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Failure to Pronounce the Amount of Restitution at Sentencing Survives Waiver of Appeal and Requires Vacation of the Sentences and Remittal

The Second Department noted that county court’s failure to pronounce the amount of restitution at sentencing survived waiver of appeal and required vacation of the sentences and remittal for that purpose:

Since the County Court failed to pronounce the sentences of restitution in open court, the sentences must be vacated and the matter remitted to the County Court, Orange County, for resentencing in accordance with CPL 380.20 … . People v Guadalupe, 2015 NY Slip Op 05206, 2nd Dept 6-17-15

 

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Causes of Action Against City Alleging Negligence In Responding to a 911 Call and In Preparing for and Responding to a Snow Storm Which Blocked Roads Should Have Been Dismissed—Only Governmental Functions Were Involved and there Was No Special Relationship between the City and Plaintiffs’ Decedent

The Second Department determined the complaint against the city should have been dismissed under the doctrine of governmental immunity.  Plaintiffs alleged the city was negligent in responding to a 911 call for an ambulance and was negligent in preparing for and responding to a snow storm (which blocked roads). Because the relevant acts or omissions related to government functions, and because no special relationship existed between the city and plaintiffs’ decedent, the city was immune from suit. The Second Department provided a good explanation of the relevant law:

As a general rule, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection, fire protection or ambulance services” … . When a negligence cause of action is asserted against a municipality, and the municipality’s conduct is proprietary in nature, the municipality is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties … . If it is determined that a municipality was exercising a governmental function, the municipality may not be held liable unless it owed a special duty to the injured party … . “A special duty’ is a duty to exercise reasonable care toward the plaintiff,’ and is born of a special relationship between the plaintiff and the governmental entity'” … . Insofar as relevant here, to establish a special relationship against a municipality which was exercising a governmental function, a plaintiff must show: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … . * * *

A municipal emergency response system is a classic governmental, rather than proprietary, function … . Contrary to the plaintiffs’ contentions, the complaint fails to allege any facts tending to show knowledge by the defendants that inaction would lead to harm, or that there was any justifiable reliance on any promise made by the defendants. Accordingly, the complaint fails to state facts from which it could be found that there was a special relationship between the decedent and the defendants and, therefore, the complaint does not state a viable cause of action against the defendants based upon their alleged negligence in responding to the 911 call … .

Furthermore, the Supreme Court improperly denied that branch of the defendants’ motion which was to dismiss the cause of action alleging that the defendants failed to prepare for, and respond to, the snowstorm. A municipality is obligated to maintain the streets and highways within its jurisdiction in a reasonably safe condition for travel … . A municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers … . Under the circumstances presented here, the defendants’ snow removal operation on the public streets was a traditionally governmental function, rather than a proprietary function … . Moreover, the plaintiffs failed to sufficiently allege in their complaint the existence of a special relationship between the decedent and the defendants as to the defendants’ snow removal function … . Cockburn v City of New York, 2015 NY Slip Op 05146, 2nd Dept 6-17-15

 

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Question of Fact Whether Employer Considered Accommodation for Plaintiff’s Injury—Summary Judgment to Employer Should Not Have Been Granted

Plaintiff’s employment with the Department of Correctional Services (DOCS) was terminated (after plaintiff injured her hand) on the ground that plaintiff had failed to demonstrate she was medically fit to return to work and had failed to provide a date by which she would return to full duty. The plaintiff challenged her proposed termination and sought reinstatement before the effective date of termination. The Second Department determined Supreme Court should not have granted summary judgment to the employer (DOCS).  A question of fact had been raised about whether DOCS met its duty to consider accommodation for plaintiff’s injury:

An employer normally cannot obtain summary judgment on a disability discrimination claim pursuant to Executive Law § 296 “unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation,” and the employer cannot present such a record “if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee’s request” … .

“The employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested” (9 NYCRR 466.11[j][4]). Viewing the evidence in the light most favorable to the nonmoving party … , we find that the plaintiff’s responses to the notice of proposed termination could reasonably have been understood as a request for accommodation, which DOCS rejected by terminating the plaintiff’s employment based on her inability to return to work within the one year permitted under Civil Service Law § 71.

Therefore, we conclude that the defendants failed to establish, prima facie, that they engaged in a good faith interactive process that assessed the needs of the plaintiff and the reasonableness of her requested accommodation … . Cohen v State of New York, 2015 NY Slip Op 05147, 2nd Dept 6-17-15

 

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Sole Proximate Cause of Plaintiffs’ Injuries Should Have Been Determined as a Matter of Law—Complaint Against Non-Negligent Driver (Whose Car Was Pushed into the Pedestrian-Plaintiffs by the Negligent-Driver’s Car) Should Have Been Dismissed

Reversing Supreme Court, the Second Department found that the proximate cause of the accident should have been determined as a matter of law and the complaint against the non-negligent driver should have been dismissed.  The negligent driver violated the Vehicle and Traffic Law by attempting to make a left turn and crossing the lane in which the non-negligent driver was travelling.  The non-negligent driver ‘s car collided with negligent driver’s car and then struck plaintiffs (pedestrians).  Here it was clear that the negligent-driver’s actions were the sole proximate of the plaintiffs’ injury as a matter of law:

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . “There can be more than one proximate cause of an accident” …, and “[g]enerally, it is for the trier of fact to determine the issue of proximate cause” … . “However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” … . Velez v Mandato, 2015 NY Slip Op 05174, 2nd Dept 6-17-15

 

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“Hostile Work Environment” (Allegedly Offensive Sex-Related Remarks) and “Retaliation for Opposition to Discriminatory Practices” Causes of Action Explained

The Second Department determined defendant-employer was entitled to summary judgment on plaintiff-employee’s “hostile work environment” cause of action (allegedly offensive sex-related remarks) but was not entitled to summary judgment on plaintiff-employee’s “retaliation for opposing discriminatory conduct” cause of action. Defendant was able to demonstrate the allegedly offensive remarks were isolated incidents which did not permeate the work environment.  But a question of fact was raised about the “retaliation” cause of action. Plaintiff was terminated one day after the employer received a letter about the alleged discrimination from plaintiff’s attorney.  The Second Department explained the elements of “hostile work environment” and “retaliation for opposing discriminatory conduct” causes of action:

A hostile work environment exists where the workplace is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” … . Various factors, such as frequency and severity of the discrimination, whether the allegedly discriminatory actions were threatening or humiliating or a “mere offensive utterance,” and whether the alleged actions “unreasonably interfere[ ] with an employee’s work” are to be considered in determining whether a hostile work environment exists … . The allegedly abusive conduct must not only have altered the conditions of employment of the employee, who subjectively viewed the actions as abusive, but the actions must have created an “objectively hostile or abusive environment—one that a reasonable person would find to be so” … . * * *

Under the New York State Human Rights Law, it is unlawful to retaliate against an employee for opposing discriminatory practices (see Executive Law § 296[7]…). In order to make out a cause of action for retaliation, “[a] plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action” … . “To establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant’s explanations were pretextual” … . La Marca-Pagano v Dr. Steven Phillips, P.C., 2015 NY Slip Op 05162, 2nd Dept 6-17-15

 

 

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Question of Fact About Sequence of Rear-End Collisions Precluded Summary Judgment

The Second Department determined a question of fact had been raised about whether the middle driver in a three-car rear-end collision was negligent. Although the middle-car driver alleged she was struck from behind and pushed into the lead car, the third-car driver alleged the middle car struck the lead car before he struck the middle car:

Supreme Court erred in granting the motions of the plaintiff [lead car driver] and [the middle-car driver] for summary judgment. Based on the plaintiff’s account of the accident, those movants established, prima facie, their freedom from comparative fault and that [third-car driver] was negligent based on the presumption of negligence that arises from a rear-end collision with a stopped or stopping vehicle … . However, [third-car driver’s] affidavit, which recited that his vehicle only struck the [middle] vehicle after the [middle] vehicle had already collided with the lead vehicle, raised triable issues of fact as to the sequence of the collisions, whether [the middle-car driver] was at fault, and the proximate cause of the plaintiff’s alleged injuries …. . Gavrilova v Stark, 2015 NY Slip Op 05153, 2nd Dept 6-17-15

 

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Child’s Out-of-Court Statements Not Sufficiently Corroborated for Admission Into Evidence

The Second Department determined Family Court properly refused to admit evidence of the child’s out-of-court statements in an abuse and neglect proceeding because the statements were not corroborated:

A child’s prior out-of-court statements may provide the basis for a finding of abuse or neglect, provided that these hearsay statements are corroborated so as to ensure their reliability … . Any other evidence tending to support the reliability of the child’s previous statements shall be sufficient corroboration (see Family Ct Act § 1046[a][vi]…). There is a threshold of reliability that the evidence must meet … . The Family Court has considerable discretion to decide whether the child’s out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated … . Here, the Family Court did not improvidently exercise its discretion in determining that the statements of the subject child Anthony W. were insufficient to corroborate the statements of the subject child Sally W. as to the alleged sexual abuse perpetrated upon her. Matter of Gerald W. (Anne R.), 2015 NY Slip Op 05198, 2nd Dept 6-17-15

 

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Best Interests of Child Justified Denial of Petition to Vacate Acknowledgment of Paternity (Equitable Estoppel)

The Second Department determined Family Court properly denied the petition to vacate an acknowledgment of paternity.  Petitioner demonstrated his signing of the acknowledgment was based upon a mistake of fact. Although petitioner was not the child’s biological father, the best interests of the child, with whom petitioner had lived from birth for six years, mandated denial of the petition. The court explained the relevant law:

A party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must prove that it was signed by reason of fraud, duress, or material mistake of fact (see Family Ct Act § 516-a[b][ii]). If the petitioner meets this burden, the court is required to conduct a further inquiry to determine whether the petitioner should be estopped, in accordance with the child’s best interests, from challenging paternity … . * * *

The Family Court providently exercised its discretion in concluding that the petitioner should be equitably estopped from denying paternity. The purpose of equitable estoppel “is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position” … . Thus, “a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity” … . “The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship” … . The paramount concern in such cases “has been and continues to be the best interests of the child” … .

Here, the hearing evidence demonstrated that the petitioner lived with the child from the time of her birth in March 2005, until 2011. After the parties separated in 2011, the petitioner continued to visit with the child approximately one to two times per week. According to the petitioner, the child is free to visit with him whenever she wants. Although the child knows that the petitioner is not her biological father, she does not refer to or think of anyone else as her father. The child has a strong relationship with the petitioner and wants to spend more time with him and his son, whom she regards as her brother. Accordingly, the evidence established that, up to the time of the hearing, there had been a recognized and operative parent-child relationship between the petitioner and the child in existence all of the child’s life … . Matter of Luis Hugo O. v Paola O., 2015 NY Slip Op 05195, 2nd Dept 6-17-15

 

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Defendant-Homeowner’s Providing Plaintiff With a Ladder With Allegedly Worn Rubber Feet Raised a Question of Fact About Defendant’s Liability for the Ladder’s Slipping and Plaintiff’s Fall—Cause of Accident Can Be Proven by Circumstantial Evidence

The Second Department determined Supreme Court should not have granted summary judgment to the defendant homeowner.  Plaintiff was using defendant’s ladder when the ladder slipped and plaintiff fell.  Plaintiff alleged the rubber feet on the ladder were totally destroyed. That allegation created a question of fact whether defendant provided dangerous or defective equipment to the plaintiff which caused plaintiff’s injury. In response to defendant’s argument that plaintiff could not explain the cause of the accident without resort to speculation, the court noted that the cause of an accident can be proven by circumstantial evidence (here the condition of the feet of the ladder and fact that the feet slipped):

“[W]hen a defendant property owner lends allegedly dangerous or defective equipment to a worker that causes injury during its use, the defendant moving for summary judgment must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition” … . While lack of constructive notice can generally be established by evidence demonstrating when the area or condition was last inspected relative to the time of the accident …, the absence of rubber shoes on a ladder is a “visible and apparent defect,” evidence of which may be sufficient to raise a triable issue of fact on the issue of constructive notice … . Here, the defendants satisfied their prima facie burden with evidence that the ladder had been inspected prior to the accident. The defendant Billis Arniotis (hereinafter Billis) testified that, since purchasing the ladder 20 years before the accident, he had used it once per week and had inspected its rubber feet each time. Billis last inspected the ladder one or two weeks before the accident and did not observe any wear at that time. However, the plaintiff testified that he inspected the ladder after the accident and found that its rubber feet were “totally eaten up, worn,” and “destroyed.” This conflicting evidence, coupled with Billis’s testimony that the ladder had not been used between the time of the accident and the plaintiff’s inspection, raised a triable issue of fact.

Contrary to the defendants’ contention, they failed to make a prima facie showing that the plaintiff cannot identify the cause of his fall without engaging in speculation. A plaintiff’s inability to testify exactly as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence … . Here, Billis’s testimony establishes that he was present at the time of the accident and that he watched the ladder slide down while the plaintiff was on it. Evidence that the ladder’s rubber feet were worn down also is sufficient to permit the inference that this defective condition caused the slippage … . Patrikis v Arniotis, 2015 NY Slip Op 05167, 2nd Dept 6-17-15

 

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“Assault and Battery” Exclusion from Coverage Applied Even Though Plaintiff Was Not the Intended Target of the Assault

The plaintiff was struck by a bar stool in a fight at the insured bar.  Plaintiff was not involved in the fight and the assailant apparently did not intend to strike her. The Second Department determined the “assault and battery” exclusion in the bar’s policy applied and the insurer (North Sea) was not obligated to defend and indemnify the insured bar.  The fact that the plaintiff was not the intended target of the assault did not preclude the application of the exclusion:

“The duty to defend is triggered whenever the allegations of a complaint, liberally construed, suggest a reasonable possibility of coverage, or the insurer has actual knowledge of facts establishing a reasonable possibility of coverage” … . “[A]n insurance carrier can be relieved of its duty to defend if it establishes, as a matter of law, that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision” … . “An insurer may also disclaim coverage on the basis of a policy exclusion by demonstrating that the allegations of the complaint cast that pleading solely and entirely within the exclusion” … . “An exclusion for assault and/or battery applies if no cause of action would exist but for’ the assault and/or battery” … .

Here, North Sea demonstrated its prima facie entitlement to judgment as a matter of law by establishing that the assault and battery exclusion is applicable to the claims asserted by the plaintiff against the pub defendants in the underlying action … . The claims asserted by the plaintiff in the underlying action arise out of the assault and, thus, fall within the exclusion under the subject policy … .

In opposition, the plaintiff failed to raise a triable issue of fact as to the exclusion’s applicability … . Contrary to the plaintiff’s contention, the fact that the bar stool made physical contact with her and not the intended target does not negate the conclusion that the act was done with the intention to commit an assault or a battery … . Parler v North Sea Ins. Co., 2015 NY Slip Op 05166, 2nd Dept 6-17-15

 

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