Chapter Twenty-Three
Rochester, New York
Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)
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COURT OF APPEALS
CONTRACT LAW
Plaintiff's Lost Profits Deemed "General Damages," Not "Consequential Damages," Re: a Distribution Contract in which Plaintiff Agreed to Resell Defendant's Product
In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined that, under the facts, lost profits were "general," not "consequential" damages. The distribution contract was for "CoStar stents" (manufactured by defendant) used in medical procedures. The contract called for plaintiff to resell defendant's stents. The resale price was the benchmark for the price of the transfer of the stents to plaintiff for resale. The distribution contract had precluded recovery for consequential damages. Plaintiff sought its lost profits as general damages:
The agreement was not a simple resale contract, whereone party buys a product at a set price to sell at whatever the market may bear. Rather, the price plaintiff paid defendant reflected the actual sales, and sales price, of CoStar stents. The agreement required plaintiff to pay defendant a transfer price calculated as a percentage of plaintiff's net sales of Costar: 61% for direct sales and 75% for indirect sales. Each quarter, the parties would calculate a minimum price based on net sales during the preceding quarter. Plaintiff remained obligated to pay defendant the full transfer price for its sales, even when the actual sales price exceeded the minimum price. Thus, the contract would only operate if plaintiff sold stents, and the payment defendant received bore a direct relationship to the market price plaintiff could obtain. Indirect sales were sales made by affiliates. * * *
General damages "are the natural and probable consequence of the breach" of a contract ... . They include "money that the breaching party agreed to pay under the contract.. . By contrast, consequential, or special, damages do not "directly flow from the breach" ... . "The distinction between general and special contract damages is well defined, but its application to specific contracts and controversies is usually more elusive" ... . Lost profits may be either general or consequential damages, depending on whether the non-breaching party bargained for such profits and they are "the direct and immediate fruits of the contract" ... . Otherwise, where the damages reflect a "loss of profits on collateral business arrangements," they are only recoverable when "(1) it is demonstrated with certainty that the damages have been caused by the breach, (2) the extent of the loss is capable of proof with reasonable certainty, and (3) it is established that the damages were fairly within the contemplation of the parties"... . * * *
Here, the agreement used plaintiff's resale price as a benchmark for the transfer price. The contract clearly contemplated that plaintiff would resell defendant's stents. That was the very essence of the contract. Any lost profits resulting from a breach would be the "natural and probable consequence" of that breach .... .
Although the lost profits sought by plaintiff are not specifically identified in the agreement, it cannot be said that defendant did not agree to pay them under the contract, as these profits flow directly from the pricing formula. The purpose of the agreement was to resell. Indeed, defendant ... sought to enter a market unavailable to it by capitalizing on plaintiff's distribution network. The fact is that both defendant and plaintiff depended on the product's resale for their respective payments. Biotronik AG v Conor Medsystems Ireland Ltd, 8, Ct App 3-27-14
CRIMINAL LAW/ATTORNEYS
Defendant Entitled to a Hearing on His Motion to Vacate His Conviction/Defense Counsel's Failure to Move to Suppress Statements, to Challenge Search Warrants, to Request Discovery and to Object to the Conduct of the Prosecutor Raised Questions of Effective Assistance
The Court of Appeals determined questions about the effectiveness of defense counsel warranted a hearing on defendant's motion to vacate his conviction. The court found defense counsel's explanation for failing to move to suppress defendant's statements (he was interrogated for 26 hours), failure to challenge search warrants, failure to make certain discovery requests and failure to object to the conduct of the prosecutor, inadequate:
[Defense counsel's] affirmation did not, however, address why suppression could not have been sought on the basis of: the 26-hour interrogation at a State Police barracks, which occurred in a room that may have been locked at times; the possible use of handcuffs, shackles and a "jail suit" during such questioning; and a purported refusal by the police to contact the lawyer who was representing defendant in a pending criminal case because defendant's request for legal assistance was deemed "too late." Nor did [defense counsel] provide an explanation for failing to challenge the various search warrants that were issued or the evidence that was obtained by the police. [Defense counsel] also did not attempt to justify several potential trial errors that were noted by the Appellate Division (including the possibility of inadequate discovery requests and the failure to object to prosecutorial conduct that County Court felt compelled to address sua sponte as "grossly improper"). In these particular circumstances, we conclude that there were sufficient questions of fact as to whether [defense counsel] had an adequate explanation for his alleged deficiencies. Defendant is therefore entitled to an opportunity to establish that he was deprived of meaningful legal representation ... . People v Zeh, 33, Ct App 3-27-14
CRIMINAL LAW/CONSTITUTIONAL LAW
Because Defendant's Resentence to Remedy the Failure to Impose a Period of Post-Release Supervision Was On Appeal, Defendant Had Not Acquired a Legitimate Expectation of Finality in His Sentence such that the Double Jeopardy Clause Was Implicated
In a full-fledged opinion by Judge Lippman, the Court of Appeals determined, under the facts, the imposition of a period of post-release supervision [PRS] after defendant completed his sentence (which was illegal because it did not include a period of post-release supervision) did not violate the Double Jeopardy clause. Because the resentence was being appealed, the defendant had not yet "acquired a legitimate expectation of finality in his sentence:"
Defendant ... moved to vacate his conviction under Criminal Procedure Law (CPL) 440.10. Supreme Court denied the motion to vacate the conviction. The court nevertheless noted that defendant's sentence was illegal because it did not include the mandatory term of PRS ... and ordered that defendant be resentenced. Defendant was conditionally released in May 2008. One month later, Supreme Court resentenced defendant to the original concurrent terms of imprisonment, as well as a five-year term of PRS. In October 2009, the maximum term of his prison sentence passed. * * *
The protection against multiple punishments protects defendants from having their sentences increased once they have acquired "legitimate expectations of finality" therein (Williams, 14 NY3d at 214). We explained in Williams that a defendant may acquire a legitimate expectation of finality in an illegal sentence only once "the direct appeal has been completed (or the time to appeal has expired)" and the sentence has been served (id. at 217).
In Velez [19 NY3d 642] , we addressed whether a defendant acquired a legitimate expectation of finality in an illegal sentence where a resentencing proceeding had been instituted but the term of PRS had not yet been imposed prior to the expiration of the sentence. We held that the defendant ... acquired a legitimate expectation of finality (19 NY3d at 650). In this case, defendant has served his sentence, but the direct appeal of that sentence is not over; it presently is before us. Consequently, defendant has not acquired a legitimate expectation of finality in his sentence. People v Cintron, 35, Ct App 3-27-14
EMPLOYMENT LAW/HUMAN RIGHTS LAW
In Disability Discrimination Suits Brought Under the NYS and NYC Human Rights Law, to Prevail on Summary Judgment, the Employer Must Demonstrate It Engaged in a Good Faith Interactive Process to Consider a Proposed Accommodation
In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined that to prevail on a motion for summary judgment in a disability discrimination action brought under the New York State Human Rights Law and the New York City Human Rights Law, the employer must demonstrate it engaged in a good faith interactive process to consider the reasonableness of a proposed accommodation to the disability. The failure to so demonstrate in this case precluded summary judgment. The employee had developed a lung condition which required that he not be exposed to construction dust. His job required that he visit construction sites. With respect to the consideration of a proposed accommodation in the context of a summary judgment motion, the court wrote:
In light of the importance of the employer's consideration of the employee's proposed accommodation, the employer normally cannot obtain summary judgment on a State HRL claim unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation. And, the employer cannot present such a record if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request. Consequently, to prevail on a summary judgment motion with respect to a State HRL claim, the employer must show that it "engage[d] in a good faith interactive process that assesse[d] the needs of the disabled individual and the reasonableness of the accommodation requested" ... . And, because the City HRL provides broader protections against disability discrimination than the State HRL, the City HRL unquestionably forecloses summary judgment where the employer has not engaged in a good faith interactive process regarding a specifically requested accommodation ... . Jacobsen v New York City Health and Hospitals Corporation, 34, Ct App 3-27-14
EVIDENCE/LANDLORD-TENANT
Tenant Unable to Raise Question of Fact About Whether Dampness and Mold Caused Her Physical Ailments/The Proof of General and Specific Causation Fell Short of Meeting the Frye Criteria for Scientific Tests Deemed "Generally Acceptable as Reliable" in the Scientific Community
In a full-fledged opinion by Judge Read, the Court of Appeals determined plaintiff was unable to raise a triable issue of fact about whether her physical injuries were caused by indoor exposure to dampness and mold. The court did an extensive analysis of the expert evidence and determined, with respect to the Frye [293 F 1013] criteria, although "links" between plaintiff's injuries and dampness and mold had been established, the cause and effect relationship required under the Frye criteria had not been established:
In Frye v United States (293 F 1013, 1014 [DC Cir 1923]), the court rejected the testimony of a defense expert regarding the results of a "systolic blood pressure deception test" -- an early type of polygraph test -- because it had not yet "gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made." While the Frye test turns on acceptance by the relevant scientific community, we have never insisted that the particular procedure be "'unanimously indorsed'" by scientists rather than "'generally acceptable as reliable'" ... . * * *
Thus, studies that show an association between a damp and moldy indoor environment and the medical conditions that [plaintiff's expert] attributes to [plaintiff's] exposure to mold (bronchialasthma, rhino-sinusitis, hypersensitivity reactions and irritation reactions of the skin and mucous membranes) do not establish that the relevant scientific community generally accepts that molds cause these adverse health effects. But such studies necessarily furnish "some support" for causation since there can be no causation without an association (although, as explained, there can be an association without causation). For these reasons, the Appellate Division was incorrect when it ruled that the Frye standard was satisfied in this case because [plaintiff's expert's] opinions as to general causation find "some support" in the record. In sum, then, [plaintiff] has not raised a triable issue of fact with respect to general causation.
Additionally, even assuming that [plaintiff] demonstrated general causation, she did not show the necessary specific causation. Cornell v 360 West 51st Street Realty, LLC, 16, CtApp 3-27-14
NEGLIGENCE/WORKERS' COMPENSATION/VEHICLE AND TRAFFIC LAW
Cannot Sue Vehicle Owner as Vicariously Liable Under Vehicle and Traffic Law 388 Where Driver is Immunized from Suit Under Workers' Compensation Law 29 (6)
In a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that "a defendant may [not] pursue a third-party contribution claim under New York Vehicle and Traffic Law [section] 388 against the owner of a vehicle, where the vehicle driver's negligence was a substantial factor in causing the plaintiff's injuries, but the driver is protected from suit by the exclusive remedy provision of New York Workers' Compensation Law [section] 29 (6)...". Here the driver, who was determined to be negligent (90%), was using her husband's car to drive a co-worker to a business meeting. The co-worker was injured and his exclusive remedy against the driver was under the Workers' Compensation Law. The co-worker sued the driver of the other car, who was also determined to be negligent (10%). The owner of that car (the driver's husband) then sued the owner of the car in which the co-worker was riding (the employee-driver's husband) under Vehicle and Traffic Law section 388 for contribution and indemnification:
In sum, we hold that a defendant may not pursue a third-party contribution claim under Vehicle and Traffic Law § 388 against a vehicle owner where the driver's negligence was a cause of the plaintiff's injuries, but the driver is insulated from a lawsuit under Workers' Compensation Law § 29 (6). Isabella...Hallock... v Koubek, 45, Ct App 3-27-14
APPELLATE DIVISION
APPEALS/CIVIL PROCEDURE
An Issue Raised for the First Time on Appeal Will Not Be Considered Where the Defect Could Have Been Cured If Raised Below/Trial Court Can Grant Summary Judgment Based on an Unpleaded Defense
The Fourth Department noted that it can not consider an argument raised for the first time on appeal where the defect could have been remedied it been raised below and explained when summary judgment can be granted (by the trial court) on the basis of an unpleaded defense:
...[W]e do not address plaintiff’s contention, raised for the first time on appeal, that Supreme Court erred in granting summary judgment in defendant’s favor because defendant failed to plead the defense of failure to comply with a condition precedent with sufficient specificity (see CPLR 3015 [a]). “An issue may not be raised for the first time on appeal . . . where it ‘could have been obviated or cured by factual showings or legal countersteps’ in the trial court” .... Here, defendant could have attempted to cure that alleged deficiency by seeking leave to amend the answer ... . In any event, defendant’s failure to plead that defense in its answer with sufficient specificity does not preclude an award of summary judgment based on that defense. “ ‘[A] court may grant summary judgment based upon an unpleaded defense where[, as here,] reliance upon that defense neither surprises nor prejudices the plaintiff’ ” Accadia Site Contracting Inc v Erie County Water Authority, 325, 4th Dept 3-28-14
APPEALS/CORPORATION LAW
Trial Court Properly Pierced the Corporate Veil/Criteria for Review of a Bench Trial and for Piercing the Corporate Veil Explained
The Fourth Department determined the trial court had properly pierced the corporate veil to find the defendant physician personally liable to the plaintiff landlord. The defendant ceased paying rent when he joined another urology practice. The court noted that the defendant (Roehmholdt) made no effort to continue his business (Northtown Urology) at plaintiff's location, but rather took more lucrative employment, encouraged his patients to follow him, and used corporate funds to satisfy a personal debt. In the course of upholding the piercing of the corporate veil, the Fourth Department explained how it reviews determinations made in a bench trial:
As a preliminary matter, we note that, “[o]n an appeal from a judgment rendered after a nonjury trial, our scope of review is as broad as that of the trial court ... . Upon such a review, the record should be‘viewed in the light most favorable to sustain the judgment’ ..., and this Court should evaluate ‘the weight of the evidence presented and grant judgment warranted by the record, giving due deference to the trial court’s determinations regarding witness credibility, so long as those findings could have been reached upon a fair interpretation of the evidence’ .... ‘[T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses’ ... .
With respect to piercing the corporate veil, we note that it is not “ ‘a cause of action independent of that against the corporation; rather it is an assertion of facts and circumstances which will persuade the court to impose the corporate obligation on its owners’ ” ... . “ ‘A plaintiff seeking to pierce the corporate veil must establish that the owners, through their domination, abused the privilege of doing business in the corporate form, thereby perpetrating a wrong that resulted in injury to the plaintiff . . . Factors to be considered in determining whether [a corporation] has abused [that] privilege . . . include whether there was a failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use’ ” ... .
The burden of establishing that the corporate veil should be pierced is a heavy one ... but “ ‘[b]roadly speaking, the courts will disregard the corporate form, or, to use accepted terminology, pierce the corporate veil, whenever necessary to prevent fraud or to achieve equity’ ” ... . “A decision to pierce the corporate veil is a fact-laden [determination]” ..., and “[n]o one factor is dispositive” ... . A & M Global Management Corp v Northtown Urology Associates PC, 124, 4th Dept 3-28-14
ARBITRATION/EDUCATION-SCHOOL LAW
Commissioner of Education Has Primary Jurisdiction Over Dispute About the Appropriate Pay for a School Principal Whose Position Was Abolished But Who Was Subsequently Assigned an Assistant Principal Position/Petition for Stay of Arbitration Pursuant to the Collective Bargaining Agreement Should Have Been Granted/Arbitration Prohibited by Public Policy
The Fourth Department determined Supreme Court should have granted petitioner's application for a stay of arbitration. A former principal whose position was abolished was hired as an assistant principal. A grievance was filed by respondent on the former principal's behalf contending that her new position warranted the same level of pay she had received in the abolished position. After the grievance was denied by petitioner, the respondent demanded arbitration pursuant to the collective bargaining agreement. The Fourth Department determined the demand for arbitration should have been denied because the matter must be determined by the Commission of Education in the first instance:
It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim (see CPLR 7501...). In making the threshold determination of arbitrability, the court applies a two-part test. It first determines whether “there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” ... . “If no prohibition exists,[the court then determines] whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement” ... .
Here, we agree with petitioner that the Commissioner of Education has primary jurisdiction over the parties’ dispute, and that arbitration is therefore prohibited by public policy. As we have previously noted, “ ‘the Commissioner of Education has the specialized knowledge and expertise to resolve the factual issue of whether the . . . former position and the new position are similar within the meaning of Education Law § [2510 (3) (a)]’ ” ... . Based on his or her specialized knowledge and expertise, the Commissioner of Education should “resolve, in the first instance,” the issue of fact whether two positions are sufficiently similar under Education Law § 2510 ... . Matter of Arbitration ..., 285, 4th Dept 3-28-14
CIVIL PROCEDURE/DEBTOR-CREDITOR
"Labor or Services" Complaint Not Specific Enough to Trigger Specific-Answer Requirement Under CPLR 3016
The Fourth Department determined plaintiff nursing home's motion for summary judgment pursuant to CPLR 3016 was properly denied. Defendant's late husband was in plaintiff nursing home for the last 15 months of his life. Plaintiff sued for $125,265.54 in unpaid invoices. The court determined the complaint did not set forth with sufficient specificity the reasonable value and agreed price of each service provided. Therefore the statutory requirement for a specific answer to each allegation of service was not triggered:
CPLR 3016 (f) provides that, in an action involving the -2- 205 CA 13-01681 “performing of labor or services,” the plaintiff “may set forth and number in his verified complaint the items of his claim and the reasonable value or agreed price of each.” If the plaintiff does so, “the defendant by his verified answer shall indicate specifically those items he disputes and whether in respect of delivery or performance, reasonable value or agreed price.” “To meet the requirements of CPLR 3016 (f), a complaint must contain a listing of the goods or services provided, with enough detail that it may readily be examined and its correctness tested entry by entry” ... . If the complaint lacks sufficient specificity, the defendant may serve a general denial answer ... .Here, we conclude that the complaint failed to meet the specificity standards of CPLR 3016 (f) and thus “did not trigger a duty on defendant[’]s part to dispute each item specifically” ... . Waterfront Operations Associates LLC... v Candido, 205, 4th Dept 3-28-14
CIVIL PROCEDURE
Res Judicata Doctrine Precluded Suit Despite Naming Additional Parties and Alleging Different Causes of Action and Legal Theories
The Second Department determined the doctrine of res judicata precluded plaintiff's action, notwithstanding the additional parties named (found to be in privity the the parties named in the prior action) and the different causes of action and legal theories alleged:
"Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" ... . Generally, to establish privity the interests of the nonparty must have been represented by a party in the prior proceeding ... . The Court of Appeals has observed that privity is an "amorphous concept," not easily applied..., but persons in privity include those whose interests are represented by a party to the previous action and those "[whose] own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of, the rights of the party to the prior litigation" ... ."
The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims'" ... . Thus, the doctrine of res judicata "operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding, as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding" ... . In determining whether a factual grouping constitutes a transaction for res judicata purposes, a court must apply a pragmatic test and analyze how the facts are related as to time, space, origin or motivation, whether they form a convenient trial unit and whether treating them as a unit conforms to the parties' expectations or business understanding ... . For the doctrine of res judicata to be applied, there must have been, in the prior proceeding, a final judgment on the merits ... . "An order granting a summary judgment motion is on the merits and has preclusive effect" ... . Bayer v City of New York, 2014 NY Slip Op 02005, 2nd Dept 3-26-14
CIVIL PROCEDURE
"Forum Non Conveniens" Dismissal Proper
The Second Department explained the criteria for dismissal of an action on "forum non conveniens" grounds:
"The doctrine of forum non conveniens permits a court to dismiss an action when, although it may have jurisdiction over a claim, the court determines that in the interest of substantial justice the action should be heard in another forum'" ... . "On a motion to dismiss on the ground of forum non conveniens, the burden is on the movant to demonstrate the relevant private or public interest factors that militate against a New York court's acceptance of the litigation" ... . "Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts" ... .
Here, the Supreme Court did not improvidently exercise its discretion in granting that branch of the defendant's motion which was to dismiss the complaint on the ground of forum non conveniens. The fact that the witnesses, with the exception of the plaintiff, and evidence are located in Pennsylvania, the fact that Pennsylvania is the situs of the underlying events, the availability of Pennsylvania as an alternative forum, and the burden on the New York courts of retaining a case to which it does not have a substantial nexus militate in favor of dismissal of the action on the ground that Pennsylvania is the more convenient forum ... . Wild v University of Pa, 2014 NY Slip Op 02038, 2nd Dept 3-26-14
CIVIL PROCEDURE/APPEALS/EVIDENCE
Trial Court Should Not Have Precluded Expert Testimony Based Upon Failure to Make Timely Disclosures---
Rather, the Trial Should Have Been Adjourned
Noting that the appellate court has the power to make its own discretionary determinations about discovery and CPLR article 31 matters, even in the absence of the abuse of discretion by the trial judge, the Fourth Department, over a two justice dissent, found that the trial judge should not have granted the defendants' motion to preclude testimony by plaintiffs' experts based upon the failure to make timely disclosures:
“[W]e have repeatedly recognized that ‘[a] trial court has broad discretion in supervising the discovery process, and its determinations will not be disturbed absent an abuse of that discretion’ . . . We have also repeatedly noted, however, ‘that, where discretionary determinations concerning discovery and CPLR article 31 are at issue, [we] “[are] vested with the same power and discretion as [Supreme Court, and thus we] may also substitute [our] own discretion even in the absence of abuse” ’ ” ... . Under the circumstances of this case, we substitute our discretion for that of Supreme Court, and we conclude that the court should have adjourned the trial rather than granting defendants’ motion, thereby precluding the subject expert testimony and striking the subject expert disclosures. Smalley ... v Harley-Davidson Motor Company Inc..., 372, 4th Dept 3-28-14
CONTRACT LAW/AGENCY
A Gallery, as Agent for an Artist, Was Obligated to Disclose All Material Facts Within the Scope of the Agency/The Failure to Disclose the Gallery's Intention to Treat Prints Made from the Artist's Originals as Belonging to the Gallery Precluded Any Claim of Ownership by the Gallery
In a full-fledged opinion by Justice Friedman, the First Department determined the terms of the contract between a gallery and an artist (Scher) designated the gallery as the artist's agent with respect to prints created from the artist's original works. Therefore, the artist was the owner of the prints. In addition, the court determined, under the General Obligations Law, the terms of a written contract were not changed by an alleged oral agreement:
...[S]ection 1 of the 2005 agreement ("Scope of Agency") expressly provides that Scher was appointing the Gallery "to act as [her] exclusive agent . . . for the exhibition and sales of . . . limited edition prints published exclusively by [the] [G]allery," among other kinds of artwork, for the duration of the agreement. Thus, when the Gallery commissioned the printer to produce the prints, paid the printer for the prints, and took delivery of the prints, it did so as Scher's agent and, hence, fiduciary ... . Accordingly, the prints must be deemed to be Scher's property... . ...
As Scher's fiduciary, the Gallery was obligated to disclose to her in plain terms all material facts within the scope of the agency, obviously including any understanding the Gallery had, upon entering with Scher into the oral print deal, that it would own the prints and any intention it entertained to treat the prints as its own property ... . If the Gallery did not wish to finance the production of prints that it would not own, it could have sought to reach an agreement with Scher specifying that prints made at the Gallery's expense would be the Gallery's property. Alternatively, if the Gallery merely wished to protect itself from being abruptly terminated as Scher's agent before it had a fair chance to sell the prints, it could have sought to reach an agreement with her on a minimum time-period it would have to sell each batch of prints during which the agency could not be terminated without cause. Instead, the Gallery left itself exposed by going forward with the print deal based on only a vague, unwritten agreement that left nearly all of the terms up in the air except for the basic 90/10 split of sales revenue (and even as to that, there is a dispute as to whether Scher's cut is calculated based on gross or net sales). We see no reason to relieve a fiduciary, such as this professional art merchant, of the consequences of its own carelessness in dealing with its principal. Scher v Stendhal Gallery Inc, 2014 NY Slip Op 02154, 1st Dept 3-27-14
CRIMINAL LAW
Sentencing Court Must Make Finding Whether Eligible Youth Should Be Afforded Youthful Offender Status
The Fourth Department sent the case back for a determination whether defendant should be afforded youthful offender status, a finding which must be made for every eligible youth:
Defendant, an eligible youth, pleaded guilty pursuant to a plea bargain that included a promised sentence and a waiver of the right to appeal. There was no mention during the plea proceedings whether he would be afforded youthful offender treatment.
“Upon conviction of an eligible youth, the court must order a [presentence] investigation of the defendant. After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender” (CPL 720.20 [1]). A sentencing court must determine whether to grant youthful offender status to every defendant who is eligible for it because, inter alia, “[t]he judgment of a court as to which young people have a real likelihood of turning their lives around is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining” ... . People v Scott, 293, 4th Dept 3-28-14
CRIMINAL LAW/EVIDENCE
Defendant's Flight in His Vehicle, Nearly Striking an Officer, Severed Any Connection with the Initial Detention and Evidence Discarded from the Vehicle Was Properly Seized
The Fourth Department determined an anonymous tip coupled with the police officer's observations justified the officer's request that defendant get out of his vehicle---a level three encounter. Defendant's subsequent flight in the vehicle, nearly striking an officer, severed any connection between the initial detention and the seizure of evidence discarded from the vehicle:
A police officer testified at the suppression hearing that he received an anonymous tip regarding drug activity taking place at a certain location. Upon proceeding to the location, the officer found defendant sitting in a parked vehicle, which was similar to the description of the vehicle given by the anonymous caller. As the officer spoke with defendant, he noticed what appeared to be a pile of cigar tobacco on the ground outside the vehicle, and the officer knew, based on his training and experience, that emptying a cigar was a common method of preparing a marihuana cigar, or a “blunt.” When the officer asked defendant to step out of the vehicle, defendant instead started the vehicle and sped off, almost striking another officer who was approaching the vehicle on foot. During the ensuing chase, defendant discarded a bag out of the passenger-side window. The bag was later recovered by the police and was found to contain a loaded weapon and marihuana.
The officer’s initial approach of defendant and request for identification was a permissible level one encounter under People v De Bour ... . Although the officer’s request that defendant exit the parked vehicle elevated the situation to a level three encounter under De Bour ..., we conclude that the officer had reasonable suspicion that defendant was engaged in illegal activity based on the anonymous tip and the officer’s observation of drug activity, i.e., the pile of cigar tobacco on the ground ... . In any event, even assuming, arguendo, that defendant was unlawfully detained, we conclude that his criminal conduct in speeding off and almost striking the second officer—conduct for which defendant was convicted of reckless endangerment in the second degree—“severed any causal connection between the unlawful detention and the subsequently-acquired evidence” ... . People v Wofford, 252, 4th Dept 3-28-14
CRIMINAL LAW/ATTORNEYS
Error to Allow Prosecutor to Elicit Testimony that Defendant Invoked His Right to Counsel
Although the error was deemed harmless, the Fourth Department noted that the prosecutor should not have been allowed to elicit testimony that defendant invoked his right to counsel:
We agree with defendant that County Court erred in allowing the People to elicit testimony that defendant invoked his right to counsel ..., but we conclude that reversal is not required; the error is harmless beyond a reasonable doubt “inasmuch as there is no reasonable possibility that the error[] might have contributed to defendant’s conviction” ... . People v Daniels, 360, 4th Dept 3-28-14
CRIMINAL LAW
Response to Jury Note Without Notice to Defendant Required Reversal and a New Trial
Over a dissent, the Fourth Department determined the trial court committed a mode of proceedings error by responding to a jury request for exhibits without notice to the defendant:
CPL 310.20 (1) provides that, upon retiring to deliberate, the jurors may take with them “[a]ny exhibits received in evidence at the trial which the court, after according the parties an opportunity to be heard upon the matter, in its discretion permits them to take” (emphasis added). CPL 310.30 provides that, “[a]t any time during its deliberation, the jury may request the court for further instruction or information with respect to . . . the content or substance of any trial evidence . . . Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper” (emphasis added). Here, as part of its instructions to the jury, the court informed the jurors that “[e]xhibits that were received in evidence are available, upon your request, for your inspection and consideration.” The court, however, neither elicited on the record whether defendant, who proceeded pro se at trial, waived his right to be present when such a request was made nor informed defendant on the record that the exhibits would be given to the jury without reconvening. Prior to receiving the jury’s verdict, the court indicated that it had received a jury note “that has been marked as a Court Exhibit which was just the jury requesting certain items of evidence that had already been admitted and received in evidence, that they were provided with those items pursuant to discussions we had and what they were told before deliberations.” We note that those “discussions” do not appear to have been transcribed, and no agreement by defendant to forego the right to be present for the receipt of jury notes appears in the record before us. Inasmuch as the court failed to obtain defendant’s express agreement waiving his right to be present for the reading of the jury note at issue, we conclude that the court committed a mode of proceedings error when it provided exhibits to the jury in response to a jury note without notice to defendant, thereby requiring reversal of the judgment and a new trial ... . People v Roberites, 164.1, 4th Dept 3-28-14
CRIMINAL LAW/EVIDENCE
Court Review of Sufficiency of Evidence Before a Grand Jury Explained
The Fourth Department determined the circumstantial evidence of constructive possession of a package containing drugs was legally sufficient to support the indictment. The court explained how the sufficiency of evidence before a grand jury is analyzed:
On a motion to dismiss the indictment pursuant to CPL 210.20 (1) (b), “the inquiry of the reviewing court is limited to the legal sufficiency of the evidence; the court may not examine the adequacy of the proof to establish reasonable cause” ... . The “reviewing court must consider ‘whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury’ ” ... . In the context of grand jury proceedings, “legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt” ... . Thus, we must determine “ ‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the [g]rand [j]ury could rationally have drawn the guilty inference’ ” ... . People v Forsythe, 359, 4th Dept 3-28-14
CRIMINAL LAW
Trial Court's Failure to Properly Characterize the Nature of the Jury's Request for "Clarification" of Certain Counts Was a Reversible Mode of Proceedings Error
The Second Department determined Supreme Court committed a reversible mode of proceedings error when it mischaracterized the meaning of a jury note. The note requested clarification of the criminal possession of a weapon counts. The court explained the note as a request for a readback of the relevant jury instructions:
...[T]he jury requested "clarification on the counts of criminal possession of a weapon in the second degree." Notwithstanding the foregoing, in the presence of the defendant, counsel, and the jury, the Supreme Court mischaracterized that note as asking "to have read to us the counts of" criminal possession of a weapon in the second degree. In apprising counsel of the contents of that note, the Supreme Court omitted the word "clarification." The court proceeded to provide the jury with certain legal instructions on the counts of criminal possession of weapon in the second degree. The jury's request for "clarification" was not a request for a "mere ministerial readback" of the Supreme Court's charge ... . Meaningful notice of a jury's note "means notice of the actual specific content of the jurors' request. Manifestly, counsel cannot participate effectively or adequately protect the defendant's rights if this specific information is not given" ... . Under these circumstances, the Supreme Court's mode of proceedings error requires reversal of the judgment and a new trial (see People v Patterson, 39 NY2d 288, 295-296). People v Thomas, 2014 NY Slip Op 02090, 2nd Dept 3-26-14
CRIMINAL LAW
Plaintiff Sufficiently Raised Issue of "Actual Innocence" in Motion to Vacate His Conviction to Warrant Hearing---Affidavits from Alibi Witnesses Identified Before Trial
The Second Department determined defendant had presented sufficient evidence of "actual innocence" to support his motion to vacate his conviction to warrant a hearing:
...[O]n remittal, the Supreme Court should hold a hearing to address the defendant's claim that the judgment of conviction should be vacated because the defendant is "actually innocent" of the crimes of which he was convicted (see CPL 440.10[1][h]; People v Hamilton, _____ AD3d _____, 2014 NY Slip Op 00238 [2d Dept 2014]). As we recognized in Hamilton, a prima facie showing of actual innocence is made out when there is " "a sufficient showing of possible merit to warrant a fuller exploration'"" by the court... . Here, the defendant made the requisite prima facie showing. Specifically, in support of his claim of actual innocence, he submitted affidavits from alibi witnesses who, although they had been identified before trial in a notice of alibi (see CPL 250.20[1]), had not testified at trial. People v Jones, 2014 NY Slip Op 02079, 2nd Dept 3-26-14
CRIMINAL LAW/SEX OFFENDER REGISTRATION ACT (SORA)
No Basis in Law for "Automatic Override" Based Upon a Prior Sex Crime Conviction to Raise Sex Offender Status Above the Presumptive Level (SORA)
The Fourth Department reversed County Court's determination that defendant, who was a presumptive level two sex offender, should be classified as a level three offender on the basis of a prior felony conviction of a sex crime. The County Court described the authority for the upward departure as an "automatic override." The Fourth Department noted that an "automatic override" does not exist in this context and explained the criteria for an upward departure:
Based upon the total risk factor score of 85 points on the risk assessment instrument, defendant was presumptively classified as a level two risk. County Court determined that defendant was a level three risk based on the automatic override for a prior felony conviction of a sex crime. That was error. “[N]o basis in law exists for . . . an automatic override [to] increase[] defendant’s presumptive risk level two designation to risk level three” ... . “A departure from the presumptive risk level is warranted where there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the guidelines” ... . “ ‘There must exist clear and convincing evidence of the existence of special circumstance[s] to warrant an upward or downward departure’ ” ... . People v Moore, 357, 4th Dept 3-28-14
CRIMINAL LAW
Uninhabited Trailer Met Definition of a "Building" Within the Meaning of the Arson Statute
The Fourth Department determined that a trailer that periodically was used as lodging, although not so used at the time of the fire, constituted a "building" within the meaning of the arson statute:
“The ‘ordinary meaning’ of the term ‘building’ has been alternatively defined as ‘a constructed edifice designed to stand more or less permanently, covering a space of land, usu[ally] covered by a roof and more or less completely enclosed by walls, and serving as a dwelling’ . . . , ‘a structure with a roof and walls’ . . . and ‘[a] structure or edifice inclosing a space within its walls and usually, but not necessarily, covered with a roof’ . . . The term generally, though not always, implies the idea of a habitat for a person’s permanent use or an erection connected with his or her permanent use” ... .
Inasmuch as the trailer herein was “a constructed edifice enclosed by walls, covered by a roof, designed to stand permanently, and serving a useful purpose, it is included within the ordinary meaning of the word ‘building’ ” ... . ...In addition to furnishings for sleeping, the trailer had a bathroom and a kitchen. Moreover, the trailer was equipped with a power cord for immediate access to power and a propane tank that could be used to power the refrigerator and heaters. At the time of the arson, the trailer was being used to secure the owners’ property while they were remodeling the inside of their house. In any event, with respect to the trailer’s character as a building in the ordinary sense of the word, it is of no moment that no one was actually residing in the trailer on the day of the incident ... .
Even assuming, arguendo, that the trailer did not fit within the ordinary meaning of the term, we conclude that it constituted a building under the secondary definition of building contained in the statute, i.e., a “structure . . . used for overnight lodging of persons, or used by persons for carrying on business therein” (Penal Law § 150.00 [1]). Defendant recognized that the trailer was used for overnight lodging “on ‘vacations’ or weekend retreats,” and it is undisputed that defendant had previously rented the trailer as overnight lodging for a period of four months. Although no one was residing in the trailer on the day of the fire, we likewise conclude that such fact does not alter the essential character of the structure as one used for overnight lodging. People v Norcutt, 195, 4th Dept 3-28-14
CRIMINAL LAW
Department of Corrections Must Comply with State and Federal Courts' Expressed Intent to Impose Concurrent Sentences
The Third Department, over a dissent, determined that the intent in both the state and federal proceedings was to impose concurrent sentences and ruled that the Department of Corrections could not act to make the sentences consecutive:
Issues involving sentencing by dual sovereigns are generally considered under the doctrine of primary jurisdiction and occasionally give rise to complexities ... . We do not need to engage in an extended discussion of the intricacies of primary jurisdiction and sentencing by dual sovereigns in this case.Succinctly stated, "[j]ust as the dual sovereignty doctrine acknowledges and protects the rights of each sovereign to exact as much punishment for a crime as that sovereign desires, the doctrine also acknowledges and protects the rights of each sovereign to exact as little punishment for the crime as that sovereign desires" ... . Here, it is clear that both sovereigns intended the state and federal sentences to run concurrently. To run the sentences sequentially essentially because of the manner in which they were administered despite express intent otherwise by both sovereigns is analogous to a governmental entity other than the court lengthening a sentence, which this state does not permit ... Matter of Hall v LaValley, 515985, 3rd Dept 3-27-14
CRIMINAL LAW/APPEALS/IMMIGRATION LAW
Dismissal of Deported Defendant's Appeal (Without Prejudice) Appropriate Where Defendant's Continued Participation in the Proceedings Would Be Required Should the Appeal Be Successful
The Second Department determined defendant's appeal of his motion to vacate his conviction should be dismissed without prejudice because he had been deported and his continued participation in the proceedings would be required if the appeal were successful, distinguishing People v Ventura, 17 NY3d 675, where dismissal was not appropriate because the defendant's participation in the case was no longer required. People v Harrison, 2014 NY Slip Op 02076, 2nd Dept 3-26-14
CRIMINAL LAW/EVIDENCE
Victim's Statements Admissible as Excited Utterances Despite the Passage of Some Time Before the Statements Were Made
The Fourth Department determined the victim's statements to an emergency medical technician were admissible as excited utterances even though some time had elapsed between the victim's treatment and her statements. The court determined that the stress of the situation had not diminished at the time the statements were made:
It is well settled that “[t]he admissibility of an excited utterance is entrusted in the first instance to the trial court. In making that determination, the court must ascertain whether, at the time the utterance was made, the declarant was under the stress of excitement caused by an external event sufficient to still his [or her] reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful. The court must assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth. Above all, the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection” ... . Notably, “the time for reflection is not measured in minutes or seconds, but rather is measured by facts” ... .
There is no dispute that there was a period of time between the victim’s treatment by the EMT and her statements. During that period of time, however, the victim’s child and niece were still in the apartment with defendant, the man who had kidnapped the victim and beaten her with a loaded gun. We thus conclude that “ ‘at the time the utterance[s were] made [the victim] was in fact under the stress of excitement caused by an external event sufficient to still . . . her reflective faculties’ . . . , including both the physical and emotional stress of the [kidnapping and] beating earlier administered by defendant[,] . . . the stress of being confined in [an apartment and car] with defendant following the attack,” and the stress of having two small children still in harm’s way... . People v Miller, 191, 4th Dept 3-28-14
ENVIRONMENTAL LAW
Petitioners Failed to Show the Noise from a Train Affected Them Differently From the Public at Large/Therefore the Petitioners Did Not Have Standing to Raise a Challenge to the Source of the Noise Under the State Environmental Quality Review Act/Purpose of the Standing Requirement in this Context Explained
The Fourth Department determined the petitioners did not have standing to bring a proceeding to raise a challenge under the State Environmental Quality Review Act (SEQRA) because the noise complaints stemming from a train running through town did not affect the petitioners differently from the public at large. The train runs through the town pursuant to resolutions allowing the town to sell excess municipal water to a buyer in Pennsylvania. The Fourth Department noted that the complaints related solely to the operation of the train, not to the operation of the "transloading facility" where the water is loaded onto the trains:
There is no dispute that “[c]ourts surely do provide a forum for airing issues of vital public concern, but so do public hearings and publicly elected legislatures, both of which have functioned here. By contrast to those forums, a litigant must establish its standing in order to seek judicial review” ... . “With the growth of litigation to enforce public values, such as protection of the environment, the subject of standing has become a troublesome one for the courts” ... . “ ‘[I]njury in fact’ has become the touchstone” for standing ..., because “[t]he existence of an injury in fact–an actual legal stake in the matter being adjudicated–ensures that the party seeking review has some concrete interest in prosecuting the action” ... .
It is well established that “[s]tanding requirements ‘are not mere pleading requirements but [instead are] an indispensable part of the plaintiff’s case[,]’ and therefore ‘each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof’ ” ... . Where, as here, the proceeding does not involve a “zoning-related issue . . . , there is no presumption of standing to raise” a challenge under the State Environmental Quality Review Act ([SEQRA] ECL art 8) based solely on a party’s proximity ... . In such a situation, the party seeking to establish standing must establish that the injury of which he or she complains “falls within the ‘zone of interests,’ or concerns, sought to be promoted or protected” ..., and that he or she “would suffer direct harm, injury that is in some way different from that of the public at large” ... .
While we agree with petitioners that noise falls within the zone of interests sought to be protected by SEQRA (...see generally ECL 8-0105 [6]), we conclude that respondents met their burden of establishing as a matter of law that [petitioner] did not sustain an injury that was different from that of the public at large. Matter of Sierra Club... v Village of Painted Post, 202, 4th Dept 3-28-14
ENVIRONMENTAL LAW/ADMINISTRATIVE LAW
Criteria for Judicial Review of Agency's Action Under the State Environmental Quality Review Act Explained
The First Department determined Supreme Court should not have declared that the NYC Industrial Development Agency's [IDA's] issuance of a negative declaration (finding no further environmental review necessary for a project in the Bronx) violated the State Environmental Quality Review Act (SEQRA). In so finding, the First Department explained the criteria for court review in this context:
"'[J]udicial review of a SEQRA determination is limited to determining whether the challenged determination was affected by an error of law or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure'" .... "[T]he courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives'" ... .
Our review of the record establishes that the determination of IDA not to require a Supplemental Environmental Impact Study (SEIS) was not affected by an error of law, arbitrary and capricious, or an abuse of discretion ... . Likewise, the record reflects that, as the lead agency, IDA identified the relevant areas of environmental concern related to the proposed action (including traffic, air quality and noise impact), took the requisite "hard look" at them and, in its negative declaration, set forth a reasoned elaboration of the basis for its determination that a SEIS [Supplemental Environmental Impact Statement] was not required ... . Thus, Supreme Court should have declared that IDA's issuance of a negative declaration did not violate SEQRA, was not arbitrary and capricious, and was not an abuse of discretion. Matter of South Bronx Unitd! v New York City Indus Dev Agency, 2014 NY Slip 02132, 1st Dept 3-27-14
FAMILY LAW
Inadequate Supervision and Unsanitary Living Conditions Warranted a Neglect Finding
The Fourth Department reversed Family Court and found the three and a half year old child to be neglected. The child wandered off out of the house and was found by a neighbor one and a half blocks away . And the child had been living in highly unsanitary conditions:
...[A] neglected child is defined as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof” (Family Ct Act § 1012 [f] [i] [B]). As the Court of Appeals has explained, “[t]he statute . . . imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence . . . First, there must be proof of actual (or imminent danger of) physical, emotional or mental impairment to the child . . . Second, any impairment, actual or imminent, must be a consequence of the parent’s failure to exercise a minimum degree of parental care . . . This is an objective test that asks whether a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances” ... . Moreover, it is well established that “the statutory requirement of imminent danger . . . does not require proof of actual injury” ..., and that “[a] single incident where the parent’s judgment was strongly impaired and the child exposed to a risk of substantial harm can sustain a finding of neglect” ... . * * *
As relevant to the second basis for neglect alleged in the petition, a neglected child is defined as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in supplying the child with adequate food, clothing, [or] shelter . . . though financially able to do so or offered financial or other reasonable means to do so” (Family Ct Act § 1012 [f] [i] [A]). We conclude that the court’s determination that the child was not neglected based on the condition of the mother’s apartment lacks a sound and substantial basis in the record. * * * Under the ... circumstances, we conclude that the unsanitary and unsafe condition of the mother’s apartment posed an imminent danger of impairment to the child’s physical, mental, or emotional condition ... . Matter of Raven B, 77, 4th Dept 3-28-14
LABOR LAW-CONSTRUCTION LAW/NEGLIGENCE/LANDLORD-TENANT
Question of Fact Whether Out of Possession Landlord, Based on the Terms of the Lease, Had a Duty to Keep the Premises Safe (Labor Law 200)
The Second Department determined the provisions of a lease raised a question of fact about whether an out-of-possession landlord had a duty to keep the premises safe:
"Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work" ... . * * * ...[T]o the extent that the plaintiff's claims were based on a dangerous condition on the premises, specifically the structural design, construction, and condition of a portion of the floor, the defendants failed to establish their prima facie entitlement to judgment as a matter of law. "An out-of-possession landlord generally will not be responsible for injuries occurring on its premises unless the landlord has a duty imposed by statute or assumed by contract or a course of conduct" ... . Here, the lease submitted by the defendants in support of their motion provided, among other things, that the defendants were required to "repair the damaged structural parts of the Premises," that they were "not required to repair or replace any equipment, fixtures, furnishings or decorations unless originally installed by Landlord," and that they retained the "right to enter into and upon said premises, or any part thereof . . . for the purpose of . . . making such repairs or alterations therein as may be necessary for the safety and preservation thereof." Based on these provisions, under the circumstances of this case, the defendants failed to establish as a matter of law that they did not have a duty imposed by contract to remedy the specific dangerous or defective condition alleged here. Thus, to prevail on their motion, the defendants were required to establish that they neither created the alleged dangerous or defective condition nor had actual or constructive notice thereof ... . Here, the defendants failed to establish, prima facie, that they did not create the dangerous or defective condition alleged by the plaintiff to have contributed to his fall. Quituizaca v Tucchiarone, 2014 NY Slip Op 02024, 2nd Dept 3-26-14
NEGLIGENCE/VEHICLE AND TRAFFIC LAW
Summary Judgment Properly Granted in Favor of Defendant Who Had the Right of Way When Plaintiff Pulled Into Defendant's Path from a Stop, Even Though there Was Evidence Defendant Was Travelling Slightly Over the Speed Limit/No Evidence Accident Would Have Been Avoided Had the Defendant Been Traveling at the Speed Limit
The Fourth Department, over a dissent, determined that summary judgment was properly granted to defendant truck driver who struck plaintiff's vehicle as it entered the roadway from a stop. The truck driver had the right of way (there was no stop sign for the truck driver) and there was evidence the truck was travelling in excess of five miles an hour over the speed limit. The court determined there was no evidence the accident could have been avoided even if the truck had been traveling at the speed limit:
“It is well settled that a driver who has the right-of-way is entitled to anticipate that drivers of other vehicles will obey the traffic laws requiring them to yield” (...see Vehicle and Traffic Law § 1142 [a]). Nevertheless, “a driver cannot blindly and wantonly enter an intersection . . . but, rather, is bound to use such care to avoid [a] collision as an ordinarily prudent [motorist] would have used under the circumstances” ... .
Here, we conclude ... that defendants met their initial burden of establishing that defendant was operating his vehicle “ ‘in a lawful and prudent manner and that there was nothing [he] could have done to avoid the collision’ ” ... . Defendant testified that he saw plaintiff’s vehicle at the stop sign, braked as soon as he entered the intersection, and turned to the left “microseconds” after he braked. Despite defendant’s efforts to avoid the accident, his truck struck the rear of plaintiff’s vehicle on the passenger’s side. In opposition to the motion, plaintiff failed to raise an issue of fact ... . Contrary to plaintiff’s contention, “the fact that [defendant] may have been driving at a speed in excess of five miles per hour over the posted speed limit . . . is inconsequential inasmuch as there is no indication that [defendant] could have avoided the accident even if [he] had been traveling at or below the posted speed limit” ... . Heltz v Barratt..., 184, 4th Dept 3-28-14
Similar (but not identical) facts, same result, over a dissent, in Johnson v Time Warner..., 175, 4th Dept 3-28-14
NEGLIGENCE
Resident Hosts of a Party Had No Duty to Supervise 18-Year-Old Plaintiff Who Became Voluntarily Intoxicated
In a full-fledged opinion by Justice Scudder, over a partial dissent, the Fourth Department addressed many issues (not all mentioned here) stemming from plaintiff's fall from a bathroom window at a psuedo-fraternity house where the "resident defendants" rented rooms and were responsible for cleaning the bathrooms. The Fourth Department determined the resident defendants had a duty to maintain the property in a safe condition and to give warning of unsafe conditions that are not open and obvious. There was a question of fact whether the window, which was only 13 inches above the floor and had no screen or fall-prevention device, was a dangerous condition. There was a question of fact whether the hazard was open and obvious. There was a question of fact whether the resident defendants had actual or constructive notice of the hazard. The court, however, agreed with the defendants that the cause of action based upon an alleged duty to supervise the 18-year-old plaintiff should have been dismissed:
Hosts of parties where alcohol is consumed in a home that they either own or occupy risk exposure to liability under two separate and distinct theories of negligence. One theory is based on their duties as owners or occupiers of the premises “to control the conduct of third persons for the protection of others on the premises” ..., and the other theory is based on the duty of adults to “provide[] adequate supervision for minor guests who bec[ome] intoxicated at their home” ... . * * *
The issue in this case, insofar as it relates to the negligent supervision claim, is whether the resident defendants had a duty to the adult plaintiff to supervise him and to protect him from injuring himself as a result of his voluntary intoxication. Any duty of the resident defendants to protect the intoxicated plaintiff from himself would come from the fact that they hosted the party, i.e., they provided the alcohol. Otherwise, plaintiff could sue anyone attending the party for failing to supervise him. ...The Court of Appeals ....noted that the courts of New York had rejected “any argument that a duty exists to protect a consumer of alcohol from the results of his or her own voluntary conduct” ... . We thus conclude that, because plaintiff was not a minor entrusted to the care of the resident defendants, the resident defendants did not have a duty to protect plaintiff from the results of his own voluntary intoxication. Parslow ... v Leake..., 1341, 4th Dept 3-28-14
NEGLIGENCE
Basketball Player Assumed Risk of Running Into Glass Doors Behind Baseline
The Second Department determined a basketball player assumed the risk of the injuries suffered when his arm went through a glass door located behind the baseline. The glass door constituted an open and obvious condition:
The doctrine of primary assumption of risk provides that "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ... . This encompasses risks associated with the construction of the playing field, and any open and obvious conditions on it ... . If the risks are known by or perfectly obvious to the participant, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be.
Here, based in part on the proximity of the court to the entrance doors, the defendants established their entitlement to judgment as a matter of law by demonstrating that the injured plaintiff had assumed the obvious and inherent risk of coming into contact with the pane of glass in the entrance door by electing to play basketball on that court... . Perez v New York City Dept of Educ, 2014 NY Slip Op 02022, 2nd Dept 3-26-14
NEGLIGENCE
Passengers in Car Struck from Behind Entitled to Summary Judgment Despite Issue of Comparative Fault on the Part of the Driver of the Car in which They Were Passengers
The Second Department determined plaintiffs, who were passengers in a car struck from behind by the defendant (Farrell), were entitled to summary judgment in spite of the possible comparative negligence of the driver of the car in which they were passengers (Moncion):
Both plaintiffs established their entitlement to judgment as a matter of law by demonstrating, prima facie, that the vehicle in which they were passengers was struck in the rear by Farrell's vehicle ... . "A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" ... . In opposition to the plaintiffs' prima facie showings, Farrell failed to provide a nonnegligent explanation for the rear-end collision. Although Farrell submitted evidence sufficient to raise a triable issue of fact as to whether Moncion was comparatively at fault in causing the accident ... , that evidence was insufficient to defeat the plaintiffs' motions for summary judgment since Farrell failed to raise a triable issue of fact as to whether either one of the plaintiffs was at fault in the happening of the accident. Upon establishing his or her freedom from fault, the right of an innocent passenger to an award of summary judgment on the issue of liability against one driver is not barred or restricted by potential issues of comparative fault as between that driver and the driver of another vehicle involved in the accident ... . Rodriguez v Farrell, 2014 NY Slip Op 02027, 2nd Dept 3-26-14
NEGLIGENCE/CORPORATION LAW/LANDLORD-TENANT
Corporate Officer Not Liable in Lead Paint Exposure Case Under "Commission of a Tort" Doctrine for Nonfeasance/No Evidence of Malfeasance or Misfeasance
The Fourt Department determined summary judgment should have been granted to a corporate officer in a lead paint exposure case. The court explained when the "commission of a tort" doctrine applies to corporate officers:
“The ‘commission of a tort’ doctrine permits personal liability to be imposed on a corporate officer for misfeasance or malfeasance, i.e., an affirmative tortious act; personal liability cannot be imposed on a corporate officer for nonfeasance, i.e., a failure to act” ... . Such misfeasance may include exacerbating a hazardous lead paint condition by negligently attempting to correct it ... . Here, defendant met his initial burden by presenting “evidence that, if uncontroverted, would have established that [he] did not personally participate in malfeasance or misfeasance constituting an affirmative tortious act” ... . Plaintiff failed to raise an issue of fact in response, inasmuch as he submitted no evidence that defendant affirmatively created the dangerous lead condition at the property or did anything to make it worse; at most, defendant merely failed to remedy the condition. We thus conclude that he cannot be held individually liable to plaintiff in this action. Lloyd v Moore..., 200, 4th Dept 3-28-14