

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)

 

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CRIMINAL LAW/EVIDENCE

 

Officer Had No Legitimate Reason for Initial Approach of Defendant's Vehicle--Suppression Granted and Indictment Dismissed

 

The Second Departent reversed defendant's conviction and dismissed the indictment, finding that the initial approach of defendant in his vehicle by Officer Ranolde was not justified:

 

In People v De Bour (40 NY2d 210), the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity ... . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective credible reason, not necessarily indicative of criminality .... The second level, known as the "common-law right of inquiry," requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion ... . The third level under DeBour permits a seizure, meaning that a police officer may forcibly stop and detain an individual. Such a seizure, however, is not permitted unless there is a "reasonable suspicion" that an individual is committing, has committed, or is about to commit a crime ... . Finally, the fourth level under De Bour authorizes an arrest based on probable cause to believe that a person has committed a crime ... .

 

"Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand" .... "To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion" ... . The defendant's later conduct "cannot validate an encounter that was not justified at its inception" ... .

 

Here, that branch of the defendant's omnibus motion which was to suppress the physical evidence seized should have been granted, as Ranolde lacked an objective, credible reason for approaching the defendant's car and shining his flashlight into the car ... . At the hearing, Ranolde failed to articulate any reason for approaching the defendant's car other than that the car was parked in the early morning in an area where cars usually were not parked, and that the defendant may have moved something from the dashboard and thrown it on the floor of his car. Neither reason was a sufficient basis for the officers to have approached the defendant's vehicle and requested information ... .In any event, Ranolde's testimony did not support a finding that he had a reasonable suspicion that the defendant was committing, had committed, or was about to commit a crime ... . Indeed, there was nothing to indicate that the defendant had violated any Vehicle and Traffic Law provision ... . Additionally, Ranolde admitted that, after he initiated his inquiry, he looked into the defendant's car using a flashlight and noticed nothing illegal or out of the ordinary. The defendant's removal of something from the dashboard and his wearing of gloves were innocuous, and not indicative of criminality ... People v Laviscount, 2014 NY Slip Op 02798, 2nd Dept 4-23-14

 

 

 

CRIMINAL LAW/ATTORNEYS

Defendant Entitled to Hearing Re: Whether His Counsel Was Inffective For Failing to Communicate an Earlier, More Lenient Plea Offer

 

The Second Department determined defendant had presented enough evidence to justify a hearing on whether his counsel was ineffective for failure to inform him of an earlier, more lenient, plea offer.  The court explained the legal principles involved:

 

...[T]he United States Supreme Court held in Missouri v Frye ( _____ US _____, _____, 132 S Ct 1399, 1410) that counsel's failure to advise a criminal defendant of a beneficial plea agreement constitutes ineffective assistance of counsel under the Sixth Amendment ... where the defendant establishes that there was a reasonable probability that he or she would have accepted the earlier plea offer had it been communicated to him or her, that the election to go to trial or accept a different plea agreement resulted in a harsher penalty, and that, if the prosecution had the discretion to cancel the earlier proposed plea agreement or the trial court had the discretion to refuse to accept it, there was a reasonable probability that neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. In Lafler v Cooper ( _____ US _____, _____, 132 S Ct 1376, 1391), which was decided on the same day as Missouri v Frye, the United States Supreme Court concluded that the remedy for a claim of ineffective assistance of counsel that results in a harsher sentence than that initially proposed to the defendant pursuant to a plea agreement is to direct the People to reoffer the plea agreement.

 

Given the defendant's detailed allegations on the record, which had first been brought to the Supreme Court's attention more than one month before the defendant pleaded guilty, the court should have addressed the contention. Accordingly, we remit the matter to the Supreme Court, Queens County, for a hearing and a report on the defendant's contention that the People had previously made a more lenient plea offer than the one which he ultimately accepted. The defendant has the burden of establishing that the People made that plea offer, including a determinate term of imprisonment of three years in connection with a plea of guilty to a lesser count ..., that his first assigned counsel did not adequately inform him of that offer ..., that there is a sufficient likelihood that he would have accepted the offer had counsel adequately communicated it to him ..., and that there is a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement...  .  People v Maldonado, 2014 NY Slip Op 02800, 2nd Dept 4-23-14

 

 

CRIMINAL LAW/EVIDENCE

Show-Up Identification Procedure Unduly Suggestive

 

Although deemed harmless error, the Second Department determined the show-up identification of the defendant was unduly suggestive.  The defendant had already been arrested when he was pulled to a standing position in front of the victim for identification (for the second time).  At that point there were no "exigent circumstances" to justify the procedure used:

 

While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, "the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure" ... . "The People's burden consists of two elements. First, the People must demonstrate that the showup was reasonable under the circumstances. Proof that the showup was conducted in close geographic and temporal proximity to the crime will generally satisfy this element of the People's burden'" ... . However, "[t]he People also have the burden of producing some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive" ... .

 

The People established that the showup "was conducted in close geographic and temporal proximity to the crime" ... . However, they failed to demonstrate that the procedure was not unduly suggestive. The fact that a defendant is handcuffed and in the presence of police officers, standing alone, does not render a showup unduly suggestive ..., even where "the victim had been told that the police had a suspect in custody" ... . Here, however, the complainant was given two opportunities to identify the same man as the perpetrator. The second time, police officers pulled the defendant into a standing position and escorted him to where the complainant was standing. At that juncture, the defendant was under arrest and Officer Fallace acknowledged that "[t]here was no rush at that point." Therefore, there were no exigent circumstances justifying the procedures employed. The above-described circumstances, when "viewed cumulatively," establish that "the showup identification was unduly suggestive" ... . Further, there was no hearing or finding on the question of whether the complainant's in-court identification had an independent source ... . People v Ward, 2014 NY Slip Op 02809, 2nd Dept 4-23-14

 

 

ENVIRONMENTAL LAW/MUNICIPAL LAW

 

New Paltz Local Wetlands Law Should Not Have Been Annulled

 

The Third Department, in a lengthy and detailed decision, reversed Supreme Court's annulment of a Local Law enacted by the Town of New Paltz.  The law was enacted to prevent the "despoliation and destruction of wetlands."  The court determined, among other issues, the town board had acted in compliance with the State Environental Quality Review Act (SEQRA), the law was not unconsitutionally vague, and the law was not preempted by other laws.  The  court described the "hard look" required by SEQRA, as well as the court's review-role, as follows:

 

Initially, respondents contend that Supreme Court erred in concluding that the Board failed to take the "hard look" required by SEQRA before concluding that an environmental impact statement (hereinafter EIS) was not required. SEQRA requires an EIS when an agency action "may have a significant effect on the environment," and such an impact is presumed to be likely where, as here, a type I action is involved (ECL 8-0109 [2]... 6 NYCRR 617.4 [a] [1]); however, a type I action does not, "per se, necessitate the filing of an [EIS]" ... . A negative declaration may be issued, obviating the need for an EIS, if the lead agency — here, the Board — determines that "no adverse environmental impacts [will result] or that the identified adverse environmental impacts will not be significant" (6 NYCRR 617.7 [a] [2]...). Upon judicial review, we may not substitute our judgment for that of the Board, and may annul its decision "only if it is arbitrary, capricious or unsupported by the evidence" ... . Matter of Gabrielli v Town of New Paltz, 2014 NY Slip Op 02826, 2nd Dept 4-24-14

 

 

 

INSURANCE LAW/CIVIL PROCEDURE

 

Insurance Law 5214 Does Not Apply Where Motor Vehicle Accident Indemnification Corporation (MVAIC) Is Sued Directly Because the Identity of the Driver Who Caused Plaintiff's Injury Is Unknown/Default Judgment Against MVAIC Properly Entered

 

The Second Department, in a full-fledged opinion by Justice Hinds-radix, determined Supreme Court had properly entered a default judgment against the Motor Vehicle Accident Indemnification Corporation (MVAIC).  Plaintiff was a pededstrian who was allegedly struck by a driver who drove plaintiff to the hospital but then left without identifying himself.  Because the driver was unknown, plaintiff sued MVAIC directly pursuant to Insurance Law 5218.  MVAIC argued that Insurance Law 5214 prohibited the entry of a default judgment against it.  The Second Department determined Insurance Law 5214 did not apply, and a default judgment was properly entered against the MVAIC pursuant to CPLR 5015:

 

This case does not fall within the scope of Insurance Law § 5214 because it does not involve a claim against MVAIC stemming from a judgment entered upon the default or consent of an uninsured defendant. Rather, MVAIC was involved because the identity of the offending motorist was unknown, which permitted the plaintiff, with the approval of the court, to commence an action against MVAIC directly, pursuant to Insurance Law § 5218. Insurance Law § 5218 authorizes a court to permit the commencement of an action against MVAIC directly, if, inter alia, "all reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator and either the identity of the motor vehicle and the owner and operator cannot be established, or the identity of the operator, who was operating the motor vehicle without the owner's consent, cannot be established" (Insurance Law § 5218[b][5]...). Where an action is commenced directly against MVAIC, the concerns underlying the enactment of Insurance Law § 5214—protecting MVAIC from the defaults of, or possible collusion by, uninsured defendants—are not implicated. Thus, Insurance Law § 5214 "does not bar the entry of a default judgment against MVAIC in an action in which MVAIC is the named defendant and has defaulted" ... .  Archer v Motor Veh Acc Indem Corp, 2014 NY Slip Op 02732, 2nd Dept 4-23-14

 

 

 

CIVIL CONSPIRACY/LEGAL MALPRACTICE/FRAUD/ATTORNEYS/REAL PROPERTY LAW

 

Allegations of a "Conspiracty to Commit Fraud" Survived a Motion for Summary Judgment/Conspiracy Allegations  Must Connect Individual Defendants with an Actionable Underlying Tort

 

The Second Department determined Supreme Court properly refused to grant summary judgment in favor of an attorney in an action based upon serious allegations of malpractice in connection with a real estate transaction.  Amony other allegations, it was claimed that the attorney allowed an employee to pose as him and caused the plaintiffs to (unknowingly)  sign documents accepting the premises as is. In affirming Supreme Court's finding that a question of fact had been raised about the "conspiracy to commit fraud" allegations, the Second Department explained the nature of a civil conspiracy:

 

"New York does not recognize civil conspiracy to commit a tort . . . as an independent cause of action" ... . However, "a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme" ... . "The allegation of conspiracy carries no greater burden, but also no less, than to assert adequately common action for a common purpose by common agreement or understanding among a group, from which common responsibility derives. Therefore, under New York law, [i]n order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement. A bare conclusory allegation of conspiracy is usually held insufficient"... . Blanco v Polanco, 2014 NY Slip Op 02735, 2nd Dept 4-23-14

 

 

 

NEGLIGENCE

 

Plaintiff Did Not Know the Cause of Her Fall/Therefore, There Was an Insufficient Showing of a Connection Between Alleged Building Code Violations and the Fall

 

The Second Department determined that alleged building code violations concerning the slope of stairs and the height of a handrail were not sufficiently connected to the accident to withstand summary judgment. Plaintiff testified she did not know the cause of her fall down the exterior stairs:

 

...[Plaintiff] testified that she did not know what caused her to fall and stated that she "pitch[ed]" forward ... . ... The plaintiff submitted the affidavit of an expert who opined that the subject stairs were built in violation of the New Rochelle Building Code since, inter alia, the steps were sloped forward more than 2% and the handrail was lower than required. However, the plaintiff did not testify that she fell because of the slope of the steps or because she was unable to grasp the handrail due to its height. Consequently, the plaintiff failed to present evidence to connect the alleged building code violations to her fall ... . Maglione v Seabreeze By Water Inc, 2014 NY Slip Op 02756, 2nd Dept 4-23-14

 

 

NEGLIGENCE/EDUCATION-SCHOOL LAW

Question of Fact Raised about Whether Injury at Summer Day Camp Resulted from Inadequate Supervision

 

The Second Department determined plaintiff had raised a question of fact about whether games played at a summer day camp were adequately supervised.  The complaint alleged the injury was caused when plaintiff was pushed by an older child, and futher alleged the five teens who were supposed to be supervising the game were sitting together on a bench, not paying any attention to the game:

 

"[S]chools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision" ... . Whether such supervision was adequate and if, inadequate, whether it was a proximate cause of the subject injuries are generally questions for the trier of fact to resolve ... . "An injury caused by the impulsive, unanticipated act of a fellow [camper or] student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act" ... .  Osmanzai v Sports & Arts in Schools Found Inc, 2014 NY Slip Op 02760, 2nd Dept 4-23-14

 

 

NEGLIGENCE/MUNICIPAL LAW

 

Allegation that Town Planted a Tree Near a Sidewalk and Did Not Maintain the Roots, Thereby Creating a Dangerous Condition, Is an Allegation of "Nonfeasance," not an "Affirmative Act of Negligence"

 

The Second Department determined an allegation that a municipality planted a tree near a sidewalk and failed to maintain the tree roots did not support a negligence action based upon the creation of a dangerous condition:

 

...[T]he plaintiff alleged in his notice of claim, complaint, and bill of particulars that the Town affirmatively created the subject dangerous condition through various specified acts of negligence. "[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" ... . The Supreme Court, in denying the Town's motion, concluded that it failed to meet its prima facie burden since it did not demonstrate that it did not affirmatively create the condition alleged. However, the Supreme Court erred in so concluding. The evidence submitted in support of the motion established that the planting of a tree or trees adjacent to the sidewalk where the accident occurred, and the alleged failure to maintain the roots of the tree or trees, would at most constitute nonfeasance, not affirmative negligence ... . In opposition, neither the plaintiff nor the defendants ...raised a triable issue of fact as to whether the Town created the condition alleged through an affirmative act of negligence. Lipari v Town of Oyster Bay, 2014 NY Slip Op 02755, 2nd Dept 4-23-14

 

 

 

NEGLIGENCE/MUNICIPAL LAW

NYC Abutting Landowners' Responsibilties for Sidewalk Defects and Defects Relating to Covers and Gratings Explained

 

The Second Department explained the New York City law applicable to the responsibilty of abutting landowners with respect to sidewalks, and with respect to covers or gratings within or near the sidewalks:

 

...[L]iability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality and not the abutting landowner ... . However, an abutting landowner will be liable to a pedestrian injured by a defect in a sidewalk where the landowner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk ... . Section 7-210 of the Administrative Code of the City of New York, which was in effect at the time of the accident, shifts liability for injuries resulting from defective sidewalks from the City to abutting property owners ... . Legislative enactments in derogation of the common law which create liability where none previously existed must be strictly construed ... . Hence, while section 7-210 expressly shifts tort liability to the abutting property owner for injuries proximately caused by the owner's failure to maintain the sidewalk in a reasonably safe condition, it does not supersede pre-existing regulations such as 34 RCNY 2-07(b), which provides that "owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware" (34 RCNY 2-07[b][1]...).  Roman v Bob's Discount Furniture of NY LLC, 2014 NY Slip Op 02762, 2nd Dept 4-23-14

 

 

NEGLIGENCE/MUNICIPAL LAW

Property Owners, Absent a Regulation, Do Not Have a Duty to Make Sure Vegetation Does Not Obstruct Drivers' View/Here the Cited Code Violations Were Not Intended to Impose that Duty

 

The Second Department determined that the town code provisions cited by plaintiffs did not impose a duty upon property owners to prevent vegetation from obstructing the view of drivers on a public road:

 

A property owner has no common-law duty to prevent vegetation growing on its property from creating a visual obstruction to users of a public roadway ... . Although such a duty may be imposed by a specific regulatory provision ..., the ordinances ... defendants allegedly violated, Code of the Town of Clarkstown §§ 216-4 and 250-6, were not intended to protect motorists from the hazards of vegetation which obstruct views at intersections of streets and driveways ... . Accordingly, alleged noncompliance with the subject ordinances may not give rise to tort liability... . Preux v Dennis, 2014 NY Slip Op 02763, 2nd Dept 4-23-14

 

 

NEGLIGENCE/MUNICIPAL LAW/EMPLOYMENT LAW

 

Assault by NYC Firefigthers in a Restaurant Raised Questions of Fact Whether the City Defendants Were Liable for the Injuries to the Plaintiffs Based Upon Negligent Hiring, Training, Supervision and/or Retention/Fact that Suit Could Not Be Based Upon Respondeat Superior (Actions Outside the Scope of Employment) Did Not Preclude Suit Based Upon City's Own Alleged Negligence (!)

 

The Second Department determined plaintiffs, who were injured when assaulted by NYC firefighters in a restaurant, had made allegations against the city and the fire department which raised questions of fact about negligent hiring, supervision, training and retention. The firefighters, including supervisors, had just come from a New York City Fire Department annual dinner held at another restaurant.  Apparently two firefighters (Reilly and Warnock) attacked the plaintiffs after a drink had been accidentally spilled on a firefighter. The court explained that the doctrine of respondeat superior would not apply because the firefighters were not acting within the scope of their employment at the time of the assault.  But the court determined the causes of action against the City defendants for negligent hiring, supervision, training and retention could go forward!

 

"The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment" ... . "An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business'" ... . "An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment" ... . Where, however, an employee's actions are taken for wholly personal reasons, which are not job related, the actions cannot be said to fall within the scope of employment ... . In instances where vicarious liability for an employee's torts cannot be imposed upon an employer, a direct cause of action against the employer for its own conduct, be it negligent hiring, supervision, or other negligence, may still be maintained ... .

 

Here, the Supreme Court properly granted that branch of the City defendants' motion which was for summary judgment dismissing the causes of action alleging vicarious liability. The City defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the tortious conduct of Reilly and Warnock was not within the scope of their employment ... . In opposition, the plaintiffs failed to raise a triable issue of fact ... . However, as to the causes of action alleging negligent hiring, supervision, training, and retention, the City defendants did not establish their entitlement to judgment as a matter of law. They failed to submit any evidence demonstrating that they did not know or have reason to know of Reilly's or Warnock's alleged propensity for assaultive conduct ... . Furthermore, the City defendants failed to submit evidence demonstrating that any such alleged negligence was not a proximate cause of the injured plaintiffs' injuries ... . Selmani City of New York, 2014 NY Slip Op 02764, 2nd Dept 4-23-14

 

 

REAL ESTATE

 

No Allegation of Active Concealment of Defects on Part of Seller/Buyer Can Not Sue for Defects Discovered after the Closing Based Solely Upon Seller's Silence

 

In affirming the grant of summary judgment to the seller of property, the Second Department explained the doctrine of "caveat emptor."  The complaint alleged the plaintiffs became aware of flooding problems and mechanical problems after the closing. 

 

" New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller's agent to disclose any information concerning the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller or the seller's agent which constitutes active concealment'" ... . "If however, some conduct (i.e., more than mere silence) on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property" ... . " To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller's agents thwarted the plaintiff's efforts to fulfill his [or her] responsibilities fixed by the doctrine of caveat emptor'" ... . Here, in opposition to the respondent's prima facie showing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact as to whether the respondent engaged in conduct that would constitute active concealment. Mo v Rosen, 2014 NY Slip Op 02758, 2nd Dept 2-23-14