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NO EFFORT WAS MADE TO DETERMINE WHY PETITIONER’S WITNESS WOULD NOT TESTIFY, DETERMINATION ANNULLED.

The Third Department annulled the determination because no effort was made to determine why petitioner's cellmate refused to testify at the hearing:

Petitioner contends, among other things, that he was improperly denied the right to have his cellmate, who allegedly overheard the correction officer threaten him, testify at the hearing. Petitioner requested the cellmate as a witness at the hearing. A correction officer approached the cellmate about testifying, but he apparently refused and would neither sign a refusal form nor state the reason for his refusal. It does not appear that the Hearing Officer communicated directly with the cellmate, but rather related this information to petitioner based upon the contents of the refusal form. Notably, the correction officer who completed the refusal form did not testify at the hearing.

This Court has acknowledged that “[a] deprivation of the inmate's right to present witnesses will be found when there has been no inquiry at all into the reason for the witness's refusal, without regard to whether the inmate previously agreed to testify” … . No such inquiry was made by the Hearing Officer here, and respondent has essentially conceded this much. Thus, while respondent maintains that this is a regulatory violation for which remittal is appropriate, we find that the circumstances presented give rise to a constitutional violation for which expungement is the proper remedy … . Matter of Tevault v Prack, 2016 NY Slip Op 01533, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (NO EFFORT MADE TO DETERMINED WHY PETITIONER'S WITNESS WOULD NOT TESTIFY, DETERMINATION ANNULLED)

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HEARING OFFICER FAILED TO CONSIDER MEDICAL EVIDENCE SUPPORTING PETITIONER’S CLAIM HE WAS UNABLE TO PROVIDE A URINE SAMPLE, DETERMINATION EXPUNGED.

The Third Department expunged petitioner's disciplinary determination finding that the hearing officer improperly failed to consider medical evidence demonstrating petitioner was unable to provide a urine sample, and did not refuse to provide a sample:

[Petitioner] informed the Hearing Officer of his medical condition during the hearing and also provided medical documentation establishing that he had problems providing urine specimens in the past due to this condition. The Hearing Officer downplayed the significance of petitioner's medical condition and did not consider the medical documentation submitted even though it was sent prior to the conclusion of the hearing. The only evidence that the Hearing Officer considered was the misbehavior report and the request for urinalysis form. The request for urinalysis form indicated that petitioner did not willfully refuse to submit the specimen, but also stated that petitioner did not claim to be unable to submit the specimen in the presence of others. Given this inconsistency in the request for urinalysis form, the absence of any testimony concerning the administration of the urinalysis test or petitioner's medical condition and the Hearing Officer's failure to consider the medical documentation submitted, we find that the determination at issue is not supported by substantial evidence … . Matter of Katsanos v Prack, 2016 NY Slip Op 01531, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER FAILED TO CONSIDER MEDICAL EVIDENCE SUPPORTING PETITIONER'S DEFENSE, DETERMINATION EXPUNGED)

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PEOPLE DEMONSTRATED, IN A RODRIGUEZ HEARING, THE IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY; WADE HEARING NOT NECESSARY.

The Third Department determined the evidence presented at the Rodriguez hearing demonstrated the confidential informant's (CI's) identification of the defendant was confirmatory (i.e., based upon prior acquaintance with the defendant) and, therefore, a Wade hearing to determine the validity of the identification was not necessary. The court also noted that a two-hour discrepancy between when the drug sale took place as alleged in the indictment, and the testimony about the time of the sale at trial, did not deprive the defendant of the ability to defend against the allegations. With respect to the sufficiency of the identification of the defendant, the court wrote:

 

… “[A] Wade hearing is not required when the witness is so familiar with the defendant that there is little or no risk that police suggestion could lead to a misidentification” … . Where, as here, the People assert that the pretrial identification was merely confirmatory, the People bear the burden of “prov[ing] the witness's sufficient familiarity with the defendant at a Rodriguez hearing” … . “Although the People are not obligated to call the identifying witness at [the] Rodriguez hearing” … , they nonetheless must come forward with “sufficient details of the extent and degree of the protagonists' prior relationship” with one another … . Relevant factors to be considered in this regard include “the number of times the witness saw the defendant prior to the crime, the duration and nature of those encounters, time periods and setting of the viewings, time between the last viewing and the crime, and whether the two individuals had any conversations” … . People v Smith, 2016 NY Slip Op 01521, 3rd Dept 3-3-16

CRIMINAL LAW (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/CRIMINAL LAW (TWO-HOUR DISCREPANCY RE: TIME OF DRUG SALE DID NOT DEPRIVE DEFENDANT OF ABILITY TO DEFEND)/IDENTIFICATION (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/RODRIGUEZ HEARING (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/WADE HEARING (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)

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QUESTION OF FACT RAISED WHETHER DECEDENT REVOKED A LOST WILL.

The Second Department determined summary judgment should not have been granted in favor of objectants to the probate of a will. The original will could not be found, but copies were in a folder decedent told his home aide about. There was, therefore, a question of fact raised about whether the will had been revoked:

 

When a will previously executed and in the testator's possession cannot be found after the death of the testator, a presumption arises that the will was revoked by the testator … . This legal presumption may be overcome, and the lost will admitted to probate, if the will's proponent establishes that the will was not revoked by the testator during his or her lifetime (see SCPA 1407[1]…). * * *

… [E]vidence that, shortly before his death, the decedent showed the blue binder to the home health aide and stated that it contained his will and that it was kept in a certain location, which the decedent was thereafter unable to access due to his declining health, and where several copies of the will were later found after his death, was sufficient to raise an issue of fact regarding the presumption of revocation of his will, thereby precluding an award of summary judgment to the objectants on the issue of revocation … . Matter of Marotta, 2016 NY Slip Op 01491, 2nd Dept 3-2-16

TRUSTS AND ESTATES (QUESTION OF FACT RAISED WHETHER LOST WILL WAS REVOKED)/WILLS (QUESTION OF FACT RAISED WHETHER LOST WILL WAS REVOKED)

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ALLEGED ZONING VIOLATION DID NOT AUTOMATICALLY WARRANT REMOVAL OF TAX-EXEMPT STATUS; TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined an alleged zoning violation, for which plaintiff property owner had never been cited, did not justify automatic removal of plaintiff's tax-exempt status. Therefore, defendant-town's motion for summary judgment should not have been granted. The property had been tax-exempt for years as low-income property. The alleged zoning violation, i.e. that the plaintiff had more than two residential apartments, was not incompatible with the tax-exempt use. Therefore, the alleged zoning violation could not justify automatic removal of the tax-exempt status:

 

… [E]ven assuming that a zoning violation had been sufficiently established, the defendants have failed to articulate why such a violation, under the particular circumstances presented, should result in the loss of the plaintiff's tax exemption. Not all violations of law automatically result in the loss of a tax exemption … . “The concern of the taxing authority is not with the observance or non-observance by plaintiff of regulatory provisions relating to a specific building, but to the use to which the real property as an entity is or is intended to be devoted” … .

This is not a case in which the applicable zoning regulation is incompatible with the occupant's tax-exempt use … . In such cases, the rationale for denying the tax exemption is simple and clear, as compliance with both the tax-exempt use and the zoning regulation is impossible. Here, by contrast, the tax-exempt use of providing residential housing to low-income tenants is consonant with the property's permitted use as a two-family dwelling. Under these circumstances, the defendants have failed to establish, prima facie, that the nature of the alleged violation (i.e., that the plaintiff had more than two residential apartments) can serve as a valid legal basis for denying the property tax exemption … . Community Humanitarian Assn., Inc. v Town of Ramapo, 2016 NY Slip Op 01458, 2nd Dept 3-2-16

REAL PROPERTY TAX LAW (ALLEGED ZONING VIOLATION DID NOT WARRANT AUTOMATIC REMOVAL OF TAX-EXEMPT STATUS)/ZONING (ALLEGED ZONING VIOLATION DID NOT WARRANT AUTOMATIC REMOVAL OF TAX-EXEMPT STATUS)/TAX-EXEMPT STATUS (REAL PROPERTY, ALLEGED ZONING VIOLATION DID NOT WARRANT AUTOMATIC REMOVAL OF TAX-EXEMPT STATUS)

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ACCIDENT DIAGRAM IN POLICE REPORT WAS NOT BASED ON OFFICER’S FIRST-HAND KNOWLEDGE; REPORT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; NEW TRIAL ORDERED.

The Second Department determined a new trial was necessary in a pedestrian-accident case because the police report (admitted in evidence included) included a diagram of the accident scene which was not based on the police officer's personal observation:

 

Information in a police accident report is “admissible as a business record so long as the report is made based upon the officer's personal observations and while carrying out police duties” … . Conversely, information in a police accident report is inadmissible where the information came from witnesses not engaged in the police business in the course of which the memorandum was made, and the information does not qualify under some other hearsay exception … . Here, the diagram contained in the police accident report was not derived from the personal observations of the police officer, who did not witness the subject accident … . In addition, there was insufficient evidence as to the source of the information used to prepare the diagram, whether that person was under a business duty to supply it, or whether some other hearsay exception would render the diagram admissible. The diagram therefore should not have been admitted … . Wynn v Motor Veh. Acc. Indem. Corp., 2016 NY Slip Op 01484, 2nd Dept 3-2-16

NEGLIGENCE (ACCIDENT DIAGRAM IN POLICE REPORT NOT BASED ON OFFICER'S FIRST-HAND KNOWLEDGE AND SHOULD NOT HAVE BEEN ADMITTED)/EVIDENCE (NEGLIGENCE, ACCIDENT DIAGRAM IN POLICE REPORT NOT BASED ON OFFICER'S FIRST-HAND KNOWLEDGE AND SHOULD NOT HAVE BEEN ADMITTED)/HEEARSAY (NEGLIGENCE, ACCIDENT DIAGRAM IN POLICE REPORT NOT BASED ON OFFICER'S FIRST-HAND KNOWLEDGE AND SHOULD NOT HAVE BEEN ADMITTED)

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GENERAL AWARENESS OF A RECURRENT CONDITION DOES NOT AMOUNT TO CONSTRUCTIVE NOTICE OF THE PARTICULAR CONDITION WHICH CAUSED THE ACCIDENT.

The Second Department determined defendant was entitled to summary judgment in this slip and fall case. The plaintiff alleged she slipped on water which had dripped from the ceiling. The defendant demonstrated it did not create or have actual or constructive notice of the condition. The court noted that a general awareness of a recurrent condition does not amount to constructive notice of the particular condition which caused the accident:

The defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that it neither created nor had actual or constructive notice of the water in the lobby … .

In opposition, the plaintiff failed to raise a triable issue of fact. A general awareness of a recurring problem is insufficient, without more, to establish constructive notice of the particular condition that caused the accident … . Gurley v Rochdale Vil., Inc., 2016 NY Slip Op 01467, 2nd Dept 3-2-16

NEGLIGENCE (GENERAL AWARENESS OF A RECURRENT CONDITION DOES NOT AMOUNT TO CONSTRUCTIVE NOTICE)/NOTICE (NEGLIGENCE, GENERAL AWARENESS OF A RECURRENT CONDITION DOES NOT AMOUNT TO CONSTRUCTIVE NOTICE)

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CAR CRASHING THROUGH SUPERMARKET DOORS WAS AN UNFORESEEABLE INTERVENING ACT; SUMMARY JUDGMENT PROPERLY GRANTED TO SUPERMARKET AND LANDOWNER.

The Second Department determined defendant supermarket (Stop & Shop) and plaza owner (Ridgeway) were entitled to summary judgment dismissing the complaint of a customer injured when a car crashed the glass doors in the bottle-return area. The incident was deemed an unforeseeable intervening act:

 

“A landowner has a duty to exercise reasonable care to maintain its premises in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk'” … . However, a landowner does not have a “duty to protect against an occurrence which is extraordinary in nature and, as such, would not suggest itself to a reasonably careful and prudent person as one which should be guarded against” … . “There will ordinarily be no duty imposed on a defendant to prevent a third party from causing harm to another unless the intervening act which caused the plaintiff's injuries was a normal or foreseeable consequence of the situation created by the defendant's negligence” … .

Here, Stop & Shop and Ridgeway established their prima facie entitlement to judgment as a matter of law by demonstrating, through an expert's affidavit, that they maintained the premises in a reasonably safe condition and did not have a duty to construct and install bollards or other protective measures to protect against the conduct of the defendant driver … . Furthermore, Stop & Shop and Ridgeway established, prima facie, that the conduct of the defendant driver, in inexplicably losing control of her vehicle, was an unforeseeable intervening cause of the accident … . Stop & Shop and Ridgeway demonstrated, prima facie, that the location of the parking lot relative to the bottle return room merely furnished the condition or occasion for the accident, rather than one of its causes … . Dawkins v Mastrangelo, 2016 NY Slip Op 01459, 2nd Dept 3-2-16

NEGLIGENCE (CAR CRASHING THROUGH SUPERMARKET DOORS WAS AN UNFORESEEABLE INTERVENING ACT)/FORESEEABILITY (CAR CRASHING THROUGH SUPERMARKET DOORS WAS AN UNFORESEEABLE INTERVENING ACT)/INTERVENING ACT (CAR CRASHING THROUGH SUPERMARKET DOORS WAS AN UNFORESEEABLE INTERVENING ACT)

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QUESTION OF FACT WHETHER INSURED’S 17-MONTH DELAY IN NOTIFYING INSURER OF THE OCCURRENCE WAS BASED UPON A GOOD FAITH BELIEF OF NONLIABILITY.

The Second Department determined the insured defendants had raised a question of fact whether a 17-month delay in notifying the plaintiff insurer of the “occurrence” was based upon a good-faith belief of nonliability. The court explained the relevant law:

Where, as here, an insurance policy requires that notice of an occurrence be given “as soon as practicable,” notice must be given within a reasonable time in view of all of the circumstances … . “However, circumstances may exist that will excuse or explain the insured's delay in giving notice, such as a reasonable belief in nonliability” … . It is the insured's burden to demonstrate the reasonableness of the excuse … .

In general, whether there existed a good faith belief that the injured party would not seek to hold the insured liable, and whether that belief was reasonable, are questions of fact for the fact-finder … . Summary judgment may be granted in favor of the insurer only if the evidence, construing all inferences in favor of the insured, establishes as a matter of law that the insured's belief in nonliability was unreasonable or in bad faith … .

… The plaintiff established its prima facie entitlement to judgment as a matter of law by demonstrating that the insured defendants were notified of the injured party's workers' compensation claim approximately 17 months before they notified the plaintiff of the occurrence … . Since the subject insurance policies were issued in 2008, prior to the amendment to Insurance Law § 3420 (for policies issued after January 17, 2009), the plaintiff did not have to show that it was prejudiced by the failure to provide timely notice in order to satisfy its prima facie burden … .

In opposition, however, the insured defendants raised a triable issue of fact as to whether the delay was reasonably based on a good-faith belief of nonliability … . Aspen Ins. UK Ltd. v Nieto, 2016 NY Slip Op 01449, 2nd Dept 3-2-16

INSURANCE LAW (QUESTION OF FACT WHETHER DELAY IN NOTIFIYING INSURER BASED UPON GOOD FAITH BELIEF OF NONLIABILITY)/NOTICE OF OCCURRENCE (INSURANCE LAW, QUESTION OF FACT WHETHER DELAY IN NOTIFIYING INSURER BASED UPON GOOD FAITH BELIEF OF NONLIABILITY)

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LANDSCAPER AND ITS INSURER STRICTLY LIABLE FOR OIL DISCHARGE ON PLAINTIFFS’ PROPERTY; OIL LINE SEVERED DURING SPRINKLER REPAIR.

The Second Department determined summary judgment was properly awarded to plaintiffs in an action under the Navigation Law based upon an oil spill. The defendant landscaping company acknowledged that its employee severed the underground oil line on plaintiffs’ property while repairing a sprinkler system. Navigation Law 181 (1) imposes strict liability upon a person responsible for the discharge of petroleum and any insurer:

Navigation Law § 181(1) provides that a person who has “discharged petroleum shall be strictly liable . . . for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained.” Article 12 of the Navigation Law defines a “discharge,” as relevant here, as “any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of petroleum” (Navigation Law § 172[8]). The statute provides that any individual or entity “who is not responsible for the discharge” may maintain a claim thereunder (Navigation Law § 172[3]…). The statute also provides that under article 12, “[a]ny claims for costs of cleanup and removal, civil penalties or damages by the state and any claim for damages by any injured person, may be brought directly against the bond, the insurer, or any other person providing evidence of financial responsibility” (Navigation Law § 190). Bennett v State Farm Fire & Cas. Co., 2016 NY Slip Op 01452, 2nd Dept 3-2-16

ENVIRONMENTAL LAW (LANDSCAPER STRICTLY LIABLE OF OIL DISCHARGE)/NAVIGATION LAW (LANDSCAPER STRICTLY LIABLE FOR OIL DISCHARGE)/INSURANCE LAW (INSURER STRICTLY LIABLE FOR OIL DISCHARGE BY INSURED)

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