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Summaries of recently released decisions to be included in the next issue of the Digest (uncorrected)


Contract Between Employer and Contractor Did Not Create a Duty Owed to Employee/Instrument of Harm Doctrine Not Applicable

Plaintiff was standing on a barrel performing work for his employer.  In reaching for a tool he grabbed onto some bricks on a column.  The bricks came loose and plaintiff lost his balance and fell.  Plaintiff sued the parties responsible for installing the bricks six years before (pursuant to a contract with the employer).  In affirming summary judgment to the defendants, the Fourth Department wrote:

           Here, defendants established as a matter of law that they did not owe any duty to plaintiff, and plaintiff failed to raise a triable issue of fact. Although defendants had contractual obligations with respect to the construction of the project for plaintiff’s employer, as a general rule “a contractual obligation, standing alone, will . . . not give rise to tort liability in favor of a third party,” i.e., a person who is not a party to the contract …. There is an exception to that general rule, however, “where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, ‘launche[s] a force or instrument of harm’ ” …, thereby “creat[ing] an unreasonable risk of harm to others, or increas[ing] that risk” …. Contrary to plaintiff’s contention, the instrument of harm doctrine does not apply to the facts of this case, and thus there was no duty of care running from defendants to plaintiff based on that doctrine ….  Spaulding v Loomis Masonry, Inc. et al, CA 12-01395, 32, 4th Dept, 4-26-13

Car Dealership Was Not the Owner of a Car Lent to a Customer While Customer’s Vehicle Was Repaired---Therefore Dealership Was Not Vicariously Liable for Injury Caused by the Driver of the Loaned Car

In reversing the motion court and granting summary judgment to defendant car dealership, the Fourth Department (over a dissent) determined that defendant dealership was not the owner of the vehicle involved in the accident, and therefore could not be held vicariously liable under Vehicle and Traffic Law 388.  Defendant’s employee (the daughter of the owner) agreed to lend her personal car to one Leederman while Leederman’s vehicle was being fixed at the dealership.  All of defendant’s “loaner cars” were in use and the dealership’s owner asked his daughter to lend her car to Leederman.  Leederman, in turn, let defendant Trummer use the car.  Trummer was driving when the accident occurred.  The Fourth Department wrote:

           Pursuant to Vehicle and Traffic Law § 388, an owner of a motor vehicle is vicariously liable for the negligent use or operation of such vehicle by anyone operating the vehicle with the owner’s express or implied permission (see § 388 [1] …).The term “owner” is defined as “[a] person, other than a lien holder, having the property in or title to a vehicle . . . The term includes a person entitled to the use and possession of a vehicle . . . subject to a security interest in another person and also includes any lessee or bailee of a motor vehicle . . . having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days” (§ 128; see § 388 [3]).

           We agree with defendant that it established as a matter of law that it was not the owner of the vehicle involved in the motor vehicle accident at issue, and that plaintiffs failed to raise a triable issue of fact with respect to ownership of that vehicle.  Monette v Trummer, et al, CA 12-01274, 79, 4th Dept, 4-26-13

Question of Fact Raised About Whether Released Signed in Anticipation of a Skydiving Course Precluded Personal Injury Action

Plaintiff had signed a release of liability in connection with a one-hour skydiving course.  Before the course could be given, the plane crashed and plaintiff was injured.  In moving to dismiss the complaint, the defendants argued that General Obligations Law 5-326, which renders releases issued by “places of recreation” void, did not apply.  The motion court denied the motion to dismiss and the Fourth Department affirmed:

           Defendants assert that section 5-326 does not apply here because [defendant] is an instructional facility, rather than a recreational facility. Where a facility is “used for purely instructional purposes,” section 5-326 is inapplicable even if the instruction that is provided relates to an activity that is recreational in nature … . “In assessing whether a facility is instructional or recreational, courts have examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility” …. On a motion to dismiss pursuant to CPLR 3211, a court “may . . . consider affidavits and other evidentiary material to ‘establish conclusively that plaintiff has no cause of action’ ” … We conclude that [defendant’s] facility is not used purely for instructional purposes based upon our review of [defendant’s] certificate of incorporation, including the statement of purpose contained therein; the services for which plaintiff paid a fee, i.e., whether she paid for a course of instruction or for use of the facilities; as well as the other evidence submitted by defendants. Thus, defendants have failed to establish as a matter of law that General Obligations Law § 5-326 does not apply here …  and have failed to establish conclusively that plaintiff has no cause of action.
Tiede v Frontier Skydivers, Inc, CA 12-01861, 216, 4th Dept, 4-26-13

2 ½ Drop in Pavement Was Not Proximate Cause of Plaintiff’s Loss of Control of Her Vehicle

The Fourth Department affirmed the Court of Claims’ determination that a 21/2 inch drop off in the shoulder of a road was not the proximate cause of a driver’s losing control of her vehicle.  The doctrine of “qualified immunity” in connection with road defects is explained.  Marrow… v State…, CA 12-00974, 241, 4th Dept, 4-26-13

The Fourth Department reversed the trial court’s denial of a motion to amend a complaint, noting:

           “Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit… “.

           … A “court should not examine the merits or legal sufficiency of the proposed amendment unless the proposed pleading is clearly and patently insufficient on its face” … .  Holst…v Liberatore…, CA 12-01575, 243, 4th Dept, 4-26-13

Question of Fact About Defect In Diving Board Precluded Summary Judgment Based Upon Primary Assumption of Risk

Plaintiff was injured when he slipped from a diving board at defendant’s pool.  In finding a question of fact had been raised about whether there existed a concealed or unreasonably increased risk on the surface of the diving board, the Fourth Department explained the applicable law:

           The doctrine of primary assumption of risk “generally constitutes a complete defense to an action to recover damages for personal injuries . . . and applies to the voluntary participation in sporting activities” .. . Under that doctrine, “a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions[] and risks [that] are inherent in the activity” … . The owner of recreational premises owes a duty “to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . A plaintiff, however, will not be deemed to have consented to “concealed or unreasonably increased risks” … . Thus, in assessing whether the relevant duty has been breached, it must be determined “whether the conditions caused by the defendant[’s] negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport” … . Menter v City of Olean, CA 12-01304, 308, 4th Dept, 4-26-13

Plaintiff Was Unable to Raise a Question of Fact About Whether Her Injuries Were Related to a Preexisting Condition

Over a dissent, the Fourth Department reversed the motion court’s denial of summary judgment to the defendant in an automobile-accident personal injury action.  The Fourth Department determined plaintiff had not raised a question of fact in response to the proof submitted by defendant that her injuries were linked to a preexisting condition, and not the accident:

           “[E]ven where there is objective medical proof [of a serious injury], when additional contributory factors interrupt the chain of causation between the accident and claimed injury—such as a gap in treatment, an intervening medical problem or a preexisting condition—summary dismissal of the complaint may be appropriate” …. Here, defendants met their initial burden on the motion with respect to the permanent consequential limitation of use, significant limitation of use, and 90/180-day categories by offering “persuasive evidence that plaintiff’s alleged pain and injuries were related to a preexisting condition” … .  Kwitek… v Seier…, CA 12-01607, 352, 4th Dept, 4-26-13

Plaintiff Need Not Exclude Every Other Possible Cause of an Accident to Demonstrate Proximate Cause

In reversing the grant of summary judgment to the defendant because of an alleged inability of the plaintiff to establish proximate cause, the Fourth Department determined the plaintiff need not exclude every possible cause of the accident other than the defendant’s acts or omissions:

           In order to establish proximate cause, “[p]laintiffs need not positively exclude every other possible cause of the accident. Rather, the proof must render those other causes sufficiently remote or technical to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence . . . A plaintiff need only prove that it was more likely . . . or more reasonable . . . that the alleged injury was caused by the defendant’s negligence than by some other agency” … . Furthermore, it is well settled that, in seeking summary judgment dismissing a complaint, a defendant “must affirmatively establish the merits of its . . . defense and does not meet its burden by noting gaps in its opponent’s proof” … .  New York Municipal Insurance Reciprocal… v Casella Construction, Ind, CA 12-02094, 399, 4th Dept, 4-26-13

Criteria for Negligent Misrepresentation Action

In reversing the denial of defendant’s motion to dismiss an action for negligent misrepresentation concerning the underwriting of mortgage loans, the Fourth Department determined plaintiff had not demonstrated the requisite “privity-like” relationship:

           A cause of action for negligent misrepresentation must allege “ ‘(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information’ ”… . In this case, we agree … that plaintiffs failed to allege the requisite special relationship between it and plaintiff …to state a cause of action for negligent misrepresentation … .  Flaherty Funding Corporation … v Johnson …, CA 12-02018, 427, 4th Dept, 4-26-13

Verdict for Negligent Design Upheld—1987 Car Did Not Have a Starter Interlock Device that Would Prevent Car from Starting When In Gear

The First Department determined a motion to set aside a verdict in a negligent design case was properly denied.  The jury found the car manufacture negligent in not installing a device (starter interlock device) such that the car (1987) car could not be started when it was in gear.  The First Department wrote:

           The trial court properly instructed the jury that in determining the negligent design claim it first had to decide whether, from the evidence at trial, there was a general custom or practice by automobile manufacturers selling manual transmission vehicles in the United States in 1987. The proof adduced at trial was sufficient to permit a jury to conclude that the practice was fairly well defined in the car manufacturing industry. Plaintiffs were not required to prove universal application of the practice in order for the jury to consider this question … . The court further properly instructed the jury that if there was such a custom and practice, it could be considered along with all of the other facts and circumstances, in determining whether Volvo had exercised reasonable care … . From all of the evidence in the record, including the experts' testimony, the jury reasonably concluded that defendants were negligent in failing to use a starter interlock device in its vehicle …. The trial court correctly denied defendants' motion for a directed verdict because there was sufficient evidence supporting plaintiffs' negligent design claim. Reis… v Volvo…, 2013 NY Slip Op 03024, 1st Dept, 4-30-13

Transit Authority Employee Properly Found Negligent In Not Summoning Help

Help for Police Officers Injured While Making an Arrest in a Subway Station
The First Department reinstated a verdict in favor of police officers who were injured in the course of making as arrest in a subway station. As the officer chased the suspect, that asked a New York City Transit Authority employee to call for police back up.  The theory of the case was that the employee negligently did not call for back up. The trial judge granted the Transit Authority’s motion for judgment finding the employee was under no duty to call for assistance.  In reversing, the First Department wrote:


           Public Authorities Law § 1212(3) imposes liability upon the Transit Authority for the negligence of its employees in the operation of the subway system. Although it is a common carrier, the Transit Authority is held to a duty of ordinary care under the particular circumstances of each case …. In Crosland v New York City Tr. Auth. (68 NY2d 165 [1986]), the Court of Appeals held that the Transit Authority could be held liable for the negligent failure of its employees to summon aid as they watched a gang of thugs fatally assault a passenger. As the Court stated, "Watching someone being beaten from a vantage point offering both safety and the means to summon help without danger is within the narrow range of circumstances which could be found to be actionable" (id. at 170 [citation omitted]). The trial court held that Crosland had no application here because plaintiffs were police officers. This was error.

           The broad definition of onlooker liability articulated by the Crosland Court does not lend itself to any exception based upon an injured party's status as a police officer. To be sure, General Obligations Law § 11-106 gives police officers as well as firefighters, who are injured in the line of duty, a distinct right of action against tortfeasors that cause such injuries. Accordingly, plaintiffs' recovery is not barred by their status as police officers and the Transit Authority's liability was established at trial. The Transit Authority also argues that the evidence did not establish that a timely response on Corbin's part would have prevented plaintiffs' injuries. We decline to consider this argument as it was raised for the first time on appeal. Were we to consider the argument, we would find it unavailing. Filippo v New York City Tr Auth, 2013 NY Slip Op 03025, 1st Dept, 4-30-13

Father’s Consent to Adoption Not Required

In affirming Family Court’s determination the father’s consent to adoption was not required, the Fourth Department explained the analytical criteria:

           “[T]here are two steps in determining whether the biological father’s consent may be dispensed with in a proceeding seeking approval of the adoption of his child[ren]” … “Using the guidelines set forth in Domestic Relations Law
§ 111 (1) (d), [Family C]ourt must first decide whether the father has demonstrated a substantial relationship with his child[ren] conferring [on him] the right to consent” to the adoption ….“Only after the [biological] father establishes his right of consent to the adoption . . . does the court proceed to determine [pursuant to section 111 (2) (a)] whether he has forfeited that right by evincing ‘an intent to forego his . . . parental . . . rights and obligations as manifested by his . . . failure for a period of six months to visit the child[ren] and communicate with the child[ren] or person having legal custody of the child[ren], although able to do so’ ” ….  Matter of Adoption…, CAF 12-00393, 33, 4th Dept, 4-29-13

Family Court Failed to Apply Equitable Distribution to Marital Assets and Failed to Give Wife Credit for Enhanced Earnings Generated by Husband’s Master’s Degree

The Fourth Department determined the trial court erred in failing to equitably distribute all or portions of an investment account, a 403-b deferred compensation account and preretirement death benefits.  In addition the Fourth Department determined the wife was entitled to a portion of her husband’s enhanced earnings from his master’s degree.  The underlying principles and authority for the wife’s entitlement to these assets and earnings are described in the decision.  Lauzonis v Lauzonis, CA 12-00188, 209, 4th Dept, 4-26-13

Inability of One of Two Children to Get Along with Custodial Parent Was a Sufficient Changed Circumstance to Justify the Award of Custody of that One Child to the Other Parent

The Fourth Department affirmed Family Court’s ruling that the father had demonstrated a change of circumstances warranting the change of custody for one of two children based upon the mother’s strained relationship with that one child:

           Here, the parties vary only in their ability “to provide for the child’s emotional and intellectual development” …, and the court implicitly concluded that the mother was the less fit parent with respect to that factor …. The court determined that it was in Kaitlyn’s best interests to reside with the father because of the stress caused by the mother’s interactions with her, but that it was in Danielle’s best interests to continue residing with the mother because she had learned to cope with her mother’s personality. “Although the separation of siblings is unfortunate” …, here the children have different needs.  Indeed, this “is one of those rare cases where the breakdown in communication between the parent and child that would require a change of custody is ‘applicable only as to the best interests of one of [two] children’ ” ….  Matter of O’Connell, v O’Connell, CAF 12=01649, 232, 4th Dept, 4-26-13

Incarcerated Father Entitled to Reinstatement of His Petition for Visitation

In reversing the dismissal of an incarcerated father’s petition for visitation with his nine-year-old child, the Fourth Department wrote:

          Here, we conclude that “the record is not sufficient to determine whether visitation [with the father] would be detrimental to [the child’s] welfare” …  Additionally, neither the mother nor the [attorney for the child] presented any evidence rebutting the presumption that visitation with the father is in the child’s best interests, and the record does not otherwise contain any evidence rebutting that presumption … .  Matter of Brown v Divelbliss, CAF 12-00555, 234, 4th Dept, 4-26-13

Father Whose Parental Rights Had Been Terminated Had Standing to Seek Modification or Vacatur of Order of Protection

The Fourth Department determined that a father whose parental rights had been terminated had standing to seek modification or vacatur of a ten-year-old order of protection.  The Fourth Department wrote:

           Pursuant to Family Court Act § 656, the court may issue an order of protection in conjunction with any other order issued pursuant to article 6, i.e., an order terminating parental rights. We conclude that the order terminating the father’s parental rights is separate and distinct from the order of protection entered in conjunction with that termination order. Thus, the father has standing to challenge the validity of that separate order of protection.  Matter of Anna B …, CAF 12-00562, 303, 4th Dept, 4-26-13

Hearsay Evidence in Neglect Proceeding Was Not Admissible—Petition Dismissed

In reversing Family Court and dismissing a neglect petition against the father, the Fourth Department determined the hearsay evidence presented against the father was inadmissible:

           At the fact-finding hearing…, “only competent, material and relevant evidence may be admitted” (§ 1046 [b] [iii]). Here, “[t]he evidence offered in support of the petition against the father consisted almost entirely of out-of-court statements made by the mother to a police officer and caseworker[s] concerning a domestic dispute” …. Those statements were not admissible against the father in the absence of a showing that they came within a statutory or common-law exception to the hearsay rule … Contrary to the statement of Supreme Court, we conclude that the hearsay statements were not admissible “under article 10” of the Family Court Act (see generally § 1046 [a]).  Matter of Nicholas C, CAF 11-01532, 305, 4th Dept, 4-26-13

Mental Health Counseling Can Not Be Made a Condition of Visitation and Court Can Not Delegate Authority to Determine When Visitation Should Be Resumed

In upholding Family Court’s denial of visitation to the mother, the Fourth Department noted:  “The court erred, however, in directing the mother to engage in mental health counseling as a condition of visitation and in delegating its authority to the children’s counselor to determine when a resumption of visitation would be appropriate … .”  Matter of Roskwitalski, v Fleming, CAF 12-01090, 370, 4th Dept, 4-26-13


Criteria for Appellate Review of Arbitrator’s Award

The Fourth Department explained the criteria for review of an arbitrator’s award (which involved the writing of a collective bargaining agreement) as follows:

           Respondents failed to meet their “heavy burden of demonstrating that the arbitrator[s’] award is . . . totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . Where, as here, the role of the arbitration panel is to “write collective bargaining agreements for the parties . . . , [i]t follows that such awards, on judicial review, are to be measured according to whether they are rational or arbitrary and capricious” … . “[I]t need only appear from the decision of the arbitrators that the criteria specified in the statute[, i.e., the Taylor Law,] were ‘considered’ in good faith and that the resulting award has a ‘plausible basis’ ” … . We conclude that the decision of the arbitrators meets that standard here.  Matter of Arbitration …, CA 12-02127, 377, 4th Dept, 4-26-13


Injury When Stepping Off a Ladder Not Actionable under Labor Law 240(1)---Injury Not Related to the Need for the Ladder

Plaintiff was injured when he stepped from a ladder onto a hose and grain dust.  The Fourth Department determined Supreme Court erred when it denied summary judgment to the defendant in a Labor Law 240 (1) action because “plaintiff’s injury resulted from a separate hazard wholly unrelated to the danger that brought about the need for the ladder in the first instance…”.  Smith v E E Austin & Son, Inc, CA 12-01554, 266, 4th Dept, 4-26-13


Conclusory Allegations of Customer Confusion Insufficient to Defeat Motion for Summary Judgment

In reversing the motion court’s grant of summary judgment to the plaintiff in an unfair competition action, the Fourth Department determined that conclusory allegations of customer confusion or mistake in plaintiff’s affidavit were not sufficient, and the exhibits attached to the affidavit to demonstrate customer confusion were not admissible under the business records exception to the hearsay rule (insufficient foundation).  KG2, LLC … v Weller…, CA 12-01225, 338, 4th Dept. 4-26-13



E-Mail Service to Defendant Living in Iran Deemed Valid

The Fourth Department held that service by e-mail upon the defendant in a matrimonial action was valid.  The defendant was living in Iran and the trial judge (Supreme Court, Monroe County, Dollinger, J.) ordered that service be accomplished by e-mail pursuant to CPLR 308 (5).  The Fourth Department wrote:

           “CPLR 308 (5) vests a court with the discretion to direct an alternative method for service of process when it has determined that the methods set forth in CPLR 308 (1), (2), and (4) are ‘impracticable’ ” …. “Although the impractability standard is not capable of easy definition” …, “[a] showing of impracticability under CPLR 308 (5) does not require proof of actual prior attempts to serve a party under the methods outlined pursuant to subdivisions (1), (2) or (4) of CPLR 308” ….“The meaning of ‘impracticable’ will depend upon the facts and circumstances of the particular case” ….

           Here, we conclude that plaintiff made a sufficient showing that service upon defendant pursuant to CPLR 308 (1), (2), or (4) was impracticable, and thus that the court providently exercised its discretion in directing an alternative method of service …. Plaintiff submitted evidence that defendant left the United States with the parties’ child and declared her intention to remain in Iran with her family … . Further, plaintiff established that Iran and the United States do not have diplomatic relations and that Iran is not a signatory to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (20 UST 361, TIAS No. 6638). Plaintiff thus requested alternative service upon defendant’s parents in Iran, with whom defendant was residing.

           In light of those unique circumstances, we conclude that the court properly determined that service upon defendant was “impracticable by any method of service specified in CPLR 308 (1), (2), and (4).”

           “Once the impracticability standard is satisfied, due process requires that the method of service be ‘reasonably calculated, under all the circumstances, to apprise’ the defendant of the action” ….

           “In order to be constitutionally adequate, the method of service need not guarantee that the defendant will receive actual notice” ….

           Here, the court initially ordered service of the summons by (1) personal service upon defendant’s parents; (2) mail service upon defendant at her parents’ address in Iran; and (3) service upon defendant by plaintiff’s Iranian attorneys in accordance with Iranian law.

           Pursuant to that order, plaintiff mailed the summons and notice to defendant at her parents’ last known address in Tehran and submitted a declaration by his Iranian attorney that at least two attempts were made to effect personal service upon defendant at that address.

           Although defendant contended that the address used for service was “bogus,” the record reflects that the address was in fact used by defendant and/or her parents in some capacity.

           Indeed, defendant supplied that address to the child’s pediatrician in requesting the child’s medical records, and she averred that her father ultimately received the documents from a “tenant” who lived at that address.

           When plaintiff was unable to effect personal service upon defendant’s parents pursuant to the court’s order, the court relieved him of that obligation and instead permitted service “via email at each email address that [p]laintiff knows [d]efendant to have.” Although service of process by email “is not directly authorized by either the CPLR or the Hague Convention, it is not prohibited under either state or federal law, or the Hague Convention” … and, indeed, “both New York courts and federal courts have, upon application by plaintiffs, authorized [e]mail service of process as an appropriate alternative method when the statutory methods have proven ineffective” … .
Contrary to the contention of defendant, we conclude that plaintiff made the requisite showing that service by email was “reasonably calculated to apprise defendant of the pending lawsuit and thus satisfie[d] due process” … .
The record reflects that, for several months prior to the application for alternative service, the parties had been communicating via email at the two email addresses subsequently used for service. Although defendant claimed that she did not receive either of the emails, she acknowledged receipt of a subsequent email from plaintiff’s attorney sent to the same two email addresses.
We thus conclude that, under the circumstances of this case, the court properly determined that service of the summons with notice upon defendant by email was an appropriate form of service … .  Safadjou v Mohammadi, CA 12-00271, 359, 4th Dept, 4-26-13

Jurisdiction Was Gained Over Out-of State Manufacturer Under Two Provisions of CPLR 302

Plaintiff was injured when he fell from a tree stand made by an out-of-state manufacturer and distributed in New York through Dick’s Sporting Goods.  In denying defendant’s motion to dismiss for lack of jurisdiction, the Fourth Department outlined the statutory and due process requirements for good service upon a foreign corporation under CPLR 302.  The court wrote:

           Here, defendant had an exclusive distributorship agreement with Dick’s, and maintained a website that provided information relating to its products, directed consumers to retail locations where they could purchase the products, and allowed for the direct purchase of the products through a credit card. Therefore, defendant was transacting business in New York through the use of its website, and the court properly concluded that there is long-arm jurisdiction under CPLR 302 (a) (1).

          … [D]efendant is subject to long- arm jurisdiction pursuant to CPLR 302 (a) (3) (ii). Under that provision, courts “may exercise personal jurisdiction over any non-domiciliary . . . who . . . commits a tortious act without the state causing injury to person . . . within the state . . . if he .expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” “The conferral of jurisdiction under [that] provision rests on five elements: First, that defendant committed a tortious act outside the State; second, that the cause of action arises from that act; third, that the act caused injury to a person or property within the State; fourth, that defendant expected or should reasonably have expected the act to have consequences in the State; and fifth, that defendant derived substantial revenue from interstate or international commerce” ….  Halas v Dick’s Sporting Goods…Big Dog Treestands, Inc, CA 12-01868, 336, 4th Dept, 4-26-13

In Lead Paint Exposure Case, Court’s Order to Provide Medical Report Linking Injuries to Exposure Before Depositions Upheld

In a case which alleged plaintiff was injured by lead paint exposure, Supreme Court ordered plaintiff, as part of discovery, to produce a medical report linking the injuries to lead exposure before depositions.  The Fourth Department affirmed over a dissent which argued plaintiff was improperly being forced to hire an expert at the very outset of the litigation:

           Under the unique circumstances of this case, we conclude that Supreme Court did not abuse its broad discretion in directing plaintiff to produce a medical report containing a diagnosis of the alleged injuries sustained by plaintiff and causally relating such injuries to lead exposure before any CPLR 3121 examinations are conducted.  As previously noted, plaintiff alleges numerous and wide- ranging neurological, physiological, psychological, educational, and occupational effects of his childhood exposure to lead. Although plaintiff disclosed his medical and educational records, none of those records diagnoses plaintiff with a lead-related injury or causally relates any of plaintiff’s alleged physical or mental conditions to lead exposure. Indeed, plaintiff’s mother testified at her deposition that no health care provider had ever told her that plaintiff had “any residual injuries from lead exposure.” The only reference in the disclosed records to an injury that may have been caused by exposure to lead is a school district health and development assessment, which states that “[e]levated [blood] lead level may have had an effect” on plaintiff’s educational performance. Although the dissent is correct that CPLR 3121 and 22 NYCRR 202.17 do not require the disclosure directed in this case, they likewise do not preclude a trial judge from proceeding in the manner at issue herein. Giles v A. Gi Yi, et al, CA 12-01288, 59, 4th Dept, 4-26-13

Grant of Motion to Dismiss Based on Forum Non Conveniens Upheld

Plaintiff, a British citizen, was injured in England when he was a passenger on an all-terrain vehicle manufactured by a New York company, RII.  The Fourth Department affirmed the grant of RII’s motion to dismiss pursuant to CPLR 327 (forum non conveniens) and to have the proceeding moved to England.  Plaintiffs’ objections that contingency-fee arrangements are not allowed in England and loss of consortium damages are not recognized in England did not warrant denial of the motion.  The Fourth Department wrote:

           …[T]he court properly determined that “the action, although jurisdictionally sound, would be better adjudicated elsewhere” …. Plaintiffs are both British citizens residing in Scotland. The accident occurred in England, and other witnesses, including the driver of the ATV, are located there. As the trial court in the federal action between the same parties noted, “highly material evidence, such as the eyewitness testimony, accident investigation documents and witnesses, the scene of the accident, and the vehicle itself, which will not be readily within plaintiffs’ control in this court, would be more accessible to both sides in a British forum” ….  Moreover, RII is amenable to service of process in Scotland or England, and it does not take issue with the conditions imposed by the court concerning the waiver of defenses based on jurisdiction and the statute of limitations.  Emslie v Recreative Industries, Inc., CA 12-01246, 139, 4th Dept, 4-26-13

Dismissal as Time-Barred Is a Dismissal On the Merits for Purposes of Res Judicata

In an article 78 action challenging the prohibition (by the Buffalo Fiscal Stability Authority) of the implementation of a wage increase pursuant to a collective bargaining agreement, the Fourth Department noted that the dismissal of an action as time-barred is a determination on the merits for res judicata purposes:  “It is well established that a dismissal of a proceeding as time-barred “ ‘is equivalent to a determination on the merits for res judicata purposes’”… . Matter of Buffalo Professional Firefighters Association, Inc…, CA 12-02126, 371, 4th Dept, 4-26-13


Error Relating to Assessment of 10% Surcharge Must Be Preserved by Objection

Over two dissents, the Fourth Department determined the argument that a probation officer’s affidavit was not sufficient to justify a 10% surcharge must be preserved for appeal.  The Fourth Department wrote:

           We disagree with our dissenting colleagues that the issue whether a surcharge of 10% is properly imposed does not require preservation. While this Court has in the past relied on the illegal sentence exception to the preservation requirement of CPL 470.05 (2) when reviewing that issue …, more recent decisions from the Court of Appeals have established that issues regarding restitution require preservation …. In addition, the Court of Appeals has held that the mandatory surcharge set forth in Penal Law § 60.35
(1) is not part of a sentence ….Those cases compel us to conclude that an issue regarding a surcharge imposed on restitution pursuant to Penal Law § 60.27 (8) must be preserved for our review and that we cannot rely on the illegal sentence exception to the preservation requirement.   People v Kirkland, KA 11-01835, 147, 4th Dept, 4-26-13

Acquittal on Assault Charges in First Trial Did Not Preclude Presentation of Evidence of the Assaults in Second Trial---Collateral Estoppel Doctrine Could Not Be Successfully Invoked Because the Meaning of the Acquittals Was Nearly Impossible to Discern

In a second trial, the defendant moved to preclude the prosecution from introducing evidence of two assaults which were the subjects of acquittals in the first trial.  The trial court allowed evidence of the two assaults.  On appeal the defendant argued that evidence of the assaults of which she was acquitted was precluded by the doctrine of collateral estoppel.  The Fourth Department disagreed and affirmed the trial court’s admission of the evidence, noting that the exact meaning of an acquittal in a criminal trial is often impossible to demonstrate:

           “The doctrine of collateral estoppel, or issue preclusion, operates in a criminal prosecution to bar relitigation of issues necessarily resolved in defendant’s favor at an earlier trial” …. Thus, the doctrine applies in a situation such as this, where at a prior trial there was a mixed verdict in which the jury acquitted a defendant of certain charges, but was unable to reach a verdict on the remaining charges ….  “Application of the collateral estoppel doctrine requires that the court determine what the first judgment decided and how that determination bears on the later judgment . . . The rule is easily stated but frequently difficult to implement because the meaning of a general verdict is not always clear and mixed verdicts may, at times, appear inherently ambiguous.  Nevertheless, the court must assume the jury reached a rational result . . . , and a defendant claiming the benefit of estoppel carries the burden of identifying the particular issue on which he [or she] seeks to foreclose evidence and then establishing that the fact finder in the first trial, by its verdict, necessarily resolved that issue in his [or her] favor” …. “Defendant’s burden to show that the jury’s verdict in the prior trial necessarily decided a particular factual issue raised in the second prosecution is a heavy one indeed, and as a practical matter severely circumscribes the availability of collateral estoppel in criminal prosecutions . . . ‘[I]t will normally be impossible to ascertain the exact import of a verdict of acquittal in a criminal trial’ ” ….  People v Brandie E…, KA 09-01366, 202, 4th Dept, 4-26-13

Sentence for Offenses Rising from Same Incident Must Be Concurrent

In determining the sentencing court had erroneously imposed consecutive sentences for offenses arising out of the same incident, the Fourth Department wrote:

           “[S]entences imposed for two or more offenses may not run consecutively:(1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (… Penal Law § 70.25 [2]). “The defendant benefits if either prong is present, and the prosecution’s burden is to countermand both prongs”….
Here, “the acts which constituted the crime of endangering the welfare of a child were not separate and distinct from the acts which constituted the crimes of” robbery and criminal mischief ….  As a result, the sentences imposed on the robbery and criminal mischief counts must run concurrently with the sentences imposed on the endangering the welfare of a child counts. Furthermore, the evidence establishes that, during his flight from the department store, defendant “floored” his vehicle in reverse with his driver’s side door open, striking the security guard as well as the vehicle parked beside his vehicle.  Those acts served as the basis for the criminal mischief count and for the “use of physical force” element of the robbery count (Penal Law § 160.00; see § 160.05), and thus the sentences imposed on the robbery and the criminal mischief counts must also run concurrently ….  People v Kekenipp, KA 11-00855, 204, 4th Dept, 4-26-13

No Exigent Circumstances---Warrantless Arrest in Home Not Justified

In determining “exigent circumstances” did not exist and therefore the entry of the defendant’s home without a warrant was not justified, the Fourth Department wrote:

           Factors to consider in determining whether exigent circumstances exist are “(1) the nature and degree of urgency involved and the amount of time needed to obtain a warrant; (2) a reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought[;] and (4) information indicating that the possessors of the contraband are aware that the police are on their trail” ….Here, the People failed to meet their burden of establishing that exigent circumstances existed to enter defendant’s apartment without a warrant … . The People established that, earlier that day, defendant sold drugs to a police agent inside his residence. In the afternoon, defendant again sold drugs to the police agent at a location outside his home. Defendant was arrested after that sale as he was driving his vehicle back toward his residence. The police went to defendant’s residence 45 minutes after his arrest and climbed through a window to make sure that no one was inside the residence who could destroy evidence before the police could obtain a warrant. Based on that evidence, we conclude that there was no urgency to enter defendant’s residence.  People v Coles, KA 10-02301, 226, 4th Dept, 4-26-13

Warrantless Arrest in Home in Absence of Exigent Circumstances Mandated Suppression/Package from Paraguay Addressed to Defendant Properly Opened as a “Border Search”


The Fourth Department determined drugs seized from defendant’s person incident to his arrest should have been suppressed because defendant’s warrantless arrest took place in his home in the absence of exigent circumstances.  The court also noted that the search and seizure of a package from Paraguay addressed to defendant did not violate defendant’s constitutional rights because opening the package “constituted a border search … which may be conducted ‘without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country’ “… .  People v Boyson, KA 11-01343, 229, 4th Dept, 4-26-13

Juvenile Delinquency Petition Jurisdictionally Defection/Insufficient Allegations that Pills Were a Controlled Substance

The Fourth Department determined a juvenile delinquency petition was jurisdictionally defective because it included only the conclusory allegation that the juvenile possessed Adderall without any evidentiary facts to support it:

           The petition alleged that respondent knowingly and unlawfully sold a controlled substance, i.e., Adderall (see Penal Law § 220.31).The Court of Appeals has made clear that “[s]tanding alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement” … . Petitioner must provide factual allegations that establish a reliable basis for inferring the presence.  The petition here is supported by only the conclusory statements of respondent’s classmate and an officer that the substance was Adderall. Their statements are not “supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually[Adderall]” … .  Matter of Brandon A, CAF 12-01651, 231, 4th Dept, 4-26-13

Failure to Inform Defendant of People’s Appeal of Trial Court’s Dismissal of His Indictment Required Grant of a Writ of Coram Nobis

On a writ of coram nobis, the Fourth Department determined the failure to inform defendant of the People’s appeal of the trial court’s dismissal of the indictment required that the writ be granted.  The Fourth Department wrote:

           “It is well settled that criminal defendants are entitled under both the Federal and State Constitutions to effective assistance of appellate counsel” … . In addition, “defendants have important interests at stake on a People’s appeal” … . “Given the consequences of a reversal and the possible resumption of criminal proceedings, the defendant certainly has an interest in being informed that the People’s appeal is pending and continuing” (id. at 684-685). “Moreover, . . . other rights requiring protection upon the People’s appeal include the right to appellate counsel of the defendant’s own choice, the right to appear [pro se] on the appeal, and the right to seek appointment of counsel upon proof of indigency” … . However, due process does not require that a defendant be personally served with the People’s appellate briefs ….  There is no showing on this record that the court upon dismissing the indictment complied with 22 NYCRR 200.40 (a) (1) through (3) by advising defendant that the People had the right to take an appeal; that defendant had the right to counsel on the appeal or to appear pro se; and that defendant had the right to assigned counsel on the appeal if he was financially unable to retain counsel … . Nor is there any showing that the People or defense counsel advised defendant of those rights.  People v Forsythe, KA 10-01359, 368, 4th E3p5, 4-26-13

Attorney General’s Medicaid Fraud Control Unit  Was Authorized Under Both State and Federal Law to Prosecute a Case Stemming from the Provision of Federal Medicare Services


In a full-fledged opinion by Justice Fahey, the Fourth Department determined that the Attorney General’s Medicaid Fraud Control Unit was authorized, pursuant to Executive Law 63, to prosecute the defendants, who provided federal Medicare services exclusively but received payment from both Medicare and Medicaid.  In addition, the Fourth Department determined that the federal statute which created the state Medicaid Fraud Control Units, and which allows the state Medicaid Fraud Control Units to prosecute federal Medicare violations only where the prosecution as a whole is “primarily related to the state [Medicaid] plan,” did not preempt Executive Law 63 as it was applied in this case.  People v Miran, KA 12-01189, 319, 4th Dept, 4-26-13

Questions About Whether Trial Judge Properly Handled Jury Notes Sent Out During Deliberations Required Reconstruction Hearing

In a writ of coram nobis proceeding, the issue was whether the trial court’s handling of notes sent out by the jury during deliberations violated Criminal Procedure Law 310.30.  Because the record did not clearly indicate the contents of some of the notes, and therefore it was impossible to determine whether the court’s “core responsibilities” were violated (requiring reversal), the matter was sent back for a reconstruction hearing (over two dissents).  The Fourth Department explained the “jury-note” requirements and procedures as follows:

            In People v O’Rama (78 NY2d 270)…, the Court of Appeals provided … detailed instructions for the handling of jury notes. The Court advised that, “whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses . . . [T]he trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made” .
In subsequent cases, the Court made clear that not all O’Rama violations constitute mode of proceedings errors [requiring reversal in the absence of preservation].The only errors that require reversal in the absence of preservation are those that go to the trial court’s “core responsibilities” under CPL 310.30, such as giving notice to defense counsel and the prosecutor of the contents of a jury note ... .  People v Hahley, KA 08-02494, 74, 4th Dept, 4-26-13


Insufficient Foundation for Cross Examination About Witness’ Mental Health

In upholding the limits the trial court placed upon the cross-examination of a witness concerning the witness’ mental health history, the Fourth Department wrote:

           A defendant may question a witness about his or her mental health or psychiatric history upon a showing that the witness’s “capacity to perceive and recall events was impaired by a psychiatric condition” …or that “such evidence would bear upon [the witness’s] credibility or otherwise be relevant” … . Here, we conclude that defendant failed to make the requisite showing that the witness in fact had a history of mental illness or that such evidence would bear upon her capacity to perceive or recall the events at issue …. Defense counsel’s statement that the witness was “suffering from or being treated for some variety of mental health issue” was speculative…  People v Rivera, KA 08-01758, 203, 4th Dept, 4-26-13

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