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Judge’s Flawed Question During Plea Colloquy Required Vacation of the Plea

The Third Department determined County Court’s equating a lack of consent (re: sexual abuse) with the “forcible compulsion” element of the offense required vacation of the plea:

In response to the court’s questioning, defendant admitted that he had subjected the victim to sexual contact by “grabb[ing] her breasts.” County Court then inquired of defendant, “did you do that by forcible compulsion, in other words, without her consent or without her authority?” Forcible compulsion, however, is defined as compelling another “by either [] use of physical force; or [] a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person” (Penal Law § 130.00 [8]). Defendant answered in the affirmative, and County Court accepted his guilty plea without conducting any further inquiry into the facts or readdressing the element of forcible compulsion.

By equating forcible compulsion with lack of consent, County Court misdefined an essential element of the crime to which defendant was pleading. While defendant was not required to recite facts establishing every element of the crime … , we cannot countenance a conviction that rests upon a misconception of the key element of forcible compulsion … . Because the record fails to establish that defendant understood the nature of the charge or that his guilty plea was knowingly and intelligently entered, his plea must be vacated and the matter remitted to County Court … . People v Marrero, 2015 NY Slip Op 05974, 3rd Dept 7-9-15

 

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Multiplicitous Indictment Counts Dismissed/Warrantless Search of Impounded Vehicle Upheld

The Third Department determined several counts of an indictment stemming from a fatal car accident (involving reckless driving under the influence) were multiplicitous and further determined the warrantless search of the impounded vehicle was valid:

An indictment “is multiplicitous when a single offense is charged in more than one count” (People v Alonzo, 16 NY3d 267, 269 [2011]). Accordingly, “[a]n indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . “Where each count requires proof of an element not essential to the other, [however,] an indictment is not multiplicitous” … .

Counts 2, 5 and 8 of the indictment charged defendant with vehicular manslaughter in the first degree pursuant to Penal Law § 125.13 (3), which requires proof that defendant (1) committed the crime of vehicular manslaughter in the second degree and (2) had been convicted within the preceding 10 years of violating Vehicle and Traffic Law § 1192 (see Penal Law § 125.13 [3]). Counts 1, 4 and 7 of the indictment charged defendant with aggravated vehicular homicide pursuant to Penal Law § 125.14 (3), which requires proof that defendant (1) committed the crime of vehicular manslaughter in the second degree, (2) engaged in reckless driving and (3) had previously been convicted of a Vehicle and Traffic Law § 1192 violation within the preceding 10 years. As relevant here, a person is guilty of vehicular manslaughter in the second degree when he or she operates a motor vehicle in violation of Vehicle and Traffic Law § 1192 (2), (3) or (4-a) thereby causing the death of another person (see Penal Law § 125.12 [1]).

In our view, these charges were predicated upon the same statutory provisions (see Penal Law §§ 125.13 [3]; 125.14 [3]), act and victim, differing only in the nature of defendant’s impairment. In this regard, defendant was alleged to have been driving while per se intoxicated (counts 1 and 2), in an intoxicated condition (counts 4 and 5) and impaired by a combination of drugs or alcohol and drugs (counts 7 and 8) (see Vehicle and Traffic Law §§ 1192 [2], [3], [4-a]). The essential elements of both crimes do not address the specific manner in which defendant was impaired; rather, they include only a single offense of some form of impaired driving as defined within Penal Law § 125.12 (1). Accordingly, counts 4 and 7 should have been dismissed as multiplicitous of count 1, and counts 5 and 8 must be dismissed as multiplicitous of count 2 … . * * *

Testimony at the suppression hearing established that, at the request of law enforcement, defendant’s vehicle was removed from the accident scene and taken to an unsecured lot, where it remained for several hours until it was transported — at the direction of a Rensselaer County deputy sheriff — to a secure impound lot. While defendant does not contest the initial towing from the accident scene, he claims that the seizure of the vehicle from the unsecured lot to the secured lot was unconstitutional. We disagree. “It is well settled that once the police possess a reasonable belief that the vehicle was, in some way, associated with the crime and that a search of the vehicle would produce the fruits, instrumentalities, contraband or evidence of the crime the police can conduct[] a warrantless search and seizure of the vehicle” … . Here, the vehicle was moved from a lot where it was easily accessible to any member of the public to the secure lot only after it became clear that it was involved in a fatal accident. People v Hoffman, 2015 NY Slip Op 05976, 3rd Dept 7-9-15

 

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Area in the Vicinity of the Indian Point Nuclear Power Facility Properly Classified as a Statutorily Protected Environmental Habitat

The Third Department affirmed the Secretary of State’s expansion of a statutory “significant coastal fish and wildlife habitat area” along the Hudson River in the vicinity of the Indian Point nuclear power facility.  The petitioner, the owner of Indian Point, sought to have the designation of the area as a statutorily protected environmental habitat annulled. The Third Department (1) explained a court’s powers when reviewing an agency’s interpretation of its own regulations; (2) determined the agency did not engage in formal rulemaking (which would be subject to the stringent procedural requirements of the State Administrative Procedure Act); and (3) determined certain documents were properly withheld re: petitioner’s Freedom of Information Law (FOIL) requests:

When an agency interprets a regulation that it promulgated, deference is afforded to that agency’s interpretive approach unless it is “irrational or unreasonable” … . To this end, the promulgating agency’s interpretation may not be adjudged irrational simply because other rational constructions of the regulatory provision in question exist …, nor because the promulgating agency’s reading of the relevant regulatory language either broadens its plain-language scope … or amounts to a “strict[ly] literal interpretation” … . Furthermore, “the determination of an agency acting pursuant to its authority and within its area of expertise is[, similarly,] entitled to judicial deference” … . In contrast, an agency’s interpretation of one of its own regulations is not entitled to deference if that interpretation contradicts the plain language of the regulation (see Matter of Elcor Health Servs. v Novello, 100 NY2d at 280), and an agency may be deemed to have acted irrationally if an interpretation of a regulation marks an unsubstantiated departure from the agency’s previous position on a given subject … . * * *

State Administrative Procedure Act § 102 (2) (a) (i), in pertinent part, defines a “[r]ule” as “the whole or part of each agency statement, regulation or code of general applicability that implements or applies law.” In contrast, State Administrative Procedure Act § 102 (2) (b) (iv) excludes from this statutory definition “forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory.” While “there is no clear bright line between a ‘rule’ or ‘regulation’ and an interpretative policy,” an agency does not engage in formal rulemaking when the practical effect of an agency’s updated policy is that a discrete group of regulated entities or individuals likely will be subjected to a greater degree of regulatory scrutiny than are the majority of those regulated by the agency … . When an agency engages in a course of regulatory action that amounts to formal rulemaking but does not comply with the procedural requirements of State Administrative Procedure Act article 2, that regulatory action must be annulled … .

We agree with respondents that the habitat boundaries’ modification that gave rise to Hudson Highlands did not amount to formal rulemaking.  * * *

In response to petitioners’ discovery and Freedom of Information Law requests, respondents withheld a small number of documents pursuant to Public Officers’ Law § 87 (2) (g), which allows for “people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure” … . Supreme Court correctly concluded that “respondents’ interest in maintaining the confidentiality of the records and in allowing the candid exchange of ‘opinions, advice and criticism'” was valid and outweighed petitioners’ interest in having them. Petitioners argue that respondents waived the deliberative process privilege by describing the agencies’ decision-making process within the scientists’ affidavits. We find petitioners’ claims that respondents have waived the deliberative process privilege to be unpersuasive … . Matter of Entergy Nuclear Indian Point 2, LLC v New York State Dept. of State, 2015 NY Slip Op 05988, 3rd Dept 7-9-15

 

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Substantial Evidence Did Not Support Maltreatment Report

The Third Department determined the Commissioner of Children and Family Services should have granted the petition to expunge and amend as unfounded a maltreatment report maintained by the Central Register of Child Abuse and Maltreatment. Although the denial could properly be based upon hearsay and double hearsay, the maltreatment finding was not based upon substantial evidence:

To establish maltreatment, the agency was required to show by a fair preponderance of the evidence that the physical, mental or emotional condition of the child had been impaired or was in imminent danger of becoming impaired because of a failure by petitioner to exercise a minimum degree of care in providing the child with appropriate supervision or guardianship … . Our review is limited to assessing whether the determination is supported by substantial evidence, meaning “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”… .

Here, the proof introduced against petitioner consisted solely of the investigation progress notes and a Family Court order from 1998 that adjudicated petitioner to have neglected another son. The progress notes were prepared by a child protective services caseworker and include her accounts of interviews with numerous individuals, including the child and his therapist, that led her to the conclusion that maltreatment had occurred. Neither the caseworker nor her interview subjects testified before the Administrative Law Judge, however, and the progress notes reflect that the child bore no marks or evident injuries as a result of the maltreatment. In contrast to this meager evidentiary showing, petitioner and his wife both testified and denied that any maltreatment had occurred. Petitioner also asserted, without contradiction, that he was physically incapable of engaging in some of the claimed maltreatment, such as lifting the 110-pound child with one hand. His wife further stated that the child admitted to her that he was lying about the alleged maltreatment. The record suggests a reason why the child might be prompted to lie, as a bitter custody dispute between petitioner and the child’s mother has led to numerous unfounded reports of mistreatment regarding petitioner.

Like any administrative determination, one made after an expungement hearing may be based solely upon hearsay evidence — or even double hearsay evidence — in the appropriate case … . As such, “our concern is not the hearsay nature of the evidence, but whether it is sufficiently relevant and probative to constitute substantial evidence” … . Hearsay evidence will not satisfy that standard if the facts it purportedly establishes are “seriously controverted” … . Serious controversy is precisely what surrounds the hearsay evidence here, given the hearing testimony that the maltreatment had not occurred and that the child had recanted his claims, the proof that motivations may have existed for the child to fabricate the maltreatment, and the total lack of physical evidence suggesting that it occurred. We accordingly agree with petitioner that substantial evidence does not support the challenged determination, which must be annulled as a result … . Matter of Gerald HH. v Carrion, 2015 NY Slip Op 05982, 3rd Dept 7-9-15

 

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Two-to-Five-Foot Fall from Edge of Roof to Scaffolding Supported Labor Law 240 (1) Cause of Action

The Third Department determined a two-to-five foot fall from the edge of a roof to scaffolding properly survived summary judgment on the Labor Law 240(1) cause of action:

Liability under Labor Law § 240 (1) arises when a worker’s injuries are “‘the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'” … . Ordinarily, the adequacy of a safety device is a question of fact, unless the device “‘collapses, slips or otherwise fails to perform its function of supporting the worker'” … .

The distance that Scribner fell from the roof ledge to the scaffolding is disputed. Claimant alleged, in the bill of particulars, that the scaffolding was two feet below the ledge, while Scribner and the project supervisor asserted in their deposition testimony that the scaffolding was four to five feet below the ledge. Regardless of whether the height differential was two, four or five feet, Scribner’s fall is the type of elevation-related risk to which Labor Law § 240 (1) applies … .

The parties’ submissions also raise a question of fact as to whether the scaffolding afforded … adequate protection and, if not, whether the absence of an appropriate safety device was the proximate cause of his injuries … . Scribner v State of New York, 2015 NY Slip Op 05993, 3rd Dept 7-9-15

 

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Wall Surrounding the Edge of a Roof Is Not a Safety Device

Reversing Supreme Court, the Third Department determined plaintiff’s injury was elevation-related and therefore was covered under Labor Law 240(1).  Plaintiff was standing on a building-roof using hand signals to guide a crane when he fell from the roof. Supreme Court reasoned plaintiff could have accomplished his job while staying away from the edge of the roof and, therefore, the accident was not elevation-related within the meaning of the statute. The Third Department rejected that reasoning and noted that the parapet wall around the edge of the roof was part of the structure of the building and could not, therefore, be considered a safety device:

Supreme Court determined that his injuries did not flow from an elevation-related hazard, as plaintiff was not “required to work at an elevation” and could have stayed away from the edge of the roof by directing the crane operator via cell phone … . This determination, however, ran against the undisputed proof that plaintiff had to work somewhere on the roof in order to signal the crane operator and that hand signaling was the usual method of doing so … . His decision to employ an accepted method of signaling while performing necessary work on the roof, even if a safer method existed, constituted nothing more than “comparative fault that is not a defense under the statute”… .

… A parapet wall surrounded the edge of the roof, but “a permanent appurtenance to a building does not normally constitute the functional equivalent of a scaffold or other safety device within the meaning of the statute” … . Salzer v Benderson Dev. Co., LLC, 2015 NY Slip Op 06001, 3rd Dept 7-9-15

 

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In the Absence of Prejudice to Defendants, It Was Not Error to Allow Evidence of a Theory of Liability Not Explicitly Referenced in the Complaint and Bill of Particulars

The Third Department determined evidence of a theory of liability that was not explicitly included in the pleadings and bill of particulars was not error. The theory was implicit in the pleadings and the defendants could not have been surprised by the related evidence. The court noted it would have been better had the plaintiffs moved to conform the pleadings to the evidence:

Generally, a party is limited to presenting evidence at trial that supports a cause of action or theory of recovery that was either pleaded in the complaint or asserted in the bill of particulars … . However, evidence concerning a specific theory or injury not mentioned in the bill of particulars may nonetheless avoid exclusion where such proof necessarily flows from the information conveyed in the pleadings and where the defendants should have been aware of the basis thereof… .

The contested theory of liability in this case is based on the allegedly erroneous interpretation of plaintiff’s February CT scan by Beatty (hereinafter referred to as the Beatty theory). It is worth noting that, because the complaint and bills of particulars do not contain an express articulation of the Beatty theory, the better practice certainly would have been for plaintiff to seek leave to amend his pleadings in advance of trial or at least have moved to conform the pleadings to the proof after the trial was underway. However, we nonetheless find that Supreme Court’s determinations allowing plaintiff to advance the Beatty theory at trial, including permitting plaintiff’s expert to offer testimony on the theory, do not constitute reversible error. In our view, the complaint— * * * which reference[s] the February CT scan as a basis for a departure from accepted medical practice — [was] sufficient to notify defendants of the Beatty theory and, as such, permit that theory of liability to be advanced at trial without prejudice. Simply put, we are unpersuaded by defendants’ position that they were not aware of the Beatty theory as a basis for a potential finding of medical malpractice. Boyer v Kamthan, 2015 NY Slip Op 05983, 3rd Dept 7-9-15

 

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Defendant Should Have Been Awarded Summary Judgment in Rear-End Collision Case—Fact that Defendant’s Vehicle Was Double-Parked Was Not the Cause of the Accident

Reversing Supreme Court, the First Department determined the fact that defendant’s (Pepsi’s) vehicle was double-parked did not warrant denial of defendant’s summary judgment motion. The fact that the vehicle was double-parked was merely the condition or occasion for the occurrence of the accident, not the cause. Plaintiff’s claim that sunlight temporarily blinded him did not constitute a nonnegligent explanation for his striking the rear of the Pepsi vehicle:

In this rear-end collision case, even assuming that the Pepsi vehicle, hit from behind, was illegally double-parked, that fact, standing alone “does not automatically establish that such double-parking was the proximate cause of the accident” … . Here, the record shows that the double-parked vehicle, given the road conditions at the time of the accident, namely, the favorable weather, the time of day, and the relatively minimal amount of traffic on the road at the time, “merely furnished the condition or occasion for the occurrence of the event but was not one of its causes” … . Plaintiff’s proffered excuse for the accident, that sunlight temporary blinded the driver of the rear vehicle, does not constitute a nonnegligent explanation for the rear-end collision … . Barry v Pepsi-Cola Bottling Co. of N.Y., Inc., 2015 NY Slip Op 06034, 1st Dept 7-9-15

 

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Although the Elevator Maintenance Company May Have Been Negligent, Under “Espinal,” the Company Did Not Owe a Duty of Care to the Plaintiff—There Was No Evidence the Maintenance Company “Launched an Instrument of Harm,” the Only Available Theory of Liability (Re: Plaintiff) Which Could Have Arisen from the Maintenance Contract

The First Department, in a full-fledged opinion by Justice Saxe, determined an elevator maintenance company (The Elevator Man) did not owe a duty of care to the plaintiff who was injured when the elevator free-fell three stories in September 2010. The maintenance contract with the elevator maintenance company had been cancelled for non-payment, but the company had subsequently agreed to do, and had done, emergency repairs when called to do so. Although there was evidence the elevator maintenance company was negligent re: repairs done in early 2010, applying the “Espinal” criteria, the First Department held there was no evidence the maintenance company “launched an instrument of harm,” the only available theory of liability:

If the issue were limited to whether The Elevator Man was negligent, a question of fact would preclude summary judgment. However, the issue is not that simple.

“Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party” (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]).

Where a contractor has entered into a contract to render services, it may only be held to have assumed a duty of care to nonparties to the contract in three situations:

“(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm’; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” (Espinal, 98 NY2d at 140 [internal citations omitted]).

To the extent plaintiff relies on the inspection performed by The Elevator Man on January 14, 2010 in which it gave the elevator a “Satisfactory” rating, despite a “Cease Use” violation that had been issued on November 1, 2009, The Elevator Man was subject to the maintenance contract then in effect. To the extent plaintiff argues that The Elevator Man was negligent in the work it performed on May 26, 2010, any duty The Elevator Man had toward him could not be based on the terminated 2009 maintenance agreement; nevertheless, The Elevator Man continued to be subject to a more limited contract with the manager of the parking facility, in which it agreed to respond to emergency calls, upon payment of an agreed fee.

We find the rule set forth in Espinal to apply here. It is conceded that of the three possibilities listed in Espinal, only the first could provide a basis for liability to plaintiff: “where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm'” (id. at 140). However, even accepting for purposes of this analysis that The Elevator Man negligently inspected the elevator on January 14, 2010 and negligently failed to correctly assess the condition of the elevator and necessary repair on May 26, 2010, it cannot be said to have launched a force or instrument of harm. That is, in failing to correctly inspect or repair the elevator, it did not create or exacerbate an unsafe condition. Medinas v MILT Holdings LLC, 2015 NY Slip Op 06044, 1st Dept 7-9-15

 

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Estate of Mortgage-Holder Is a Necessary Party In a Foreclosure Proceeding

The Third Department determined that the estate of one of the mortgage-holders was a necessary party in a foreclosure proceeding. The court explained the relevant law:

“In an action to foreclose a mortgage, all parties having an interest, including persons holding title to the subject premises, must be made a ‘party . . . to the action'” … . Although defendant did not specifically raise the argument that decedent’s estate was a necessary party to the instant action, “the absence of a necessary party may be raised at any stage of the proceedings, by any party or by the court on its own motion” … . …. [W]here two individuals are the co-holders of a mortgage and one dies, the plaintiffs in a related foreclosure action would be the living mortgagee — or, in this case, his assignee … — and the personal representative of the deceased mortgagee … .

Here, given the lack of evidence that the corpus and distribution of decedent’s estate have previously been determined, such determination for the first time could inequitably affect decedent’s estate … . We find that decedent’s estate is therefore a necessary party to this action, as “[t]he rights, interests and equities of all of the parties claiming an interest in the mortgaged premises . . . should be settled and determined before any judgment of foreclosure and sale is entered” … . Bayview Loan Servicing, LLC v Sulyman, 2015 NY Slip Op 05989, 3rd Dept 7-9-15

 

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