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March Page IV

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


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Whether Arresting Officers Had Reasonable Suspicion to Stop and Detain Is a Mixed Question of Law and Fact Which Cannot Be Reviewed by the Court of Appeals


The Court of Appeals, over a strong dissent, determined it did not have jurisdiction to consider whether the police had reasonable suspicion to justify the stop and detention of the defendant, a mixed question of law and fact:


Whether the circumstances of a particular case rise to the level of reasonable suspicion presents a mixed question of law and fact ... . Because the Appellate Division's reversals were thus not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal" (CPL 450.90 [2] [a]), these appeals are not authorized to be taken.


While acknowledging that "determinations as to reasonable suspicion typically present a mixed question of law and fact," the dissent cites People v McRay (51 NY2d 594 [1980]) for the proposition that these cases instead involve a straight-up question of law — namely, "the minimum showing necessary to establish reasonable suspicion" ... . In McRay, though, the Appellate Division reversed the suppression court on the ground that the People's proof was insufficient as a matter of law to support probable cause to arrest (id. at 605). When we disagreed and reversed, we therefore remitted to the Appellate Division for factual review, emphasizing that an inference of probable cause was permitted, but not required, on the facts established (id. at 605, 606). Here, by contrast, the Appellate Division reversed the suppression court because, when exercising its independent fact-finding powers, it drew a different inference from the established facts, thus deciding a mixed question of law and fact. The dissenting Judge strongly disagrees with the Appellate Division. But the views of individual Judges of this Court on the merits of defendants' suppression motions are beside the point because the Criminal Procedure Law simply does not vest us with jurisdiction to entertain these appeals... . People v Brown, 2015 NY Slip Op 02552, CtApp 3-26-15





Felony Convictions in Other Jurisdictions Need Not Have a New-York-Felony Counterpart to Be Considered Under the Persistent Felony Offender Statute


The Court of Appeals, in a full-fledged opinion by Judge Read, determined the persistent-felony-offender statute does not require that felonies committed in other jurisdictions have a felony-counterpart in New York in order to be considered re:  persistent-felony-offender status:


New York's persistent felony offender statute, by its plain terms, does not require that, in order to classify someone as a persistent felony offender, an out-of-state predicate felony must have a New York counterpart. Section 70.10's silence with regard to New York equivalency is dispositive. As the Second Circuit explained in Griffin, when holding that section 70.10 was rational as applied to the defendant in that case, "[s]ection 70.10 (1) (b) does not distinguish among felony convictions that arise under federal, New York State, or out-of-state law. Thus, if the acts constitute a felony under federal or another state's law, they will be deemed a felony for purposes of persistent offender status under [s]ection 70.10 even if there is no counterpart felony in New York law" (Griffin, 156 F3d at 290 [emphasis added]...). People v Jones, 2015 NY Slip Op 02553, CtApp 3-26-15






Defendant's Inability to Participate in the Prison Sex Offender Treatment Program Based Upon His Disciplinary Record Should Not Have Been Deemed a "Refusal" to Participate in the Program


The Court of Appeals determined Supreme Court erred when it assessed points against the defendant in a Sex Offender Registration Act (SORA) proceeding for "refusal to participate" in a prison sex offender treatment program.  Defendant was not eligible for participation in the treatment program because of his disciplinary record.  He did not "refuse" to participate:


Whether a defendant's prison disciplinary violations which prevent him or her from attending treatment can trigger an assessment of points under risk factor 12 has not been addressed by this Court. We hold that defendant's inability to participate in sex offender treatment due to his disciplinary violations was not tantamount to a refusal to participate in treatment under the SORA Guidelines. Refusal contemplates an intentional explicit rejection of what is being offered. There is no indication here that defendant explicitly refused treatment. Conduct that places a defendant in a position where he or she could not receive treatment is not equal to refusal to participate in treatment. Inferring refusal from a defendant's disciplinary record is not supported by the Guidelines, which state that points should be assessed where a defendant refuses treatment or is expelled from treatment. People v Ford, 2015 NY Slip Op 02554, CtApp 3-26-15







Questions of Fact Whether Name Added to Bank Account Created a Convenience Account or a Joint Tenancy with Right of Survivorship


The Fourth Department determined there was a question of fact whether plaintiff's adding another's (John's) name to a bank account was done for convenience or to provide John with a right to the funds:


There is no dispute that the account in which the funds had been deposited was designated a joint account. The sole question is whether that account was a convenience account, in which case the money deposited therein would be considered "the sole property of [plaintiff]" and could not be used to satisfy a judgment against John (... see Banking Law § 678). Otherwise, if the account was a joint tenancy account with a right of survivorship or a tenancy in common account, John would be deemed to have "an ownership interest in one half of the moneys deposited therein" ... . Defendant contends that, by placing John's name on the bank account as a joint tenant, the account is presumed to be a joint tenancy account with a right of survivorship (see Banking Law § 675). We reject that contention. "Although the bank account is designated as joint,' the account documents do not contain the necessary survivorship language, and thus the statutory presumption of a right of survivorship does not apply" ... .


We agree with defendant that plaintiff failed to establish as a matter of law that she intended to create a convenience account (see Banking Law § 678), as opposed to either a joint tenancy account with right of survivorship (see § 675), or a tenancy in common account (see EPTL 6-2.2 [a]). ...  Plaintiff stated that she added John's name to the account because she was "fearful for [her] own safety" and "feared the risk of additional violence against [her]." Plaintiff wanted to make sure that, if anything happened to her, "the funds [would] be available for the welfare of [her] granddaughter." Those statements seemingly establish that plaintiff "did not have a present intention to transfer an interest in the [money] to [John], despite having placed his name on the [account]" ... . Moreover, John made no deposits or withdrawals to the account, which also supports plaintiff's position that the account was opened as a matter of convenience only ... .


Nevertheless, we conclude that plaintiff's statements raise a triable issue of fact whether she intended John to have a right of survivorship in the joint tenancy account. ...[W]hile the signature card's reference to a document stating that rights of survivorship are created when obtaining a joint bank account is insufficient to invoke the statutory presumption of Banking Law § 675 ... , it is a factor that may be considered when determining whether the bank account is a joint tenancy account with survivorship rights ... . Sweetman v Suhr, 2015 NY Slip Op 02583, 4th Dept 3-27-15





Plaintiff's Motion to Appoint a Temporary Administrator after Defendant's Death Properly Denied---Relevant Law Explained


In affirming the denial of plaintiff's motion to appoint a temporary administrator after the defendant in a lead-paint action had died, the Second Department explained the relevant law:


"If a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order substitution of the proper parties" (CPLR 1015[a]...). "A motion for substitution may be made by the successors or representatives of a party or by any party" (CPLR 1021...). "Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent" ... .


In most instances a personal representative appointed by the Surrogate's Court should be substituted in the action to represent the decedent's estate ... . However, in the event no such representative exists, an appropriate appointment may be made by the Supreme Court and that individual may be substituted in place of the decedent ... . Indeed, "[t]he Supreme Court is a court of general jurisdiction with the power to appoint a temporary administrator, and may do so to avoid delay and prejudice in a pending action" ... . The determination of whether to exercise its authority to appoint a temporary administrator is committed to the sound discretion of the Supreme Court, and will not be disturbed by this Court so long as the determination does not constitute an improvident exercise of discretion ... .


Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the plaintiff's motion, inter alia, to appoint a temporary administrator (see CPLR 1015[a]...). Although in most instances the personal representative of the decedent's estate should be substituted, here, the plaintiff failed to demonstrate what steps she had taken to secure the appointment of a personal representative in the appropriate Surrogate's Court or that resort to the appropriate Surrogate's Court was otherwise unfeasible ... . Furthermore, the plaintiff did not contend that this action, which is based on events occurring nearly 20 years ago, was trial-ready ... . Under the circumstances presented here, the plaintiff failed to adequately demonstrate why the appointment of a temporary administrator was needed to avoid undue delay and prejudice. Lambert v Estren, 2015 NY Slip Op 02454, 2nd Dept 3-25-15





Summary Judgment May Be Based Upon an Unpled Affirmative Defense/Oral Waiver May Be Effective in the Face of a "Written Waiver" Requirement in the Contract


The First Department noted that a motion for summary judgment can be based upon an unpleaded affirmative defense in the absence of surprise and determined there was a question of fact whether an oral waiver was effective in the face of a contract provision requiring any waiver to be in writing:


Defendants' failure to plead the affirmative defense of waiver in their answer did not preclude them from asserting such defense for the first time on summary judgment, since "[t]here is no prohibition against moving for summary judgment based on an unpleaded defense where the opposing party is not taken by surprise and does not suffer prejudice as a result" ... . * * *


Although the management agreement contained a provision that any waivers must be in writing, "a contracting party may orally waive enforcement of a contract term notwithstanding a provision to the contrary in the agreement. Such waiver may be evinced by words or conduct, including partial performance"... . Matthew Adam Props., Inc. v The United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, 2015 NY Slip Op 02419, 1st Dept 3-24-15






Referee's Authority Exceeded---Authority Comes from Consent of the Parties


The Second Department determined the referee had exceeded his authority in a custody proceeding:


"A referee derives authority from an order of reference by the court (see CPLR 4311), which can be made only upon the consent of the parties, except in limited circumstances," which are not applicable here ... . Here, the parties did not consent to the determination of any issues by a referee, and the order of reference directed the referee to hear and report (see CPLR 4317[a]). Absent the parties' consent, the referee had the power only to hear and report his findings (see CPLR 4317[a]...). Thus, the referee exceeded his authority in signing an order to show cause pursuant to which the defendant, in effect, sought leave to submit a motion to modify a prior order of custody and to stay the enforcement of an order entered in a related custody proceeding commenced in the Family Court, pending her appeal of that order. The referee further exceeded his authority in temporarily restraining the enforcement of the Family Court's order and all proceedings in the Family Court pending the determination of that branch of the defendant's motion which was for a stay ... .  Albert v Albert, 2015 NY Slip Op 02439, 2nd Dept 3-25-15






Town, Not the Town Board, Was the Proper Party/Town Could Not Use Article 78/Declaratory Judgment to Enforce a Contract/Town Entitled to Specific Performance of Contract


The Fourth Department, in the context of an action by the town for specific performance of a contract with a volunteer fire department, determined: (1) the town, not the town board, was the proper party to bring the action; (2) the hybrid Article 78/declaratory judgment action could not be brought by the town to enforce a contract; (3) the action should have been brought as one seeking specific performance; (4) the town was entitled to specific performance of the contract:


...[T]he Town Board lacks capacity to bring this proceeding/action.  As "artificial creatures of statute," governmental entities such as the Town Board "have neither an inherent nor a common-law right to sue. Rather, their right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate" ... . Here, Town Law § 65 (1) provides in relevant part that "[a]ny action or special proceeding for or against a town, or for its benefit, . . . shall be in the name of the town," and that "[t]he town board of any town may authorize and direct any town officer or officers to institute, defend or appear, in any action or legal proceeding, in the name of the town, as in its judgment may be necessary, for the benefit or protection of the town" ... . Under the circumstances of this case, we exercise our power pursuant to CPLR 2001 to correct that irregularity and to amend the caption by substituting the Town for the Town Board, "on behalf of" the Town ... . ...


... [A]lthough a CPLR article 78 proceeding may be brought against public or private corporations that "take on a quasi-governmental status" ..., such "a . . . proceeding is not the proper vehicle to resolve contractual rights' " ... . Moreover, a declaratory judgment action is also not a proper vehicle to resolve the contractual rights herein because " a full and adequate remedy is already provided by another well-known form of action' " ... . Pursuant to CPLR 103 (c), however, "[i]f a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution." We thus exercise our discretion under CPLR 103 (c) and convert this hybrid CPLR article 78 proceeding/declaratory judgment action to an action for specific performance ... . 


"Specific performance is a discretionary remedy which is an alternative to the award of damages as a means of enforcing the contract' . . . The right to specific performance is not automatic . . . The equitable remedy of specific performance is available in the court's discretion when the remedy at law is inadequate . . . Finally, . . . the party seeking equity must do equity, i.e., he must come into court with clean hands" ... . Here, the Town met its burden of proving that it "substantially performed [its] contractual obligations . . . within the time specified in the [2011 Contract, and] that [it] is ready, willing and able to perform those contractual obligations not yet performed and not waived by the [West Brighton Fire Department (WBFD)]" ..., and the WBFD failed to raise a triable issue of fact in opposition thereto ... . Matter of Town Bd. of Town of Brighton v West Brighton Fire Dept., Inc., 2015 NY Slip Op 02581, 1st Dept 3-27-15






Plaintiff's Allegations of Injuries in the Bill of Particulars Were Not So Broad as to Constitute a Waiver of the Physician-Patient Privilege for Plaintiff's Entire Medical History


The Fourth Department determined plaintiff's allegations of injuries in the bill of particulars was not so broad as to place plaintiff's entire medical history in controversy:


In bringing the action, plaintiff waived the physician/patient privilege only with respect to the physical and mental conditions affirmatively placed in controversy" ... . Indeed, that waiver " does not permit wholesale discovery of information regarding [plaintiff's] physical and mental condition' " ... . Contrary to defendants' contention, the allegations in the bill of particulars that plaintiff sustained "serious and permanent injuries, including: toxic keratitis; bilateral corneal abrasions; severe bilateral photophobia; impaired vision; decrease in vision; need for corneal transplants; loss of enjoyment of life; disability; and pain and suffering" "do not constitute such broad allegations of injury' that they place plaintiff's entire medical history in controversy" ... . The court properly conducted an in camera review to redact irrelevant information ..., and properly limited disclosure to the "conditions affirmatively placed in controversy" ... . Reading v Fabiano, 2015 NY Slip Op 02634, 4th Dept 3-27-15




Escalating Intrusiveness of Police-Encounter with Defendant Justified Under DeBour Criteria---Criteria Explained and Applied


The Second Department, over a dissent, determined the arresting officer, Schwizer, properly escalated the intrusiveness of his encounter with the defendant (under the DeBour criteria) based upon the actions of the defendant:


"On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance" ..., the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity ... . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality ... . The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion ... . The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime ... . The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime ... .


"Encounters between citizens and the police in public places are of an endless variety with no two being precisely alike" ... . Here, Schwizer properly exercised his common-law right of inquiry when he initially encountered the defendant, as the defendant matched the general description of a man with a gun at the subject location ... .


At this stage in the encounter, absent reasonable suspicion of criminal activity, Schwizer could not forcibly detain the defendant ... . However, during his common-law right of inquiry, Schwizer was permitted to ask the defendant to show or raise his hands as a self-protective measure ... .


The defendant's failure to comply with Schwizer's request to show his hands, coupled with the nature of the report, and the presence of the defendant's hands in his waist area, escalated the encounter and justified Schwizer's conduct in grabbing the defendant's hands as a self-protective measure ... . Once Schwizer felt the firearm in the defendant's waist area, he was furnished with reasonable suspicion ... . People v Abdul-Mateen, 2015 NY Slip Op 02489, 2nd Dept 3-25-15



Criteria for Emergency Exception to the Warrant Requirement (Re: Entry of an Apartment) Not Met


The Second Department determined the police should not have entered and apartment without a warrant because the emergency exception to the warrant requirement did not apply.  The landlord had simply indicated a woman was in the apartment without any indication the woman was in distress:


Under the emergency exception to the warrant requirement, the police may make a warrantless entry into a protected area if (1) they have reasonable grounds to believe that there was an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) the search was not primarily motivated by an intent to arrest and seize evidence; and (3) there was some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched ... . The United States Supreme Court has determined that the second prong, regarding the subjective intent of the police, is no longer relevant under the Fourth Amendment (see Brigham City v Stuart, 547 US 398, 404-405). However, we need not decide whether the second prong of Mitchell is still viable under the New York Constitution because we conclude that the People did not satisfy the first prong of Mitchell ... . The mere sound of unspecified banging and a woman's voice coming from the upstairs apartment was insufficient to show that there was an emergency at hand requiring the immediate assistance of the police in order to protect life or property ... . The owner did not say that she heard the woman screaming or crying for help, and the officers did not observe any indicia of an emergency ... . People v Hammett, 2015 NY Slip Op 02498, 2nd Dept 3-25-15




Observing a "Bulge" Did Not Justify Forcible Detention


The Second Department reversed defendant's conviction, finding that the police officer's observation of a bulge did not justify forcible detention:


...[T]he arresting officer did not have reasonable suspicion to believe that the defendant had committed or was about to commit a crime ... . The officer briefly observed what he initially characterized only as a "bulge" on the right side of the defendant's pants. Despite this initial characterization, the officer later testified that he thought he had observed a holster, which turned out to be a buckle attached to the right side of the defendant's pants. This observation, without more, was not sufficient to permit the officer to forcibly detain the defendant ... . Accordingly, the physical evidence recovered from the defendant as a consequence of the unlawful detention and arrest should have been suppressed... . People v Severino, 2015 NY Slip Op 02509, 2nd Dept 3-25-15




Misinformation from Defense Counsel, Prosecutor and Judge Re: Defendant's Eligibility for Shock Incarceration Warranted Vacation of Guilty Plea In Spite of Appeal Waiver/Overnight Guest Has Standing to Contest Search of Residence


The Third Department, over a dissent, determined that misinformation from the judge, prosecutor and defense counsel about defendant's eligibility for the shock incarceration program justified the vacation his guilty plea, despite an appeal waiver. In addition, the court determined defendant was entitled to a hearing on whether he had standing to contest the search of another's mobile home.  The owner of the mobile home (Orrego) had supplied an affidavit stating defendant was an overnight guest, a status the provided standing to contest the search:


Given the mistake by all involved in the plea proceeding, and counsel's failure to provide meaningful representation on this issue, we agree with defendant's contention that his motion to withdraw his guilty plea should have been granted. * * *


... [A] trial court is not obligated to conduct a suppression hearing "unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure" ... . Pertinent here, "an overnight guest has an expectation of privacy in the host's home" and, thus, standing to contest a search of that home ... . In our view, the facts set forth in the Orrego affidavit necessitated, at a minimum, that a hearing be held to determine whether defendant had standing to contest the search... . People v Wiggins, 2015 NY Slip Op 02517, 3rd Dept 3-26-15




Nervous and Uncooperative Actions by Defendant Justified Search of Area Inside Defendant's Car After Defendant Was Out of the Car and Had Been Frisked


The First Department, over a dissent, determined the nervous and uncooperative actions of the defendant justified the warrantless search of a bag inside the car defendant was driving, after defendant was outside the car and had been frisked:


The testimony supports the trial court's finding that the facts available to the officers, including defendant's furtive behavior, suspicious actions in looking into the back seat on multiple occasions and refusal to follow the officers' legitimate directions, went beyond mere nervousness. Rather, defendant's actions both inside and outside of the vehicle created a "perceptible risk" and supported a reasonable conclusion that a weapon that posed an actual and specific danger to their safety was secreted in the area behind the front passenger seat, which justified the limited search of that area, even after defendant had been removed from the car and frisked ... . People v Hardee, 2015 NY Slip Op 02573, 1st Dept 3-26-15




Frisk Not Justified Under DeBour Analysis


The Fourth Department determined the police officer did not have reasonable suspicion defendant was committing a crime and had no reasonable basis to suspect he was in danger at the time he frisked the defendant:


It is well established that, in evaluating the legality of police conduct, we "must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter" (...People v De Bour, 40 NY2d 210, 215). In De Bour, the Court of Appeals "set forth a graduated four-level test for evaluating street encounters initiated by the police: level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; [and] level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime" (People v Moore, 6 NY3d 496, 498-499).


Here, contrary to defendant's contention, we conclude that the information provided in the 911 dispatch coupled with the officers' observations provided the police with "an objective, credible reason for initially approaching defendant and requesting information from him" ... . The officers pulled up next to defendant and, without exiting the vehicle, asked to see defendant's identification and asked defendant where he was going and where he was coming from, which was a permissible level one intrusion ... .


Contrary to the further contention of defendant, we conclude that his failure to answer the officers' questions about where he was going and where he was coming from, when added to the information acquired from the police dispatch and defendant's heightened interest in the patrol car, created a "founded suspicion that criminality [was] afoot," justifying a level two intrusion ... . The common-law right of inquiry "authorized the police to ask questions of defendant—and to follow defendant while attempting to engage him—but not to seize him in order to do so" ... . The police therefore acted lawfully in following defendant for the purpose of obtaining an answer to their valid questions about his whereabouts. The encounter, however, quickly escalated to a level three intrusion when one of the officers grabbed defendant's hand and patted the outside of his pants pocket. "[A] stop and frisk is a more obtrusive procedure than a mere request for information or a stop invoking the common-law right of inquiry, and as such normally must be founded on a reasonable suspicion that the particular person has committed or is about to commit a crime" ... . " [W]here no more than a common-law right to inquire exists, a frisk must be based upon a reasonable suspicion that the officers are in physical danger and that defendant poses a threat to their safety' "* * * ...[U]nlike in other cases where we have sanctioned a frisk for weapons, there was no evidence in this case that defendant refused to comply with the officers' directives or that he made any furtive, suspicious, or threatening movements ... . Indeed, under the circumstances of this case, the presence of defendant's hand in his left pants pocket was particularly innocuous and " readily susceptible of an innocent interpretation' " ... . Defendant retrieved his identification from his left pants pocket and returned it to that pocket after complying with the officers' request to produce identification ... .


We therefore conclude that, "[b]ecause the officer lacked reasonable suspicion that defendant was committing a crime and had no reasonable basis to suspect that he was in danger of physical injury, . . . the ensuing pat frisk of defendant was unlawful" ... . People v Burnett, 2015 NY Slip Op 02613, 4th Dept 3-27-15





Failure to Read Defendant His Miranda Rights, After the Defendant Interrupted the Reading of the Rights by Telling the Officer He Knew His Rights, Required Suppression of the Statements


The Fourth Department determined that defendant was entitled to a new trial with respect to the charges related to unwarned statements he made to the police.  When an officer started to read the Miranda rights to the defendant he stopped the officer by saying he knew his rights.  The defendant thereafter made several statements in the absence of any Miranda warnings:


It is well settled that "[a]n individual taken into custody by law enforcement authorities for questioning must be adequately and effectively apprised of his rights' safeguarded by the Fifth Amendment privilege against self-incrimination" ... . The Miranda warnings "are an absolute prerequisite to interrogation' " ... . Here, the court concluded that defendant understood his rights based on the fact that he had been given Miranda warnings before he gave his August 16, 2010 statement [re: a different, unrelated offense]. A court, however, does not " inquire in individual cases whether the defendant was aware of his rights without a warning being given' " ... . Defendant's statements made on November 17, 2010 must therefore be suppressed because the Miranda warnings were not given until after defendant was interrogated... . People v Jackson, 2015 NY Slip Op 02623, 4th Dept 3-27-15





Insufficient Evidence Defendant "Caused" the Victim's Death within the Meaning of the Felony Murder Statute---The Victim, Who Was Assaulted by the Defendant, Died of a Heart Attack


The Fourth Department determined there was insufficient evidence to support defendant's felony murder conviction.  Defendant assaulted the victim during a burglary/robbery.  The victim, who was obese and had heart disease, suffered a fatal heart attack. The Fourth Department held that the People did not present sufficient evidence the defendant caused the victim's death within the meaning of the felony murder statute:


A person is guilty of felony murder when, during the commission or attempted commission of an enumerated felony, either the defendant or an accomplice "causes the death of a person other than one of the participants" (Penal Law § 125.25 [3]). A person "causes the death" of another person "when the . . . culpable act is a sufficiently direct cause' of the death so that the fatal result was reasonably foreseeable" ... . Such a culpable act is a sufficiently direct cause of death when it is "an actual contributory cause of death, in the sense that [it] forged a link in the chain of causes which actually brought about the death' " ... . "An obscure or a merely probable connection between an assault and death will, as in every case of alleged crime, require acquittal of the charge of any degree of homicide" ... .


Here, we conclude that the People failed to prove beyond a reasonable doubt that it was reasonably foreseeable that defendant's actions, i.e., unlawfully entering the victim's apartment and assaulting him, would cause the victim's death. As noted, the victim died of a heart attack, and the injuries inflicted upon him by defendant were not life threatening. Indeed, the most serious injury inflicted was a fractured jaw. Although the Chief Medical Examiner testified for the People at trial that defendant caused the victim's death, she explained that her opinion in that regard was based on her assertion that, "but for" defendant's actions, the victim would not have died of a heart attack. As the court properly instructed the jury, however, "more than but for' causation [is] required" to establish felony murder ... . Notably, the Chief Medical Examiner did not testify that defendant's culpable act was a direct cause of the death or that the fatal result was reasonably foreseeable. We thus conclude that the evidence is legally insufficient to establish that defendant committed felony murder, as charged in counts one and two of the indictment, and we therefore modify the judgment accordingly. People v Davis, 2015 NY Slip Op 02628, 4th Dept 3-27-15




Appeal Waiver Invalid/Court Erroneously Told Defendant His Request for a Hearing on the Persistent Violent Felony Offender Tolling Calculations Violated the Plea Agreement---Matter Remitted for a Hearing


The Fourth Department determined defendant's waiver of appeal was invalid and defendant was entitled to a hearing on the time-calculations associated with the "persistent violent felony offender" status.  The ten-year period between the current felony and the prior felony is tolled by any periods of incarceration.  Defendant objected to the tolling calculations made by County Court. County Court effectively coerced defendant to agree to its tolling calculations by erroneously telling defendant his request for a hearing violated the plea agreement:


...[T]he waiver of the right to appeal is invalid inasmuch as there is no indication in the record that defendant understood that the waiver of the right to appeal was separate and distinct from those rights automatically forfeited upon a plea of guilty ... . We further agree with defendant that this case should be remitted for a hearing on the issue whether he is a persistent violent felony offender. A persistent violent felony offender is one who is convicted of a violent felony offense after having previously been subjected to two or more predicate violent felony convictions (see § 70.08 [1] [a]). The sentence upon the predicate violent felony convictions "must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted" (§ 70.04 [1] [b] [iv]). However, "[i]n calculating the ten year period . . . , any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration" (§ 70.04 [1] [b] [v]).


Here, defendant admitted that he was convicted of two prior violent felonies, but objected to the tolling periods that were computed by County Court pursuant to Penal Law § 70.04 (1) (b) (v) and requested a hearing. After some discussion with the court, defendant conceded that the court's computations were correct, essentially waiving the necessity for a hearing. ...[H]is waiver of the hearing was not effective because it was the product of impermissible coercion by the court. The court indicated that it could consider defendant's request for a hearing to be a violation of the plea agreement, but that was not accurate. "While [the court] did advise defendant during the plea hearing that he was going to be sentenced as a [persistent violent] felony offender, it never specifically instructed him that admitting such [persistent violent] felony offender status was a condition of the plea agreement and that his failure to do so would result in a more severe sentence" ... . People v Vanhooser, 2015 NY Slip Op 02640, 4th Dept 3-27-15





Recorded Conversation In Which Defendant Did Not Respond to Statements by Victim that He Had Broken Her Ribs Was Admissible


The First Department determined portions of a recorded phone call in which defendant did not respond to the victim's statements that he had broker her ribs were admissible because a person in defendant's position would have been expected to answer:


The court properly exercised its discretion in admitting a phone call placed by defendant to the victim while defendant was incarcerated, in which the victim repeatedly stated that defendant had broken her ribs. The record supports the court's findings that defendant heard and understood the victim's accusation, and that a person in defendant's position would have been expected to answer ... . Rather than directly addressing the victim's statement, defendant repeatedly attempted to change the subject, such as by asking the victim whether she meant that he posed a "threat" to her. It is not dispositive that defendant asked the victim to repeat herself after the fourth out of five times she stated that he had broken her ribs, since defendant did not otherwise indicate that he was unable to hear or understood her. Although the phone call was recorded by the Department of Correction pursuant to a standard policy made known to all inmates, the rule excluding "silence in the face of police interrogation" ... was not implicated, since defendant's admissions by silence were made to a civilian. Moreover, the court's thorough limiting instructions also minimized any potential unfair prejudice. People v Vining, 2015 NY Slip Op 02570, 1st Dept 3-26-15





Defendant Should Have Been Allowed to Present Expert Opinion-Evidence About the Reliability of Eyewitness Identification


The Fourth Department, over a two-justice dissent, determined defendant should have been allowed to present expert evidence about the reliability of eyewitness identifications.  The court explained the analytical criteria:


"Because mistaken eyewitness identifications play a significant role in many wrongful convictions, and expert testimony on the subject of eyewitness recognition memory can educate a jury concerning the circumstances in which an eyewitness is more likely to make such mistakes, courts are encouraged . . . in appropriate cases' to grant defendants' motions to admit expert testimony on this subject" ... , the Court of Appeals established a two-stage inquiry for considering a motion to admit expert testimony on eyewitness identification ... . "The first stage is deciding whether the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime' ... . If the trial court finds itself with such a case, then it must proceed to the second stage, which involves the application of four factors. The court must decide whether the proposed testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror' ... . If, on the other hand, sufficient evidence corroborates an eyewitness's identification of the defendant, then there is no obligation on the part of the trial court to proceed to the second stage of analysis, because testimony concerning eyewitness identifications is unnecessary" ... .


Here, the People concede that this case hinges upon the accuracy of the eyewitness's identification of defendant, and we agree with defendant that there was little or no corroborating evidence connecting him to the crime ... . People v McCullough, 2015 NY Slip Op 02589, 4th Dept 3-27-15





"Clearly Specious" Reason for Fellow Inmate's Refusal to Testify Warranted Further Inquiry


The Third Department determined the hearing officer was obligated to inquire into an inmate's (Douglas') refusal to testify at petitioner's hearing because the reason for the refusal was obviously specious:


As a general rule, "no violation of the right to call witnesses will be found when there was no prior assent to testify, but the reason for the refusal appears in the record" ... . Further inquiry is nonetheless required, however, where the reason given by the witness for refusing to testify is "clearly specious" ... . Here, Douglas' claim to have no relevant knowledge is belied by the record evidence, which demonstrates that he was aware of the interactions between petitioner and the officer and, moreover, suggests that he was involved in the conspiracy against the officer. Therefore, because the hearing evidence "cast[] doubt on the authenticity of the reasons given" for Douglas' refusal to testify, the Hearing Officer erred in accepting his alleged lack of knowledge at face value and conducting no additional inquiry ... . Inasmuch as the determination is otherwise supported by substantial evidence and the Hearing Officer articulated "a good-faith reason for the denial [of Douglas as a witness] . . ., this amounts to a regulatory violation requiring that the matter be remitted for a new hearing" ... . Matter of Jackson v Prack, 2015 NY Slip Op 02527, 3rd Dept 3-26-15






Duration of Supervised Visits Cannot Be Left Up to Supervising Agency


The Fourth Department noted that Family Court failed to set up a proper visitation schedule because the court left the duration of the visits up to the supervising agency:


Although the court's determination that visitation must be supervised is supported by the record ..., we note that the court set no minimum time period for the monthly visitation and left the duration of visitation, "up to a maximum of eight hours," to be determined solely based on the availability of "any authorized agency that supervises visitation." Consequently, we agree with the mother that the court "erred in failing to set a supervised visitation schedule, implicitly leaving it to the supervisor to determine" the duration of each visit ... . We therefore modify the order accordingly, and we remit the matter to Family Court to determine the duration of visitation... . Matter of Ordona v Cothern, 2015 NY Slip Op 02652, 4th Dept 3-27-15




Family Court Abused Its Discretion by Failing to Consider the Least Restrictive Alternative Disposition in a Juvenile Delinquency Proceeding


The Fourth Department determined Family Court had not considered the least restrictive available alternatives for disposition in a non-felony juvenile delinquency proceeding.  Family Court had placed the juvenile in the custody of the Department of Social Services for 12 months for each of three adjudications:


It is well settled that, when determining an appropriate disposition in a juvenile delinquency case involving acts that are not felonies, "the court shall order the least restrictive available alternative" and "shall consider the needs and best interests of the respondent as well as the need for protection of the community" (Family Ct Act § 352.2 [2] [a]...). Although "[t]he court has broad discretion in determining the appropriate disposition in juvenile delinquency cases" ..., we agree with respondent that the court abused its discretion under the circumstances presented here. The evidence presented at the dispositional hearing and the predispositional and probation update reports prepared in conjunction with that hearing establish that respondent's home environment was "toxic" and he suffered from mental health issues that required treatment. In addition, the update to the original report indicated that respondent had recently been staying with a family friend who had known him since birth, that the friend had petitioned for custody of respondent, and that there had been no new arrests during that time. The update also indicated that the friend was able to devote significant time to supervising respondent, and that the friend resided with a woman who managed a residential home. In addition, both the family friend and the woman with whom he lived testified at the dispositional hearing that they could help with respondent's supervision. Consequently, "we agree with [respondent] that the court erred in failing to consider the least restrictive available alternative in fashioning an appropriate dispositional order" ... . We therefore modify the order by vacating the disposition and, in light of the lapse of time since the order was entered, we remit the matter to Family Court for a new dispositional hearing. Matter of Jacob A.T., 2015 NY Slip Op 02658, 4th Dept 3-27-15





Plaintiff Could Not Show Justifiable Reliance Upon Alleged Misrepresentations in a Stipulation


The Second Department determined the plaintiff, who was seeking to vacate portions of a so-ordered stipulation in a custody matter, failed to show the stipulation was the result of fraud.  In particular, plaintiff failed to show justifiable reliance upon any alleged misrepresentation because attachments to the stipulation reflected the actual facts:


As the party seeking to set aside the stipulation, the plaintiff had the burden of showing that the stipulation was the result of fraud ... . "A cause of action alleging fraud requires a plaintiff to establish a misrepresentation or omission of material fact which the defendant knew was false, that the misrepresentation was made to induce the plaintiff's reliance, the plaintiff's justifiable reliance on the misrepresentation or material omission, and a resulting injury" ... .


In light of the attachments provided with the stipulation, the plaintiff failed to establish the element of justifiable reliance. Where the plaintiff " has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations'" ... . Cervera v Bressler, 2015 NY Slip Op 02441, 2nd Dept 3-25-15



Mall Security Guards Did Not Actively Participate in Arrest of Plaintiff But Rather Acted at the Behest of the Police---False Arrest, False Imprisonment and Malicious Prosecution Causes of Action Against the Mall Should Have Been Dismissed


The Fourth Department determined the causes of action against a mall for false arrest, false imprisonment and malicious prosecution should have been dismissed.  The court determined the mall personnel (security guards) did not actively cause the plaintiff to be arrested, but rather were instructed to act by the police:


...[T]he causes of action for false arrest and false imprisonment are synonymous ..., and our analysis treats them as such. We agree with the Mall defendants that the court erred in denying that part of their motion concerning those causes of action. In order to establish liability therefor on the part of the Mall defendants, plaintiff is required to prove, inter alia, that the Mall defendants " took an active role in the [arrest] of the plaintiff, such as giving advice and encouragement or importuning the authorities to act' "... . Here, however, the Mall defendants met their initial burden on their motion of establishing as a matter of law that their security guard did not take the requisite "active role" in arresting plaintiff. Contrary to plaintiff's contention, the record establishes that the security guard handcuffed plaintiff only at the direction of a Town of Greece police officer (hereafter, police officer), who informed plaintiff that she was under arrest ... .


...[T]he court erred in denying that part of their motion seeking dismissal of the cause of action for malicious prosecution. In order to hold the Mall defendants liable for that tort, plaintiff is required to prove, inter alia, "the commencement . . . of a criminal proceeding by the [Mall] defendant[s] against" her ... . To establish that element, plaintiff would have to prove that the Mall defendants "affirmatively induced the [police] officer to act," for example, by "taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the [police] officer [was] not acting of his own volition" ... . We conclude in this case, however, that the Mall defendants met their initial burden on their motion of establishing that they did not commence a criminal proceeding against plaintiff inasmuch as the security guard did not affirmatively induce the police officer to act to the point where the police officer was not acting of his own volition. Indeed, the record establishes that the police officer observed the altercation, and acted of his own volition in directing the security guard to handcuff plaintiff and in informing plaintiff that she was under arrest. Washington v Town of Greece, 2015 NY Slip Op 02661, 4th Dept 3-27-15





The "Following the Settlements" Doctrine and "Following Form" Clauses as They Apply to Reinsurers Discussed in Some Depth


The First Department, in a full-fledged opinion by Justice Friedman, determined questions of fact precluded summary judgment in an action by an insurance company, New Hampshire, against a reinsurer, Clearwater.  The underlying actions were against the manufacturer Kaiser and consisted primarily, but not entirely, of asbestos-related products liability claims.  AIG, an insurer-participant in the Kaiser/AIG settlement of the claims, had allocated 100% of Kaiser's settlement to asbestos liability claims. Clearwater challenged that allocation.  A summary of the nature of the primary action is quoted below, followed by descriptions of the "follow the settlements" doctrine and "following form" clauses:


New Hampshire has brought this action against defendant Clearwater Insurance Company (Clearwater), a reinsurer of the excess policy New Hampshire issued to Kaiser, seeking to require Clearwater to indemnify New Hampshire for the share prescribed by its reinsurance certificate of the portion of the Kaiser settlement payments (which are being made over a 10-year period) that AIG has allocated to the New Hampshire policy. In its defense, Clearwater challenges AIG's allocation of 100% of the settled losses to asbestos products liability claims, contending that this allocation unreasonably results in the reinsured New Hampshire policy bearing part of the cost of settling the premises, bad faith and defense cost claims that Kaiser had not asserted against New Hampshire or that were not covered by the New Hampshire policy. ... * * *


...[T]he "follow the settlements" doctrine "ordinarily bars challenge by a reinsurer to the decision of [the cedent] to settle a case for a particular amount" ... . Specifically, under this doctrine,


"a reinsurer is required to indemnify for payments reasonably within the terms of the original policy, even if technically not covered by it. A reinsurer cannot second guess the good faith liability determinations made by its reinsured . . . . The rationale behind this doctrine is two-fold: first, it meets the goal of maximizing coverage and settlement and second, it streamlines the reimbursement process and reduces litigation . . ." ... .


Stated otherwise, as "an exception to the general rule that contract interpretation is subject to de novo review" ..., the "follow the settlements" doctrine "insulates a reinsured's liability determinations from challenge by a reinsurer unless they are fraudulent, in bad faith, or the payments are clearly beyond the scope of the original policy or in excess of the reinsurer's agreed-to exposure" ... . * * *


The purpose of a "following form" clause is "to achieve concurrency between the reinsured contract and the policy of reinsurance, thereby assuring the ceding company, that by purchasing reinsurance, it has covered the same risks by reinsurance that it has undertaken on behalf of the original insured under its own policy" ... . Accordingly, "[a] following form' clause in a policy of reinsurance incorporates by reference all the terms and conditions of the reinsured policy, except to the extent that the reinsurance contract by its own terms specifically defines the scope of coverage differently" ... .  * * * The authors of one treatise on reinsurance law caution that "a follow the form' clause should not be confused with a follow the fortunes' clause or a follow the settlements' clause" (Ostrager § 2:03[a] at 73).  New Hampshire Ins. Co. v Clearwater Ins. Co., 2015 NY Slip Op 02438, 1st Dept 3-24-15






Heavy Shelves Bolted to the Wall Constituted a "Structure" and Dismantling the Shelves Constituted "Demolition" within the Meaning of the Labor Law


The First Department, reversing Supreme Court, granted summary judgment to the plaintiff on liability re: his Labor Law 240(1)  and 241(6) claims.  The court determined the dismantling of heavy shelves which were bolted to the wall constituted demolition of a structure within the meaning of the Labor Law:


Plaintiff was injured in a fall from an unsecured ladder while working in a warehouse, where his job was to "clean out, remove machines, break down structures . . . and ship them out." The work included removal of heavy machinery and shelves that ran from floor to ceiling across three second-floor walls, each 50 feet long and 8 feet high, and were bolted to the floors and walls. The breaking down and removing of the shelves required the use of impact wrenches and sawzalls to cut the bolts. Removed materials, including shelving, were heavy, and had to be loaded in cages, which were then lifted by a pallet jack, moved to the edge of the second floor, and lowered to the first floor with a forklift. The dismantling of the shelves was a sufficiently complex and difficult task to render the shelving a "structure" within the meaning of Labor Law §§ 240(1) and 241(6) ... . Moreover, in dismantling the shelving, plaintiff was engaged in "demolition" for purposes of §§ 240(1) and 241(6) ... . Phillips v Powercrat Corp., 2015 NY Slip Op 02407, 1st Dept 3-24-15





Subcontractor Which Did Not Supervise Injured Plaintiff or Control Site Safety May Still Be Liable Under Common-Law Negligence for Creating the Dangerous Condition


The Second Department determined questions of fact existed whether a subcontractor (Geiger), which did not supervise the injured plaintiff or control safety measures, could be held liable for common-law negligence for creating the dangerous condition:


Supreme Court properly denied that branch of Geiger's motion which was for summary judgment dismissing the cause of action to recover damages for common-law negligence insofar as asserted against it. A subcontractor "may be held liable for negligence where the work it performed created the condition that caused the plaintiff's injury even if it did not possess any authority to supervise and control the plaintiff's work or work area" ... . An award of summary judgment in favor of a subcontractor on a negligence claim is improper where the "evidence raise[s] a triable issue of fact as to whether [the subcontractor's] employee created an unreasonable risk of harm that was the proximate cause of the injured plaintiff's injuries" ... . Here, there are triable issues of fact as to whether employees of Geiger created the dangerous condition that allegedly caused the injured plaintiff's accident. Lombardo v Tag Ct. Sq.,LLC,  2015 NY Slip Op 02458, 2nd Dept 3-25-15





Fall of a Heavy Rail from a Two- To Three-Foot Stack Was an Elevation-Related Event


The First Department determined the fall of a heavy rail from a stack two to three feet high was an elevation-related event within the meaning of the Labor Law:


We agree with the motion court's finding that the pile of rails that were stacked two and one-half to three feet high was not de minimis, given the approximately 1500 pound weight of the rail and "the amount of force it was capable of generating, even over the course of a relatively short descent" ... . The harm plaintiff suffered was the direct consequence of the application of the force of gravity to the rail that struck plaintiff ... .


"What is essential to a conclusion that an object requires securing is that it present a foreseeable elevation risk in light of the work being undertaken" ... . It was foreseeable that during hoisting, a crane could strike the stacked pile of rails causing it to fall ..., and therefore, the rail that struck plaintiff was an object that required securing for the purposes of the undertaking ... . We are not persuaded by the City's contention that plaintiff failed to identify a necessary and expected safety device, as plaintiff demonstrated that the City could have used secure braces, stays, or even additional lines to stabilize the stacked rails ... . Jordan v City of New York, 2015 NY Slip Op 02565, 1st Dept 3-26-15





Maneuvering a Heavy Door from a Scissors Lift to the Door Opening on the Second Floor Was Not an Elevation-Related Risk within the Meaning of Labor Law 240(1)/Nature of Labor Law 200 Action Explained


The Fourth Department determined maneuvering a heavy door across a two-foot gap between the scissors lift on which plaintiff was standing and the door opening on the second floor was not an elevation-related risk within the meaning of Labor Law 240(1).   Plaintiff's Labor Law 200 and common law negligence causes of action, however, survived defendant's summary judgment motion:


"Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide employees with a safe place to work" ... . The duty does not, however, "extend to hazards which are part of or inherent in the very work which the contractor is to perform' " ... . Here, plaintiff's accident resulted from the manner in which the work was performed, and it is undisputed that defendant had the authority to supervise and control the methods and manner of plaintiff's work, and that it in fact exercised such supervisory control ... . Contrary to defendant's contention, we conclude that defendant failed to establish as a matter of law that the risk of injury owing to moving a heavy door across a two-foot gap while at an elevated height with the assistance of a single worker was "inherent in plaintiff's work" ... . We agree with defendant, however, that the court erred in denying that part of its motion and granting that part of plaintiffs' cross motion with respect to the Labor Law § 240 (1) claim, and we therefore modify the order accordingly. "The extraordinary protections of Labor Law § 240 (1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity' " ... . Rather, the statute "was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" ... . Here, plaintiff injured his back while maneuvering a heavy door across a lateral gap; the door did not fall or descend even a de minimis distance owing to the application of the force of gravity upon it ... . Although "the injured plaintiff's back injury was tangentially related to the effects of gravity upon" the door he was lifting, "it was not caused by the limited type of elevation-related hazards encompassed by Labor Law § 240 (1)" ... . We thus conclude that the hazard at issue here, i.e., lifting or carrying a heavy object across a lateral gap, even while positioned at a height, is a "routine workplace risk[]" of a construction site and not a "pronounced risk[] arising from construction work site elevation differentials" ... . Carr v McHugh Painting Co., Inc., 2015 NY Slip Op 02584, 4th Dept 3-27-15






Board of Commissioner's Rejection of Hearing Officer's Award of Supplemental Benefits Was Supported by Substantial Evidence---"Substantial Evidence" Defined and Review Criteria Explained


The Second Department determined the Board of Commissioners of the Greenville Fire District properly rejected a hearing officer's recommendation that the petitioner be awarded supplemental benefits pursuant to the General Municipal Law. The court explained its review powers and the evidentiary requirements:


"Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence" ... . "Substantial evidence means more than a mere scintilla of evidence,' and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides" ... . "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'" ... . "Moreover, where there is conflicting expert testimony, in making a General Municipal Law § 20-a determination, a municipality is free to credit one physician's testimony over that of another'" ... . "Thus, even if conflicting medical evidence can be found in the record,' the municipality's determination, based on its own expert's conclusions, may still be supported by substantial evidence" ... .


Here, the determination of the Board of Commissioners of the Greenville Fire District (hereinafter the Board), which rejected the recommendation of a hearing officer and denied the petitioner's application for benefits pursuant to General Municipal Law § 207-a(2), was supported by substantial evidence ... . The Board was entitled to make a finding contrary to the hearing officer's recommendation, as long as substantial evidence supported the determination ... . The Board was free to credit the expert of the Greenville Fire District (hereinafter the Fire District) over the petitioner's expert, as it did, so long as testimony of the Fire District's expert was consistent and supported by the medical evidence ... . Since the Board's determination was supported by substantial evidence, we confirm the determination and deny that branch of the petition which was to annul the determination ... . Matter of Delgrande v Greenville Fire Dist., 2015 NY Slip Op 02474, 2nd Dept 3-25-15






Plaintiff Struck by Sled---Village Immune from Liability Under General Obligations Law


The Second Department determined the lawsuit against a village was properly dismissed.  Plaintiff was standing at the bottom of a hill when struck by someone who was sledding.  The hill had long been used for sledding:


The defendant (village) established as a matter of law that it was immune from liability pursuant to General Obligation Law § 9-103, which applies "to private as well as government landowners against claims for ordinary negligence brought by members of the public who come on their property to engage in certain enumerated activities where the land is suitable for those activities" ..., including undeveloped areas of public parks (see Myers v State, 11 AD3d 1020, 1021). This statute also applies to a person who is injured when other individuals engaged in an enumerated recreational activity collide with the injured plaintiff ... . In opposition, the plaintiff failed to raise a triable issue of fact ... . Vannatta v Village of Otisville, 2015 NY Slip Op 02469, 2nd Dept 3-25-15






Question of Fact Whether Board of Education Liable for Negligent Supervision of Violent Student


The Second Department determined questions of fact existed re: whether the school had notice of a student's propensity for violent behavior.  The student allegedly held plaintiff partially outside a fourth-floor window at the school. The court noted that the city was not a proper party to the suit:


"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" ... . "In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" ... . Actual or constructive notice to the school of prior similar conduct generally is required, and "an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence" ... . A plaintiff also must establish that the alleged breach of the duty to provide adequate supervision was a proximate cause of the injuries sustained ... .


Here, in support of their motion for summary judgment, the defendants failed to establish, prima facie, that the Board of Education lacked sufficiently specific knowledge or notice of the dangerous conduct that caused the injury ... . The defendants' motion papers reflect the existence of triable issues of fact as to whether the Board of Education had knowledge of the offending student's dangerous propensities arising from his involvement in other altercations with classmates in the recent past ... . Thus, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the cause of action sounding in negligent supervision insofar as asserted against the Board of Education.  Mathis v Board of Educ. of City of New York, 2015 NY Slip Op 02459, 2nd Dept 3-25-15





Questions of Fact Raised Whether Plaintiff's Infant-Daughter's Physical and Mental Deficiencies Were Caused by Inadequate  Medical Treatment Prior to and During Birth, Despite Indications Plaintiff's Daughter Was Born Healthy


The First Department, in a full-fledged opinion by Justice Acosta, reversed Supreme Court and denied defendant's motion for summary judgment in a medical malpractice case.  The First Department laid out in great detail the plaintiff-mother's experts' opinions about the causes of the her infant-daughter's (Kailen's) mental and physical deficiencies and determined questions of fact had been raised about the adequacy of medical treatment prior to and during Kailen's birth, in spite of indications of Kailen's good health at the time of birth:


A defendant in a medical malpractice action establishes prima facie entitlement to summary judgment by showing that in treating the plaintiff, he or she did not depart from good and accepted medical practice, or that any such departure was not a proximate cause of the plaintiff's alleged injuries ... . Once a defendant meets that burden, the plaintiff must rebut the prima facie showing via medical evidence attesting that the defendant departed from accepted medical practice and that such departure was a proximate cause of the injuries alleged ... .


Generally, "the opinion of a qualified expert that a plaintiff's injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants" ... . To defeat summary judgment, the expert's opinion "must demonstrate the requisite nexus between the malpractice allegedly committed' and the harm suffered" ... .


Here, in opposition to defendant's motion for summary judgment, plaintiff raised triable issues of fact as to both departure from good and accepted medical practice and causation. * * *


Contrary to defendant's assertion, plaintiff's medical evidence was sufficient to defeat summary dismissal of the complaint. Defendant's argument that plaintiff's experts failed to rebut its contention that, in the absence of any signs or symptoms of permanent neurological injury at or near the time of Kailen's birth, there is no medical basis for connecting her current condition with the "circumstances of the labor and delivery," is unavailing. Dr. Adler's assertions that brain injuries at the time of birth can be diagnosed based on observations over time contradict defendant's contention. In addition, a report prepared by Dr. Joseph Carfi, dated March 21, 2012, based on his physical examination of Kailen, and medical records, including those from defendant and the Center for Congenital Disorders, notes that Kailen was diagnosed at the Center for Congenital Disorders on May 23, 1996, when she was five months old, with microcephaly, and mild developmental delay. By 2012, she suffered significant mental retardation with developmental delays and lack of age appropriate personal independence. Her impairments are permanent and preclude her from living alone as an adult. Thus, although Kailen had excellent Apgar scores and otherwise appeared normal at birth, plaintiff nonetheless raised triable issues of fact as to causation ... . Anyie B. v Bronx Lebanon Hosp., 2015 NY Slip Op 02576. 1st Dept 3-26-15





Plaintiff, a Pedestrian, Was Injured When a Traffic Sign Struck by a Car Broke Off and Hit Her---County Owed Plaintiff a Duty to Properly Install the Sign---Question of Fact Raised Whether Improper Installation of a "Break Away" Sign Was a Proximate Cause of the Plaintiff's Injuries


The Fourth Department determined the County had a duty to properly install traffic signs and that duty extended to plaintiff, a pedestrian severely injured when a traffic sign broke off and hit her after the sign post was struck by a car. The court further determined that a question of fact had been raised about whether any negligence in installing the sign was a proximate cause of plaintiff's injuries:


"The existence and scope of a duty of care is a question of law for the courts entailing the consideration of relevant policy factors" ... . "[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party," i.e., a person who is not a party to the contract ... . An exception applies where the contracting party has " entirely displaced the other party's duty to maintain the premises safely' " ... . Here, we conclude that the County's duty to plaintiff arose from its comprehensive agreement with the City inasmuch as, pursuant to that agreement, the County has entirely displaced the City in fulfilling the City's duty to be responsible for traffic signs ... . Specifically, the County had a duty to properly reinstall the sign in October 1999, including using proper materials, installing the sign's post at the appropriate depth in the ground on a proper base, and placing the sign at the required distance from the roadway. Moreover, that duty "extend[ed] to noncontracting individuals[, such as nearby pedestrians,] reasonably within the zone and contemplation of the intended [traffic engineering] services" encompassed by the County's agreement with the City ... .


..."[I]t is well settled that there may be more than one proximate cause of [an] accident" ... . ...[P]laintiff's ... expert raised an issue of fact ... . Plaintiff's expert opined in his opposing affidavit that the County improperly installed a breakaway signpost and that the accident would not have occurred but for that improper installation. Plaintiff's expert also opined that the County's negligence in installing the sign was a substantial factor in causing plaintiff's injuries. Specifically, he opined that, had the sign been properly placed, it would not have struck plaintiff because its placement one foot above the ground created a risk that the sign would become a high-flying projectile if hit, rather than bending or projecting closer to the ground. We conclude that the court properly denied the County's motion because the submission of conflicting expert opinions "present[ed] issues of credibility to be determined by the trier of fact" ... . Honer v McComb, 2015 NY Slip Op 02662, 4th Dept 3-27-15








Stipulation to a Reduced Tax Assessment Freezes the Assessment at the Reduced Level for Three Years by Operation of Statute


Choosing not to follow the Third Department, the Fourth Department, in a full-fledged opinion by Justice Centra, determined a stipulation to a reduced property tax assessment is equivalent to a judicial reduced assessment and is frozen at the reduced level for three years pursuant to Real Property Tax Law (RPTL) 727:


RPTL 727 (1) provides in relevant part that, "[e]xcept as hereinafter provided, . . . where an assessment being reviewed pursuant to this article is found to be unlawful, unequal, excessive or misclassified by final court order or judgment, the assessed valuation so determined shall not be changed for such property for the next three succeeding assessment rolls prepared on the basis of the three taxable status dates next occurring on or after the taxable status date of the most recent assessment under review in the proceeding subject to such final order or judgment. Where the assessor or other local official having custody and control of the assessment roll receives notice of the order or judgment subsequent to the filing of the next assessment roll, he or she is authorized and directed to correct the entry of assessed valuation on the assessment roll to conform to the provisions of this section."


...[T]he statute imposes a three-year freeze of the assessment where an order or judgment is issued determining that the assessment is unlawful, unequal, excessive, or misclassified ... . Where, as here, there is a stipulation between the parties agreeing to a lower assessment, the stipulation has the same effect as a judicial determination that the assessment is unlawful, unequal, excessive, or misclassified ... . The three-year freeze applies to the "next three succeeding assessment rolls" from the "date of the most recent assessment under review" (RPTL 727 [1]). Here, the assessment under review was the 2007 tax year, and therefore the next three succeeding assessment rolls, i.e., from 2008 through 2010, must have that same assessment. The second sentence of RPTL 727 (1), which was added a few years after the statute was enacted, specifically addresses the situation in which the assessor receives the order or judgment after the next assessment roll has already been filed. In that case, the assessor is directed to correct the assessed valuation "to conform to" the requirements of RPTL 727. Once the assessment has been corrected, the property owner may make an application for a refund (see RPTL 726 [1] [c]). Therefore, the application of RPTL 727 (1) in this case resulted in an automatic reduction in the assessment for the 2008-2009 school tax year, without the need for any filing of a tax certiorari proceeding by petitioner.  Matter of The Torok Trust v Town Bd. of Town of Alexandria, 2015 NY Slip Op 02632, 4th Dept 3-27-15






Despite Broad General Language, the Release Applied Solely to the Property-Damage Claim Referenced In It and Not to Plaintiff's Personal Injury Action


The Fourth Department determined Supreme Court should not have dismissed a complaint based upon a release signed by the plaintiff. The release related only to the particular property damage claims referenced in the document---despite broad prefatory language:


Plaintiff commenced this action seeking damages for injuries she allegedly sustained in a motor vehicle accident. She had previously commenced an action in Rochester City Court seeking $4,741.04 for property damage to her vehicle. In consideration of that sum, plaintiff signed a release in favor of, inter alia, defendant Zacharey A. Taylor (defendant), releasing him from "all actions, causes of action . . . claims and demands whatsoever" that plaintiff "ever had" against defendant "from the beginning of the world to the day of the date of this RELEASE. And more particularly for any and all property damage claims as a result of [the subject] motor vehicle accident."


We conclude that Supreme Court erred in granting defendant's motion to dismiss the complaint against him in the instant action pursuant to CPLR 3211 (a) (5) based upon the release. "The meaning and scope of a release must be determined within the context of the controversy being settled" ... , and "a release may not be read to cover matters which the parties did not desire or intend to dispose of" ... . "Moreover, it has long been the law that where a release contains a recital of a particular claim, obligation or controversy and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby" ... . Here, viewing the release in the context of the controversy being settled and in light of the specific reference to plaintiff's property damage claims, we conclude that the parties intended that plaintiff release only such property damage claims ... . Corzatt v Taylor, 2015 NY Slip Op 02621, 4th Dept 3-27-15






After Hours Off-Premises Fight With Co-Employee Can Constitute Disqualifying Misconduct


The Third Department determined that a fight with a co-employee after hours at a bar could constitute disqualifying misconduct if the fight was connected with claimant's employment.  Because the Board, which granted unemployment benefits, based its determination on where the fight occurred, the matter was remitted:


"Fighting with a coworker, regardless of who initiates the confrontation, has been held to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits" ... . Claimant, moreover, was aware that the employer considered fighting to be a major infraction and that it could result in his termination. It is true that the fight occurred at a bar outside of work hours but, in that regard, a claimant is disqualified from receiving benefits whenever his or her misconduct occurs "in connection with" his or her employment (Labor Law § 593 [3]...). Claimant was accordingly obliged, "even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him and . . . he may be denied unemployment benefits as a result of misconduct in connection with his work if he fails to live up to this obligation" ... . Therefore, the relevant question is not where or when the attack occurred, but whether it was connected to claimant's employment ... . Inasmuch as "the Board failed to address this relevant issue, its decision must be reversed and the matter remitted for further development of the record" ... . Matter of Moniz (Nucor Steel Auburn, Inc.--Commissioner of Labor), 2015 NY Slip Op 02534, 3rd Dept 3-26-15






Psychological Injury Stemming from Witnessing the Aftermath of a Suicide Deemed Compensable


The Third Department determined claimant was properly awarded benefits for psychological injury stemming from witnessing the aftermath of a suicide:


Psychological injuries caused by witnessing the aftermath of a suicide have been held to be compensable where "the claimant was an active participant in the tragedy," as opposed to a bystander ... . The facts here are not in significant dispute. On March 31, 2006, a patient leapt from a window at the facility where claimant worked and impaled himself on picnic tables outside of claimant's office. Claimant was one of the first workers to reach the scene and, despite her lack of medical training, was directed by her supervisor to retrieve an oxygen tank for the patient. Claimant did so, but began to feel anxious and hyperventilate and "lost it" altogether after she was ordered by facility officials not to speak to investigators about her prior interactions with the patient. Therefore, substantial evidence exists for the Board's finding that claimant was indeed an active participant in the events surrounding the suicide ... . The Board was further free to, and did, credit medical evidence indicating that claimant developed disabling depression, anxiety and posttraumatic stress disorder as a result of the incident ... Matter of Demperio v Onondaga County, 2015 NY Slip Op 02533, 3rd Dept 3-26-15





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