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DISABLED POLICE OFFICER SUFFICIENTLY ALLEGED BREACHES OF A DUTY OF CARE BY THE CITY AND BY HEALTH CARE MANAGERS WHICH CONTRACTED WITH THE CITY TO MANAGE PLAINTIFF’S HEALTH CARE.

The Fourth Department, reversing Supreme Court, determined plaintiff, a disabled police officer, had sufficiently alleged breaches of a duty of care by the city and by the health care providers who contracted with the city to manage plaintiff's health care. With respect to the contracting health care managers, the court wrote:

It is well established that there are situations in which “a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons: [i.e.,] where the contracting party, in failing to exercise reasonable care in the performance of [the party's] duties, launche[s] a force or instrument of harm' ” … , and thereby “creates an unreasonable risk of harm to others, or increases that risk” … . Indeed, “[t]his principle recognizes that the duty to avoid harm to others is distinct from the contractual duty of performance” … . Accepting plaintiff's allegations as true … , we conclude that the amended complaint alleges that those defendants assumed a duty of care to plaintiff and that, in failing to exercise reasonable care in the performance of their duties, they increased the risk of harm to plaintiff. Vassenelli v City of Syracuse, 2016 NY Slip Op 03344, 4th Dept 4-29-16


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PROPERTY OWNER (LANDLORD) LIABLE FOR PAYMENT FOR ELECTRICAL WORK REQUIRED BY THE LEASE AND CONTRACTED FOR BY THE LESSEE.

The Fourth Department determined the owner of property leased to the party who hired an electrical contractor was liable for payment of the electrical contractor's mechanic's lien. As part of the lease agreement, the owner/landlord required the lessee (Peaches) to contract for the electrical work. The Fourth Department noted that all the other departments have held the owner is not liable in this context unless the owner directly contracted for the work. The Fourth Department concluded, however, that a Court of Appeals case controlled:

Lien Law § 3 provides in relevant part that a “contractor . . . who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof . . . shall have a lien . . . upon the real property improved.” For purposes of this provision, a “requirement in a contract between . . . landlord and tenant, that the . . . tenant shall make certain improvements on the premises is a sufficient consent of the owner to charge his property with claims which accrue in making those improvements” (Jones v Menke, 168 NY 61, 64; see De Klyn v Gould, 165 NY 282, 287). The Court of Appeals subsequently reaffirmed Jones's broad interpretation of section 3 in McNulty Bros. v Offerman (221 NY 98), holding that, as long as “the liens have been confined to work called for by the lease[,] . . . the landlords' estate may be charged to the same extent as if the owners of that estate had ordered the work themselves. In substance, they have made the lessee their agent for that purpose” (id. at 106). Jones and McNulty Bros. have not been overturned or disavowed. Ferrara v Peaches Café LLC, 2016 NY Slip Op 03286, 4th Dept 4-29-16


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IMPROPER IMPEACHMENT REQUIRED NEW TRIAL.

The Fourth Department ordered a new trial in a personal injury action because defense counsel violated rules of evidence re: impeachment with collateral matters. Defense counsel improperly introduced evidence of plaintiff's drug test results and improperly informed the jury of prior lawsuits brought by plaintiff:

It is well settled that a cross-examiner at trial is “bound by the answers of the witness to questions on collateral matters inquired into solely to affect credibility” … , and extrinsic evidence cannot be used to impeach a witness's credibility after the witness has provided an answer with which the cross-examiner is unsatisfied … . Here, defense counsel asked plaintiff during cross-examination whether she had failed an employment-related drug test, a collateral issue relevant only to plaintiff's credibility. In response, plaintiff testified that the test result was a “false positive” that was proved false upon retesting. Defense counsel then violated the collateral evidence rule when she not only referred to a lack of evidence supporting plaintiff's assertion, but introduced the drug test result in evidence in an attempt to impeach plaintiff's credibility … .

The impact of that improper conduct was compounded when defense counsel thereafter questioned defendant's medical expert, over plaintiff's objection, about “drug use history” notations in plaintiff's medical records that, according to the expert, raised questions as to plaintiff's “credibility.” * * *

Finally, despite the court's pretrial ruling precluding defendants from questioning plaintiff about a personal injury claim she had filed in connection with a prior accident, defense counsel, over objection, asked plaintiff if she had been involved in any “legal action” related to her “neck and/or back condition.” Because evidence of prior accidents and lawsuits related thereto “may not [be used to] . . . demonstrate that plaintiff is litigious and therefore unworthy of belief” … , it was error for the court to allow that questioning. In our view, the improper attacks on plaintiff's credibility, viewed as a whole, denied plaintiff a fair trial. Dunn v Garrett, 2016 NY Slip Op 03283, 4th Dept 4-29-16


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STATE WATER RESOURCES LAW DID NOT PREEMPT ZONING BOARD’S REQUIRING TOWN APPROVAL BEFORE WATER CAN BE EXTRACTED FOR COMMERCIAL PURPOSES.

The Fourth Department determined the state Water Resources Law, which governs the extraction of groundwater, did not preempt the town zoning board's special-permit condition requiring town approval before water can be extracted for commercial purposes. Petitioner sought to build a pipeline to carry water from under petitioner's land to another town where the water would be sold. Petitioner argued the Water Resources Law preempted the town from requiring approval for commercial use of the extracted water. The Fourth Department held that the town's power to regulate the use of land, here requiring permission before water can be extracted for commercial purposes, was not limited by the Water Resources Law:

… [T]he Water Resources Law (ECL article 15, et seq.) does not preempt local zoning laws concerning land use. Instead, the Water Resources Law preempts only those local laws that attempt “to regulate withdrawals of groundwater,” which “includes all surface and underground water within the state's territorial limits” … . The Water Resources Law does not preempt the authority of local governments to “regulate the use of land through the enactment of zoning laws” … . * * * … [T]he statute regulates how a natural resource may be extracted but does not regulate where in the Town such extraction may occur. Matter of Smoke v Planning Bd. of Town of Greig, 2016 NY Slip Op 03322, 4th Dept 4-29-16


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HOLDING SORA HEARING IN DEFENDANT’S ABSENCE VIOLATED DUE PROCESS.

The Fourth Department determined defendant's presence is required at a Sex Offender Registration Act (SORA) hearing to determined defendant's risk level:

A sex offender has a due process right to be present at a SORA hearing … , and the court “violated the due process rights of defendant when it held the SORA hearing in his absence without verifying that he had received the letter notifying him of the date of the hearing and his right to be present” … . We are thus constrained to reverse the order and remit the matter to Supreme Court for a new hearing and sexually violent offender determination in compliance with Correction Law § 168-n (3). People v Encarnacion, 2016 NY Slip Op 03369, 4th Dept 4-29-16


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CODEFENDANT, WHO TESTIFIED AGAINST DEFENDANT, AND DEFENDANT REPRESENTED BY MEMBERS OF THE SAME FIRM; IN THIS SITUATION AN INQUIRY TO ENSURE DEFENDANT IS AWARE OF ALL THE FACTS AND CONSENTS IS REQUIRED; MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING.

The Fourth Department determined defendant's motion to vacate his conviction should not have been denied without a hearing. Defendant's codefendant, pursuant to a plea bargain, testified against the defendant. The attorney who represented the codefendant and defendant's counsel were members of the same law firm. This situation has the potential of depriving defendant of his right to effective counsel requiring an inquiry by the court to ensure defendant is aware of all the facts and consents:

“Absent inquiry by the court and consent by the defendant, an attorney may not represent a criminal defendant in a trial at which a star prosecution witness is a codefendant whose plea bargain—including the promise to testify against defendant—was negotiated by a partner in the same firm. In these circumstances defendant is denied his right to effective assistance of counsel” … . Thus, a defendant is denied effective assistance of counsel where a member of defense counsel's law firm represents a witness who testifies against defendant at trial unless the court conducts a “Gomberg inquiry to ascertain that the facts had been disclosed to defendant and that he [or she] had made a reasoned decision whether to proceed to trial with his [or her] attorney” … . People v Jackson, 2016 NY Slip Op 03317, 4th Dept 4-29-16


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FAILURE TO PLACE ON THE RECORD THE REASONS FOR REQUIRING DEFENDANT TO WEAR A STUNBELT DURING TRIAL, AND FAILURE TO APPRISE DEFENSE COUNSEL OF THE CONTENTS OF A JURY NOTE, REQUIRED REVERSAL.

The Fourth Department, reversing defendant's conviction, determined County Court erred by failing to place on the record the reasons for requiring defendant to wear a stun belt during the trial, and by failing to apprise defense counsel of the contents of a note from the jury prior to accepting a verdict (an error that does not require preservation by objection):

We agree with defendant that the court erred in failing to make any findings on the record establishing that defendant needed to wear a stun belt during the trial … . * * *

We further agree with defendant that a new trial is required based on the court's failure to comply with CPL 310.30 in regard to Court Exhibit 11, a note from the jury during its deliberations. “[T]he [c]ourt committed reversible error by violating the core requirements of CPL 310.30 in failing to advise counsel on the record of the contents of a substantive jury note before accepting a verdict' ” … . Furthermore, “[w]here, as here, the record fails to show that defense counsel was apprised of the specific, substantive contents of the note . . . [,] preservation is not required' ” … . Contrary to the People's contention, the presumption of regularity does not apply to errors of this kind … . People v Gomez, 2016 NY Slip Op 03358, 4th Dept 4-29-16


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REVERSIBLE ERROR TO READ BACK TO THE JURY THE PROSECUTOR’S SUMMATION BUT NOT THE DEFENSE SUMMATION.

The Fourth Department determined the trial judge's reading back (to the jury) of only the prosecutor's summation was reversible error:

County Court abused its discretion in reading back the prosecutor's summation without also reading back the defense summation.  * * *

Pursuant to CPL 310.30, “the jury can request a reading of not only evidentiary material, but also any material which is pertinent to its deliberation, including the summations, and the trial court must give such requested information or instruction as [it] deems proper' ” … . We agree with defendant that the court abused its discretion in reading back only the prosecutor's summation under the circumstances presented here. The evidence of defendant's guilt is not overwhelming, and the jurors were clearly divided at times during their deliberations, as demonstrated by their frequent requests for guidance from the court through numerous notes. People v Rivers, 2016 NY Slip Op 03327, 4th Dept 4-29-16


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MECHANIC WAS AN EMPLOYEE OF USED CAR SELLER.

The Third Department determined a mechanic was an employee of Guardi, who bought used cars, repaired and sold them:

… [A]lthough Guardi did not advertise for claimant's services, claimant filled out paperwork that he characterized as an application for employment prior to working for Guardi. Upon being hired, Guardi offered and established claimant's rate of pay at $10 an hour. Claimant testified that after pricing the cost of repairs for a used vehicle and discussing those repairs with Guardi, Guardi would instruct him whether to make the repairs and, at times, would also make repair suggestions to claimant. Guardi provided claimant with a garage to perform the repairs that included certain equipment, such as a vehicle lift, tire-changing machine and a compressor … . Guardi also disposed of old motor oil and used tires and maintained the equipment located in the garage. While claimant owned his own tools, he kept those tools at the garage, and he did not maintain his own auto-repair business or repair vehicles for any other employer. Aside from repairing vehicles, claimant also assisted Guardi with customer service and, on occasion, sold a used vehicle, for which he would receive a commission of $50. In addition to issuing claimant a weekly paycheck, claimant was expected to work the same hours as other employees at Used Auto and report for work on time each day. Claimant was required to contact Guardi if he was sick or unable to report to work on a given day, was required to obtain permission to take time off from work and record the start and end of his shifts and meals on a timeclock … . Matter of DeVaul (Guardi — Commissioner of Labor), 2016 NY Slip Op 03233, 3rd Dept 4-28-16


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SECURITY CONSULTANT WAS EMPLOYEE OF OFF-TRACK BETTING FACILITY DESPITE INDEPENDENT CONTRACTOR DESIGNATION IN AGREEMENT.

The Third Department determined a security consultant who worked undercover at an Off-Track Betting (OTB) facility (Race Palace) was an employee despite the “independent contractor” designation in the written agreement:

… Claimant and the other security consultants provided services exclusively at the location of the Race Palace and claimant's work schedule was established through consultation with another security consultant. He was compensated at a negotiated hourly rate of pay that was set forth in an independent contractor agreement and was required to submit claim forms and activity reports detailing his services within established time frames in order to receive payment from OTB. In addition, he was reimbursed by OTB for certain preapproved expenses and was required to keep all information regarding his services strictly confidential. In view of the foregoing, substantial evidence supports the Board's finding that OTB retained the requisite control necessary to establish the existence of an employment relationship … . Although the written agreement designated claimant as an independent contractor, it is not dispositive of claimant's employment status … . Matter of Dwyer (Nassau Regional Off-Track Corp. — Commissioner of Labor), 2016 NY Slip Op 03232, 3rd Dept 4-28-16


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