You are here: / Allegation Plaintiff Driver Stopped Suddenly for No Reason Raised a Question...

Search Results

/

Allegation Plaintiff Driver Stopped Suddenly for No Reason Raised a Question of Fact About Whether the Driver Who Struck Plaintiff’s Vehicle from Behind Was Negligent

The Second Department determined defendant driver (Catania) whose vehicle struck plaintiff’s vehicle from behind had raised a question of fact about whether there was a non-negligent explanation for the collision.  Defendant alleged plaintiff stopped suddenly for no reason:

The Supreme Court erred in granting the plaintiff’s motion for summary judgment on the issue of liability. Although the plaintiff’s affidavit in support of the motion demonstrated that his vehicle was struck in the rear, thus raising an inference of Catania’s negligence, the plaintiff’s submissions, which included a transcript of Catania’s deposition testimony, revealed a triable issue of fact as to whether Catania had a nonnegligent explanation for the collision. Catania testified at his deposition that his vehicle was stopped at a traffic light at a distance of approximately eight feet behind the plaintiff’s vehicle. When the light changed to green, Catania maintained a safe distance between the two vehicles, but the plaintiff came to an abrupt stop for no apparent reason when there was no pedestrian or vehicular traffic in front of it, and the two vehicles collided. Under these circumstances, a triable issue of fact exists… . Fernandez v Babylon Mun Solid Waste, 2014 NY Slip Op 03230, 2nd Dept 5-7-14

 

/ ,

Plea of “Nolo Contendere” to a Sex Offense in Florida Constitutes a “Conviction” of a Sex Offense Requiring Registration in New York

Petitioner pled “nolo contendere” to a sex offense in Florida. Petitioner contended that the offense was based on his having consensual sex with a 15-year-old classmate when petitioner was 18.  The Florida court withheld adjudication. The Court of Appeals determined petitioner was required to register as a sex offender upon his move to New York. The “nolo contendere” plea meets the definition of “conviction” in New York. A “sex offender” in New York is one who has been “convicted” of a “sex offense” which includes a felony in another jurisdiction for which the offender is required to register as a sex offender (the case here):

We held in People v Daiboch (265 NY 125 [1934]), … that the entry of a nolo contendere plea in another jurisdiction, followed by a judgment placing the defendant on probation for two years, was a prior conviction for purposes of sentencing the defendant as a second offender. Although Daiboch did not involve SORA, we confronted the same issue presented by this case: whether a defendant's out-of-state nolo contendere plea for which a non-incarceratory sentence was imposed qualifies as a conviction in New York. Nolo contendere pleas, like Alford pleas, are “no different from other guilty pleas” (Matter of Silmon v Travis, 95 NY2d 470, 475 [2000] [recognizing that an Alford plea may generally be used for the same purposes as any other conviction]). And because New York defines a conviction to include the entry of a guilty plea, regardless of the subsequent sentence or judgment, the ultimate disposition of petitioner's Florida conviction is irrelevant. New York distinguishes between a conviction and a “judgment of conviction,” the latter of which includes “a conviction and the sentence imposed thereon” (CPL 1.20 [15]). As we have previously observed, the Legislature intended the Criminal Procedure Law to provide the “definitive meaning” of the term “conviction” for other criminal statutes, and it meant what it said when it defined “conviction” separately from a judgment or sentence … . Matter of Kasckarow v Board of Examiners of Sex Offenders of State of N.Y., 2015 NY Slip Op 03878, CtApp 5-7-15

 

/ ,

Jury’s Finding that the Defendant Was Negligent but that the Negligence Was Not the Proximate Cause of the Accident Was Against the Weight of the Evidence—Motion to Set Aside the Verdict Should Have Been Granted—New Trial Ordered

The Third Department determined Supreme Court should have granted plaintiff’s motion to set aside the verdict.  Plaintiff was injured when her bicycle struck a recessed manhole cover.  Defendant construction company had placed barrels in the roadway to create a pedestrian walkway.  The placement of barrels served to direct users of the walkway toward the recessed manhole. The jury found the placement of the barrels negligent but further found that negligence was not the proximate cause of the accident.  The verdict was against the weight of the evidence because the only reason the placement of the barrels would be deemed negligent is that the barrels diverted traffic toward the recessed manhole:

“A jury’s finding that a party was at fault but that [such] fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . Further, we view the evidence in the light most favorable to the nonmoving party, defendant, and afford deference to the jury’s credibility determinations … . A “plaintiff’s own conduct may be a superceding cause which severs the causal connection between [the] defendant’s negligence and the injury [when] a plaintiff’s negligence [is] more than mere contributory negligence, which would be relevant in apportioning culpable conduct” … .

* * * The only theory presented at trial as to why such placement was negligent, as indicated in the jury instructions, was that it diverted traffic toward a dangerous recessed manhole cover. Given that the uncontested evidence was that plaintiff was diverted in just such a manner, no fair interpretation of the evidence “would support the conclusion that [plaintiff’s] conduct was so extraordinary or unforeseeable as to make it unreasonable to hold defendant[] responsible for the resulting damages” … . Therefore, Supreme Court erred in denying plaintiff’s motion to set aside the verdict. Durrans v Harrison & Burrowes Bridge Constructors, Inc., 2015 NY Slip Op 03896, 3rd Dept 5-7-15

 

/

Question of Fact About Whether Skater Assumed the Risk of a Collision with a Skating Guard Who May Have Acted Recklessly

The Second Department determined a skater may not have assumed the risk of a collision with a skating guard.  There was a question of fact about whether the skating guard had acted recklessly:

Voluntary participants in a sport or recreational activity “may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” … . Although collisions between skaters are a common occurrence, and thus an inherent risk to ice skating …, “participants do not consent to acts which are reckless or intentional” …, or to any “unassumed, concealed or unreasonably increased risks” … .

Here, the evidence submitted by the City in support of its motion failed to establish as a matter of law that the injury-causing event was a known, apparent, or reasonably foreseeable consequence of the plaintiff’s participation in the sport. The City’s submissions raised questions of fact as to whether the conduct of its employee, the skating guard who allegedly caused the plaintiff’s accident, was reckless or intentional and unreasonably increased the risk of a collision … . Kats-Kagan v City of New York, 2014 NY Slip Op 03235, 2nd Dept 5-7-14

 

/

General Permit System by Which Smaller Communities Obtain Authorization to Discharge Stormwater Does Not Violate Federal or State Law

The Court of Appeals, in a full-fledged opinion by Judge Read, over a three-judge partial dissent, determined that the system by which smaller municipalities can obtain authorization for stormwater discharge without a public hearing did not violate federal or state law. The court's own overview of this very complex opinion provides the best summary:

Runoff from rain and snow melt courses over roofs, roads, driveways and other surfaces, picking up pollutants along the way. It then passes through municipal storm sewer systems into rivers and lakes, adding the pollutants accumulated during its journey to those bodies of water. These municipal storm sewer systems thus differ from other entities that discharge effluents into our State's surface waters (for example, industrial or commercial facilities and sewage treatment plants) in three major ways: precipitation is naturally occurring, intermittent and variable and cannot be stopped; although municipalities operate sewer systems, stormwater contamination results from the often unforeseen or unpredictable choices of individual residents and businesses (for example, to let litter pile up or to use certain lawn fertilizers), as well as decisions made long ago about the design of roads, parking lots and buildings; and because stormwater runoff flows into surface waters through tens of thousands of individual outfalls, each locality's contribution to the pollution of a particular river or lake is difficult to ascertain or allocate through numeric limitations.

Federal and state law prohibit discharges of stormwater from New York's municipal separate storm sewer systems in urbanized areas (referred to as MS4s) without authorization under a State Pollutant Discharge Elimination System (SPDES) permit. As an alternative to an individual SPDES permit, municipal separate storm sewer systems that serve a population under 100,000 (or small MS4s) may seek to discharge stormwater under a SPDES general permit. The 2010 General Permit — the subject of this lawsuit — requires these municipal systems to develop, document and implement a Stormwater Management Program (SWMP) in compliance with detailed specifications developed by the New York State Department of Environmental Conservation (DEC or the Department) to limit the introduction of pollutants into stormwater to the maximum extent practicable. To obtain initial coverage (i.e., authorization to discharge) under the terms of the 2010 General Permit, small MS4s must first submit a complete and accurate notice of intention (NOI) to DEC.

After the 2010 General Permit took effect on May 1st of that year, the Natural Resources Defense Council, Inc. (NRDC) and seven other environmental advocacy groups (collectively, NRDC) brought this hybrid CPLR article 78 proceeding/declaratory judgment action against DEC to challenge certain aspects of the 2010 General Permit. NRDC claims generally that by allowing small MS4s to gain coverage under the 2010 General Permit based upon an NOI reviewed only for completeness and not subject to an opportunity for a public hearing, DEC has created an “impermissible self-regulatory system” that fails to force local governments to reduce the discharge of pollutants to the maximum extent practicable — the statutory standard — and violates federal and state law [FN2]. Equating NOIs with applications for individual SPDES permits, Supreme Court granted partial relief to NRDC (35 Misc 3d 652 [Sup Ct Westchester County 2012]). The Appellate Division, as relevant here, rejected NRDC's federal and state law challenges to the 2010 General Permit (120 AD3d 1235 [2d Dept 2014]). We granted NRDC leave to appeal (23 NY3d 901 [2014]), and now affirm. Matter of Natural Resources Defense Council, Inc. v New York State Dept. of Envtl. Conservation, 2015 NY Slip Op 03766, CtApp 5-7-15

 

/ ,

There Is No Blanket Prohibition Against Relying on the Doctrine of Res Ipsa Loquitur in a Medical Malpractice Case

In affirming the denial of summary judgment to the defendant in a medical malpractice case, the Third Department noted that plaintiff is not precluded from relying on the doctrine of res ipsa loquitur in a medical malpractice action.  Here it is was alleged the improper insertion of an IV damaged a nerve: “While the proof adduced at trial ultimately may be insufficient to establish the required elements of res ipsa loquitur …, thereby rendering the submission of such a charge to the jury unwarranted …, there is no blanket prohibition upon invoking this doctrine in the context of a medical malpractice action … .  Weeks v St. Peter’s Hosp., 2015 NY Slip Op 03909, 3rd Dept 5-7-15

 

/

Intentional Conduct Cannot Be the Basis for a Negligent Infliction of Emotional Distress Cause of Action

The Second Department determined a cause of action for negligent infliction of emotional distress cannot be based upon intentional conduct.  Plaintiff alleged he was attacked with a hammer by the defendant:

A cause of action to recover damages for negligent infliction of emotional distress, which no longer requires physical injury as a necessary element, “generally must be premised upon the breach of a duty owed to [the] plaintiff which either unreasonably endangers the plaintiff’s physical safety, or causes the plaintiff to fear for his or her own safety” … . “Such a claim must fail, where, as here, no allegations of negligence appear in the pleadings'” … . Here the plaintiff’s allegations in the verified complaint that the defendant “deliberately and violently” attacked him with a hammer, while using racial and ethnic slurs, are premised on intentional conduct and not negligence. Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Santana v Leith, 2014 NY Slip Op 03251, 2nd Dept 5-7-14

 

/

Uncle Was Properly Found to Be a “Person Legally Responsible” for the Abused Child—He Was Therefore a Proper “Respondent” in a Child Abuse/Neglect Proceeding

The Court of Appeals, over a three-judge dissent, determined the abused child’s uncle, as a person legally responsible (PLR) for the child’s care, was a proper “respondent” in the child abuse/neglect proceeding.  The uncle argued he was not a PLR for the abused child and Family Court therefore did not have jurisdiction over the abuse/neglect proceeding against him:

“…[T]he common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents” … . We held that deciding whether “a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case” … . We listed factors to be considered when determining who is a PLR, which include (1) “the frequency and nature of the contact,” (2) “the nature and extent of the control exercised by the respondent over the child’s environment,” (3) “the duration of the respondent’s contact with the child,” and (4) “the respondent’s relationship to the child’s parents” … . Matter of Trenasia J. (Frank J.), 2015 NY Slip Op 03765, CtApp 5-7-15

 

/

Nondomiciliary’s Presence In New York State for Part of a Day Constitutes Presence for a “Day” for Income Tax Purposes

The Third Department determined presence in New York State for part of a day constitutes presence for a “day” when calculating the number of days a nondomiciliary resides in New York State for income tax purposes:

The Administrative Law Judge determined that, as per 20 NYCRR 105.20 (c), each of the 26 partial days constituted a day in New York under the statute, bringing Zanetti's total days in New York over 183 and, thus, resulting in petitioners being residents of this state for income tax purposes (see Tax Law § 605 [b] [1] [B]). …

The residency classification can have significant consequences since New York residents pay income tax on their worldwide income whereas nonresidents are taxed only on their New York source income (see Tax Law §§ 612, 631…). A nondomiciliary may be considered a New York resident for income tax purposes if he or she maintains a permanent place of abode in this state and spends in excess of 183 days of the year here (see Tax Law § 605 [b] [1] [B]…). The permanent place of abode element is not at issue here. With regard to days in New York, the pertinent regulation of respondent Commissioner of Taxation and Finance provides that, with certain exceptions not relevant in this proceeding, “presence within New York State for any part of a calendar day constitutes a day spent within New York State” (20 NYCRR 105.20 [c]). Matter of Zanetti v New York State Tax Appeals Trib., 2015 NY Slip Op 03894, 3rd Dept 5-7-15

 

/

Co-Tenant Acquired Entire Parcel by Adverse Possession

The Second Department determined a co-tenant of land owned by tenants in common had adversely possessed the entire parcel for the required 20-year period.  The court explained the applicable legal principles:

“Adverse possession must be proven by clear and convincing evidence” … . “To establish a claim of adverse possession, the following five elements must be proved: Possession must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period” … . ” [A]n inference of hostile possession or a claim of right will be drawn [where] the other elements of adverse possession are established, unless, prior to the vesting of title, the party in possession has admitted that title belongs to another'” … . Moreover, under the law existing at the time title allegedly vested here, in the absence of an overt acknowledgment during the statutory period that ownership rested with another party, actual knowledge of the true owner, or co-owner as is the case here, did not destroy the element of claim of right … . “Where, as here, the party claiming adverse possession is a tenant-in-common in exclusive possession, the statutory period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may acquire full title by adverse possession” … . Galli v Galli, 2014 NY Slip Op 03231, 2nd Dept 5-7-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy