Effective March 28, 2007, the Appellate Division, Fourth Department, amended sections 1000.13(q) and 1022.11(d) of its rules, which relate to the withdrawal of counsel assigned to perfect an appeal on behalf of an indigent defendant. The new rules set forth new procedures to be followed when seeking to be relived an of assignment.
The Order, which includes the amended rules can be found here.
Last week the Fourth Department issued a very interesting decision in Kish v Graham, 2007 NY Slip Op 02376. At issue was whether defense counsel in medical malpractice actions are entitled to conduct ex parte interviews of a plaintiff's treating physicians.
The Court concluded that such interviews were not permissible under New York law:
In our view, there are compelling reasons for prohibiting such interviews. First, there are no provisions in the law permitting such informal disclosure. Second, formal discovery procedures are in place that would allow an "on the record" discussion with such witnesses in the presence of counsel for the opposing party. Third, we are concerned here with witnesses with privileged medical information, not merely witnesses who will testify to nonprivileged facts. Thus, the established case law that permits equal access to fact witnesses does not apply here. Although a person's relevant medical history is placed at issue when an action is commenced by or on behalf of that person, access to that medical history is not without boundaries...Unsupervised interviews with treating physicians in an ex parte setting may result in the intentional or inadvertent revelation of a person's irrelevant medical history.
Fourth, and perhaps most importantly, we can conceive of no reason for allowing a practice that concededly is not permitted prior to the filing of a note of issue to be permitted after the note of issue is filed...There is no statutory or regulatory authority in New York that would permit ex parte interviews with a plaintiff's treating physicians and, to the extent that prior cases of this Court suggest otherwise, they are no longer to be followed. As the Second Department succinctly wrote, "compulsion of such unsupervised, private and unrecorded interviews plainly exceeds the ambit of [CPLR] article 31" (Arons, ___ AD3d at ___).
Eric Turkewitz over at the New York Personal Injury Law Blog noted that two of the four Appellate Divisions, the Fourth and Second Department, have reached this conclusion, and predicts that the issue will likely reach the New York Court of Appeals. I'm inclined to agree with him, but only time will tell if we're correct.
In Amantia v Barden & Robeson Corp.,
2007 NY Slip Op 02159, at issue was whether Labor Law s. 240(1)applied to the plaintiff's injuries which were sustained when the plaintiff fell from the bed of a cargo truck. The Court explained the manner in which the accident occurred as follows:
The truck's cargo floor was 48 inches above the ground. In order to enter the cargo area of the truck, plaintiff leaned one of the (3 feet high and 4 foot wide aluminum) forms against the rear bumper of the truck and climbed up the form. When plaintiff wanted to exit the cargo area of the truck for his lunch break, he again leaned a form against the rear bumper and began to step down from the truck onto the form. On his second step, "the form tilted to the right" and plaintiff fell. Plaintiff does not know what caused the form to tilt to the right.
The Fourth Department concluded that summary judgment dismissing this claim was properly granted:
Contrary to the contention of plaintiff, his work n unloading the cargo truck, including entering and exiting the truck, does not trigger the protections of section 240 (1) "because there was no exceptionally dangerous condition posed by the elevation differential between the [cargo floor] of the truck and the ground, and there was no significant risk inherent in the particular task plaintiff was performing because of the relative elevation at which he was performing that task" (Tillman v Triou's Custom Homes, 253 AD2d 254, 257; see Toefer v Long Is. R.R., 4 NY3d 399, 408; Piccolo v St. John's Home for Aging, 11 AD3d 884, 885; Santoro v New York City Tr. Auth., 302 AD2d 581, 582; Plump v Wyoming County, 298 AD2d 886, 886-887).
It appears that this decision is in line with the recent Court of Appeal's decision in Keavey v. New York State Dormitory Auth., 2006 NY Slip Op 0344 that was previously discussed here. In that post, I'd noted that in my opinion, the Fourth Department had issued conflicting decisions in regard to falls from truck beds that pre-dated the Court of Appeal's decision in Keavey.
I think that despite its prior holding to the contrary in Worden v. Solvay Paperboard, LLC , the Court's decision in Amantia makes it clear that injuries sustained as a result of a fall from a truck bed will no longer form the basis for a successful Labor Law s. 240(1)in the Fourth Department.
In a recent Fourth Department decision, Brown v Concord Nurseries, Inc., 2007 NY Slip Op 00795, The plaintiff was injured when he fell from a ladder. At issue was whether the work being performed by the plaintiff at the time of his fall constituted a repair of the building, thus falling within the ambit of Labor Law s. 240(1), or was instead excludable as routine maintenance. At the time of his injury, the plaintiff was clamping a broken torsion spring of an overhead door.
The Fourth Department concluded that trial court properly denied the defendant's motion for summary judge on the Labor Law s. 240(1) claim:
The court properly determined that the work being performed by plaintiff at the time of the accident, i.e., the clamping of a broken torsion spring that prevented the proper functioning of the overhead door of a storage building at defendant's nursery complex, constituted the repair of a building rather than routine maintenance and thus constituted "an activity protected under the statute" (Shapiro v ACG Equity Assoc., 233 AD2d 857, 857; see Bruce v Fashion Sq. Assoc., 8 AD3d 1053; Short v Durez Div.-Hooker Chems. & Plastic Corp., 280 AD2d 972, 972-973; cf. Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 53).
This holding isn't particularly surprising since the Court concluded that that the overhead door was not functioning properly as a result of the broken spring. Last November the Third Department also considered the issue of whether the work being performed by the plaintiff when he was injured constituted routine maintenance. That case is discussed here.
As Matt Lerner notes in this post at New York Civil Law, the Fourth Department has discontinued the Civil Appeals Settlement Program that was enacted in May of 2006, as I posted about here.
As explained in this press release, the program is being repealed effective February 1, 2007. The notice repealing the rule can be found here.
In Trimper v Jones, 2007 NY Slip Op 00905, the plaintiff commenced a medical malpractice claim on behalf of her deceased husband alleging that her physicians failed to timely diagnose his skin cancer. The plaintiff contended that the continuous treatment doctrine applied to toll the applicable statute of limitations period.
The applicable timeline for the treatment rendered to the decedent is as follows:
The Court disagreed with the plaintiff and concluded that the continuous care doctrine was inapplicable:
It is well established that the continuous treatment doctrine does not apply unless there has been a course of treatment established with respect to the condition that gives rise to the lawsuit...The failure to make a timely diagnosis and establish a course of treatment does not toll the statute of limitations because "omissions . . . do not amount to a course of treatment' "...Here, there was no treatment for skin cancer by Dr. Jones. Indeed, according to the results of the biopsy of the mole excised by her, the mole was benign...Plaintiff failed to present any evidence demonstrating that Dr. Jones undertook a course of treatment for skin cancer, and thus the court properly granted defendants' motion. (Internal citations omitted)
While I tend to have a slight pro-plaintiff bias (even in med-mal cases, despite the fact that I come from a family of physicians and health care providers), I agree with the Court on this one. I don't see the basis for the application of the continuous care doctrine. Perhaps an examination of the record on appeal would shed some light on this issue, but based on the facts as set forth in the opinion I simply don't see support for the contentioin that there was a course of treatment by Dr. Jones for the cancer that caused the decedent's death.
As I mentioned a few days ago, the Fourth Department recently handed down a number of decisions that caught my eye. Here is a round up of a few of the shorter, but still interesting, holdings for the civil litigators out there:
Moore v Gawel, 2007 NY Slip Op 00911--Upon a motion for summary judgment on the issue of serious injury, the Court ruled:
(P)laintiff alleges that he sustained a permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system. Defendant met his initial burden with respect to those categories by submitting the affirmation of his expert orthopedic surgeon asserting that plaintiff suffered no injury in the accident, the bulging discs at L4-L5 and L5-S1 are a result of degenerative changes rather than acute trauma, and the bulging discs do not...Plaintiff, however, raised triable issues of fact with respect to those categories by submitting the expert opinion of his treating chiropractor who relied upon objective proof of plaintiff's injury, provided quantifications of plaintiff's loss of range of motion along with qualitative assessments of plaintiff's condition, and concluded that "plaintiff's injury was significant, permanent, and causally related to the accident"...
Yardley v Aaserud, 2007 NY Slip Op 00895--Appeal dimissed due to incomplete record on appeal in case alleging personal injuries resulting from a motorcycle accident:
We conclude that the appeal must be dismissed because defendant failed to include in the record on appeal documents that were submitted in support of the motions...In support of his motion for summary judgment, plaintiff submitted an affidavit from a claims adjuster. Although the affidavit states that transcripts of two interviews with eyewitnesses are attached, the attachments are not in the record on appeal. That affidavit, as well as the attached exhibits, was incorporated by reference into plaintiffs' motion for partial summary judgment. In the absence of those exhibits, we cannot review defendant's contentions.
Kimpland v Camillus Mall Assoc., L.P. 2007 NY Slip Op 00865--Defendant failed to meet its burden of proof on summary judgment motion in a slip and fall case:
Defendant failed to meet its burden of establishing that it did not create or have actual or constructive notice of the allegedly defective condition...In support of its motion, defendant submitted only the pleadings and the deposition testimony of plaintiff, where plaintiff testified that he slipped on black ice in defendant's parking lot. Defendant submitted no evidence to establish "that the ice formed so close in time to the accident that [it] could not reasonably have been expected to notice and remedy the condition"...
Haymon v Pettit, 2007 NY Slip Op 00943, arises from an interesting set of facts. The defendant owned and operated a stadium and had a policy in which two free tickets to a baseball game were given to anyone that returned a foul ball. The plaintiff in this case was a mother who brought suit on behalf of her son, a young boy that had been standing outside the stadium waiting for foul balls and was hit by a vehicle when he ran into the street after a foul ball.
The Fourth Department concluded that the defendant owed no duty to the injured boy:
Defendant, as an adjoining landowner, owed no legal duty to plaintiff's son under the circumstances of this case... Although it may have been foreseeable that a person would run into the street to pursue a foul ball, it is well established that foreseeability of harm does not define duty... (Internal citations and quotations omitted)
The dissenting justices disagreed stating that:
(W)e conclude that defendant Auburn Community Non-Profit Baseball Association, Inc. played a significant role in creating the danger that resulted in the injuries to plaintiff's son by providing an incentive for retrieving and returning foul balls hit out of the stadium onto a public street...
It's a thorny issue and one that is not easily determined. Exactly what is foreseeable and how does foreseeability relate to duty?
It's always instructive in cases involving foreseeability to re-visit the landmark decision Palsgraf v. Long Island R.R. Co., 248 NY 339, 162 N.E. 99 (1928). The following language from that decision tends to make me side with the dissent:
The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension...This does not mean, of course, that one who launches a destructive force is always relieved of liability if the force, though known to be destructive, pursues an unexpected path. "It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye"...
In this case, the possibility of an accident should have been clear to the defendant. The risk of a child running into the street after a foul ball was reasonably perceived and thus a duty to the child was readily apparent. At least, that's the way I see it.
But, as we all know, reasonable minds can differ. Foreseeability, like reasonableness, is in the eye of the beholder and you never really know where the court will fall on this issue. I don't think that the Fourth Department was necessarily wrong on this one--I just tend to agree with the dissent.
The Fourth Department handed down a number of interesting decisions yesterday, and I'll be posting about a few of them over the next few days.
Today, let's consider this case: Ham v City of Syracuse, 2007 NY Slip Op 00759. At issue in Ham was whether the actions of a police officer responding to an emergency call were reckless. The police officer was driving his police cruiser when he approached a red light at a blind intersection. As he reached the intersection, he either stopped for a second or two and then inched into the intersection (his deposition testimony), or he slowed down to a "creep" as he entered the intersection (his partner's deposition testimony). It was undisputed that he did not use his siren or activate his lights prior to entering the intersection. And,of course, a collision occurred as he entered the intersection, which resulted in this lawsuit.
The Fourth Department first noted the legal standards that apply to emergency vehicles on official business--that is that ordinary negligence does not apply and liability may attach only if the operator of the vehicle was acting recklessly:
"The manner in which a police officer operates his or her vehicle in responding to an emergency call may not form the basis for civil liability to an injured third party unless the officer acted in reckless disregard for the safety of others" (Badalamenti v City of New York, 30 AD3d 452, 452; see Vehicle and Traffic Law § 1104 [e]; Saarinen v Kerr, 84 NY2d 494, 501-502). "The officer's conduct will violate this standard if the officer has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome" (Palmer v City of Syracuse, 13 AD3d 1229, 1230 [internal quotation marks omitted]; see Szczerbiak v Pilat, 90 NY2d 553, 557; Lupole v Romano, 307 AD2d 697, 698).
The Court then concluded that although the defense had met its burden as the party moving for summary judgment by establishing that the officer's actions were reasonable, the plaintiffs had successfully created an issue of fact as to whether "defendant acted in reckless disregard for the safety of others by entering a blind intersection against the red traffic light at a questionable speed without first activating his emergency lights and siren."
I wholeheartedly agree with the Court's decision in this case. There was definitely an issue of fact as to whether the failure to activate the lights and siren was reckless. Had the siren and/or lights been activated, it might have been a different story.
As reported in Buffalo Business First, Governor Pataki designated three Western New York Justices to fill the vacancies in the Fourth Department: Eugene Fahey, Robert Lunn, and Erin Peradotto (hat tip: Outside Counsel).
From the article:
Fahey, has been a state Supreme Court justice since 1997. He was previously a Buffalo City Court justice from 1995 to 1997 and a former Buffalo councilman and mayoral candidate.
Lunn is a former Monroe County assistant district attorney and Town of Penfield Town Justice. He has been a state Supreme Court Justice in the Seventh Judicial District since 1995. In August 2005, he was tapped to serve on the Appellate Division, Second Division.
Peradotto has served as a state Supreme Court Justice in the Eighth Judicial District since 2004. Peradotto was an assistant attorney general for the state Attorney General's Office and has an extensive private practice, focusing on personal injury litigation.
Baumeister v. Town of Cheektowaga, 2006 NY Slip Op 08358, is an interesting Fourth Department decision. The plaintiff, who was apparently disabled in some fashion, was accused of shoplifting at a grocery store and was taken in to custody by store security. Shortly thereafter, the police for the Town of Cheektowaga showed up and took custody of her, at which point she fell and was injured. She filed suit, seeking to recover for her injuries, subsequently died for reasons unrelated to her fall, and her estate continued to pursue the claim on her behalf.
The Court concluded that the store owed no duty to the plaintiff at the time of the accident since its security officers had relinquished custody of her to the police prior to the accident occurring. The Court also rejected the claim that the store had a duty to warn the police of her mental and physical disabilities since it " submitted evidence establishing that it did not know, and had no reason to know, of decedent's alleged disabilities."
The Court also held that the Town was entitled to summary judgment since the manner in which the plaintiff was injured was not reasonably foreseeable and thus no duty of care was breached.
That's all fine and dandy, and legally, I can see where the Court's coming from. But, I'm not a happy camper. The Court totally left me hanging.
What I really want--nay--need to know is: Did she boost from the store or not? Was the plaintiff the victim of a horrible misunderstanding or was it a valid arrest gone bad?
The Court ignored the first rule of storytelling and completely ignored the reader: "Patricia, (who was somehow disabled but we're not elaborating any further) fell down and broke her crown while in police custody after being accused of shoplifting. She later died of unrelated causes. Case dismissed. The End."
It's the equivalent of sending Jack and Jill up the hill for no apparent reason, thus causing you to lose sleep at night wondering why they trudged up the hill in the first place. Mother Goose is probably rolling over in her grave.
I can't say that I blame her.
Pass me an Ambien, will you?
Schirmer v Board of Educ. of Spencerport Cent. School Dist., 2006 NY Slip Op 08574, a recent Fourth Department case, brought back a flood of unwelcome memories of torturous hours spent in study halls in high school, while at the same time inexplicably reminding me of the innumerous hours that I spent as a teenager laughing until my sides hurt while listening to the Jerky Boys (my all-time favorite line being "Right. And I'll bring all my shoes and my glasses with me so I have them.")
Oh, those were the days. But, I digress.
You're probably wondering why this case sent me on a long, strange trip down memory lane. Well, wonder no more, my good readers. Sit right down and I'll tell you a tale about an infant plaintiff that sustained an eye injury during an unsupervised study hall when he was hit by a wayward piece of beef jerky that was being thrown back and forth between the infant defendants. One of the infant defendants, Mannix, was supposed to be in the study hall, while the other was not.
And, why, you might ask, were they flinging beef jerky across the room? As explained by the Court in my favorite line from the opinion: "It is undisputed that the two students were throwing the beef jerky for fun..." Yep, that's right, for fun. I mean, what could possibly be more fun than beef jerky? These kids sure know how to partaaaay. Life of the party, I tell you.
Perhaps you're curious about the legal issues and the Court's holding in this case. Ask and ye shall receive:
We conclude that the activity engaged in by the two students was not "so inherently dangerous that mere participation therein [was] negligence" ...Thus, Supreme Court properly granted the motion of Mannix seeking summary judgment dismissing the amended complaint against him.
The evidence submitted by defendant in support of its motion established that there were at times 50 or more students attending the honors study hall; the study hall was not supervised by an adult; the study hall was only periodically monitored by an adult to determine whether there were students present who did not have the requisite "honors" pass; defendant had notice of three prior incidents wherein objects were thrown by students attending the study hall without the requisite "honors" pass; and defendant had notice of one prior incident wherein a student was injured by another student while attending the unsupervised study hall. That evidence raises triable issues of fact whether defendant adequately supervised the students attending the study hall and whether the injuries sustained by plaintiff's son were a foreseeable result of the "absence of adequate supervision"...
As reported here, Governor Pataki has designated Justice Henry Scudder as the Presiding Justice of the Appellate Division, Fourth Department. (Hat tip: New York Civil Law).
As I'd indicated in this prior post, it had been predicted that he was the leading contender to replace Justice Pigott as the Presiding Justice.
In Curtis v Town of Inlet, 2006 NYSlipOp 07005, the plaintiff alleged that he drove his snowmobile over an embankment and into a ravine as a result of the defendant's failure to appropriately mark the trail so as to warn of an upcoming "Y' intersection. The trial court granted the defendant's motion for summary judgment and dismissed the claim on the grounds that the plaintiff assumed the risk of his injuries.
The Fourth Department disagreed with the trial court and concluded that the defendant failed to meet its burden of proving the risks inherent in the sport of snowmobiling and likewise failed to establish that the trail at issue was free from defects not inherent in the sport, such as inadequate trail signage.
The Court held that:
In order to establish its entitlement to judgment as a matter of law based on a plaintiff's assumption of risk, the defendant must establish that the plaintiff was aware of the allegedly defective or dangerous condition and the accompanying risk, although...Whether the plaintiff was aware of the risk assumed depends upon the background of the skill and experience of the particular plaintiff...We conclude in any event that plaintiff raised issues of fact with respect to his training and experience as a snowmobiler and whether, under the circumstances, the signage of the trails was sufficient to satisfy defendant's duty to "make the conditions as safe as they appear to be... (Internal citations and quotations omitted).
Personally, I'll never understand why people insist on riding on itsy-bitsy unprotected vehicles at speeds of upwards of 100 mph in the freezing cold. And, when I read comments like these, I'm inclined to believe that assumption of the risk should always apply to preclude suits by those who partake in this particular sport.
But, then again, I prefer to sit in the ski lodges and sip hot cocoa by the fire while my companions hurtle themselves down steep hills with little sticks strapped to their feet, so my opinion on this issue should be taken with a grain--no, make that a shaker--of salt.
Today, Judge Pataki designated Justice John V. Centra to the Appellate Division, Fourth Department. From the Governor's press release:
Justice Centra was elected in November 1999 as a Supreme Court Justice in the Fifth Judicial District. In April 1999, Justice Centra had been appointed by the Governor as an interim Justice of the Supreme Court to fill a vacancy created by the resignation of Norman A. Mordue. Prior to that, he served as DeWitt Town Justice and engaged in the private practice of law in Onondaga County, where he specialized in commercial litigation. From 1996 to 1999, he also taught at the Vera House Coalition on domestic violence. From 1982 until 1989, Justice Centra served in the Onondaga County District Attorney's Office.
And, the New York Law Journal is reporting that Justice Scudder is the leading contender to replace Justice Pigott as Presiding Justice:
Fourth Department Justice Henry J. Scudder is the leading contender to become the court's presiding justice, John F. O'Mara, a long-time advisor to Governor George E. Pataki, said in an interview yesterday. Mr. O'Mara, who has known Justice Scudder for 35 years since the two were prosecutors in adjoining counties, said that Justice Scudder is the leading candidate because of "his excellent reputation on the bench." In addition, he said, Justice Scudder, 61, will likely be the senior most member of the court to apply for the post. The next presiding justice will succeed Eugene F. Pigott Jr., who was confirmed Sept. 15 for Court of Appeals.
Hat tip: Indignant Indigent.
Conflict of law issues can sometimes be confusing, so it's always helpful to review the applicable law. In a recent Fourth Department decision, the Court considered the issue of whether New York law or the laws of Ontario applied in Marillo v Benjamin Moore & Co., 2006 NY Slip Op 07007. In this case, the plaintiff, who lived in New York, was injured while unloading a truck at a manufacturing facility owned by one of the defendants in Ontario, Canada. Both corporate defendants, one of whom was the parent company of the other, were domiciled in New Jersey.
The conflicting laws related to the cap on the amount of noneconomic damages recoverable by the plaintiff, and thus the parties agreed that the the conflicting laws were loss-allocating rather than substantive.
Thus, as the Fourth Department stated:
(O)ne of the three Neumeier rules applies (Neumeier v Kuehner, 31 NY2d 121, 128; see Cooney v Osgood Mach., 81 NY2d 66, 72; Dorsey v Yantambwe, 276 AD2d 108, 110, lv denied 96 NY2d 712). The determination of which rule applies depends, in the first instance, on the domiciles of the parties (see Cooney, 81 NY2d at 73-74).
The Court determined that pursuant to the third rule set forth in Neumeier, New York law applied in this case:
Ontario has no interest in the application of its limitation on the recovery of noneconomic damages in an action between nondomiciliaries (see King v Car Rentals, Inc., 29 AD3d 205, 214), but New York has "an important interest in protecting its own residents injured in a foreign [jurisdiction]" by ensuring that they may receive full compensation for their injuries...
The Fourth Department recently handed down a number of decisions. I'll be highlighting a few of the cases over the next few days. For today, two decisions of interest, one addressing an evidentiary issue and the other a venue issue:
In an interesting case handed down last week, Matter of Erie Ins. Co. v. Williams, 2006 NY Slip Op 06716, the Fourth Department considered the issue of whether the cancellation of an automobile insurance policy as to one insured, Tiffany Luterak,operated to effectively cancel the insurance as to the other insured, Bill Williams.
Apparently Bill and Tiffany shared the costs of maintaining and insuring their cars. Erie Insurance canceled Tiffany's automobile insurance policy and thereafter Bill was involved in an accident with that vehicle. He then commenced a supplementary uninsured motorist claim against Erie and Erie then sought to stay the arbitration on the grounds that no insurance was in effect at the time of the accident since Bill was "a member of (Tiffany's) household" at the time of the cancellation.
The Fourth Department concluded that Bill and Tiffany did in fact reside together, but as "platonic roommates":
We conclude, instead, that respondent on the date of cancellation "actually resided in the insured['s] household with some degree of permanence and with the intention to remain for an indefinite period of time" (Matter of Biundo v New York Cent. Mut., 14 AD3d 559, 560). The record establishes that, although respondent and Luterek were platonic roommates, they were living as members of a single household and indeed were sharing the costs of maintaining their vehicles and the insurance thereon. We thus conclude that the policy was not in effect at the time of the accident. Under the circumstances, petitioner had no obligation to disclaim liability or to deny coverage (see generally Insurance Law § 3420 [d]; Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188-190; Zappone v Home Ins. Co., 55 NY2d 131, 137-138).
The holding makes perfect sense to me. It's the alleged facts that I have a problem with. I smell a rat.
I'm thinking Bill and Tiffany pulled the wool over the Court's eyes. It sounds as if Bill and Tiffany, "platonic" roommates, each owned a car, so why didn't they each pay for and insure their own car? Why bother combining costs, unless one person was paying more than their fair share? And why would a "platonic" friend do that? I've had a number of good friends in my life, but none of them ever paid for my car insurance. Must be I've got the wrong kind of friends.
But, I digress. Platonic relationship or not, it wouldn't have changed the holding. Nevertheless, Bill and Tiffany--you're not fooling me.
In Topor v Erie Ins. Co., 2006 NYSlipOp 03324, the Fourth Department concluded that an insurance policy provision was ambiguous, but nevertheless found in favor of the defendant. In Topor, the plaintiffs sought to recover for a loss that occurred when the parapet of a building collapsed. The defendant alleged that the policy excluding damage caused by rotting, and that the parapet collapsed due to rotted mortar joints in the brick wall. The plaintiff countered that the "rotting" provision only applied only to wood.
The Court set forth the relevant law in regard to interpreting insurance contracts:
(I)t is well established that [a]n exclusion from policy coverage must be specific and clear in order to be enforced; the exclusion must be set forth in clear and unmistakable language'. . . . The burden is on the insurer to demonstrate that the exclusion applies in the particular case and that the policy language relied upon by the insurer in support of the exclusion is subject to no other reasonable interpretation. The construction and effect of a contract of insurance is a question of law to be determined by the court where[, as here,] there is no occasion to resort to extrinsic proof... Any ambiguity in the insurance policy must be resolved against the insurer, its drafter. (Internal citations and quotations omitted.)
The Court applied these principles and determined that the policy was ambiguous in regard to the application of the "rotting" provision, but nevertheless concluded that the plaintiffs failed to establish that the loss fell within the policy terms:
The evidence submitted by plaintiffs in support of their motion established that the collapse was caused by both the deterioration and loosening of the mortar joints in the brick wall based on water infiltration and the freezing and thawing of that water, and by the rotting of the wooden portion of the supporting structure of the parapet. On the record before us, plaintiffs conceded in opposing defendant's cross motion that the policy excludes damage caused by the rotting of wood, and plaintiffs submitted evidence in support of their motion establishing that the loss may have been caused at least in part by the rotting of wood. We thus conclude on the record before us that plaintiffs failed to meet their burden of establishing that the loss was covered under the policy as a matter of law. (Emphasis added).
Oops. I suppose that the lesson to be learned is to never concede anything. Or maybe the lesson is to make sure that your concessions don't undermine your position. Or perhaps to think before you speak.
I'm not entirely sure. But there's a lesson in there somewhere. And, it's an important one.
The Court of Appeals handed down another set of decisions yesterday, and I plan to address a number of the decisions in the coming weeks. I still have a few leftover cases from the last round of decisions that I haven't gotten to yet, as well. However, there is always a dry spell in the summer, so I'll have plenty of time to cover the Court of Appeal's decisions, as well as decisions from all four Appellate Divisions in the upcoming months.
In the meantime, the Fourth Department recently considered an interesting issue in Schoemann v Adams, 2006 NY Slip Op 03345. In this case, the plaintiff commenced an action seeking to recover for personal injuries by filing a summons with notice. An affidavit of service upon the defendant was never filed and the defendants never appeared in the action, so it was deemed dismissed after 120 days had passed.
Pursuant to CPLR s. 306-b(b), the plaintiff had 120 days after the dismissal to commence a new action, even though the statute of limitations had expired between the time that the action was initially commenced and then dismissed.
During the second 120 day period, the plaintiff filed a complaint and second summons with the County Clerk's office, and was re-issued the same index number that had been issued in the first action.
The defense made a motion to dismiss the second action on the grounds that it had not been commenced within the three year statute of limitations since the plaintiff had failed to "to purchase a new index number and file new initiatory papers under a new index number prior to the expiration of the statute of limitations ... or within 120 days after the [first action was deemed dismissed]."
The Court concluded that the re-issuance of the same index number by the County Clerk's office did not invalidate the commencement of the action. The Court stated that:
Plaintiff established that he paid the requisite filing fee and secured "an index number" for the new action. Defendants failed to preserve for our review their present contention that the receipt submitted by plaintiff to prove that he paid the second filing fee constitutes inadmissible hearsay. We thus conclude that, although the index number given to plaintiff by the County Clerk's office was not a "new" index number, plaintiff complied with the "absolute necessity of purchasing an index number to commence [the] action". (Internal citations omitted)
This is a prime example of why, in my opinion, an action should never be commenced by the filing of a summons with notice--especially when the statute of limitations is about to run. Too many things can go wrong and some things are entirely out of your control, such as the situation that occurred in this case. And if that happens, then you're quite possibly out of luck and so is your client.
Professor David Siegal hammered that point home in my New York Practice class in law school, and I've never forgotten it. As he always used to stress--play it safe in your cases and let the appellate courts decide the law in SEC (someone else's case).
The plaintiff got lucky in this case. Why risk it? File a summons and complaint and forego the summons with notice and all the potential pitfalls inherent in that method of commencing a case.
Gerrity v. Muthana, 2006 NY Slip Op 03180, is an interesting Fourth Department case in which the Court considered the issue of whether the summary judgment motion of one of the defendants, the owner of an illegally parked bus, was properly granted by the trial court.
In this case, the plaintiff was injured when a car driven by one of the defendants ran a red light and struck the bus that the plaintiff was driving, thus causing the bus to collide with yet another bus that had been illegally parked in a "No Standing" area. It was undisputed the plaintiff's injuries were cause by the collision with the second bus, rather than the initial collision with the car that ran the red light.
The Fourth Department upheld the trial court's ruling and held that the lower court had properly granted summary judgment in favor of the owner of the illegally parked bus:
Defendant met its burden on the motion by establishing as a matter of law that the sole proximate cause of the accident was Muthana's failure to stop at the red light, and plaintiffs failed to raise an issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). The location of defendant's bus " merely furnished the condition or occasion for the occurrence of the event' and was not one of its causes" (Mendrykowski v New York Tel. Co., 2 AD3d 1410, 1410).
I'm not entirely convinced by the majority's logic and find the dissent's argument to be more compelling. The dissent concluded that the incident was a "chain reaction" accident that consisted of two separate collisions and stated that:
"It has been held in a variety of factual circumstances that owners of improperly parked cars may be held liable to plaintiffs injured by negligent drivers of other vehicles, depending on the determinations by the trier of fact of the issues of foreseeability and proximate cause unique to the particular case" (O'Connor v Pecoraro, 141 AD2d 443, 445, citing, inter alia, Ferrer, 55 NY2d 285). Where, as here, the connection between the parking violations and the happening of the accident is logical and immediate enough to present an issue of fact, the issue is one for the trier of fact and is not properly resolved on a motion for summary judgment (see id.; cf. Dormena v Wallace, 282 AD2d 425, 427).
Given that there is a viable argument that the plaintiff's injuries would not have occurred but for the illegally parked bus, I think that there is an issue of fact. A reasonable fact-finder could determine that the plaintiff's injuries were foreseeable and proximately caused by the illegally parked bus.
Had the bus been parked legally, it would have been a different story. But, that's not the case here. It's hard for me to stomach the fact that the plaintiff appears to now have no recourse for his injuries.
Campbell v. Central N. Y. Regional Transp. Auth., 2006 NY Slip Op 03193, is a very interesting case in which the Fourth Department considered whether the injuries of a wheelchair-bound plaintiff that was hit by a bus were foreseeable.
The plaintiff suffered from "profound deformities" and as a result, used a highly customized wheelchair which was destroyed when hit by the bus owned by the defendant. The plaintiff was forced to use a wheelchair on loan from a local medical facility that was not customized. As a result, he developed "skin necrosis and abscess formation which required multiple surgical procedures to repair ...." and subsequently sued seeking recovery for those injuries and the replacement cost of his wheelchair.
The Court first noted that liability for negligence turns upon the foreseeability of any harm, not a particular harm and that once a prima facie case has been established, it is the province of the finder of fact to determine the legal cause of the injuries.
The Court further elaborated:
In order to establish a prima facie case, a plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury. Although there are times when [a]n interruption of the nexus between a defendant's negligence and the plaintiff's injury by the act of a third party may affect defendant's liability, the intervening act must be extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct. When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist...Invariably, summary judgment is appropriate where only one conclusion may be drawn from the established facts. (Internal citations and quotations omitted.)
Accordingly, the Fourth Department held that the trial court improperly dismissed the Complaint.
The dissent disagreed and stated that:
The record establishes, however, that plaintiff sustained only minor soft tissue injuries that do not qualify as a serious injury within the meaning of Insurance Law § 5102 (d) and § 5104 (a). The record further establishes that the skin necrosis and abscess, which did not appear until approximately two months after the accident, were not related to any injury plaintiff sustained in the accident, but rather were caused by an ill-fitting replacement wheelchair. We must therefore conclude that, although the issue of proximate cause is ordinarily "for the fact finder to resolve," here the ill-fitting replacement wheelchair constituted an "independent intervening [occurrence] which operate[d] upon but [did] not flow from the original negligence".
I think that the majority is correct in regard to the foreseeability issue in this case. But for the accident, the plaintiff's customized wheelchair would not have been destroyed, and he would not have ended up with abcesses, etc. due to the replacement wheelchair. And, the injuries resulting from the inadequate replacement were not so outside the realm of possibility as to be unforeseeable.
However, the dissent touches upon an interesting issue regarding whether the plaintiff's injuries (either directly resulting from the accident or from the non-customized wheelchair) constitute a serious injury. I'm not sure of the answer, but my inclination would be that they don't. Anyone else have an opinion either way?
Here is yet another Labor Law 240(1) decision for you to contemplate. In Whiting v. Dave Hennig, Inc., 2006 NY Slip Op 03214, the plaintiff sustained injuries when he fell from a roof under construction and alleged that his injuries were due to the defendants' failure to provide him with appropriate safety devices--namely a safety harness.
The Fourth Department concluded that:
With respect to plaintiff's motion, we conclude that plaintiff met his burden of establishing his entitlement to judgment as a matter of law by establishing that he was not furnished with the requisite appropriate safety devices and that the absence of appropriate safety devices was a proximate cause of his injuries (see Howe v Syracuse Univ., 306 AD2d 891). Contrary to defendants' further contention, the presence of safety harnesses somewhere on the work site does not satisfy the duty to provide appropriate safety devices (see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 523-524, rearg denied 65 NY2d 1054). (Emphasis added).
Curiously, the Fourth Department did not cite the Court of Appeal's recent decision, Robinson v. East Med. Ctr., LP, 2006 NY Slip Op 02457, which I discussed here, wherein the Court of Appeals stated:
Where a plaintiff's actions [are] the sole proximate cause of his injuries, . . . liability under Labor Law § 240(1) [does] not attach.. Instead, the owner or [*4]contractor must breach the statutory duty under section 240(1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker's injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them.
In short, there were adequate safety devices — eight-foot ladders — available for plaintiff's use at the job site. Plaintiff's own negligent actions — choosing to use a six-foot ladder that he knew was too short for the work to be accomplished and then standing on the ladder's top cap in order to reach the work — were, as a matter of law, the sole proximate cause of his injuries. (Internal citations and quotations omitted and emphasis added).
It's possible that, unlike Robinson, there was no evidence offered that the workers in Whiting were generally able to help themselves to safety harnesses when needed. The underlying facts in Whiting are not set forth in great detail in the opinion.
Nevertheless, I think it's strange that the Court didn't at least mention Robinson in its opinion, since it appears to be directly on point, and its application might very well mandate a different result.
Apparently, my rationale in this post made sense after all. I hereby revoke my humble apology.
I've been officially vindicated by the Fourth Department's recent decision in Sanly v. Nowak, 2006 NY Slip Op 03221, which was decided last Friday. In this case, the plaintiff sought damages for injuries sustained when the defendant's vehicle skidded out of control and crossed into the oncoming lane of traffic in which the plaintiff was traveling. The Court concluded that although the emergency doctrine was inapplicable, there was a triable issue of fact. The Court stated that
(The defendant's conduct) is only prima facie evidence of negligence ...; it does not mandate a finding of negligence. Such evidence[,] together with the explanation given by [defendant], presents factual questions for determination by the jury...(T)here is a triable issue of fact whether defendant's admitted violation of Vehicle and Traffic Law § 1120 (a) may be excused on the ground that defendant's conduct was reasonable under the circumstances. (Internal citations and quotations omitted.)
So, it would seem that even when the emergency doctrine is inapplicable, it is still within the province of the jury to determine whether a defendant's conduct in crossing into oncoming traffic is reasonable under the circumstances.
I'm not sure how this holding squares with the Court's holding in Kizis v. Nehring, 2006 NY Slip Op 01952, the case that I discussed in the post mentioned above. The only difference that I can see is that Sanly addressed a pre-trial motion while Kizis addressed a post-trial verdict.
Nevertheless, issues of fact are for the jury to determine, and I fail to see why the specific testimony elicited in Kizis was so clear cut so as to remove that determination from the jury's consideration.
Any thoughts? I'm truly baffled...
In Catanese v. Furman, 2006 NY Slip Op 01915, the Court considered whether the trial court properly granted the defendant's motion in limine, which sought to preclude the plaintiffs from offering proof that the defendant, a pathologist, prepared, examined, and misread additional tissue slides on the day following the plaintiff's surgery.
In this case, the plaintiff alleged that the defendant negligently misdiagnosed the plaintiff as suffering from a rare form of cancer by relying on a "frozen tissue" section slides during an operation rather than deferring the diagnosis until he could view a more definitive "permanent tissue" section slide. The plaintiffs also alleged that as a result of the misdiagnosis, the plaintiff's surgeon removed a mass in the plaintiff's pelvic area, which required him to sever the nerve root to the plaintiff's right leg.
The Court noted that although rulings regarding the relevancy of proposed evidence are discretionary decisions to be made by the trial court, the evidence precluded was highly relevant because:
(the) misreading of the permanent section slides on the day following plaintiff's surgery is relevant because it tends to prove that defendant's misdiagnosis was not caused by the time constraints inherent in intraoperative diagnoses or by the limitations inherent in using frozen section slides. Rather, that evidence tends to prove that defendant's misdiagnosis with respect to plaintiff was caused by defendant's lack of knowledge and skill as a pathologist.
Accordingly, the Court held that the trial court should have granted the plaintiffs' motion to set aside the verdict and for a new trial.
I agree with the Fourth Department's decision. The evidence was extremely relevant to the plaintiffs' case and the ruling that precluded the admission of that evidence made it far more difficult for the plaintiff's to prove their case, as is evidenced by the verdict in favor of the defense. And, I'm curious as to the trial court's rationale for excluding the evidence.
In Lisa P. v. Attica Cent. School Dist., 2006 NY Slip Op 01935, the plaintiffs alleged that the defendant school district negligently supervised a teacher employed by the defendant who had sexually molested the infant plaintiff on a school bus during a school trip.
The Fourth Department first set forth the relevant legal standards:
A school district has the duty to exercise the same degree of care and supervision over pupils under its control as a reasonably prudent parent would exercise under the same circumstances. The standard for determining whether this duty was breached is whether a parent of ordinary prudence placed in an identical situation and armed with the same information would invariably have provided greater supervision. In order to impose liability on a school district for negligent supervision, the plaintiff generally must demonstrate the [school district's] prior knowledge or notice of the individual's propensity or likelihood to engage in such conduct, so that the individual's acts could be anticipated or were foreseeable. (Internal citations and quotations omitted.)
The Court then concluded that the plaintiffs' assertion that the school district knew or should have known that the teacher had slept in the same room during another field trip with same sex students was insufficient to raise an issue of fact, especially since there was no evidence that the defendant knew that the teacher had slept in the same bed with some of the students. The Court stated that:
(D)efendant's actual or constructive notice that Burnside slept in a room with boys under his supervision does not establish the requisite knowledge or notice of Burnside's propensity or likelihood to engage in sexually abusive behavior.
Accordingly, the Court dismissed the claims against the defendant.
It's a sad set of circumstances, but it seems to me that it was the correct decision.
In Kizis v. Nehring, 2006 NY Slip Op 01952, the Fourth Department considered whether the emergency doctrine has been correctly applied by the trial court. In this case, the infant plaintiff was injured when the car driven by her mother was struck head on by the defendants' vehicle , which had crossed a double yellow line and entered into oncoming traffic. At trial, the defendant who had been driving testified that she had crossed into oncoming traffic in order to avoid an animal that she thought was a large brown bird that was either running or flying toward her car.
The Fourth Department concluded that the trial court erred by charging the emergency doctrine since:
(I)n view of the vagueness and equivocation in the explanations of Nehring concerning the circumstances that allegedly caused her to cross into the opposing lane of travel, we conclude that there is no reasonable view of the evidence that Nehring was confronted by a qualifying emergency, i.e., a sudden and unforeseeable occurrence that would have made it reasonable and prudent for Nehring to react by swerving into the opposing lane of travel and colliding head-on with an oncoming vehicle. (Internal citations and quotations omitted.)
The Court also concluded that the verdict in favor of the defendants should have been set aside:
Indeed, [a] driver confronted with an emergency situation may still be found to be at fault for the resulting accident where his or her reaction is found to be unreasonable or where the prior tortious conduct of the driver contributed to bringing about the emergency...We conclude that Nehring's self-described emergency, i.e., the presence of what appeared to be a bird "flying or running" toward Nehring's vehicle, would not justify or excuse such an unreasonable and imprudent reaction on the part of Nehring. (Internal citations and quotations omitted.)
There was a strong dissent by Justice's Martoche and Pine, who contended that the emergency doctrine was properly charged and that the jury's verdict was not against the weight of the evidence.
I agree with the majority in regard to the inapplicability of the emergency doctrine, but am inclined to agree with the dissent regarding the issue of setting aside the jury's verdict. The jurors were, in my opinion, in the best position to assess the facts and the credibility of the witnesses.
UPDATED: Slickdpdx's comment regarding this post quite politely points out that my logic at the end of this post makes no sense. And, he's quite right. If the emergency doctrine is out, then any verdict in favor of the defense would most definitely be against the weight of the evidence. I humbly apologize for posting without thinking!
Apparently, I'm able to leap over logical flaws in a single bound (hint: if you aren't following the reference--check the title of this post).
In Johnson v. State of New York, 2006 NY Slip Op 01924, the Fourth Department considered whether the Court of Claims properly determined that the State had failed to adequately maintain the roadway and thus was liable for the automobile accident that caused the claimant's death.
The claimant alleged that as a result of the State's negligent maintenance of the road, there was a crack in the road and faded line markings, and that these defects caused the other driver to veer into the decedent's lane. However, the driver of that vehicle was unable to recall why he veered into the decedent's lane.
The Court set forth the applicable law as follows:
While the State must maintain its highways in a reasonably safe condition ..., the State is not an insurer of the safety of its roads and no liability will attach unless the ascribed negligence of the State in maintaining its roads in a reasonable condition is a proximate cause of the accident. When an automobile swerves and leaves [its lane of travel] for no definitely assignable reason, it is altogether possible that the accident was due to either of several causes, [including] the failure of the steering gear or a lapse on the part of the driver .... In ... such cases the balance of probabilities between causes which entail liability and others which do not is equal enough so that an inference of fact which entails liability is the result of mere speculation. In final result, it is clear that, if it is just as likely that the accident might have occurred from causes other than a defendant's negligence, the inference that [the defendant's] negligence was [a] proximate cause of the accident may not be drawn. (Internal citations and quotations omitted.)
The Court then concluded that in this case the evidence was legally insufficient to establish that the alleged negligence was a proximate cause of the accident.
There is a recent Fourth Department decision that might be of interest to those of you who handle public sector labor law matters. In Matter of Watson v City of Jamestown, 2006 NY Slip Op 02078, the Court considered the issue of whether a disciplinary proceeding against a police officer should be stayed pending resolution of related criminal charges against the officer.
The Court concluded that:
"Prohibition is an extraordinary remedy to be granted only if action taken or to be undertaken is clearly without jurisdiction or in excess of jurisdiction" (Matter of Mountain, 89 AD2d 632, 633). "[A] criminal defendant has no right to stay a disciplinary proceeding pending the outcome of a related criminal trial" (id.; see Matter of Geary, 80 Misc 2d 963, 965). We reject the contention of petitioner that a stay is required in order to protect his constitutional rights.
I'm not sure where the other Departments stand on this issue, but this decision is worth taking note of for those who handle these types of matters in the Fourth Department.
In Presler v. Compson Tennis Club Assoc., 2006 NY Slip Op 01946, the trial court granted the plaintiffs' motion for summary judgment on liability under Labor Law s. 240(1) and a trial on damages was then conducted. At that trial, the trial court precluded the plaintiffs from presenting their expert's opinion regarding their claim for the loss of future household services performed by the injured plaintiff on the grounds that it was too "speculative".
The Fourth Department concluded that the trial court erred since the plaintiffs provided detailed proof, via their own testimony and their expert's testimony, regarding the type, extent and value of the household services provided by the plaintiff prior to his accident.
In reaching its decision, the Court stated that:
[A]n award of damages to a person injured [as the result of the conduct] of another is to compensate the victim, not to punish the wrongdoer ... [and t]he goal is to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred. [A]n injured plaintiff's loss of household services [is considered] a quantitative economic loss separate and apart from pain and suffering. [F]uture damages for loss of household services should be awarded only for those services which are reasonably certain to be incurred and necessitated by plaintiff's injuries. However, the calculation of those damages does not require absolute certainty. The law ... requires only that [they] be capable of measurement based upon known reliable factors without undue speculation. (Internal citations and quotations omitted.)
This is not exactly an earth shattering decision, but it's always nice to be reminded of the relevant law.
And, as a matter of housekeeping, there are still a number of important and interesting decisions from the Fourth Department and the Court of Appeals that I've not yet covered, but rest assured, I plan to do so over the next few weeks.
Matter of Cosnett v. Daley, 2006 NY Slip Op 01997, is an interesting case recently decided by the Fourth Department. At issue in this case was whether double jeopardy barred the prosecution of the petitioner-defendant (PD) for Assault 2d and Vehicular Assault 2d, where he had previously entered a guilty plea to a misdemeanor DWI arising from the same underlying factual circumstances as the felonies.
The prosecutor had served a CPL 710.30 notice in the misdemeanor matter and then subsequently sent a letter to PD and the court in which an adjournment was requested in order to allow the charges to be presented to a grand jury. PD then apparently requested that the court date be re-scheduled and entered a plea to the misdemeanor charges on that date, in the absence of a prosecutor, and was also aware that a prosecutor would not be present on that date.
The Court concluded that double jeopardy did not bar the subsequent prosecution since, as set forth in CPL 40.30(2)(b) the misdemeanor plea was procured by PD, without the knowledge of the prosecutor, for the purpose of avoiding prosecution for a greater offense. The Court stated:
Although as a general rule a person may not be prosecuted separately for two offenses based upon the same act or criminal transaction (see CPL 40.20 [2]), "a person is not deemed to have been prosecuted for an offense, within the meaning of section 40.20, when ... [s]uch prosecution was for a lesser offense than could have been charged under the facts of the case, and the prosecution was procured by the defendant, without the knowledge of the appropriate prosecutor, for the purpose of avoiding prosecution for a greater offense" (CPL 40.30 [2] [b]). Under those circumstances, the procurement of the prosecution on a lesser offense will not bar the subsequent prosecution on a greater offense.
This case appears to be in direct conflict with this Third Department decision (which I have not Shepardized, however) from 1998: People v. Antonelli. The factual circumstances are nearly identical, and yet the Third Department concluded:
In any event, were we to consider the argument, we would find it to be without merit. Defendant's decision to plead guilty to the crime of driving while intoxicated as a misdemeanor, and to reap the benefits of the arresting officer's failure to file a felony charge, did not amount to procurement of the misdemeanor charge, especially given the lack of evidence that defendant induced the officer to file the lesser charge or made affirmative misrepresentations to City Court.
I tend to agree with the Third Department's reasoning as it applies to this factual scenario.
And, I'm curious as to whether this law has ever been challenged as violative of the NY and Federal Constitutions. As I read it, it seems to be a blatant attempt to circumvent the Double Jeopardy Clause.
I attended a CLE yesterday at which the presiding justice of the Appellate Division Fourth Department, Hon. Eugene Pigott, spoke and I learned a few things that might be of interest to Rochester and Fourth Department practitioners.
First, the Fourth Department will be instituting a Civil Appeals Settlement Program as of May 1, 2006. The new Rule 1010.1 et. seq. can be found here.
As explained in the Notice to the Bar:
The purpose of CASP is to identify appeals that may be amenable to settlement or to a limitation of issues to be presented on appeal. For each appeal covered by CASP, the appellant will be required to file a precalendarstatement at the time that the notice of appeal is filed. The failure to file a precalendar statement may result in the dismissal of an appeal.
Selected appeals will be subject to precalendar conferences before Judicial Hearing Officers selected by the Court. In addition, CASP includes a mechanism whereby a party to a particular appeal may request a precalendar conference.
Additionally, the following may be of interest to those who practice in Rochester, NY. The presiding Justice of the Commercial Division in Monroe County, Hon. Kenneth R. Fisher, has signed a General and Standing Order regarding the new Commercial Division Rules that I'd previously posted about here. His Order modifies Rule 17, Rule 19, Rule 19-a and Rule 22 of the new Commercial Division Rules by making them inapplicable in the 7th Judicial District.
In People v. James, 2006 NY Slip Op 01941, the cocaine at issue was discovered by officers while in the process of executing an arrest warrant for the codefendant in this case. The codefendant allowed officers into the apartment and was accompanied to her bedroom by an officer so that she could obtain identification. While there, he saw cash and a number of glassine baggies on the bed.
He and another officer then "investigated further" and discovered additional baggies protruding from a shaving bag on the dresser. They then discovered crack cocaine inside a zippered compartment of the shaving bag.
The trial court denied Mr. James' motion to suppress the cocaine on the grounds that the baggies were in plain view, and that:
"[o]nce the [shaving] bag that held the glassine envelopes was seized, it was immaterial that the cocaine secreted in a closed portion of the bag was not visible." The court further concluded that "the glassine envelopes allow the inference that the closed portion of the bag was a storage area for narcotics or more packaging material."
The Fourth Department disagreed and concluded that:
Even assuming, arguendo, that the two officers were lawfully permitted to return to the bedroom, we conclude that the cocaine secreted in the zippered compartment of the shaving bag was not in plain view. Additionally, the discovery of the cocaine by unzipping the closed compartment was not inadvertent rather than anticipated. We therefore conclude that the cocaine was illegally seized and must be suppressed. Defendant's statements must also be suppressed as fruit of the poisonous tree. (Internal citations and quotations omitted.)
In my opinion, the Fourth Department's decision was correct. Although glassine baggies are "commonly used" for packaging drugs, there are many other innocent uses for the baggies. The cash and the baggies alone were not enough to justify the search of the shaving bag.
I'm sure that some of you might disagree and I'd be very interested in hearing the basis for your disagreement...
In Enstrom v Garden Place Hotel, 2006 NY Slip Op 01938, the plaintiff, a guest at the defendant's hotel, was injured when the handle came off of the wall of the whirlpool tub as he grabbed onto it while attempting to exit the tub. Following the fall, the handle (along with all other tub handles in the hotel) was eventually replaced with a stronger handle and the original handle was disposed of. Thereafter, the plaintiffs moved to strike the defedant's Answer as a sanction for spoliation of evidence.
The Fourth Department noted that:
Spoliation sanctions may be appropriate even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided [the party] ... was on notice that the evidence might be needed for future litigation, amended on other grounds 20 AD3d 944). Striking a pleading for negligent spoliation is a drastic sanction that is appropriate only where the missing evidence deprive[s] the moving party of the ability to establish his or her defense or case. (Internal citations and quotations omitted.)
The Court concluded that the trial court's spoliation sanctions were excessive and than an adverse inference charge against the hotel was a more appropriate sanction, because:
(P)laintiffs are not required to prove the specific defect in order to present a prima facie case of defective design, and because their expert's opinion "exclude[s] all causes of the accident not attributable" to product defect, we conclude that plaintiffs are able to present a prima facie case based on defective design despite the spoliation of evidence.
In People v. Chapman, 2006 NY Slip Op 02072, the defendant entered a guilty plea to Criminal Possession of a Controlled Substance in the Fourth Degree, was placed in a drug treatment program and advised that if he successfully completed the program, the current charge against him would be dismissed, but that if he failed to complete the program "for whatever reason," he would be sentenced to the maximum term of 1 to 3 years incarceration. The defendant successfully completed the program, but failed to pay the service fee of $201. As a result, the trial court refused to allow the defendant to withdraw his guilty plea and sentenced him to 5 years probation.
The Fourth Department concluded that the trial court abused its discretion in doing so. The Court stated that:
In support of the motion, defendant asserted that he had completed the drug treatment program and in addition had otherwise complied with all other terms of the plea agreement. It is well settled that, [w]hile the decision to allow a defendant to withdraw a plea of guilty generally rests in the sound discretion of the trial court, a plea induced by an unfulfilled promise either must be vacated or the promise honored. Here, the payment of the service fee in order to complete the drug treatment program was not a condition of the plea agreement. (Internal citations and quotations omitted.)
Not surprisingly, I agree with the Court's decision, not only because Mr. Chapman successfully completed the treatment aspect of the program, but because I find it inherently objectionable that he was penalized by the trial court for his indigent status.
In Freeman v. Advanced Design Prods., Inc., 2006 NY Slip Op 01957, the Fourth Department considered the issue of whether the homeowner exemption was applicable thus shielding the defedants from liaiblity for the plaintiff's Labor Law s. 240(1) claim. The Court concluded that the homeowner exemption did not apply and thusthe trial court properly denied the defendants' motions for summary judgment.
The Court stated that:
The record establishes that, for the seven or eight years preceding the fire, defendants had used the property exclusively for commercial purposes, i.e., as rental property; that the fire had rendered the premises unoccupied and indeed uninhabitable for the duration of the work; that defendants had contracted for that work for the explicit purpose of renovating the house for sale to a third party; and that defendants had sold the house upon the completion of the work. Under those circumstances, defendants are not entitled to the benefit of the homeowner exemption.
In Martin v Fiutko, 2006 NY Slip Op 01981, the Fourth Department considered whether the trial court properly granted the defendant's motion for summary judgment based upon the doctrine of assumption of the risk. In this case, the plaintiff, a snowboarder, was injured when the defendant skied into him.
The Court set forth the relevant law and noted that a voluntary participant in a sport:
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. However, a participant will not be deemed to have assumed the risks of reckless or intentional conduct. [D]ownhill skiing [and snowboarding] ... contain[] inherent risks including, but not limited to, the risks of personal injury ... which may be caused by ... other persons using the facilities, (General Obligations Law § 18-101), and thus there generally is an inherent risk in downhill skiing and snowboarding that the participants in those sports might collide. (Internal case citations and quotations omitted.)
The Court concluded that the trial court erred in granting the defendant's motion for summary judgment, since there were issues of fact as to whether the defendant's conduct rose to the level of recklessness.
I decided to post about this case, since it sets forth a good summary of the applicable law relating to the assumption of the risk for voluntary participants in a sport. That, and the fact that I thought it was more than ironic that a snowboarder was injured by a skier. What is this world coming to? It's absolute craziness, I tell you. Next thing you know, someone from the Bush administration will admit that thousands of tactical errors have occurred in Iraq.
The Fourth Department's decision in a recent case, Haist v Town of Newstead, 2006 NY Slip Op 01984, centered around the issue of whether a snowplow driver was liable for the plaintiffs' injuries. Since the snowplow driver was employed by the Town of Newstead, VTL s. 1103(b) was applicable, and thus the town could be held liable only if the snowplow was operated with reckless disregard for others.
This is an important VTL provision to be aware of, since it holds a driver liable only for reckless conduct, as opposed to negligent conduct, for an accident caused by a vehicle "engaged in work on a highway."
In this case, the Court denied the defendants' motion for summary judgment since it concluded that there were issues of fact regarding whether the operator of the snowplow acted with reckless disregard for others.
In People v. Ramos, 2006 NY Slip Op 01931, the Fourth Department considered the issues of whether the trial improperly allowed testimony regarding the defendant's status as a parolee and whether statements made to the arresting officer, the defendant's parole officer, should have been suppressed.
The trial court initially ruled that the defendant's status as a parolee was not admissible, but sua sponte reversed its decision after the defendant's mother testified to a sequence of events preceding the arrest that differed from the parole officer's testimony. The Court concluded that the trial court's ruling was improper and stated that:
We conclude that the testimony of defendant's mother in no way misled the jury with respect to the prior criminal history or current status of defendant, and thus the court erred in determining that her testimony "opened the door to [the highly prejudicial information that defendant was a parolee at the time of his arrest] by offering evidence ... [that] might ... mislead the factfinder."
The Court also concluded that the defendant's statements made to his parole officer while handcuffed and seated in the back of the police vehicle should have been suppressed since he had not yet been Mirandized. The Court held:
"[O]nce defendant was physically taken into custody and handcuffed, the potential for coercion was as great as that which inheres in custodial interrogation by a police officer, and ... administration of the Miranda warnings was required to dispel that potential coercion in order for defendant's statement to be admissible in a criminal trial."
Seems like a fairly open and shut decision to me, although I'm sure that a few ex-prosecutors that read this blog might disagree with me...
Indignant Indigent also posted about this case here.
Goins v Rome City School Dist., 2006 NY Slip Op 02004, is an interesting case that was decided by the Fourth Department on March 17th. The plaintiff sued the school district defendant on behalf of her daughter, a student at the school who was required to participate in a "trucker buddy" program, as part of a school geography project. Pursuant to that program, a trucker received her daughter's name in order to correspond with her and also was alleged to have received a class photograph.
The Fourth Department concluded that the trial court properly dismissed the plaintiff's complaint. The Court stated that the claim made under the Family Educational Rights and Privacy Act of 1974 was appropriately dismissed since the Act did not create personal rights to enforce pursuant to a civil rights action. The Court stated that the Complaint did not establish a claim for extreme emotional distress since the plaintiff was not within the zone of danger that was alleged to threaten her daughter. And finally, the Court concluded that the claim alleging substantive and procedural due process violations must also fail, since her daughter did not sustain actual injury in the first instance, and "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause."
While the holding is certainly relevant, what I find most interesting about this case is the underlying facts. What was the school district thinking? I can envision any number of horror stories arising from this "trucker buddy" program. I can certainly understand why the mother was upset, although I'm confidant that some other avenue aside from litigation would have been a more appropriate venue in which to express her angst; especially in light of the fact that her daughter apparently suffered no harm as a result of the ill-conceived program. All in all, this was one of the more factually entertaining cases from this term.
In People v. Long, 2006 NY Slip Op 01918, the Fourth Department considered the issue of whether a statement made by the defendant and the gun subsequently discovered as a result of the statement was properly suppressed by the trial court.
In this case, the defendant was stopped due to an expired registration. The officer then advised Mr. Long that the car was going to be towed and asked him to exit his vehicle. Mr. Long was then placed him in the back of the officer's patrol car, without any handcuffs, while he was issued a ticket. The officer later testified that Mr. Long was not free to leave at that point. He then asked Mr. Long if there was anything in the car that he should know about, at which point Mr. Long advised that there was a gun in the car.
The Court first considered the issue of whether the defendant was in custody when the statements were made. The Court stated that the relevant inquiry is what a reasonable person innocent of any crime would have thought if in the defedant's position.
The Court then held the defendant was in custody when he made the statements to the officer and had not yet been Mirandized, and thus the trial court properly suppressed the gun and statements. The Court also concluded that:
(T)he record supports the court's determination that the question to defendant was interrogatory and designed ... to elicit the defendant's inculpatory cooperation, particularly in view of the deference afforded the court's credibility determinations. Under the circumstances, the officer should have known that the question was reasonably likely to elicit an incriminating response from defendant. (Internal citations and quotations omitted.)
Not a particularly surprising decision in light of the facts set forth in the decision. I wonder why the decision was appealed and if there were any additional facts in the record that might offer a clue in that regard.
As an aside, the ADA in this case and I tried our very first jury trials against each other back in the late 90s. And, the defense counsel was my Business Law professor in college. It was an entertaining class, to say the least.
On Friday, March 17, the Fourth Department handed down a number of decisions that are interesting, both factually and legally. I'll be posting about the decisions over the next few weeks.
The first decision that caught my eye was Walter v. NBC Tel. Network, Inc., 2006 NY Slip Op 01929. In this case, the plaintiff commenced an action against her former employer, Dorschel Automotive Group, Inc., a Rochester car dealership, and NBC Universal Inc., alleging, among other things, that the defendants violated her civil rights pursuant to Civil Rights Law ss. 50 and 51, as a result of Jay Leno's use of her photo during a comedic "Headlines" segment of "The Tonight Show". This type of civil rights claim was previously discussed in this post.
In regard to NBC, the Court stated held that the the comedic component of the newsworthiness exception to CRL ss. 50 and 51 claims applied, and thus NBC was not liable to the plaintiff. The Court stated:
Here, the use of plaintiff's photograph by the NBC defendants was not strictly limited to a commercial appropriation, and thus the use of the photograph does not fall within the ambit of those sections of the Civil Rights Law...A performance involving comedy and satire may fall within the ambit of the newsworthiness exception even if the performance is not related to a legitimate' news broadcast [or event]. (Internal citations and quotations omitted).
As to Dorschel, the Court concluded that it was not entitled to summary judgment pursuant to the newsworthiness exception:
Dorschel failed to establish as a matter of law that it did not submit plaintiff's photograph, which bore a caption listing the name of its business, its area code, and part of its telephone number, to the NBC defendants "for advertising purposes, or for the purposes of trade" (§ 50).
I wonder if any financial benefit obtained by Dorschel as a result of the Jay Leno show bit is now outweighed by the cost of legal fees in defending this matter? I question whether this type of claim is covered by your average insurance liability policy, so the legal fees might very well be out of pocket. Who's having the last laugh now?
In People v. Carlton, 2006 N.Y. Slip Op. 00716, the Fourth Department considered whether the lower court properly refused to suppress evidence obtained during a search of the defendant's home and locker at his workplace.
The Court considered three issues: 1) whether the search warrant and supporting affidavits for the search of his home were facially insufficient, 2) whether a gun and bullets that were not described in the warrant or warrant application were properly seized from his home, and 3) whether certain times were properly seized pursuant to a second warrant from a locker at his workplace.
The Court held that the search warrant and supporting affidavits for the search of his home were supported by probable cause and thus were facially valid. However, the Court concluded that the lower court erred when it summarily denied the defendant's motion to suppress the pistol, the bullets and the items seized from his workplace.
The Court held that:
(W)e conclude that a suppression hearing is required to determine the disputed issue of whether the pistol and bullets were seized in plain view as part of the lawful search of defendant's premises and upon defendant's admission that the pistol was not registered.
Further, because the application for the warrant to search defendant's locker at work failed to establish probable cause to believe that evidence of a crime would be found therein, a hearing is required to determine the further disputed issue of whether defendant consented to the search of that locker. At that hearing, the People will bear the burden of establishing that defendant consented to the search and that his consent was voluntarily given.
As is sometimes the case with Fourth Department decisions, I wish that the decision had included a more detailed recitation of the facts. It's hard to apply this holding to future cases absent a review of the appellate briefs submitted in this case. Nevertheless, at least the defendant in this case will get his day in court on the suppression issues.
In an interesting decision, Kordasiewicz v Bcc Prods., Inc., the Fourth Department considered the issue of whether the lower court should have dismissed the plaintiffs' toxic tort claim. The plaintiffs initiated the action by serving a Summons with Notice and failed to serve a timely Complaint, following the defendants' demand for same. The defendants cross-moved for order dismissing the action as a result of the plaintiffs' failure to serve a timely Complaint pursuant to CPLR s. 3012(b).
The Fourth Department noted that in order to avoid dismissal of the action after a demand for the Complaint has been made, the plaintiff must demonstrate a reasonable excuse for the delay in serving the Complaint and must establish a meritorious cause of action.
The Court held that the plaintiffs failed to establish a meritorious cause of action, since the belatedly served verified Complaint did not specify the toxins to which the plaintiff had been exposed or that had caused his cancer. The Court also concluded that:
(T)he averments of a lay plaintiff cannot serve as the essential showing of the merit ... where, as here, the averments include matters not within the ordinary experience and knowledge of laypersons. Contrary to plaintiffs' contention, the rule requiring an expert's affidavit to establish merit applies to any case in which plaintiffs' claims are not based on matters within the ordinary experience and knowledge of laymen, and thus that requirement is not limited to medical malpractice cases. (Internal citations and quotations omitted).
This appears to be yet another situation in which it would have been advisable to simply serve an unverified Complaint from the get go. There are far too many unforeseen pitfalls encountered when lawyers seek to delay drafting a Complaint by serving a Summons with Notice, as can be seen by the extreme result in this case.
As I understand this holding, the verified expert affidavit, which is required by statute for medical, dental and podiatric malpractice cases pursuant to CPLR 3012-a, is only required at this stage in this case because the plaintiffs served a Summons with Notice and failed to serve a timely Complaint in response to the defendants' demand for the same. In other words, the verified affidavit regarding merit was necessary only because the plaintiffs were required to establish a meritorious cause of action in defense of the defendants' CPLR 3012(b) motion.
To the best of my knowledge, no such affidavit is required at this stage of a toxic tort claim in New York under any other circumstances. However, it's possible that I'm incorrect. If you think I'm wrong in that regard, or if you disagree with my interpretation of this case, feel free to let me know.
In People v. Kyser, 2006 N.Y. Slip Op. 00873, the defendant contended that his conviction for Criminal Possession of a Controlled Substance in the Second Degree should be reversed based upon Bruton and Crawford violations. In this case, the defendant was a passenger in a car driven by his co-defendant and both were charged for possessing cocaine and marijuana found in the car.
Mr. Kyser moved to sever the trials, based, in part, upon the grounds that 1) his co-defendant's out of court hearsay statement would be used to implicate him and that he would be unable to confront or cross-exam him regarding the statement and 2) that he and his co-defendant each asserted that the other possessed the cocaine. The lower Court denied the motions for severance and allowed the hearsay statement into evidence.
The Fourth Department disagreed with the lower court's decision and held that:
Reversal is required because defendant was denied his right of confrontation with respect to that statement ...We agree with defendant that severance was required on that ground as well, inasmuch as the core of each defense [was] in irreconcilable conflict with the other and ... there was a significant danger ... that the conflict alone would lead the jury to infer defendant's guilt. (Internal citations and quotations omitted.
Surprisingly, the Fourth Department also considered Mr. Kyser's contention that the a Crawford violation occurred, even though that issue had not been preserved below. Mr. Kyser contended that his co-defendant's out of court statement that implicated him by suggesting that he possessed the cocaine, was testimonial in nature, was offered for the truth of the matter asserted therein and thus was offered into evidence in violation of the Confrontation Clause. The Court agreed and stated that:
The out-of-court statement of a witness that is testimonial in nature is barred under the Confrontation Clause unless the witness is unavailable and defendant had a prior opportunity to cross-examine the witness.
Accordingly, the Court held that Mr. Kyser's motion to sever his trial from his co-defendant's should have been granted and thus reversed his conviction and granted him a new trial.
Indignant Indigent also posted about this decision here.
In Weiss v. Hotung, 2006 N.Y. Slip Op. 00886, the Fourth Department considered whether the plaintiff's claims for malicious prosecution, false arrest and false imprisonment were properly dismissed by the lower court. I've litigated a number of these cases in the past and am always interested in cases that address these types of claims. The holding in this case isn't necessarily surprising, but bears repeating.
At the outset, the Court noted that the false arrest and false imprisonment claims were properly dismissed since a criminal summons had been issued pursuant to CPL 130.30 and thus:
(P)laintiff was never arrested or "held in actual custody by any law enforcement agency as a result of the charge ... filed against [him]."
The Court then turned to the malicious prosecution claim and established the elements of the claim: 1) the initiation of a criminal proceeding by the defendant against the plaintiff, 2) the termination of the proceeding in favor of the accused, 3) a lack of probable cause, and 4) malice. The Court held that the claims against the individual police officers were properly dismissed since nothing aside from speculation and conclusions supported the claim that they acted with malice.
However, the Court held that the lower court should not have dismissed the claim against Violet Realty, Inc., since:
A probable cause finding as to one entity does not compel such a finding as to the other where the facts and circumstances known to each defendant may be different. Upon our review of the record, we conclude that there is an issue of fact whether an employee of Violet Realty intentionally gave false information to the police, resulting in the commencement of the criminal proceeding against plaintiff. (Internal citations and quotations omitted).
I'm not sure how thrilled the plaintiff will be with this decision. Generally, insurance policies don't cover these types of claims, so the guaranteed deep pocket in this case was the municipal entity, and it's no longer on the hook. It's difficult to establish intentional malice at trial, and even if the plaintiff is successful, he'll have to try to collect the judgment from a corporate entity that may very well be non-existent by the time the trial rolls around. So, this may be a shallow victory, at best.
In Hughes v. Cold Spring Constr. Co., 2006 N.Y. Slip Op. 00888, the plaintiff sought disclosure of documents relating to control over traffic control devices from the State of New York pursuant to a subpoena. The State was not a party to the lawsuit pending in Supreme Court, but a separate action regarding the same accident had been initiated by the plaintiff against the State in the Court of Claims. The accident at issue in both cases was alleged to have occurred in a construction zone just past a set of tollbooths after the decedent had been diverted into oncoming traffic by inappropriate traffic control devices.
The State contended that it was not necessary for the plaintiff to obtain the documents at issue since the State conceded that it had control over the traffic control devices at issue. The plaintiff, on the other hand, asserted that although the State had general control over the construction project, the general contractor, Cold Spring Construction Company, exercised enough control over the construction project to allow it to make changes to the traffic control devices and that a supervisor had in fact directed traffic away from the construction zone.
Accordingly, the Court concluded that:
The cases are legion in holding that evidence of subsequent repairs is not discoverable or admissible in a negligence case ...[, but e]vidence of subsequent repairs may be admissible if an issue of control ... exist. Here, plaintiff has raised an issue of control, and thus we conclude that documents disclosing the State's postaccident remedial measures are material and necessary in the prosecution ... of [this] action (CPLR 3101 [a]). (Internal citations and quotations omitted).
While this is not an earth shattering holding, it's always nice to be reminded of exceptions to the rule.
A number of interesting issues were addressed by the Fourth Department in Bax v. Allstate Health Care, Inc., 2006 N.Y. Slip Op. 00890. In this case, the plaintiff was injured while on an icy roof in order close two smoke hatches that had automatically opened when a false fire alarm was activated.
In regard to the Labor Law s. 240(1) claim, the Court concluded that:
(A)lthough the task of closing the smoke hatches entailed cleaning the hatches of snow and ice and bending one of the latches so that it would catch, the task did not constitute a "repair" of the building within the meaning of section 240 (1).
The Court also addressed, sua sponte, an interesting evidentiary issue. In opposition to the summary judgment motion, the plaintiffs submitted the affirmations of architects as expert opinion evidence. The Court noted that pursuant to CPLR 2106:
(O)nly the affirmation of an attorney, physician, osteopath or dentist is entitled to be considered "in lieu of and with the same force and effect as an affidavit."
However, since the defendants did not dispute the admissibility of the affirmation, the deficiencies were deemed waived.
Finally, and most importantly, the Court clarified its prior rulings in regard to common law negligence claims relating to open and obvious icy conditions. The Court stated:
The fact that a dangerous condition is open and obvious does not negate the duty to maintain premises in a reasonably safe condition but, rather, bears only on the injured person's comparative fault (see e.g. Maza v University Ave. Dev. Corp., 13 AD3d 65; Tulovic v Chase Manhattan Bank, 309 AD2d 923; MacDonald v City of Schenectady, 308 AD2d 125, 126-127; Waszak v State of New York, 275 AD2d 916; Ditz v Myriad Constrs., 269 AD2d 874). To the extent that prior decisions of this Court hold to the contrary (see e.g. Millson v Arnot Realty Corp., 266 AD2d 918; [*3]Shandraw v Tops Mkts., 244 AD2d 997; Hill v Corning Inc., 237 AD2d 881, lv denied in part and dismissed in part 90 NY2d 884), they should no longer be followed.
All and all, a decision full of interesting rulings and helpful clarifications. It's definitely worth taking the time to read in full.
In Enge v. Ontario County Airport Mgt. Co, LLC, 2006 N.Y. Slip Op. 00932, the Fourth Department considered, in part, the issue of whether the plaintiff was engaged in altering a building or structure within the meaning of Labor Law s. 240(1). The Court described the facts of the case as follows:
Plaintiff's employer was hired by Transit to equip the new offices with working phones, and that work required the running of telephone wires from the old offices to the new offices, splicing the wires into each new office, drilling holes in the walls thereof and feeding the wires down through the walls, and drilling holes for the jacks and pulling the wires through the jacks.
The Court concluded that the plaintiff was engaged in altering a building or structure, despite the defendant's contentions that the plaintiff was injured while simply running wires and that the job was never completed by plaintiff's employer.
This holding makes sense to me, and is in keeping with the Court of Appeal's decision in Joblon v. Solow, wherein the plaintiff was engaged in extending electrical wiring through a concrete wall.. I discussed Joblon in more detail here.
In People v. William S., 2006 N.Y. Slip Op. 00894,the Fourth Department considered whether the lower court's determination to deny the appellant youthful offender status should be modified in the interests of justice. I was somewhat surprised to see that the Court agreed with appellant and held that he should have been granted youthful offender status. The Court stated:
Defendant was 16 years old at the time of the assault and had no prior criminal record. In addition, it appears from the record that the assault was precipitated by some racial name-calling by the victims and that defendant's older sisters were the primary perpetrators of the assault. We conclude that despite a difficult upbringing, defendant has the potential to lead a law-abiding life, and we deem it appropriate to modify the judgment as a matter of discretion in the interest of justice by adjudicating defendant a youthful offender.
I ran a quick search and was only able to locate one other instance in which the Fourth Department granted this relief within approximately the last 2 years.
It just goes to show that it never hurts to ask. You just might be surprised by the answer.
In Wall v. Erie County Med. Ctr., 2006 N.Y. Slip Op. 00736, the Fourth Department upheld the dismissal of a Complaint due to the failure to timely serve a Notice of Claim as required by General Municipal Law s. 50-e.
The decision was written in such a way that I had a hard time discerning the factual time line of this case, but I believe that the following factual recitation is correct.
The plaintiff served a Notice of Claim more than 90 days after slipping and falling on ice. The plaintiff then served a Summons and Complaint within 1 year and 90 days, as required by GML s. 50-i. The plaintiff then moved for permission to serve a late notice of claim, which was granted by the lower court, but never actually served another notice of claim upon the defendant.
Upon the expiration of the statute of limitations for this action, 1 year and 90 days, the defendant moved to dismiss the plaintiff's Complaint for failure to serve a notice of claim within that time period.
The Court stated that:
(P)laintiff's earlier service of a notice of claim is a nullity inasmuch as the notice of claim was served more than 90 days after the accident but before leave to serve a late notice of claim was granted...Contrary to plaintiff's further contention, defendants are not precluded from seeking dismissal of the complaint based upon their participation in discovery...or their request for an extension of time to answer the complaint.
Accordingly, the Court concluded that the lower court proper denied the plaintiff's "re-petition" seeking leave to serve a late notice of claim after dismissal of the Complaint.
This is a case where the failure to follow the proper procedure resulted in a very unfortunate--and very permanent--outcome.
In Busch v. Erie County Indus. Dev. Agency, the Fourth Department considered the issue of whether the plaintiff's own actions were the sole proximate cause of his fall from a ladder on his Labor Law s. 240(1) claim.
In opposition to the plaintiff's motion for summary judgment, the defendant submitted evidence establishing that the plaintiff had forgotten to take his heart medication on the morning of the accident and that he told his physicians that he was unable to recall the accident, since he may have received a shock from his implanted heart defibrillator.
Evidence was also submitted from an eyewitness who testified that the ladder was tied off at the top when plaintiff fell and thus the ladder did not move.
Accordingly, the court held that:
(W)e conclude that there is a triable issue of fact on the record before us whether plaintiff's actions were the sole proximate cause of the accident.
The fact that his defibrillator went off wold not necessarily hurt him at trial, in my opinion. Although a jury could certainly find that it went off due to the failure to take his heart medication, thus causing him to fall, it could also just as easily conclude that the fall itself precipitated the heart irregularities that triggered the device.
In Rohlin v. Nationwide Mut. Ins. Co., 2006 N.Y. Slip Op. 00731, decided on February 3, 2006, the Fourth Department considered the issue of whether the defendant was obligated to provide coverage to the plaintiff under her automobile liability insurance policy.
The facts, as described by the Court were as follows:
Plaintiff was operating a vehicle owned by Sharol L. Mortensen when the vehicle allegedly encountered rough road and flipped over. Plaintiff's daughter, Tracy M. Rohlin (defendant), was a passenger in the vehicle. Defendant commenced an action against plaintiff and Mortensen seeking damages for injuries she allegedly sustained in the accident. Plaintiff sought coverage from defendant Nationwide Mutual Insurance Company (Nationwide) under separate automobile liability insurance policies issued by Nationwide to her and Mortensen. Although Nationwide agreed to provide coverage under the policy issued to Mortensen, it denied coverage under the policy issued to plaintiff on the ground that Mortensen is a member of plaintiff's household and coverage extends to plaintiff only if plaintiff was operating "a motor vehicle owned by a non-member of [plaintiff's] household."
The Court first noted that the definition of "household" in insurance policies is ambiguous and any ambiguous provision in an insurance policy should be interpreted in a manner favoring coverage.
The Court then stated that the interpretation of the term "household" should be based upon the intent of the parties, which is an issue of fact, rather than one of law and concluded that:
(T)hat issue is best resolved by the trier of fact, "taking into account the reasonable expectations of the average person purchasing [automobile liability] insurance, as well as the particular circumstances of [this] case."
On February 3, 2006, the Fourth Department considered the issue of whether summary judgement should be granted in a case where injuries had been sustained as a result of a collision between a motor vehicle and a horse.
In Emlaw v. Clark, 2006 N.Y. Slip Op. 00808, the plaintiff sought to recover damages, in part based upon the doctrine of res ipsa loquitur, for injuries sustained when the car that she was driving collided with the defendant's horse. The defendant counterclaimed, seeking damages for the value of the horse, which apparently won the battle, but lost the war. And, now, I suppose you'd like to know what the court's holding was. Well, hold your horses, I'm getting to it.
In support of her motion for summary judgment, the plaintiff contended that:
"horses do not generally wander unattended on public streets in the absence of negligence," that the maintenance and keeping of the horse was under defendant's exclusive control, and that there is no evidence that plaintiff caused or contributed to the injury.
The Court noted that:
Partial summary judgment on liability based on the doctrine of res ipsa loquitur is appropriate only where "the prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable and unrebutted.
The Court concluded, without making a single horse joke, that the defendant had successfully rebutted the inference of negligence by submitting evidence that she had checked the integrity of the horse fencing prior to the accident. Accordingly, the Court held that there were issues of fact as to the potential liability of both the plaintiff and the defendant under a theory of ordinary negligence and thus denied both parties' motions for summary judgment. There you have it, straight from the horse's mouth.