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RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT.

The Fourth Department, reversing (modifying) Supreme Court, determined that the “reckless disregard” standard applied to the defendant police officer’s driving and dismissed plaintiff bicyclist’s complaint. Apparently, the officer was moving his car into an intersection, trying to get the attention of another driver to whom he wished to speak. Plaintiff bicyclist, who had the green light, collided with the officer’s car:

… [W]e note that there is no dispute that defendant officer was operating an “authorized emergency vehicle” (Vehicle and Traffic Law § 101). We reject plaintiff’s contention that, in determining whether defendant officer’s operation of the police vehicle qualifies as an “emergency operation” within the meaning of Vehicle and Traffic Law § 114-b, we should adopt the definition of “pursuit” contained in the operations manual of defendant City of Syracuse Police Department … . Likewise, it is irrelevant whether defendant officer believed he was involved in an emergency operation … . Contrary to plaintiff’s further contentions, we conclude that defendant officer’s actions constituted an “emergency operation” as contemplated by Vehicle and Traffic Law § 114-b … ; the applicable standard of liability is reckless disregard for the safety of others rather than ordinary negligence (see § 1104 [e]…); and defendants established as a matter of law that defendant officer’s conduct did not constitute the type of recklessness necessary for liability to attach … . Lacey v City of Syracuse, 2016 NY Slip Op 07794, 4th Dept 11-18-16

MUNICIPAL LAW (POLICE OFFICERS, RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)/NEGLIGENCE (POLICE OFFICERS, RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)/EMERGENCY VEHICLES (POLICE OFFICERS, RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)/POLICE OFFICERS (RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)

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LOAN WHICH INCLUDED A SET AMOUNT DESIGNATED AS INTEREST WAS NOT USURIOUS, CRITERIA EXPLAINED.

The Fourth Department determined the loan secured by a mortgage was not usurious. The $170,000 loan included $43,000 designated as interest. Whether the interest was usurious should have been determined based upon the term of loan, not when the foreclosure action was commenced:

In determining whether the interest charged exceeded the usury limit, courts must apply the traditional method for calculating the effective interest rate as set forth in Band Realty Co. v North Brewster, Inc. (37 NY2d 460, 462 …). According to that method, “[s]o long as all payments on account of interest did not aggregate a sum greater than the aggregate of interest that could lawfully have been earned had the debt continued to the earliest maturity date, there would be no usury” … . In applying the traditional formula, “[t]he discount, divided by the number of years in the term of the mortgage, should be added to the amount of interest due in one year, and this sum is compared to the difference between the principal and the discount in order to determine the true interest rate” … .

Applying that formula to the case at bar, which involves a five-year mortgage of $170,000 with a $43,000 “discount” with no additional interest, we add $8,600, which is one-fifth of the discount, to the interest over the first year (0%), arriving at a sum of $8,600. Comparing the $8,600 figure to the difference between the principal and the discount retained by plaintiff, i.e., $127,000, the interest rate was 6.77% per annum. That interest rate is well below the civil usury rate of 16% per annum … . Canal v Munassar, 2016 NY Slip Op 07793, 4th Dept 11-18-16

FORECLOSURE (LOAN WHICH INCLUDED A SET AMOUNT DESIGNATED AS INTEREST WAS NOT USURIOUS, CRITERIA EXPLAINED)/MORTGAGES (LOAN WHICH INCLUDED A SET AMOUNT DESIGNATED AS INTEREST WAS NOT USURIOUS, CRITERIA EXPLAINED)/USURY (LOAN WHICH INCLUDED A SET AMOUNT DESIGNATED AS INTEREST WAS NOT USURIOUS, CRITERIA EXPLAINED)

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FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER.

The Fourth Department determined the Family Court judge should have recused herself from a dispositional hearing in a permanent neglect proceeding. Father had made a death threat against the judge following the finding of permanent neglect:

It is well settled that, “[a]bsent a legal disqualification under Judiciary Law § 14, a . . . Judge is the sole arbiter of recusal” … , and the decision whether to recuse is committed to his or her discretion … . Under these circumstances, and particularly in view of the order of protection, we conclude that the court abused its discretion in refusing to recuse itself … . Matter of Trinity E. (Robert E.), 2016 NY Slip Op 07804, 4th Dept 11-18-16

FAMILY LAW (FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER)/JUDGES (FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER)/RECUSAL (FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER)

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ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED.

The Fourth Department determined asking defendant (who was on a bicycle and properly stopped) why he was so nervous and whether he was carrying drugs was invasive questioning unsupported by an indication of criminal activity. Suppression of defendant’s statements and seized evidence should have been granted:

… [F]ollowing the permissible stop of defendant on his bicycle, the officers improperly escalated the encounter to a level two common-law inquiry by asking defendant why he was so nervous and whether he was carrying drugs. The officers’ inquiries, which involved “invasive questioning” that was “focuse[d] on the possible criminality” of defendant … , were not supported by the requisite founded suspicion of criminality … . The testimony at the suppression hearing establishes that the officers observed nothing indicative of criminality, and we conclude that defendant’s nervousness upon being confronted by the police did not give rise to a founded suspicion that criminal activity was afoot … . Because defendant’s inculpatory oral response to the impermissible accusatory questioning resulted in the seizure of the drugs from defendant’s pocket and a postarrest written statement from defendant, the drugs and the oral and written statements must be suppressed … . People v Freeman, 2016 NY Slip Op 07784, 4th Dept 11-18-16

CRIMINAL LAW (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)/SUPPRESSION (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)/STREET STOPS (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)

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ASKING DEFENDANT WHY HE WAS NERVOUS DEEMED A NONINCRIMINATING QUESTION, SUPPRESSION PROPERLY DENIED.

The Fourth Department determined the police officer’s asking defendant (a passenger in a car pulled over for a traffic infraction) why he was nervous was a nonincriminating question. Therefore defendant’s statement he had “a little bit of weed” and the results of a search were not subject to suppression:

We conclude that, after the stop, the officer was permitted to approach defendant as a passenger in the vehicle and ask nonincriminating questions … . Contrary to defendant’s contention, the officer’s question in response to defendant’s manifest nervousness did not “exceed[ ] a request for information and the question[ ] was neither invasive nor focused on possible criminality” … . Indeed, defendant’s admission that he possessed marihuana in response to the officer’s inquiry “went far beyond what the officer’s words could reasonably expect to evoke” … . People v Williams, 2016 NY Slip Op 07776, 4th Dept 11-18-16

CRIMINAL LAW (ASKING DEFENDANT WHY HE WAS NERVOUS DEEMED A NONINCRIMINATING QUESTION, SUPPRESSION PROPERLY DENIED)/SUPPRESSION (ASKING DEFENDANT WHY HE WAS NERVOUS DEEMED A NONINCRIMINATING QUESTION, SUPPRESSION PROPERLY DENIED)/STREET STOPS (ASKING DEFENDANT WHY HE WAS NERVOUS DEEMED AN NONINCRIMINATING QUESTION, SUPPRESSION PROPERLY DENIED)

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NOT ASKING A GRAND JURY TO CONSIDER A CHARGE FOR WHICH SOME EVIDENCE WAS PRESENTED DID NOT AMOUNT TO WITHDRAWAL OF THE CHARGE (WHICH WOULD REQUIRE JUDICIAL PERMISSION TO RE-PRESENT).

The Fourth Department determined that not asking a grand jury to consider a charge is not the same as withdrawing a charge from the grand jury (which would require a judge’s permission to re-present):

… [T]he Court of Appeals has made clear that, ” [b]efore a grand jury may be said to have acted upon a charge, there must be some indication that it knew about it’ ” (Wilkins, 68 NY2d at 274). Moreover, “[t]here is no evidence in this record that would raise the primary concern of . . . Wilkins, namely that the People withdrew [the criminal sale charges] in order to present [them] to a more compliant grand jury” … . The People’s decision not to present the criminal sale charges for the consideration of the first grand jury is not ” fundamentally inconsistent with the objectives underlying CPL 190.75′ ” … , and we therefore conclude that this case does not present those ” limited circumstances’ ” to which the holding of Wilkins applies (id.). People v Lopez, 2016 NY Slip Op 07772, 4th Dept 11-18-16

CRIMINAL LAW (NOT ASKING A GRAND JURY TO CONSIDER A CHARGE FOR WHICH SOME EVIDENCE WAS PRESENTED DID NOT AMOUNT TO WITHDRAWAL OF THE CHARGE, WHICH WOULD REQUIRE JUDICIAL PERMISSION TO RE-PRESENT)/GRAND JURIES (NOT ASKING A GRAND JURY TO CONSIDER A CHARGE FOR WHICH SOME EVIDENCE WAS PRESENTED DID NOT AMOUNT TO WITHDRAWAL OF THE CHARGE, WHICH WOULD REQUIRE JUDICIAL PERMISSION TO RE-PRESENT)

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JUDGE SHOULD HAVE MADE AN INQUIRY INTO ALLEGATIONS OF JUROR BIAS BASED UPON AN OBSERVATION DURING A RECESS, NEW TRIAL ORDERED.

The Fourth Department, over a two-justice dissent, determined the trial judge should have inquired further into the allegation of juror bias. One of defendant’s friends told the court two jurors were overheard referring to defendant as a scumbag during a recess:

“If at any time after the trial jury has been sworn and before the rendition of its verdict, . . . the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case . . . the court must discharge such juror” (CPL 270.35 [1]). The standard for discharging a sworn juror is satisfied ” when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict’ ” … . There is a well-established framework by which the court must evaluate a sworn juror who, for one reason or another, may possess such a state of mind … .

To make a proper determination, the court “must question each allegedly unqualified juror individually in camera in the presence of the attorneys and defendant” (Buford, 69 NY2d at 299). “In a probing and tactful inquiry, the court should evaluate the nature of what the juror has seen, heard, or has acquired knowledge of, and assess its importance and its bearing on the case” (id.). During the inquiry, “the court should carefully consider the juror’s answers and demeanor to ascertain whether [his or] her state of mind will affect [his or] her deliberations” (id.). That accomplished, the court must place the reasons for its ruling on the record (see id.).

It has been emphasized repeatedly that ” each case must be evaluated on its unique facts’ ” … . To that end, the court must hold a Buford inquiry whenever there are facts indicating the possibility of juror bias, and must not base its ruling on speculation … . Not only does the court’s failure to hold an inquiry under such circumstances constitute reversible error, but its failure to place the reasons for its ruling on the record also constitutes reversible error … . Such errors are not subject to harmless error analysis … . People v Kuzdzal, 2016 NY Slip Op 07768, 4th Dept 11-18-16

 

CRIMINAL LAW (JUDGE SHOULD HAVE MADE AN INQUIRY INTO ALLEGATIONS OF JUROR BIAS BASED UPON AN OBSERVATION DURING A RECESS, NEW TRIAL ORDERED)/JURORS (CRIMINAL LAW, JUROR BIAS, JUDGE SHOULD HAVE MADE AN INQUIRY INTO ALLEGATIONS OF JUROR BIAS BASED UPON AN OBSERVATION DURING A RECESS, NEW TRIAL ORDERED)

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CLAIMANT PRECLUDED FROM FURTHER WORKERS’ COMPENSATION BENEFITS FOR FAILURE TO SEEK PERMISSION BEFORE SETTLING A RELATED TORT ACTION, MEANING OF THIRD PARTY ACTION IN THIS CONTEXT EXPLAINED.

The Third Department determined claimant did not seek permission from her Workers’ Compensation carrier before settling another action which arose from the some of the same allegations as her Workers’ Compensation claim. Therefore she was precluded from receiving future Workers’ Compensation benefits. Claimant unsuccessfully argued that the federal court action which settled was not a “third party” action within the meaning of the Workers’ Compensation Law because the action was against claimant’s co-worker and employer, not a “third party:”

“Workers’ Compensation Law § 29 (5) requires either the carrier’s consent or a compromise order from the court in which the third-party action is pending for a claimant to settle a third-party action and continue receiving compensation benefits” … . Claimant urges that her federal lawsuit was not a third-party action since the statute addresses “the negligence or wrong of another not in the same employ” (Workers’ Compensation Law § 29 [1]) and the associate dean who harassed her had the same employer as her. The Court of Appeals, however, has recently reiterated that Workers’ Compensation Law § 29, “‘read in its entirety and in context, clearly reveals a legislative design to provide for reimbursement of the compensation carrier whenever a recovery is obtained in tort for the same injury that was a predicate for the payment of compensation benefits'” … . “The Court reasoned that “‘[i]t would be unreasonable to read the statute as mandating a different result merely because the recovery came out of the pockets of a coemployee [or the employer] and not from the resources of a stranger'” … . Matter of Shiner v SUNY At Buffalo, 2016 NY Slip Op 07738, 3rd Dept 11-17-16

WORKERS’ COMPENSATION LAW (CLAIMANT PRECLUDED FROM FURTHER WORKERS’ COMPENSATION BENEFITS FOR FAILURE TO SEEK PERMISSION BEFORE SETTLING A RELATED TORT ACTION, MEANING OF THIRD PARTY ACTION IN THIS CONTEXT EXPLAINED)

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PLAINTIFF COULD NOT IDENTIFY CAUSE OF THE FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT.

The First Department determined defendants’ motion for summary judgment in this sidewalk slip and fall case was properly granted. Plaintiff could not identify the cause of the fall and any defect that might have existed was deemed trivial:

Defendants established prima facie that any defect in the sidewalk that allegedly caused plaintiff to trip and fall was insignificant and that there were no surrounding circumstances that magnified the dangers it posed … . They submitted plaintiff’s testimony that he could not describe the characteristics of the alleged defect or specify exactly where on the sidewalk he fell, and an affidavit by an expert who took photographs and measured the area and found no defect presenting an elevation differential of more than one quarter inch and no space between sidewalk slabs greater than one half inch. Contrary to plaintiff’s contention, the fact that the photographs were taken and the inspection performed almost two years after the accident is immaterial. Defendants submitted testimony that there had been no repairs to the sidewalk since the accident, and plaintiff does not argue that the photographs do not show the sidewalk in substantially the same condition as existed at the time of the accident.

In opposition, plaintiff failed to raise a triable issue of fact. He was unable to describe the defect, except to say that it was not wide and it was not deep, and he cites no surrounding circumstances that enhanced the danger. Nor did he offer any measurements of the alleged defects in the area of his fall in refutation of defendants’ expert’s measurements. Saab v CVS Caremark Corp., 2016 NY Slip Op 07763, 1st Dept 11-17-16

NEGLIGENCE (PLAINTIFF COULD NOT IDENTIFY CAUSE OF FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT)/SLIP AND FALL (PLAINTIFF COULD NOT IDENTIFY CAUSE OF FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT)/SIDEWALKS (SLIP AND FALL, PLAINTIFF COULD NOT IDENTIFY CAUSE OF FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT)/TRIVIAL DEFECTS (PLAINTIFF COULD NOT IDENTIFY CAUSE OF FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT)

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FALL OFF BACK OF FLATBED TRUCK WARRANTED SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION.

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was knocked off the back of a flatbed truck. The Labor Law 241(6) cause of action was properly dismissed (no sufficiently specific industrial code regulation applied). And defendants’ control over the injury-producing work was insufficient to support the Labor Law 200 cause of action:

The injured plaintiff testified that a metal beam, while being placed on a flatbed truck, fell off the blades of a forklift, slamming plaintiff’s foot and causing him to fall off the truck. This unrefuted testimony established prima facie that “plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” and therefore that liability exists under Labor Law § 240(1) … . The cases that defendants rely on are inapposite, since they involve not objects falling on or toward workers on flatbeds but workers falling from flatbeds, implicating only the adequacy of safety devices for falling workers, which is not at issue here … .

Nor was plaintiff the sole proximate cause of his injuries since the injuries “were caused at least in part by the lack of safety devices to check the beam’s descent as well as the manner in which [his coworker] lowered the beam” … . McLean v Tishman Constr. Corp., 2016 NY Slip Op 07754, 1st Dept 11-17-16

LABOR LAW-CONSTRUCTION LAW (FALL OFF BACK OF FLATBED TRUCK WARRANTED SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION)/FLATBED TRUCK (LABOR LAW, (FALL OFF BACK OF FLATBED TRUCK WARRANTED SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION)

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