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New Trial Required Because State’s Experts Testified Based On Hearsay Not Demonstrated to Have Been Reliable

The Second Department determined a new civil commitment trial was required because the experts based their testimony in part upon hearsay which had not been demonstrated to be reliable:

As recently held by the Court of Appeals in Matter of State of New York v Floyd Y. (22 NY3d 95, 109), “[d];ue process requires any hearsay basis evidence to meet minimum requirements of reliability and relevance before it can be admitted at an article 10 proceeding. In article 10 trials, hearsay basis evidence is admissible if it satisfies two criteria. First, the proponent must demonstrate through evidence that the hearsay is reliable. Second, the court must determine that the probative value in helping the jury evaluate the [expert’s]; opinion substantially outweighs [its]; prejudicial effect’ (cf. Fed Rules Evid rule 703). These reliability and substantial relevance requirements provide a necessary counterweight to the deference juries may accord hearsay evidence simply because an expert has propounded it.”… .

Here, both of the State’s experts testified to the appellant’s convictions, as well as unproven acts, which formed the basis of their opinion that the appellant suffered from a mental abnormality. The experts provided considerable hearsay testimony concerning these unproven acts, relying, inter alia, upon hearsay evidence within probation reports and other documents, and not personal knowledge. The State failed to demonstrate through other evidence that the aforementioned hearsay testimony was reliable … . As the State failed to establish that the hearsay was reliable, the Court need not determine whether the probative value of such hearsay outweighed its prejudicial effect… . Matter of State of New York v Walter R, 2014 NY Slip Op 04020, 2nd Dept 6=4=14

 

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Defendant Would Not Admit to the Commission of Certain Elements of the Offense to Which He Pled Guilty—Vacation of Plea as Involuntary Was Required, Despite Lack of Preservation and a Waiver of Appeal

The Third Department determined defendant’s guilty plea must be vacated, despite a failure to preserve the error and a waiver of appeal. During the plea allocution, defendant denied elements of the offense to which he was pleading guilty (strangulation in the second degree). Defendant denied that the victim experienced a loss of consciousness or any injury, and denied he had the intent to impede the breathing of the victim.  The guilty plea, therefore, was not knowing, intelligent and voluntary (constituting an exception to the “preservation of error” requirement):

Although defendant’s challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal …, it is unpreserved for our review in the absence of an appropriate postallocution motion … . Upon reviewing the record, however, we are persuaded that the narrow exception to the preservation requirement has been triggered here, as defendant made numerous statements during the course of the plea colloquy that negated essential elements of the crime, thereby calling into question the voluntariness of his plea … . * * *

Simply put, defendant’s responses to the questions posed during the plea colloquy negated more than one element of the charged crime, thereby casting doubt upon his guilt. Inasmuch as further inquiry by County Court neither resolved that doubt nor otherwise established that the resulting plea was knowing, intelligent and voluntary … , it should not have been accepted by the court and must now be vacated … . People v Mcmillan, 2015 NY Slip Op 04680, 3rd Dept 6-4-15

 

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Plaintiff Assumed the Risk of Stepping on Running Treadmill

The Second Department determined plaintiff had assumed the risk of injury from stepping on a treadmill the prior user had left running:

The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation … . This encompasses risks associated with the construction of the playing field, the activity engaged in, and the surface and any open and obvious conditions on it … . The doctrine has been applied in cases involving injuries sustained in gyms and fitness centers … . Awareness of the risk of engaging in a particular activity is “to be assessed against the background of the skill and experience of the particular plaintiff” … . The doctrine, however, does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased … . * * *

As the risks of using a treadmill were obvious and apparent to the plaintiff, she consented to them, and the defendant discharged its duty of care by making the conditions as safe as they appeared to be … . DiBenedetto Town Sports Intl LLC, 2014 NY Slip Op 03974, 2nd Dept 6-4-14

 

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Inadequate Waiver of the Right to Appeal Required Vacation of Guilty Plea, Despite Lack of Preservation of the Error

The Third Department determined defendant’s waiver of his right to appeal was invalid and his guilty plea must therefore be vacated (in the interest of justice), despite the failure to preserve the error:

Defendant argues that his plea was invalid because County Court failed to advise him of the rights that he would be waiving by pleading guilty, including “the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses” … . This argument is unpreserved given defendant’s failure to advance it in his motion to withdraw his plea … . While it is somewhat unclear as to the precise characterization of this type of error … , it is undoubtedly one serious enough to warrant reversal in the interest of justice … . …

… [A] trial court is neither required “to specifically enumerate all the rights to which the defendant was entitled [or] to elicit . . . detailed waivers before accepting [a] guilty plea” …, nor engage in “a uniform mandatory catechism of pleading defendants” … . There must, however, “be ‘an affirmative showing on the record’ that the defendant waived his [or her] constitutional rights” … . County Court made no effort to explain the rights that defendant was giving up by pleading guilty, making nothing more than a passing reference to them when asking if defendant had “any questions.” County Court further failed to establish that “defendant consulted with his attorney about the constitutional consequences of a guilty plea,” instead making a vague inquiry into whether defendant had spoken to defense counsel regarding “the plea bargain” and “the case”… . People v Klinger, 2015 NY Slip Op 04682, 3rd Dept 6-4-15

 

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Plaintiff Who Had Right of Way Should Have Been Granted Summary Judgment

The Second Department determined summary judgment should have been granted in an intersection collision case.  The plaintiff had the right of way and defendants’ vehicle failed to yield.  No question of fact was raised about plaintiff’s comparative fault:

The operator of a vehicle with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield … . However, a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection, including keeping a proper lookout and to see what can be seen through the proper use of his or her senses … . “Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … . Bennett v Granata, 2014 NY Slip Op 03968, 2nd Dept 6-4-14

 

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Individuals with Disabilities Education Act (IDEA) Does Not Confer a Private Right of Action Upon Local School Districts to Challenge IDEA-Related Rulings by the State Education Department (SED)

The Third Department, in a full-fledged opinion by Justice Peters, determined the Individuals with Disabilities Education Act (IDEA) did not give local educational agencies (LEA’s) (here a local school district) a private right of action to challenge a ruling by the State Education Department (SED) .  Here the SED found that the LEA’s dispute resolution practices violated state laws and regulations promulgated in accordance with the IDEA and ordered corrective measures. The LEA then challenged the SED’s rulings in an Article 78 action. The Third Department noted that the IDEA does not expressly confer a right of private action on LEA’s in this context and therefore whether such a right exists depends upon congressional intent. Because the IDEA confers a private right of action upon a specialized class, i.e., “any party aggrieved” by IDEA-related administrative proceedings which involve due process afforded a particular child, it follows that Congress did not intend to confer such a right upon LEA’s:

… Congress created procedural safeguards to ensure that students with disabilities receive a free appropriate public education and, in doing so, expressly granted a private right of action to “any party aggrieved” by an SEA’s administrative findings or decision resolving a due process complaint challenging “any matter relating to the identification, evaluation or educational placement of [a particular] child, or the provision of a free appropriate public education to such child” (20 USC § 1415 [b] [6] [A]; [f], [g], [i] [2] [A]; see also Education Law § 4404; 8 NYCRR 200.5 [i], [j], [k], [l])[FN2]. Since the IDEA includes an express right of action in favor of a specific class of persons, it is logical to assume that, had Congress intended to bestow upon LEAs a right of action to challenge an SEA’s regulatory and enforcement actions, it would have expressly done so … .

Further evidence of a lack of Congressional intent can be found in the hierarchal regulatory and enforcement structure created by the IDEA, which requires the federal Secretary of Education to monitor the states’ implementation of IDEA mandates and imposes upon the states corresponding regulatory and enforcement responsibilities over LEAs (see 20 USC § 1412 [a] [11]; § 1416 [a] [3]; 34 CFR 300.600, 300.603). The delegation of regulatory and enforcement power to the Secretary of Education and the states, but not to LEAs, suggests that Congress specifically intended to deny LEAs a right of action to challenge an SEA’s compliance with the IDEA … . Moreover, it would be inconsistent for Congress to implicitly create this right of action, as doing so would divest the Secretary of Education and the states of their regulatory and enforcement authority and would transfer that power to the Judiciary … . Matter of East Ramapo Cent. Sch. Dist. v King, 2015 NY Slip Op 04703, 3rd Dept 6-4-15

 

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Knowledge that Water Will Be Tracked In Is Not Constructive Knowledge of a Dangerous Condition—Property Owner Is Not Required to Cover All of the Floor with Mats or Continuously Mop Up Tracked-In Rain

In reversing Supreme Court and granting summary judgment to the defendant, the Second Department noted that knowledge that water might be tracked in when it rains was not sufficient to demonstrate constructive knowledge of a dangerous condition:

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the allegedly dangerous condition of accumulated water on the floor upon which the plaintiff slipped and fell, or have actual or constructive notice of the condition … . In opposition, the plaintiff failed to raise a triable issue of fact. The defendants were not required to cover all of the floor with mats or continuously mop up all moisture resulting from tracked-in rain … . Moreover, “[a]; general awareness that water might be tracked into a building when it rains is insufficient to impute to the defendants constructive notice of the particular dangerous condition” … . Sarandrea v St Charles School, 2014 NY Slip Op 03999, 2nd Dept 6-4-14

 

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Untimely Initial Appearance Does Not Mandate Dismissal as Long as the Right to a Speedy Fact-Finding Hearing Is Not Violated

The Third Department determined the failure to conduct an initial appearance within ten days of the filing of the juvenile delinquency petition (charging the equivalent of assault and criminal possession of a weapon) did not require dismissal of the petition. The court attempted to conduct the initial appearance within ten days but respondent failed to appear and no timeliness objection was raised when the initial appearance was conducted five days later.  The Third Department explained that the ten-day requirement is flexible, but the requirement that a fact-finding hearing be conducted within 60 days of the initial appearance is mandatory:

Respondent first contends that dismissal of the June 2013 petition is required because Family Court failed to conduct a timely initial appearance. Because he was not detained, Family Ct Act § 320.2 (1) required that the initial appearance occur “as soon as practicable and, absent good cause shown, within [10] days after” the filing of the petition. The initial appearance, “like the arraignment of an adult charged with a crime, is the process by which the court obtains jurisdiction over the minor, determines if detention is warranted, and sets the dates for further proceedings” (… see Family Ct Act § 320.4). Dismissal is appropriate where a respondent is deprived of his or her right to a speedy fact-finding hearing, a hearing that must occur “not more than [60] days after the conclusion of the initial appearance” if he or she is not confined (Family Ct Act § 340.1 [2]; see Family Ct Act §§ 310.2, 332.1 [8]). A “similar protected status” is not afforded to the initial appearance itself, although “dismissal without prejudice may be an appropriate remedy” if it is not held in a timely manner … . To put it succinctly, dismissal is not mandated in the wake of an untimely initial appearance so long as respondent’s right to a speedy fact-finding hearing is not violated … . Matter of Daniel B., 2015 NY Slip Op 04698, 3rd Dept 6-4-15

 

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School Not Liable for Three-Year-Old’s Failure to Get Off the Bus After Arrival at the School—Child Had Not Yet Entered the Orbit of the School’s Authority—Although School Voluntarily Undertook the Duty to Determine the Whereabouts of Absent Students, the Parents Were Not Aware of that Policy and Therefore Could Not Have Relied On It

The Second Department reversed Supreme Court and dismissed the complaint against a private school.  The infant plaintiff, a three-year-old with special needs, was left on the bus which transported him to school for six hours.  The Second Department determined the child had not yet entered the “orbit of” the school’s authority.  In addition, although the school voluntarily undertook to determine the whereabouts of absent children, there was no showing the child’s parents were aware of the policy:

A school’s duty to its students is dependent on its physical custody of those students (see Stephenson v City of New York, 19 NY3d 1031, 1033). Custody ceases when the student has passed out of the “orbit of” the school’s “authority” … . Here, it is undisputed that Nicholas never passed into the physical custody of the school, as he never left the bus. * * *

Voluntary conduct may give rise to liability, even if there would otherwise be no duty to act, if “the defendant’s affirmative action adversely affected the plaintiff and the defendant failed to act reasonably”… . In order for a party to be negligent in the performance of an assumed duty, however, the plaintiff must have known of and detrimentally relied upon the defendant’s performance, or the defendant’s actions must have increased the risk of harm to the plaintiff … . Arroyo v We Transp Inc, 2014 NY Slip Op 03965, 2nd Dept 6-4-14

 

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Injury Caused by an Unsecured Scaffolding Component Which Fell Approximately Two-Feet, Striking Plaintiff, Was Not the Type of Elevation-Related Risk Which Is Covered by Labor Law 240 (1)

Plaintiff was injured when a component of scaffolding fell about two-feet and struck him.  The Third Department determined the incident was not the result of a circumstance covered by Labor Law 240 (1) (the absence of statutorily-required safety equipment), even though the incident was “gravity-related.”  However, the Labor Law 246 (1) cause of action, alleging a violation of a provision of the Industrial Code, and the Labor Law 200 cause of action against the general contractor which supervised and controlled the work, should not have been dismissed. With respect ot the Labor Law 240 (1) cause of action, the court explained:

Labor Law § 240 (1) “imposes absolute liability on building owners and contractors whose failure to ‘provide proper protection to workers employed on a construction site’ proximately causes injury to a worker” … . The statute is intended to provide “extraordinary protections [applicable] only to a narrow class of dangers. More specifically, [the statute] relates only to special hazards presenting elevation-related risks” … . Accordingly, “section 240 (1) does not automatically apply simply because an object fell and injured a worker; ‘[a] plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute'” … . Where, as here, an injury is caused by a falling object, liability “depends on whether the injured worker’s task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against” … . An elevation-related risk arises only where there is a “physically significant elevation differential” … . In order to determine whether a height differential is physically significant, we must consider “the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent” … . Without a significant elevation differential, Labor Law § 240 (1) does not apply, even if the injury is caused by the application of gravity on an object … .

Here, “tak[ing] into account the practical differences between the usual and ordinary dangers of a construction site, and . . . the extraordinary elevation risks envisioned by [the statute],” as we must …, we find that plaintiff’s injury, caused by the tipping frame or scaffold component (see 12 NYCRR 23-1.4), did not fall within the scope of Labor Law § 240 (1). Our conclusion remains even if we accept it to be true that the frame was part of a scaffold that was in the process of being assembled or dismantled … . The record indicates that, at most, the crossbar of the frame, which was upright but not connected to any other component or supporting any planking, was two feet above plaintiff’s head. In our view, the facts do not present a physically significant height differential and, while plaintiff was exposed to a general workplace hazard, he was not exposed to an elevation-related risk within the ambit of Labor Law § 240 (1) … . As such, this cause of action should be dismissed. Christiansen v Bonacio Constr., Inc., 2015 NY Slip Op 04700, 3rd Dept 6-4-15

 

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