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RACE TRACK WAIVER OF LIABILITY INVALID, PRIMARY ASSUMPTION OF RISK NOT APPLICABLE, IMPLIED ASSUMPTION OF RISK APPLICABLE, LAW OF THE CASE DID NOT PRECLUDE DIRECTED VERDICT AFTER DENIAL OF SUMMARY JUDGMENT ON THE SAME ISSUES.

The Fourth Department, in a substantive decision dealing with several liability and damages issues not summarized here, determined the trial court properly granted plaintiff’s motion for a directed verdict finding the liability waiver invalid and the doctrine of primary assumption of risk inapplicable. The Fourth Department concluded the doctrine of implied assumption of risk was applicable, however. The Fourth Department further held that the law of the case doctrine did not preclude the court from directing a verdict in plaintiff’s favor after denying plaintiff’s motion for summary judgment on the same issues. Plaintiff’s son was in an auto race at defendant race track. Plaintiff was in the pit area when defendant driver (Holland) backed his car into plaintiff:

Contrary to defendants’ contention, the court properly granted plaintiff’s motion for a directed verdict establishing that the liability waiver was invalid and that the action was not barred by the doctrine of primary assumption of the risk, inasmuch as there was “no rational process” by which the jury could have found in favor of defendants on those issues … . With respect to the waiver, General Obligations Law § 5-326 voids any such agreement entered into in connection with, as relevant here, the payment of a fee by a “user” to enter a place of recreation. Plaintiff testified at trial that he was a mere spectator on the night of the accident, thereby establishing that he was a user entitled to the benefit of section 5-326 … , and there was no evidence from which the jury could have rationally found that plaintiff was a participant in the event whose attendance was “meant to further the speedway venture” … . …

With respect to the doctrine of primary assumption of the risk, we conclude that the risk that a pedestrian will be struck by a driver backing up in the pit area, well before the driver is participating in a race, is not inherent in the activity of automobile racing … , and thus that the doctrine is inapplicable to this case … .

We reject defendants’ further contention that the doctrine of law of the case precluded the court from directing a verdict in plaintiff’s favor after it had denied prior motions by plaintiff directed at the issues of waiver and primary assumption of the risk, including a motion for partial summary judgment. ” A denial of a motion for summary judgment is not necessarily . . . the law of the case that there is an issue of fact in the case that will be established at the trial’ “… . …

We further agree with defendants that a charge on implied assumption of the risk should have been given because there was evidence that plaintiff “disregard[ed] a known risk by voluntarily being in a dangerous area” … . Inasmuch as the jury was properly instructed on comparative negligence and apportioned 20% of the liability for the accident to plaintiff, however, we conclude that this error did not prejudice a substantial right of defendants and thus does not warrant reversal … . Knight v Holland, 2017 NY Slip Op 02525, 4th Dept 3-31-17

 

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NO SHOWING RUG OVER WHICH PLAINTIFF TRIPPED WAS NOT FLUSH TO THE FLOOR, HEIGHT DIFFERENTIAL WAS TRIVIAL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED.

The Fourth Department, over a dissent, reversing Supreme Court, determined plaintiff’s slip and fall complaint should have been dismissed. Plaintiff alleged he tripped on the corner of a rug. The Fourth Department found, as a matter of law, the rug was in place and plaintiff’s foot went under it. The height of the rug was a trivial, nonactionable defect:

… [W]e conclude that defendant established as a matter of law that the alleged defect created by the placement of a rug in the vestibule and any apparent height differential between the rug and the floor “is too trivial to be actionable” … . “[T]he test established by the case law in New York is not whether a defect is capable of catching a pedestrian’s shoe. Instead, the relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances” … . Defendant’s submissions established that the accident occurred between approximately 10:00 and 10:30 a.m., when it was “bright enough to see.” Plaintiff was entering defendant’s restaurant behind his son, and there were no other customers in the vicinity. The photograph submitted by defendant depicting the rug does not reveal any defect or irregularity with the rug, and the videotape of the incident shows that the area where plaintiff fell was unobstructed, no other patrons had an issue traversing through the doors and over the rug, and there was no appreciable ripple or other height differential present in the rug to cause a tripping hazard. Thus, after examining the photograph and the video depicting the placement of the rug in the vestibule, and ” in view of the time, place, and circumstances of plaintiff’s injury,’ ” we conclude that defendant established as a matter of law that any defect in the rug was too trivial to be actionable … . Langgood v Carrols, LLC, 2017 NY Slip Op 02528, 4th Dept 3-31-17

 

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DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO INTRODUCE TAPED THIRD-PARTY CONFESSION, THE RELIABILITY PRONG OF THE STATEMENT AGAINST PENAL INTEREST CRITERIA WAS VERY WEAK.

The Fourth Department determined the defendant’s motion to vacate the judgment of conviction on ineffective assistance grounds was properly denied. The basis of the ineffective assistance claim was his attorney’s failure to put in evidence a third party’s taped confession to the crime (to which defendant had pled guilty). The Fourth Department explained the tape recording did not meet the criteria for a statement against penal interest:

“The declaration against penal interest exception to the hearsay rule recognizes the general reliability of such statements . . . because normally people do not make statements damaging to themselves unless they are true’ ” … . “The exception has four components: (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability … . “The fourth factor is the most important’ aspect of the exception” … , and “[t]he crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself” … . Where, as here, the declaration exculpates the defendant, “[s]upportive evidence is sufficient if it establishes a reasonable possibility that the [declaration] might be true” … . …

In support of her conclusion that the confession was inadmissible, trial counsel testified that all she had was a voice on a tape recording and, based on her discussions with the prior attorney, “there was some question as to whether [the third party] was even voluntarily in [the prior attorney’s] office” when he made the confession. Defendant testified that the third party was a friend of one of his sisters, and that the third party and defendant’s sister smoked crack cocaine together. … [T]he prior attorney made arrangements for the third party to be appointed counsel, but the third party disappeared shortly thereafter and, despite diligent efforts, including maintaining the investigator’s search, trial counsel was unable to locate him even up through defendant’s trial. People v Conway, 2017 NY Slip Op 02530, 4th Dept 3-31-17

 

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TRIAL JUDGE’S GRANT OF A TRIAL ORDER OF DISMISSAL IN THIS MURDER CASE WAS ERROR, HOWEVER THERE IS NO STATUTORY AUTHORITY FOR THE PEOPLE’S APPEAL.

The Fourth Department determined the People did not have statutory authority to appeal the grant of a trial order of dismissal after a mistrial had been declared because the jury could not reach a verdict. The Fourth Department explicitly stated that it had reviewed the evidence and found it legally sufficient to support the charge (murder). The trial order of dismissal, then, should not have been granted. But there was no mechanism for the People to appeal the error:

“It is fundamental that in the absence of a statute expressly authorizing a criminal appeal, there is no right to appeal” … . CPL 450.20, the “exclusive route for a People’s appeal” … , does not authorize this appeal. Contrary to the People’s contention, CPL 450.20 (2) does not provide the statutory basis for this appeal, inasmuch as the order they seek to appeal did not set aside a guilty verdict and dismiss the indictment pursuant to CPL 290.10 (1) (b). Rather, there was no guilty verdict to set aside, and the order was issued pursuant to CPL 290.10 (1) (a). Thus, the order is not appealable … . We may not “create a right to appeal out of thin air” in order to address the merits “without trespassing on the Legislature’s domain and undermining the structure of article 450 of the CPL—the definite and particular enumeration of all appealable orders” … . Were we able to review the merits, however, we would agree with the People that the court erred in dismissing the indictment. A “review [of] the legal sufficiency of the evidence as defined by CPL 70.10 (1), [while] accepting the competent evidence as true, in the light most favorable to the People,” compels the conclusion that the evidence was legally sufficient to support the charge … . People v Tan, 2017 NY Slip Op 02541, 4th Dept 3-31-17

 

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RECORDS OF PLAINTIFF’S STAY AT A SHELTER FOR VICTIMS OF DOMESTIC VIOLENCE ARE DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION AS DEEMED APPROPRIATE BY THE TRIAL COURT UPON REVIEW, DEFENDANTS ENTITLED TO PRIVILEGE LOG.

The Fourth Department determined the records of plaintiff’s stay at a shelter for domestic violence victims were not protected by privilege. The defendants in this medical malpractice action sought the records and the plaintiff’s privilege log. The medical malpractice action stemmed from treatment of injuries from an assault. The Fourth Department held that the defendants were entitled to the privilege log, which plaintiff the trial court had ordered submitted only to the court. After the defendants review the log the trial court should hear argument from the defendants concerning the discoverability of any identified documents:

… [T]he shelter records are not protected by any privilege, and they are thus subject to disclosure to the extent that they are material and necessary to the defense of the action … . Even assuming, arguendo, that the records were prepared by licensed social workers, which is not evident from the records themselves, we conclude that plaintiff waived any privilege afforded by CPLR 4508 by affirmatively placing her medical and psychological condition in controversy through the broad allegations of injury in her bills of particulars … . Inasmuch as defendants are not seeking disclosure of the street address of the shelter, we reject plaintiff’s contention that Social Services Law § 459-h precludes disclosure of the records. Furthermore, 18 NYCRR 452.10 (a), which renders confidential certain information “relating to the operation of residential programs for victims of domestic violence and to the residents of such programs,” does not preclude disclosure of the records because that regulation allows for access to such information “as permitted by an order of a court of competent jurisdiction” … . That regulation does not preclude a court from ordering disclosure of shelter records that are material and necessary to the defense of an action … .

… [W]e conclude that defendants are not entitled to ” unfettered disclosure’ ” of plaintiff’s potentially sensitive shelter records … . Indeed, we note that a court is “entitled to consider . . . the personal nature of the information sought” in making a disclosure order … . We agree with defendants, however, that the court should have directed plaintiff to provide a copy of her privilege log to them rather than directing her to provide it only to the court as an aid for its in camera review of the records. Abraha v Adams, 2017 NY Slip Op 02526, 4th Dept 3-31-17

 

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RESULTS OF NYPD DISCIPLINARY TRIALS ARE PERSONNEL RECORDS EXEMPT FROM A FREEDOM OF INFORMATION LAW REQUEST.

The First Department, reversing Supreme Court, determined that the results of NYPD police officer disciplinary trials were personnel records which are exempt from a Freedom of Information Law request:

Public Officers Law § 87(2)(a) provides that an agency “may deny access to records” that “are specifically exempted from disclosure by state . . . statute.” The NYPD disciplinary decisions sought here fall within Civil Rights Law § 50-a, which makes confidential police “personnel records used to evaluate performance toward continued employment or promotion” … .

The fact that NYPD disciplinary trials are open to the public (38 RCNY 15-04[g]) does not remove the resulting decisions from the protective cloak of Civil Rights Law § 50-a … . Whether the trials are public and whether the written disciplinary decisions arising therefrom are confidential are distinct questions governed by distinct statutes and regulations … . Further, the disciplinary decisions include the disposition of the charges against the officer as well as the punishment imposed, neither of which is disclosed at the public trial. Matter of New York Civ. Liberties Union v New York City Police Dept., 2017 NY Slip Op 02506. 1st Dept 3-30-17

 

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RECORDS OF PROCEEDINGS BEFORE THE CIVILIAN COMPLAINT REVIEW BOARD ARE POLICE OFFICER PERSONNEL RECORDS WHICH ARE EXEMPT FROM A FREEDOM OF INFORMATION LAW REQUEST.

The First Department, in a full-fledged opinion by Justice Sweeney, reversing Supreme Court, determined Civilian Complaint Review Board (CCRB) records are police officer “personnel records” and are therefore exempt from disclosure under the Public Officers Law and Civil Rights Law. Petitioner sought a summary of any CCRB proceedings involving Officer Pantaleo, who was videotaped applying a choke hold to Eric Garner. Eric Garner died while being restrained by police officers:

We are called upon to determine whether the documents sought herein are the type of documents that fall within the parameters of “personnel records” and are thus protected from disclosure. Civil Rights Law § 50-a does not define “personnel records,” leaving it to the courts to determine the kind of documents qualify for this exemption. * * *

… [T]here is no question that the summary sought involves one officer and are part and parcel of his personnel file. There is also no question that the records sought are “used to evaluate performance toward continued employment or promotion,” as required by the statute. …

CCRB findings and recommendations are clearly of significance to superiors in evaluating police officers’ performance. As noted, all complaints filed with the CCRB, regardless of the outcome, are filed with and remain in an officer’s CCRB history, which is part of his or her personnel record maintained by the NYPD. We therefore hold that the CCRB met its burden of demonstrating that those documents constitute “personnel records” for purposes of Civil Rights Law § 50-a, and that they fall squarely within a statutory exemption of the statute … . Matter of Luongo v Records Access Officer, Civilian Complaint Review Bd., 2017 NY Slip Op 02523, 1st Dept 3-30-17

 

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EXERTIONAL ABILITY OF LESS THAN SEDENTARY WORK DOES NOT EQUATE TO A FINDING OF PERMANENT TOTAL DISABILITY, PERMANENT PARTIAL DISABILTIY FINDING AFFIRMED.

The Third Department, over a two-justice dissent, determined the evidence supported the Workers’ Compensation Board’s permanent partial disability finding. Claimant argued she was totally disabled and contended the Board’s finding she has an exertional ability of “less than sedentary work” equated to a finding of permanent total disability. On that issue, the Third Department wrote:

Under the Board guidelines, physicians are required to perform an evaluation of a claimant’s functional capabilities, including his or her exertional abilities (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 44-46 [2012]). The finding of a claimant’s exertional ability is a factor to be considered by the Board in determining the claimant’s loss of wage-earning capacity … . The loss of wage-earning capacity is used to establish the duration of benefits for claimants that have sustained a permanent partial disability … . “In contrast, a permanent total disability is established where the medical proof shows a claimant is totally disabled and unable to engage in any gainful employment. The duration of benefits is not an issue in the permanent total disability context for the simple reason that there is no expectation that a claimant found to have such a disability will rejoin the work force” … . Accordingly, a finding that a claimant has an exertional ability of performing less than sedentary work, while a factor to consider in setting the duration of a permanently partially disabled claimant’s benefits, is not dispositive in the context of establishing the claimant’s overall disability. Rather, the exertional ability to work is applicable only to those claimants already found to have sustained a permanent partial disability and, therefore, are expected to rejoin the work force. Matter of Burgos v Citywide Cent. Ins. Program, 2017 NY Slip Op 02489, 3rd Dept 3-30-17

 

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BUILDING AND HOME INSPECTORS WERE EMPLOYEES OF ENGINEERING FIRM.

The Third Department determined architects and engineers hired by Tauscher to conduct building and home inspections were employees entitled to unemployment insurance benefits:

Here, although the inspectors signed a standard agreement identifying them as independent contractors, the agreement contained a noncompete clause prohibiting the inspectors from working directly or indirectly with competing engineering firms within Tauscher’s geographic region, including 100 miles from the Empire State Building in New York City. The agreement further provided that the inspectors perform their inspections in accordance with industry and professional standards and that their post-inspection reports be drafted on forms provided by Tauscher and submitted to Tauscher within a limited time frame. The inspectors were also required to participate in Tauscher’s self-insurance fund, as well as pay for professional liability insurance obtained by Tauscher, and to share in the costs of any litigation arising out of the inspections. Tauscher scheduled the time of the inspections, which were not subject to modification by the inspectors, and would seek a replacement inspector if the original inspector was unavailable. Tauscher also provided the inspectors with business cards bearing Tauscher’s name to provide to its clients.

With regard to compensation, Tauscher established the fees that clients were required to pay for the inspections and also unilaterally set the percentage of the fees that constituted payment for the inspectors. In order for the inspectors to receive payment, they were required to submit invoices to Tauscher, which in turn would pay the inspectors directly. In addition, Tauscher managed the billing of, and collection from, clients. Notwithstanding the proof in the record that could support a contrary result, the foregoing evidence demonstrates that Tauscher retained overall control over important aspects of the services performed by the inspectors, and we therefore find that substantial evidence supports the determination of the Board assessing Tauscher additional unemployment insurance contributions for remuneration paid to the inspectors … . Matter of Tauscher Cronacher PE PC (Commissioner of Labor). 2017 NY Slip Op 02488. 3rd Dept 3-30-17

 

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DEFENDANT FOUND NOT GUILTY BY REASON OF INSANITY CAN BE SUED FOR WRONGFUL DEATH UNDER THE EPTL, BOTH FOR THE STABBING DEATH OF HIS MOTHER AND THE RELATED SUICIDE OF HIS BROTHER.

The First Department, reversing Supreme Court, determined the fact that defendant was found not guilty by reason of insanity in connection with the stabbing of his mother did not preclude wrongful death claims against him pursuant to EPTL 5-4.1, both for the death of his mother and the related suicide of his brother:

Although defendant was found not guilty by reason of mental disease or defect in connection with the stabbing death of his mother, the complaint stated a viable wrongful death claim against him pursuant to EPTL 5-4.1, since an insane person may be liable in tort for his actions … . A wrongful death claim was also stated on behalf of defendant’s brother, who committed suicide after his mother’s murder. Rosen v Schwartz, 2017 NY Slip Op 02517, 1st Dept 3-30-17

 

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