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MANUFACTURER’S DUTY TO WARN EXTENDS TO JOINT USE OF ITS PRODUCT AND A PRODUCT MANUFACTURED BY A THIRD PARTY.

The Court of Appeals, in an extensive opinion by Judge Abdus-Salaam, with a concurring opinion, determined the manufacturer of valves used on Navy ships had a duty to warn of the dangers associated with the necessary replacement of asbestos packing made by a third-party.:

Under our precedent, “[a] manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known” … . Additionally, the manufacturer must warn of dangers arising from the product's “intended use or a reasonably foreseeable unintended use” … . The manufacturer's duty also includes a legal obligation to issue warnings regarding hazards arising from foreseeable uses of the product about which the manufacturer learns after the sale of the product … . The duty “extends to the original or ultimate purchasers of the product, to employees of those purchasers and to third persons exposed to a foreseeable and unreasonable risk of harm by the failure to warn” … . * * *

Accordingly, we recognize a manufacturer's duty to warn of the peril of a known and foreseeable joint use of its product and another product that is necessary to allow the manufacturer's product to work as intended. Matter of New York City Asbestos Litig., 2016 NY Slip Op 05063, CtApp 6-28-16

NEGLIGENCE (MANUFACTURER'S DUTY TO WARN EXTENDS TO JOINT USE OF ITS PRODUCT AND A PRODUCT MANUFACTURED BY A THIRD PARTY)/PRODUCTS LIABILITY (MANUFACTURERS'S DUTY TO WARN EXTENDS TO JOINT USE OF ITS PRODUCT AND A PRODUCT MANUFACTURED BY A THIRD PARTY)/DUTY TO WARN (NEGLIGENCE, PRODUCTS LIABILITY, MANUFACTURER'S DUTY TO WARN EXTENDS TO JOINT USE OF ITS PRODUCT AND A PRODUCT MANUFACTURED BY A THIRD PARTY)

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SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two-judge dissent, determined the SORA court did not err when it assessed 30 points for defendant's prior conviction (involving a different victim) for endangering the welfare of a child which did not involve a sexual offense. Based upon the language of the guidelines. the majority concluded the non-sexual offense could properly be considered subject to a possible downward departure. Here the SORA court, taking into consideration all the relevant evidence, was deemed justified in rejecting a downward departure:

As we recently stated, “[i]n determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to assess whether, under the totality of the circumstances, a departure is warranted” … . Here, the only mitigating factor defendant presented to the SORA court was that the prior endangering the welfare of a child conviction was not sexual in nature. Although the SORA court considered this argument when deciding whether to downwardly depart, it certainly was not required to consider the mitigating factor in a vacuum without considering any aggravating factors that would weigh against a downward departure … . In this case, there were numerous aggravating factors not adequately captured by the [risk assessment] that countered defendant's argument for a downward departure. Therefore, the SORA court did not abuse its discretion in determining that the “totality of the circumstances” did not warrant a downward departure because such a departure would have resulted in an “under-assessment of the defendant's dangerousness and risk of sexual recidivism” … . People v Sincerbeaux, 2016 NY Slip Op 05062, CtApp 6-28-16

CRIMINAL LAW (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/EVIDENCE (CRIMINAL LAW, SORA, SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/SEX OFFENDER REGISTRATION ACT (SORA) (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/SORA (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)

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POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, clarified the criteria for cross-examination of police officers who are defendants in a pending law suit alleging bad acts such as false arrest and fabrication of evidence. The court looked at three cases and applied the criteria to the facts of each. With respect to the one case which was reversed, the court wrote:

Specific allegations of prior bad acts in a federal lawsuit against a particular witness do establish a good faith basis for cross-examining that witness about the misconduct. Because defendant had the necessary good faith basis to ask about the prior bad acts alleged in the complaint, and there was no danger that such cross-examination would go to anything other than the police officers’ credibility, the trial court abused its discretion in not allowing cross-examination into the acts alleged in the federal lawsuit based on the reasoning that the prejudicial value outweighed the probative value merely because the lawsuit was still pending. While we recognize that the scope of cross-examination rests in the sound discretion of the trial judge … , in this case, it was an abuse of discretion to restrict defendant’s right to cross-examine key prosecution witnesses based on a finding that some unidentified prejudice outweighed the probative value of the questions. The questions had a good faith basis and there is no suggestion in this record that the main issues would have been obscured and the jury confused … . People v Smith, 2016 NY Slip Op 05061, CtApp 6-28-16

 

CRIMINAL LAW (POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)/EVIDENCE (CRIMINAL LAW, POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)/POLICE OFFICERS (CRIMINAL LAW, EVIDENCE, (POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)/CROSS-EXAMINATION (CRIMINAL LAW, POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)

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CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION.

The Court of Appeals, over a three-judge dissent, reversing the Appellate Division, determined the trial court did not abuse its discretion (as a matter of law) when it denied defendant’s motion to present expert evidence about eyewitness identification. The Court of Appeals clarified how its precedent on the topic should be applied:

The decision to admit or exclude expert testimony concerning factors that affect the reliability of eyewitness identifications rests within the sound discretion of the trial court … . When the motion is considered during the People’s case-in-chief, the trial court performs this function by weighing the request to introduce such testimony “against other relevant factors, such as the centrality of the identification issue and the existence of corroborating evidence” (… see … People v LeGrand, 8 NY3d 449, 459 [2007]). To the extent LeGrand has been understood to require courts to apply a strict two-part test that initially evaluates the strength of the corroborating evidence, it should instead be read as enumerating factors for trial courts to consider in determining whether expert testimony on eyewitness identification “‘would aid a lay jury in reaching a verdict'” … . Courts reviewing such a determination simply examine whether the trial court abused its discretion in applying the “standard balancing test or prejudice versus probative value” … .

Here, Supreme Court did not abuse its discretion as a matter of law when it precluded the introduction of the expert testimony. The trial court was entitled to reject the expert testimony after balancing the probative value of the evidence against its prejudicial or otherwise harmful effects. In light of the fact that “trial courts generally have the power to limit the amount and scope of evidence presented,” … on this record, the Appellate Division erred in holding that Supreme Court abused its discretion as a matter of law in precluding the testimony. People v McCullough, 2016 NY Slip Op 05060, CtApp 6-28-16

CRIMINAL LAW (CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION)/EVIDENCE (CRIMINAL LAW, CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION)/IDENTIFICATION (CRIMINAL LAW, CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION)/EXPERT EVIDENCE (CRIMINAL LAW, CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION)

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TAX ON CIGARETTE SALES TO NON-INDIANS UPHELD.

The Fourth Department upheld the state's ability to impose a tax on the sale of cigarettes to non-Indians and non-members of the Seneca Nation:

It is well established that “the States have a valid interest in ensuring compliance with lawful taxes that might easily be evaded through purchases of tax-exempt cigarettes on reservations . . . States may impose on reservation retailers minimal burdens reasonably tailored to the collection of valid taxes from non-Indians” … . Although plaintiffs are obligated to pay the amount due as tax from non-Indians who have the tax liability, and from whom the amount is collected at the time of the sale, “this burden is not, strictly speaking, a tax at all” … . White v Schneiderman, 2016 NY Slip Op 04533, 4th Dept 6-18-16

TAX LAW (TAX ON CIGARETTE SALES TO NON-INDIANS UPHELD)/INDIAN LAW (TAX ON CIGARETTE SALES TO NON-INDIANS UPHELD)/CIGARETTES (TAX ON CIGARETTE SALES TO NON-INDIANS UPHELD)

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QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED.

The Fourth Department, over a dissent, determined plaintiff raised a question of fact whether the 2 1/2 year statute of limitations was tolled by the continuous treatment doctrine, despite gaps in treatment exceeding the statute of limitations:

The determination whether continuous treatment exists “must focus on the patient” … and, “[i]n determining whether plaintiff[] raised an issue of fact concerning the applicability of the continuous treatment doctrine, [her] version of the facts must be accepted as true” … . Based on plaintiff’s version of the facts, there is support in the record for a finding that plaintiff “intended uninterrupted reliance” upon defendant’s observation, directions, concern, and responsibility for overseeing her progress. Notably, during approximately 7 years of treatment with defendant, plaintiff underwent two surgeries, saw no other physician regarding her shoulder, and returned to him for further treatment, i.e., a potential third surgery, but was told that he did not treat or operate on shoulders anymore. Defendant referred plaintiff to another physician in his practice, and plaintiff went to that appointment, but was told that the second physician would not treat her. Furthermore, the fact that plaintiff left the September 5, 2003 appointment with a direction to see defendant “as needed” is not dispositive inasmuch as defendant conceded that “[o]bviously [plaintiff’s] problem is long standing and chronic. She most likely will need further surgery in the future due to her young age and need for revision shoulder replacement vs fusions.” Lohnas v Luzi, 2016 NY Slip Op 04819, 4th Dept 6-17-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)/MEDICAL MALPRACTICE (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)/CONTINUOUS TREATMENT DOCTRINE (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)/STATUTE OF LIMITATIONS (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)

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GUNPOINT DETENTION NOT JUSTIFIED, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department determined the gunpoint detention of defendant was not justified by what the officer knew or observed. The motion to suppress the seized marijuana and handgun should have been granted:

The People concede that the sergeant’s encounter with defendant constituted a level three forcible detention under People v De Bour …, and thus required “a reasonable suspicion that [defendant] was involved in a felony or misdemeanor” … . “[A]ctions that are at all times innocuous and readily susceptible of an innocent interpretation . . . may not generate a founded suspicion of criminality” … .

We agree with defendant that the arresting sergeant lacked the requisite reasonable suspicion. There is no evidence in the record that the sergeant was informed of the recovery of marihuana in the area the day before defendant’s arrest, and defendant’s actions in merely “grabbing” at his waistline and bending down to the floor of the vehicle, without more, were insufficient to provide the sergeant with the requisite suspicion that defendant committed a crime, and to justify defendant’s gunpoint detention … . People v Elliott, 2016 NY Slip Op 04838, 4th Dept 6-17-16

 

CRIMINAL LAW (GUNPOINT DETENTION NOT JUSTIFIED, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, GUNPOINT DETENTION NOT JUSTIFIED, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (CRIMINAL LAW, GUNPOINT DETENTION NOT JUSTIFIED, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED)

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NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department determined there were insufficient grounds for a strip search and defendant’s motion to suppress the drugs seized from his person should have been granted:

… [T]he search performed by the officer constituted a strip search … , which must be justified by “a reasonable suspicion that the arrestee is concealing evidence underneath clothing” … . We conclude that the officer did not have the requisite reasonable suspicion. Defendant was fully cooperative with the officer, admitting his possession of marihuana and denying possession of any other contraband. There was no indication that defendant might be concealing any contraband under his clothing, and the mere fact that he possessed marihuana does not justify a strip search. Although the People assert that the search was justified because defendant appeared to be nervous about being searched, the record reflects that defendant became nervous only after the officer began to perform the strip search … . People v Tisdale, 2016 NY Slip Op 04842, 4th Dept 6-17-16

 

CRIMINAL LAW (NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/STRIP SEARCH (NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (CRIMINAL LAW, NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED)

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TOWN DID NOT TAKE THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACT OF THE CONSTRUCTION OF A WALMART STORE, NEGATIVE DECLARATION ANNULLED.

The Fourth Department determined the town failed to take the requisite hard look at the environmental impact of the construction of a Walmart store and annulled the town’s negative (impact) declaration. The court held that the effects of the construction upon wildlife, community character and surface water were not adequately investigated:

We agree with petitioner … that the Town Board failed to take the requisite hard look at the impact of the project on wildlife, the community character of the Village, and surface water, and that the resolution adopting the negative declaration must therefore be annulled. … Given the information received from the public that state-listed threatened species might be present on the project site and the failure of the Town Board to investigate the veracity of that information, we conclude that the Town Board failed to take a hard look at the impact of the project on wildlife, and the negative declaration with respect thereto was therefore arbitrary and capricious … .

[A] “… town . . . board reviewing a big box development should consider the impact of the development on the community character of a neighboring village that might suffer business displacement as a result of the approval of the big box development”… .

… [T]he Town Board erred in failing to consider the surface water impact of the entire project. While the Town Board considered surface water impacts relating to the footprint of the Supercenter and related areas, the project documents submitted to the Town Board make clear that the reconstruction of four golf course holes on a golf course adjacent to the project is a central part of the project, and the DEC specifically directed that the environmental assessment of the project include consideration of that reconstruction. Matter of Wellsville Citizens for Responsible Dev., Inc. v Wal-Mart Stores, Inc., 2016 NY Slip Op 04847, 4th Dept 6-17-16

 

ENVIRONMENTAL LAW (TOWN DID NOT TAKE THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACT OF THE CONSTRUCTION OF A WALMART STORE, NEGATIVE DECLARATION ANNULLED)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (TOWN DID NOT TAKE THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACT OF THE CONSTRUCTION OF A WALMART STORE, NEGATIVE DECLARATION ANNULLED)/SEQRA (TOWN DID NOT TAKE THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACT OF THE CONSTRUCTION OF A WALMART STORE, NEGATIVE DECLARATION ANNULLED)/BIG BOX STORE (ENVIRONMENTAL LAW, TOWN DID NOT TAKE THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACT OF THE CONSTRUCTION OF A WALMART STORE, NEGATIVE DECLARATION ANNULLED)/WALMART (ENVIRONMENTAL LAW, TOWN DID NOT TAKE THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACT OF THE CONSTRUCTION OF A WALMART STORE, NEGATIVE DECLARATION ANNULLED)

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STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE.

The Fourth Department, over an extensive dissent, determined striking defendant's answer in this slip and fall case was too severe a sanction for failing to preserve evidence, i.e., surveillance tapes:

… [W]e agree with plaintiff that a sanction was warranted inasmuch as defendant “wilfully fail[ed] to disclose information” that the court had ordered to be preserved (CPLR 3126). Nevertheless, we conclude that the court abused its discretion in striking defendant's answer and affirmative defenses. It is well established that “a less drastic sanction than dismissal of the responsible party's pleading may be imposed where[, as here,] the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense” … . Indeed, we note that the record does not demonstrate that the plaintiff has been ” prejudicially bereft' ” of the means of prosecuting his action … . Thus, we conclude that an appropriate sanction is that an adverse inference charge be given at trial with respect to the unavailable surveillance footage … . Sarach v M&T Bank Corp., 2016 NY Slip Op 04820, 4th Dept 6-17-16

NEGLIGENCE (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/CIVIL PROCEDURE (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/EVIDENCE (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/SLIP AND FALL  (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/SURVEILLANCE TAPES (SLIP AND FALL, STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES)

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