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CLAIMANT DID NOT REMOVE HIMSELF FROM EXPOSURE TO HARMFUL NOISE FOR THREE MONTHS PRIOR TO APPLYING FOR WORKERS’ COMPENSATION FOR HEARING LOSS, CLAIM PROPERLY DENIED.

The Third Department determined claimant was properly denied benefits for hearing loss. To qualify, claimant was required to show he used effective ear protection for three months. Claimant used the same type of ear protection he was using when he experienced the hearing loss:

Claimant contends that he has been removed from the workplace noise for the requisite time period. Claimant testified that he was exposed to workplace noise beginning in 1977 and that he has always worn the earplugs or headphones provided by the employer for protection from the noise. The statute requires, however, as relevant here, that claimant be removed from exposure to the harmful noise by “use of effective ear protection devices” (Workers’ Compensation Law § 49-bb). In light of claimant’s continued use of, for the three months in question, the same method of hearing protection against the workplace noise that he used while contracting occupational hearing loss, we conclude that substantial evidence supports the Board’s decision that claimant has not established, for the purpose of an accurate appraisal of his hearing loss, that he has been removed from the noise for the requisite time period … . We note that the statute requires claimant to use effective protection, but that it would be at the employer’s expense (see Workers’ Compensation Law § 49-bb). It does not appear, however, that claimant has availed himself of such protection, other than continuing to use the same devices he was wearing at the time that he contracted the hearing loss. Matter of Durkot v Newsday, 2017 NY Slip Op 04341, 3rd Dept 6-1-17

WORKERS’ COMPENSATION (CLAIMANT DID NOT REMOVE HIMSELF FROM EXPOSURE TO HARMFUL NOISE FOR THREE MONTHS PRIOR TO APPLYING FOR WORKERS’ COMPENSATION FOR HEARING LOSS, CLAIM PROPERLY DENIED)/HEARING LOSS (WORKERS’ COMPENSATION, CLAIMANT DID NOT REMOVE HIMSELF FROM EXPOSURE TO HARMFUL NOISE FOR THREE MONTHS PRIOR TO APPLYING FOR WORKERS’ COMPENSATION FOR HEARING LOSS, CLAIM PROPERLY DENIED)

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EXOTIC DANCER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS.

The Third Department determined claimant, an exotic dancer, was an employee of a club (Jacaranda) entitled to unemployment insurance benefits:

Here, the record establishes that, before claimant was permitted to work in the club, she was required to attend an audition for Jacaranda to determine whether to hire her. While claimant provided the club with the dates on which she was available to perform, her proposed work schedule had to be approved by the club’s managers. Claimant testified that, once her schedule was set, she was required to report to work by a particular time. Claimant was also required to sign in when she arrived at the club, and, according to claimant, she was expected to notify the club’s managers when she could not come to work for her scheduled hours and was required to make up for any absences. Claimant testified that, while she provided her own costumes, each costume had to meet certain standards set by the club and be approved by the club’s managers. Claimant was required to use the stage, private dance rooms, sound equipment and music provided by the club. Furthermore, claimant testified that the club charged patrons an admission fee, set the prices that she could charge patrons for private dances and retained a percentage of those private bookings. Claimant also testified that, besides performing dances, she was required to sell alcohol to patrons and attend weekly meetings conducted by the club’s owners or managers. Lastly, claimant testified that she was prohibited from working for Jacaranda’s competitors while performing services for Jacaranda. Matter of Commissiong (Jacaranda Club LLC–Commissioner of Labor), 2017 NY Slip Op 04337, 3rd Dept 6-1-17

UNEMPLOYMENT INSURANCE (EXOTIC DANCER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)/EXOTIC DANCERS (UNEMPLOYMENT INSURANCE, EXOTIC DANCER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)

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ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS.

The Third Department determined claimants were entitled to unemployment insurance benefits. Claimants were hired on a temporary basis to address damage caused by a hurricane.  The employer argued claimants were hired to address an emergency and therefore were not entitled to coverage. In rejecting the emergency exception, the court noted claimants were hired a year after the hurricane and performed routine maintenance:

For purposes of determining a claimant’s eligibility for unemployment insurance benefits, Labor Law § 565 (2) (d) provides that “the term ’employment’ does not include services rendered for a governmental entity by . . . a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency” … . “Whether this exclusion applies presents a mixed question of law and fact, and the Board’s determination in this regard will be upheld if it has a rational basis” … . * * *

The record evidence reflects that claimants, who were hired on a temporary basis using federal grant money received as a result of the damage caused by the hurricane, performed routine maintenance duties, including cutting grass, raking leaves, shoveling snow, driving trucks and cleaning municipal parking lots. In determining that the services performed by claimants were related to the hurricane clean-up efforts but “not performed in case of an emergency,” the Board noted that claimants were hired almost a year after the hurricane and at a time when “there was no need for immediate action.” The Board also relied upon a Program Letter issued by the United States Department of Labor (hereinafter DOL) that provided the DOL’s interpretation of the exclusion from unemployment insurance coverage of governmental services performed in case of emergency … . That Program Letter provides that “the urgent distress caused by the emergency . . . must directly cause the need for the services to be performed” and that, if the services performed occur “after the need for immediate action has passed, they are not necessarily performed in case of emergency”… . Given the Board’s reliance upon the DOL’s Program Letter, as well as the non-exigent, routine nature of the services provided by claimants, who were hired by the employer nearly a year after the hurricane, there is a rational basis for the Board’s decision that the exclusion did not apply and that the services performed by claimants “were in covered employment.” … . Matter of Clemons (Village of Freeport–Commissioner of Labor), 2017 NY Slip Op 04333, 3rd Dept 6-1-17

 

UNEMPLOYMENT INSURANCE (ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS)/EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE (ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS)/LABOR LAW (EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE, ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS)

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AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED.

The First Department determined plaintiff’s motion to amend the notice of claim in this slip and fall case was properly denied. The original notice of claim and the complaint alleged the protruding manhole cover over which plaintiff tripped was the result of improper maintenance. The proposed amendment sought to allege the defendant city created the dangerous condition:

The allegations of negligent maintenance in the notice of claim did not provide notice of plaintiff’s new theory of affirmative negligence … . Thus, General Municipal Law § 50-e(6), which “authorizes the correction of good faith, nonprejudicial, technical defects or omissions, not substantive changes in the theory of liability” … , does not apply. Further, General Municipal Law § 50-e(5) does not authorize amendment of the notice of claim to assert a new theory of liability where, as here, the limitations period has expired … .

Even assuming that the “special use” theory is not a new theory of liability, leave to amend to add it would be futile, since the City’s ownership of the manhole cover does not constitute a “special use” of the sidewalk … . Aleksandrova v City of New York, 2017 NY Slip Op 04379, 1st Dept 6-1-17

 

NEGLIGENCE (MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/MUNICIPAL LAW (NOTICE OF CLAIM, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/NOTICE OF CLAIM, (MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/SLIP AND FALL (MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/SIDEWALKS (SLIP AND FALL, MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)

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REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT.

The First Department, over a two-justice dissent, determined the prosecutor’s mention of the details of a prior violent crime of which defendant was convicted, evidence the defendant had been in prison, ineffective redaction of references to the prior crime in the medical records, restrictions on the defense expert’s testimony concerning the expert’s reasons for doubting defendant committed the prior crime, and defense counsel’s mention of the prior crime in voir dire, did not warrant reversal. Defendant was convicted of robbing a women of $40 at knife point. Defendant claimed he was not responsible by reason of mental illness. There was evidence he suffered from schizophrenia and he claimed voices told him to commit robbery to get money to buy cigarettes:

The court properly exercised its discretion in admitting evidence that defendant had been released from prison a few months before the robbery, and denying counsel’s request to redact that information from defendant’s medical records. In support of the defense of lack of criminal responsibility by reason of mental disease or defect, the defense psychiatric expert testified that defendant had been stable throughout his years in custody, when he received proper treatment for his schizophrenia. However, after he was released, he no longer received treatment, he became unstable, he began hearing voices, and he committed the robbery a few months later. Evidence of defendant’s confinement in prison was “inextricably interwoven” with the expert’s testimony and conclusion … . The court minimized the possible prejudice by excluding evidence of defendant’s underlying conviction and only admitted references to his imprisonment.

The court properly rejected defendant’s suggested use of terms such as “institution” or “facility,” rather than “prison,” because such terms might have confused the jury, or led it to speculate on the circumstances surrounding his confinement. Moreover, the court instructed the jury that the evidence was admitted solely for the purpose of evaluating the expert’s opinion. Thus, the probative value of the evidence outweighed any prejudicial effect, which was avoided by the court’s thorough limiting instructions … .

The dissent claims that the trial court infringed on defendant’s ability to present a defense when the court prevented defendant’s expert from expanding on his answers provided during cross-examination about defendant’s prior violent act. Defendant did not preserve his claim regarding the alleged limitations on his expert’s testimony, and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. People v Sanabria, 2017 NY Slip Op 04359, 1st Dept 6-1-17

CRIMINAL LAW (EVIDENCE, PRIOR CRIMES, REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT)/EVIDENCE (CRIMINAL LAW, PRIOR CRIMES, REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT)/PRIOR CRIMES AND BAD ACTS (CRIMINAL LAW, EVIDENCE, REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT)

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WHETHER THE POLICE ENTRY INTO DEFENDANT’S HOME WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE COURT OF APPEALS.

The Court of Appeals, over an extensive dissent by Judge Rivera, determined whether entry into defendant’s home was justified by exigent circumstances is a mixed question of facts and law that cannot be addressed by the Court of Appeals:

The order of the Appellate Division should be affirmed. The conclusion that the warrantless entry by police into defendant’s home was justified by exigent circumstances is a mixed question of law and fact. Where, as here, there is support in the record for the Appellate Division’s conclusion, the issue is beyond our further review … . “The rule applies ‘where the facts are disputed . . . or where reasonable minds may differ as to the inference to be drawn [from the established facts]'”… . The dissent’s conclusion to the contrary is based on a narrative derived from the suppression hearing record that unduly emphasizes the testimony and resulting inferences that are favorable to defendant. …

RIVERA, J. (dissenting):

As a matter of law, there is no record evidence to support the trial court’s ruling that exigent circumstances justified the warrantless entry into defendant’s home … . Therefore, the Appellate Division should be reversed and a new trial ordered. I dissent. People v Sivertson, 2017 NY Slip Op 04320, CtApp 6-1-17

 

CRIMINAL LAW (APPEALS, COURT OF APPEALS, WHETHER THE POLICE ENTRY INTO DEFENDANT’S home WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE THE COURT OF APPEALS)/APPEALS (CRIMINAL LAW, COURT OF APPEALS, WHETHER THE POLICE ENTRY INTO DEFENDANT’S HOME WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE THE COURT OF APPEALS)/SUPPRESS, MOTION TO (CRIMINAL LAW, APPEALS, COURT OF APPEALS, WHETHER THE POLICE ENTRY INTO DEFENDANT’S HOME WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE THE COURT OF APPEALS)/EXIGENT CIRCUMSTANCES (CRIMINAL LAW, SUPPRESSION, APPEALS, COURT OF APPEALS, WHETHER THE POLICE ENTRY INTO DEFENDANT’S HOME WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE THE COURT OF APPEALS)

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PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT.

The Second Department determined plaintiffs had received title to real property free of any encumbrances. Plaintiffs had purchased the property from Edwin Ramsey. Ramsey and his wife. Bertha, had owned the property as tenants by the entirety. Upon the death of Bertha, Edwin owned the property free and clear. Defendant’s argument that the Ramsey’s had agreed to hold separate interests in the property was based upon hearsay, which, standing alone, will not defeat a summary judgment motion:

A disposition of real property to a husband and wife creates in them a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in common” (EPTL 6-2.2[b]…). “[A] surviving tenant in a tenancy by the entirety receives the fee interest in its entirety, free and clear of any debts, claims, liens or other encumbrances as against the deceased spouse” … . Here, the plaintiffs demonstrated, prima facie, that they were entitled to summary judgment. Their evidence, including Edwin and Bertha’s 1968 marriage certificate and the 1972 deed, showed that Edwin and Bertha had a tenancy by the entirety in the property, as they were married at the time of the 1972 deed conveying the property to them and the deed did not “expressly declare[ ] [there] to be a joint tenancy or a tenancy in common” (EPTL 6-2.2[b]). Thus, when Bertha died in 2012, Edwin, as the surviving spouse, “receive[d] the fee interest in its entirety, free and clear of any debts, claims, liens or other encumbrances as against” Bertha … . Edwin was thereafter free to convey the property to the plaintiffs, which he did. Cormack v Burks, 2017 NY Slip Op 04252, 2nd Dept 5-31-17

TRUSTS AND ESTATES (PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT)/REAL PROPERTY (TENANTS BY THE ENTIRETY, PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT)/TENANTS BY THE ENTIRETY (TRUSTS AND ESTATES, PROPERTY OWNED AS TENANTS BY THE ENTIRETY PASSES FREE AND CLEAR TO THE SURVIVING SPOUSE, PURCHASE FROM THE SURVIVING SPOUSE PROVIDES CLEAR TITLE, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT)/CIVIL PROCEDURE (SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)/EVIDENCE (SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)/HEARSAY (SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)/EVIDENCE (HEARSAY, SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT A SUMMARY JUDGMENT MOTION)

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SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER.

The Second Department determined defendant’s statement to a teacher that on the day he was fired from his school custodian job he would “Columbine this shit” was not legally sufficient evidence of a “terrorist threat” within the meaning of the Penal Law. The indictment was properly dismissed upon reading the grand jury minutes:

” In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'”… . “The reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference”… .

According to the grand jury minutes, the defendant, who was a custodian at a school for more than a decade, was eating a sandwich in the school’s faculty break room when a teacher entered the room and asked how he was doing after the first week of school. The defendant allegedly told the teacher that another teacher was on his “shit list,” and that “people better stay out of [his] way.” When the teacher told him, among other things, that he should “try to relax a little bit” and that “we all have to like work together here,” the defendant allegedly got out of his chair and told the teacher that she “better be absent the day they fire me because I am going to come in here and Columbine this shit.” He then mimed shooting a gun while imitating gun noises. Based upon his statements, the defendant was charged in an indictment with making a terroristic threat (Penal Law § 490.20), a class D felony.

Penal Law article 490 was enacted shortly after the attacks on September 11, 2001, to ensure that terrorists are prosecuted and punished in state courts with appropriate severity … . In construing the statute, courts must be cognizant that “the concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act” … . Penal Law § 490.20(1) provides, in pertinent part, that “[a] person is guilty of making a terroristic threat when with intent to intimidate . . . a civilian population . . . he or she threatens to commit or cause to be committed a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense.”

Contrary to the People’s contentions, the Supreme Court properly granted that branch of the defendant’s omnibus motion which was to dismiss the indictment since the People failed to present legally sufficient evidence that the defendant’s comment caused a reasonable expectation or fear of the imminent commission of a specified offense … . The teacher testified that she did not believe that the defendant’s threat of a school shooting was imminent and, therefore, she waited to report the defendant’s comment. Moreover, the defendant’s alleged threat was expressly conditioned by the phrase, “the day they fire me.” The People did not present any evidence that the defendant was about to be terminated from his job, or had any reason to believe that he was going to be terminated. People v Hulsen, 2017 NY Slip Op 04294, 2nd Dept 5-31-17

 

CRIMINAL LAW (TERRORISTIC THREAT, EVIDENCE, SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER)/EVIDENCE (CRIMINAL LAW, TERRORISTIC THREAT, SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER)/GRAND JURY (EVIDENCE, TERRORISTIC THREAT,  SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER)/TERRORISM (CRIMINAL LAW, TERRORISTIC THREAT, SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER)

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EVIDENCE THE SON WAS DRIVING HIS FATHER’S CAR WITHOUT HIS FATHER’S PERMISSION, THEREBY RELIEVING THE FATHER OF LIABILITY, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN THIS PROPERTY DAMAGE CASE.

The Second Department determined defendants father and son (Daniel) did not submit sufficient evidence that Daniel was driving his father’s car without permission to warrant summary judgment. Daniel had driven the car through a person’s house, causing nearly $190,000 in damage. The insurer sued defendants:

Vehicle and Traffic Law § 388(1) “makes every owner of a vehicle liable for injuries resulting from negligence in the use or operation of such vehicle . . . by any person using or operating the same with the permission, express or implied, of such owner'”… . Under this statute, there is a presumption that the operator of a vehicle operates it with the owner’s permission … . The presumption may be rebutted by substantial evidence that the owner did not give the operator consent … . …

“The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use”… . Additionally, ” [i]f the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest of the witnesses or other weakness, may reasonably be disregarded by the jury, its weight lies with the jury'” … .

“Although the rule is not absolute or invariable, in most cases uncontradicted disavowals of permission by both the owner of the vehicle and the driver will constitute substantial evidence negating permissive use and entitle the owner to summary judgment” … . However, “disavowals by both the owner and the driver, without more, should not automatically result in summary judgment for the owner” … . Ultimately, “whether summary judgment is warranted depends on the strength and plausibility of the disavowals [of permission], and whether they leave room for doubts that are best left for the jury” … .

Under the circumstances of this case, the Supreme Court properly determined that the appellant failed to sufficiently rebut the strong presumption pursuant to Vehicle and Traffic Law § 388 that Daniel was operating the vehicle with his permission … . Daniel had access to the appellant’s residence. Further, the key to the vehicle was kept in a “central location” inside a bin located in the kitchen of the appellant’s residence. Additionally, on previous occasions, Daniel had been permitted by the appellant to drive other vehicles owned by the appellant. Accordingly, the Supreme Court properly concluded that the appellant failed to establish his prima facie entitlement to judgment as a matter of law and, as a result, we need not consider the sufficiency of the opposition papers … . State Farm Fire & Cas. Co. v Sajewski, 2017 NY Slip Op 04310, 2nd Dept 5-31-17

NEGLIGENCE (VEHICLE AND TRAFFIC LAW, OWNER’S VICARIOUS LIABILITY, EVIDENCE THE SON WAS DRIVING HIS FATHER’S CAR WITHOUT HIS FATHER’S PERMISSION, THEREBY RELIEVING THE FATHER OF LIABILITY, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN THIS PROPERTY DAMAGE CASE)/VEHICLE AND TRAFFIC LAW (VEHICLE OWNER’S VICARIOUS LIABILITY, EVIDENCE THE SON WAS DRIVING HIS FATHER’S CAR WITHOUT HIS FATHER’S PERMISSION, THEREBY RELIEVING THE FATHER OF LIABILITY, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN THIS PROPERTY DAMAGE CASE)/TRAFFIC ACCIDENTS (VEHICLE AND TRAFFIC LAW, OWNER’S VICARIOUS LIABILITY, EVIDENCE THE SON WAS DRIVING HIS FATHER’S CAR WITHOUT HIS FATHER’S PERMISSION, THEREBY RELIEVING THE FATHER OF LIABILITY, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN THIS PROPERTY DAMAGE CASE)

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EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY.

The Second Department determined defendant was entitled to the small-property exemption for liability for sidewalk defects in this slip and fall case. Although the sidewalk where plaintiff fell abutted an undeveloped lot, defendant (Manley) demonstrated the lot was part of the residential premises:

In 2003, the New York City Council enacted the Sidewalk Law to shift tort liability for injuries resulting from defective sidewalks from the City to abutting property owners … . This liability-shifting provision, however, does not apply to “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” (Administrative Code of City of NY § 7-210[b]). The exemption was provided in recognition that it was inappropriate to expose “small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair”… .

Here, in support of her motion, Manley established her prima facie entitlement to the small-property owner exemption. Manley established, prima facie, that the lot abutting the sidewalk where the plaintiff allegedly was injured was part of her residential premises for all practical purposes and that her use of her property qualified in all other respects for the small-property owner exemption. As we have recognized, this exemption is concerned with the ownership and use of the relevant property, not its technical designation … . Manley additionally established, prima facie, that she did not create the alleged sidewalk defect or make special use of the sidewalk and thus could not be held liable under common-law principles … . Johnson v Manley, 2017 NY Slip Op 04259, 2nd Dept 5-31-17

 

NEGLIGENCE (EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY)/MUNICIPAL LAW (NYC) (EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY)/SIDEWALKS (MUNICIPAL LAW, NEGLIGENCE, EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY)/SLIP AND FALL (MUNICIPAL LAW, SIDEWALKS, EVEN THOUGH THE ALLEGEDLY DEFECTIVE SIDEWALK ABUTTED AN UNDEVELOPED LOT, DEFENDANT WAS ENTITLED TO THE SMALL-PROPERTY EXEMPTION FROM TORT LIABILITY)

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