Sui Generis--a New York law blog

NY Court of Appeals Considers Whether Cleaning Windows While Located Inside of Building Poses an Elevation-Related Risk

In Broggy v Rockefeller Group, Inc. 2007 NY Slip Op 05775, the plaintiff was employed as a window washer and was injured while located inside of a commercial building when he was washing the interior side of the building's windows.  He was standing on a desk located in the room, and then stepped onto the windowsill, at which point he fell onto the floor.

The plaintiff brought suit pursuant to Labor Law 200, 202, 240 (1) and § 241 (6) alleging that he was injured "when he fell from the window sill which was being used as an elevated platform or scaffold from which to perform commercial window cleaning."   

In reaching its decision, the Court first noted that window cleaning at a commercial facility is a specifically enumerated activity covered by Labor Law 240(1), even if occurring at a non-construction site.

The Court concluded that the plaintiffs failed to establish that an elevation-related risk was encountered by the plaintiff and offered instructive language regarding the types of cleaning specifically covered by  Labor Law 240(1):

While interior window washing may not routinely entail the elevation-related risks that exterior window washing almost invariably poses...(t)he crucial consideration under section 240 (1) is not whether the cleaning is taking place as part of a construction, demolition or repair project, or is incidental to another activity protected under section 240 (1); or whether a window's exterior or interior is being cleaned. Rather, liability turns on whether a particular window washing task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against.

The burden of showing that an elevation-related risk exists, and that the owner or contractor did not provide adequate safety devices falls upon the plaintiff. Here, plaintiffs did not fulfill this burden. Plaintiff did not testify how high he could reach with his wand and squeegee while standing on the floor. He asserted that he had to stand on the desk, but provided no evidence to show that this was because he was required to work at an elevation to clean the interior of the windows. The desk may have been in plaintiff's way, or it may have been easier for him to reach the top of the windows while standing on the desk, or it may have been quicker for him to climb on the desk than to seek further assistance to move it. To recover under section 240 (1), however, plaintiff must establish that he stood on the desk because he was obliged to work at an elevation to wash the interior of the windows. Moreover, summary judgment in favor of defendants is proper because the evidence in this record demonstrates as a matter of law that plaintiff did not here need protection from the effects of gravity. Prior to his accident, plaintiff had cleaned the interior of eight other windows of exactly the same height as those in room 810, and the record does not show that he needed a ladder or other protective device. The only "tools" that he testified to having used were a wand, a squeegee and a bottle of soap.

Second Circuit Certifies Question to the New York Court of Appeals

In Rivkin v. Century 21 Teran Realty, Docket No. 05-6566-cv, the United States Court of Appeals for the Second Circuit recently certified the following question to the New York Court of Appeals:

Did any or all of  Defendants-Appellees (real estate brokers) breach a fiduciary duty to Rivkin (the plaintiff, a potential buyer) by failing to disclose, in any form, Defendants-Appellees’ representation of a competing buyer for the property Rivkin sought to buy?

Hat tip:  Second Opinions.

The Evolution of Intoxication

This week's Legal Currents column, which is published in The Daily Record, is entitled "The Evolution of Intoxication."  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.

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The Evolution of Intoxication

In People v. Litto, 2007 N.Y. Slip Op. 05582, the New York State Court of Appeals provided a thorough and intriguing review of the extensive legislative history of the Driving While Intoxicated (DWI) statutes.

The opinion was interesting because of the historical context that was provided as well as the unique issue that was presented to the court.

At issue in Litto was whether a driver allegedly under the influence of a drug or other unlisted substance could be prosecuted under Vehicle and Traffic Law § 1192(3) for driving while intoxicated.

The defendant in this case was involved in a tragic accident, which resulted in the death of a passenger in another vehicle. Just prior to the collision, the defendant sprayed a can of Dust- Off, — a product used to clean computer keyboards — into his mouth and then veered into oncoming traffic.

A grand jury indicted the defendant on 14 felony and misdemeanor counts, but the trial court and the Appellate Division dismissed two of the counts, finding that the evidence was insufficient to support his indictment for Vehicle and Traffic Law § 1192(3). As a result, the count of vehicular manslaughter, which necessarily relied upon DWI as its basis, also was dismissed.

The Court of Appeals concluded that “intoxication” as envisioned by the Legislature when Vehicle and Traffic Law § 1192(3) was enacted, incorporated only an altered state of mind as a result of imbibing alcohol.

In reaching its decision, the court noted that Vehicle and Traffic Law § 1192(4) was enacted to address offenses committed by a driver under the influence of substances other than alcohol, and provided for prosecution based upon an impaired mental state caused by the use of one of the controlled substances specifically enumerated in Public Health Law § 3306. Neither the general category of hydrocarbons, nor the specific hydrocarbon inhaled by the defendant, difluororthane, were included on that list.

Accordingly, the court held that none of subdivisions of § 1192 enacted at the time of the accident applied to the defendant’s conduct in this case. The court suggested that it would be up to the Legislature to correct the apparent gap in the law.

This decision is notable not only for the uniqueness of the legal issue presented, but also because of the court’s lengthy and in depth examination of the legislative history of the DWI statutes.

The extreme change that is evident in our culture’s view of drinking and driving offenses through the last century is nothing short of fascinating. The most striking change has been the drastic downward fluctuation in the concept of per se intoxication. As recently as 1970, the per se blood alcohol content level was set at .15 percent, whereas today it is set substantially lower at .08 percent.

Also of interest is the court’s description of the reaction of the American Automobile Association (AAA) to the 1960 enactment of the then new offense, Driving While Ability Impaired, which provided that a driver with a blood alcohol content of .10 percent or less could be found guilty of a traffic infraction:

Opposed to the amendment, the American Automobile Association found fault with the difficulty of enforcement for such low amounts of alcohol in the blood and wondered why “little mention is made of the impairment produced by fatigue, tension, the taking of medicines or indisposition caused by indigestion.”

Although the AAA later changed its position on this issue, the point made continues to be of relevance today with the advent of new and varied attention-diverting electronic devices, many of which are increasingly installed or used in motor vehicles.

Is the use of these newfound devices while driving any less dangerous than operating a motor vehicle while in an impaired state? Are the resulting accidents caused by distraction, as opposed to intoxication, any less horrific? And, is it realistic to criminalize all conduct that results in the inability to focus entirely on the roadway while operating a vehicle, whether it occurs as a result of the use of a mind altering agent or because of the use of an electronic device?

The answers to these questions are as elusive as ever. The Litto decision offers a rare glimpse at the evolution of our culture’s changing attitudes toward a problem that continues to plague us to this day. As our society evolves and changes it is reassuring, at the very least, to know that the collective response to questions of this nature will vary with the times, just as it has in the past.

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And, here's a short video that exemplifies the hazards of driving while distracted:

Is a Judge Required to Mention Postrelease Supervision During Plea Colloquy In Order to Enhance Sentence?

In People v Louree, 2007 NY Slip Op 04679, the defendant plead guilty to Attempted Criminal Possession of a Weapon in the Third degree with an agreed upon sentence of one year, or possibly two years if a prior conviction in another state qualified him as a predicate felon. 

Because he requested an unusually long adjournment prior to sentencing, the judge also required him to plead guilty to Criminal Possession of a Weapon in the Third Degree.  The Court promised the defendant that he could withdraw the second plea as long as he complied with the following enhancement warnings:

"[i]n the event you fail to fully comply with any or all of these conditions, I am not bound to impose the negotiated sentence, you will not be permitted to withdraw your guilty plea, and I am authorized by law to impose a higher sentence of up to seven years in jail. You understand that?"

The judge did not advise him that a period of postrelease supervision would follow either potential sentence.

My fellow criminal defense practitioners will likely agree with me when I say that Murphy's Law seems to prevail in the lives of many criminal defendants--what can go wrong will go wrong.  And, Mr. Louree's case was no exception.  He failed to appear at sentencing, was arrested during the interim, and failed to cooperate with probation in the preparation of his PSI.

When he was returned on the bench warrant, he indicated through counsel that he wished to withdraw his plea.  The Court denied his request and sentenced him to seven years in prison with five years postrelease supervision.

Defendant appealed and the People opposed on the basis that the defendant failed to preserve the issue for review on appeal since pursuant to People v Lopez, 71 NY2d 662 (1988):

(I)n order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under CPL 220.60(3) or a motion to vacate the judgment of conviction under CPL 440.10," because "failure to make the appropriate motion denies the trial court the opportunity to address the perceived error and to take corrective action...

The Court disagreed and concluded that this case fell under the:

(E)xception to this general rule for the "rare case" where, for instance, a defendant's factual recitation negates an essential element of the crime pleaded to, and the trial court fails in its duty to make further inquiry and instead accepts the plea...

We similarly conclude that where a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion. In so deciding, we can not shut our eyes to the actual or practical unavailability of either a motion to withdraw the plea under CPL 220.60(3), or a motion to vacate the judgment of conviction under CPL 440.10 in these cases. If the trial judge does not mention postrelease supervision at the allocution, as happened here, a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge.

It's difficult to agree with that rationale.  At least, I think so.  Anyone care to disagree with me?

Court of Appeals Answers Question Certified By the Second Circuit

In Benesowitz v Metropolitan Life Ins. Co., 2007 NY Slip Op 05580, the New York Court of Appeals answered the following questions which had been certified to it by the Second Circuit:

Whether New York Insurance Law § 3234 (a) (2) means that (1) a policy may impose a twelve-month waiting period during which no benefits will be paid for disability stemming from a pre-existing condition and arising in the first twelve months of coverage or (2) a policy may lawfully include a permanent absolute bar to coverage of disabilities resulting from pre-existing conditions that trigger disability within the first twelve months of the employee's coverage" (471 F3d 348, 353 [2006]).

The Court of Appeal's answer was as follows:

(T)he certified question should be answered as follows: New York Insurance Law § 3234 (a) (2) means that a policy may impose a 12-month waiting period during which no benefits will be paid for a disability stemming from a pre-existing condition and arising in the first 12 months of coverage.

Is a Dentist's Testimony Regarding Routine Administration of an Anesthetic Admissible as Habit Evidence in a Malpractice Trial?

I've always enjoyed evidentiary issues and for that reason was excited to read a recent opinion by the New York Court of Appeals regarding the admission of habit evidence in a dental malpractice action.

In Rivera v Anilesh, 2007 NY Slip Op 05134, the plaintiff sued a number of people, including her dentist, alleging that a severe infection in her jaw originated with malpractice committed by her dentist while injecting a second round of anesthesia during the course of removing the plaintiff's tooth.

The defendant dentist moved for summary judgment, alleging that she had no recollection of the specific procedure at issue.  As such, she relied upon her customary practice to establish that the treatment rendered to the plaintiff on the date of the alleged malpractice did not differ from her ordinary methods.

(She) state(d) that the administration of this type of injection was a "routine procedure[]" that she did "every day" to "at least three to four to five" patients and that she had been practicing as a dentist since 1982. Dr. Anilesh further explained that a second injection of anesthesia was required in 15% to 20% of her cases. She provided a step-by-step description of the procedure she used to give injections to her patients and claimed that, when a second injection was necessary, she administered it at the same site as the first injection. Dr. Anilesh noted that if a patient complained of unusual pain or any other unexpected events occurred during treatment, she would make a notation in the patient's medical chart but that no such note existed for Rivera. Dr. Anilesh's expert opined that Dr. Anilesh's treatment of Rivera was within the applicable standard of care in dentistry.

The Court explained the basis for the admission of habit evidence in New York:

"(E)vidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions" because "one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again." The applicability of this doctrine is limited to cases where the proof demonstrates "a deliberate and repetitive practice" by a person "in complete control of the circumstances" (id. at 392) as opposed to "conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances" (id. at 389). If these conditions are satisfied, "a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence . . . on a particular occasion"...

The Court then noted that the issue of habit evidence had been considered by it on only a few occasions, and never in a medical or dental malpractice context.  The Court then concluded that the evidence was properly admitted in this case:

(T)he record here supports the admissibility of Dr. Anilesh's routine procedure for administering injections of anesthesia under the standard articulated in Halloran in light of the frequency that this technique was used in Dr. Anilesh's dental practice and the nature of the routine conduct...there is no evidence suggesting that Dr. Anilesh's pre-extraction injection procedure would vary from patient to patient depending on the particular medical circumstances or physical condition of the patient. This record therefore contains "proof of a deliberate and repetitive practice" — the mundane administration of a local anesthetic prior to a relatively routine tooth extraction — by a trained, experienced professional "in complete control of the circumstances"...

While I agree with the Court's decision to an extent, I am uncomfortable with the application of habit evidence under the facts of this case.  It seems to me that this holding essentially encourages health care providers who frequently perform routine procedures to avoid documenting anything that occurs during a procedure that is somewhat out of the ordinary.  That way, when called upon to testify regarding a frequently performed procedure, s/he can allege an inability to recall the specific procedure and then assert that the procedure in question must have been typical since the medical record indicates that nothing unusual occurred. 

In a way, this decision seems to sanction convenient cases of amnesia when the underlying "forgotten" facts are the very heart of the malpractice claim.  But, then again, I suppose it's ultimately within the province of the fact-finder to determine whether the alleged case of amnesia is actually believable. 

Second Circuit Certifies Question to the NY Court of Appeals

On June 12, in Ehrenfeld v. Mahfouz, Docket No. 06-2228-cv, the Second Circuit Court of Appeals certified the following question regarding long-arm jurisdiction under New York law to the New York Court of Appeals:

Does CPLR 302(a)(1) confer jurisdiction over the defendant, a Saudi businessman who was named as a supporter of terrorism in a New York author's book?

(Hat tip:  Second Opinions)

Can a Conditional Agreement to Murder Someone in the Future be the Basis for a Conspiracy Prosecution?

That was the issue in People v. Washington, 2007 NY Slip Op 04720.  In Washington, the defendant, while incarcerated in Rikers on Child Endangerment and Promoting Prostitution charges, confided in a fellow inmate that he'd be willing to pay money to have the complainant in his case killed.  Fortunately for the complainant, but unfortunately for Mr. Washington, his fellow inmate was also an informant for the government. 

There were a number of meetings between the two, during which plans to kill the complainant and another person were secretly recorded.  Ultimately, however, the defendant decided to postpone the murder until he was released from prison.

The Court concluded that a conspirational agreement was established under the facts of this case:

Here, the conditions that defendant imposed on the performance of the agreement — to commit a murder — were that nothing was to happen to Seven until defendant was released from jail and was able to secure money to pay for the hit. These requirements were not "conditions" negating the existence of an agreement to kill Seven — they were terms of the agreement. In other words, defendant's wish to delay the killing and payment until he was released from prison was not a demand in negotiations that prevented the parties from reaching the agreement to kill Seven, but a temporal component of the agreement accepted by both parties.

A conspiratorial agreement will be found where there is a "concrete and unambiguous . . . expression of [defendant's] intent to violate the law" (Caban, 5 NY3d at 149, quoting People v Schwimmer, 66 AD2d 91, 95-96 [2d Dept 1978], affd 47 NY2d 1004 for reasons stated below). Both Mitchell's and the undercover's testimony reveal that defendant entered into an agreement to commit the underlying substantive crime of murder in the first degree, and that there were overt acts committed in furtherance of that goal (see Caban, 5 NY3d at 149).

Conspiracy charges always make me nervous since prosecution for what one might do reminds me an awful lot of the thought crimes found in Orwell's novel 1984.  While the Court bases its conclusion on the fact that "the parties worked out the details of the conspiracy, defendant dispatched the undercover to locate the intended victim, and defendant coordinated with his associates outside of prison to assist in locating and identifying the intended victim", I'm still uncomfortable with the decision.

To me, it seems inordinately difficult to distinguish actual intent to commit a crime in the future from some guy shooting off his mouth on a regular basis.  But, hey, that's just me.

Eric at Indignant Indigent has more to say about this case here.

New York Court of Appeals On Whether Illegal Immigrants Should Be Denied Driver's Licenses

In Cubas v Martinez, 2007 NY Slip Op 04723, a DMV policy was challenged by a group of immigrants.   The DMV policy at issue requires driver's license applicants to either have a valid social security number or requires applicants ineligible for social security numbers to submit immigration documents issued by the Department of Homeland Security.   The plaintiffs claimed that the policy was "essentially an effort to deny driver's licenses to immigrants not legally present in New York."

The Court held that the DMV policy did not infringe upon constitutional rights and did not constitute a violation of procedural requirements applicable to agency rules and regulations:

We conclude that plaintiffs have failed to allege the existence of any "legal presence requirement" distinct from the DMV's practice of insisting on DHS documents as proof of ineligibility for an SSN. And plaintiffs have failed...to allege facts showing that that practice is substantively unlawful...

The requirement of DHS documentation...does not create or deny substantive rights of members of the public — i.e., it does not provide that some people are eligible and some ineligible for driver's licenses — but sets forth the procedure for the agency to follow in deciding who meets a predetermined test for eligibility.

This ruling may turn out to be a big to-do about nothing.  As explained in this AP article:

Governor Spitzer plans to change the rule at issue since  it doesn't improve security and instead creates a class of people with no public records...

"The governor feels strongly that the state's driver license policies should not unnecessarily keep people who should have licenses from getting them," spokeswoman Christine Anderson said."

Question Certified by Second Circuit to New York Court of Appeals

Yesterday the New York Court of Appeals accepted the following certified questions from the United States Court of Appeals, Second Circuit, in  ITC Limited and ITC Hotels Limited, Appellants, v Punchgini, Inc., Raja Jhanjee, Paragnesh Desai, Vicky Vij, Dhandu Ram, Mahendra Singh, Bachan Rawat, Bukhara Grill II, Inc., Docket No. 05-0933-cv:

1. Does New York common law permit the owner of a famous mark or trade dress to assert property rights therein by virtue of the owner’s prior use of the mark or dress in a foreign country?

2. If so, how famous must a foreign mark be to permit a foreign mark owner to bring a claim for unfair competition?