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Allegations of Abuse of a Student by a School Bus Monitor Raised Questions of Fact Re: Negligent Supervision of the Student, Negligent Supervision and Training of the Monitor, and Whether the Monitor Was Acting Within the Scope of Her Employment

The Second Department, reversing Supreme Court, determined the defendant school district’s motion for summary judgment should not have been granted.  The complaint alleged a school bus monitor physically and mentally abused plaintiffs’ son, a student with severe mental disabilities.  The court determined the school did not establish it was unaware of the monitor’s propensity for the alleged misconduct (there was evidence of prior complaints). For that reason, the causes of action for negligent supervision of plaintiffs’ son and negligent supervision and training of the monitor should not have been dismissed. The court further determined the school did not demonstrate the actions taken by the monitor were within the scope of her employment, so the cause of action for negligent supervision and training of the monitor was viable.  The court noted that a negligent supervision and training cause of action would be precluded if the employee were shown to have acted within the scope of her employment, but suit under a “respondeat superior” theory would be possible:

Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information … . Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable … .

Contrary to the Supreme Court’s determination, the school defendants failed to establish, prima facie, that the school district had no specific knowledge or notice of [the monitor’s] propensity to engage in the misconduct alleged. ***

For the same reason, the Supreme Court erred in directing the dismissal of the plaintiffs’ second cause of action insofar as it alleged negligent supervision and training of [the monitor]. A necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury … . * * *

“Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training”.  … [T]he school defendants did not establish, prima facie, that [the monitor] was acting within the scope of her employment during the alleged incidents. Consequently, the plaintiffs were not precluded from claiming that the school district was negligent in its supervision and training of [the monitor]. Timothy Mc. v Beacon City School Dist., 2015 NY Slip Op 02942, 2nd Dept 4-8-15

 

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Cause of Action Based Upon Limited Sight Condition (Line of Sight Blocked by Tree) Should Have Been Dismissed—No Written Notice of the Condition/Cause of Action Based Upon Allegations the Town Created the Dangerous Intersection by the Painting of Roadway Lines and the Absence of a Traffic Control Device Not Subject to the Written Notice Requirement/Because There Was No Study of the Intersection, the Town Could Not Demonstrate Its Entitlement to Qualified Immunity

The plaintiff was injured in a motor vehicle accident at an intersection.  The plaintiff sued the town alleging that an evergreen tree created a limited sight condition, and further alleging the painting of roadway lines and the absence of a traffic control device created a dangerous condition.  The Second Department determined the “limited sight condition” cause of action against the town should have been dismissed because there was no showing the town had written notice of the problem.  The cause of action based upon the roadway lines and the absence of a traffic control device properly survived dismissal because the written notice requirement does not apply to dangerous conditions alleged to have been created by the municipality.  The court further held that the town’s “qualified immunity” defense was not demonstrated because there was no showing the town relied upon the results of a study addressing the conditions at the intersection… :

Supreme Court properly denied that branch of the Town’s motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged that the Town negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection. The prior written notice provision of the Town Code does not apply to a claim that a municipality allegedly created a defect or hazard through an affirmative act of negligence …, such as the Town’s allegedly negligent act of painting certain street lines, or to a claim that the municipality failed to provide appropriate traffic control devices at an intersection … .

The Town also failed to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection, based upon the defense of qualified immunity. “It has long been held that a municipality owe[s] to the public the absolute duty of keeping its streets in a reasonably safe condition. While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the municipality’s planning and decision-making functions. Thus, in the field of traffic design engineering, a municipality is accorded a qualified immunity from liability arising out of a highway planning decision” … . “However, the doctrine of qualified immunity will not apply where the municipality has not conducted a study which entertained and passed on the very same question of risk” … . Here, the evidence presented by the Town failed to establish that it undertook a study which entertained and passed on the question of risk that is at issue in this case … . Poveromo v Town of Cortlandt, 2015 NY Slip Op 02950, 2nd Dept 4-8-15

 

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Denial of Area Variance In the Absence of Evidence of a Detrimental Effect on the Community Was Arbitrary and Capricious

The Second Department determined Supreme Court correctly held that the zoning board of appeals’ denial of area variances was arbitrary and capricious.  The court noted that similar variances had been granted to other parties and there was no evidence before the board that the variances would have an undesirable effect on the character of the community, adversely affect the physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood:

In determining whether to grant an area variance, a zoning board must consider “the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant” … . The zoning board should also consider “(i) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (ii) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (iii) whether the requested area variance is substantial; (iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (v) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (General City Law § 81-b[4][b]). In applying the statutory balancing test for granting area variances, a zoning board is “not required to justify its determination with supporting evidence with respect to each of the five factors, so long as its ultimate determination balancing the relevant considerations was rational”… . Matter of L & M Graziose, LLP v City of Glen Cove Zoning Bd. of Appeals, 2nd Dept 4-8-15

 

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A Defendant Who Has Been Found Mentally Unfit to Proceed To Trial Cannot Be Subjected to a Parole Revocation Proceeding

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a defendant who has been deemed unfit to proceed to trial following a psychiatric examination cannot be subjected to a parole violation hearing.  The defendant, who was on lifetime parole for murder and had been committed to the custody of the Office of Mental Health (OMH), assaulted a fellow patient.  After a psychiatric examination, the defendant was deemed unfit to proceed to trial on charges stemming from the assault. Thereafter the Department of Corrections and Community Services (DOCCS) brought parole revocation proceedings against the defendant. The defendant was transferred to the custody of DOCCS and, after a hearing, his parole was revoked and he was incarcerated.  The Appellate Division (reversing Supreme Court) granted the defendant’s petition to annul the parole revocation, and returned the defendant to parole. The Court of Appeals affirmed, holding that subjecting the defendant to the parole revocation hearing, after defendant had been deemed mentally incompetent, violated defendant’s right to due process.  The Court of Appeals noted that its ruling may result in the release of persons found unfit for trial, something only the legislature can remedy:

It is, of course, well established — as a matter of common law and also of due process — that “a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial” … . The State contends that parole revocation proceedings do not raise the same concerns because parole revocation is not part of a criminal prosecution.

It is true that parole revocation deprives an individual only of “a restricted form of liberty” and thus implicates “some form of due process [but] not the full panoply of rights due a defendant in a criminal proceeding” … . Just as due process requires us to safeguard the liberty of parolees, we must also recognize the state’s strong interest in effectively managing parolees without unduly burdensome procedural restraints … . However, in balancing these competing interests, we conclude that several of the reasons underlying the bar against prosecuting a mentally incompetent defendant apply also to parole revocation hearings. Clearly salient are constitutional concerns about the fundamental fairness of a proceeding in which a defendant who is unable to make decisions about his defense may be returned to prison. But foremost is the concern already mentioned, about the accuracy of the proceedings. An incompetent parolee is not in a position to exercise rights, such as the right to testify and the opportunity to confront adverse witnesses (see 9 NYCRR 8005.18 [b] [2], [4]), that are directly related to ensuring the accuracy of fact-finding. It is true, as the State emphasizes, that the parolee is guaranteed a right to representation by counsel at the revocation hearing. But representation is not enough. A parolee must be able to provide the factual underpinnings of the presentation.

We conclude, therefore, that holding a parole revocation hearing after a court has deemed the parolee to be mentally incompetent violates the due process provision in our State Constitution… . Matter of Lopez v Evans, 2015 NY Slip Op 02868, CtApp 4-7-15

 

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Increasing Defendant’s Risk Level Based Upon His Mental Retardation Was an Abuse of Discretion

In a risk assessment proceeding pursuant to the Sex Offender Registration Act (SORA), the First Department determined Supreme Court should not have increased defendant’s risk level from a presumptive level two to level three based upon his mental retardation. The court explained that there had been no “clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior: “

The court erred in finding that defendant’s mental retardation warranted an upward departure to level three. The essence of the court’s reasoning was that defendant lacked the ability to appreciate the inappropriateness of his actions, or could not control his impulsive behavior. A departure from the presumptive risk level is warranted “where there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” … . The guidelines clearly provide for an automatic override to a presumptive level three designation where there has been a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior. Here, no such clinical assessment has been made, and thus an upward departure on this basis was improper… . People v McKelvin, 2015 NY Slip Op 02914, 1st Dept 4-7-15

 

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Where a Client’s Claims Against an Attorney Arise from the Attorney’s Providing Legal Services Which Are Related In Part to the Attorney’s Business Enterprise, the “Business Enterprise” Coverage Exclusions In the Legal Malpractice Insurance Policy Are Triggered

The First Department, in a full-fledged opinion by Justice Gische, determined the “business enterprise” exclusions in a legal malpractice insurance policy applied. Excluded from coverage were claims arising from the operation of a business enterprise in which the insured attorney was a principal.  The client, who sued for breach of contract and legal malpractice, had loaned money to the attorney’s real estate business and the attorney had drawn up the relevant documents and personally guaranteed payment. The fact that the client’s claims arose in part from the attorney’s involvement in his business enterprise triggered the policy exclusions.  The First Department, in this declaratory judgment action, held that the legal malpractice insurer had no duty to defend:

[The attorney] was simultaneously serving two masters, … his client, and a company of which he was a principal. This is precisely the situation that the policy’s Insured Status and Business Enterprise Exclusions exclude from coverage. Since [the client’s] claims partly arise from the legal services the attorneys provided her with, but also from [the attorney’s] status or activity for his company…, they are of a hybrid nature, and are not covered, meaning that [the insurer] has no duty to defend … .Lee & Amtzis, LLP v American Guar. & Liab. Ins. Co., 2015 NY Slip Op 02919, 1st Dept 4-7-15

 

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Pre-Discovery Motion for Summary Judgment Should Have Been Granted—Defendant Bus Driver’s Affidavit Explained the Collision Was the Result of His Reaction to an Emergency and Plaintiff Submitted No Alternate Factual Account

The First Department, over a dissent, determined that pre-discovery summary judgment dismissing the complaint against the Metropolitan Transportation Authority (MTA) (stemming from a bus-car collision) should have been granted.  The bus driver’s affidavit stated that when a van suddenly jumped a guard rail and entered his lane of travel, he veered to the left to avoid the van and collided with the vehicle in which plaintiff, who was asleep, was riding. Even though the MTA’s motion was made before the bus driver had been deposed, summary judgment, applying the emergency doctrine, was deemed appropriate because plaintiff submitted no alternate factual account:

The emergency doctrine applies in situations where an actor is confronted with a sudden or unexpected circumstance, not of the actor’s own making, that leaves little or no time for thought, deliberation, or consideration to weigh alternative courses of conduct … . The existence of an emergency and the reasonableness of a party’s response to it ordinarily present questions of fact warranting the denial of summary judgment … . Where, however, a driver presents sufficient evidence that he or she did not contribute to the creation of the emergency situation, that his or her actions were reasonable under the circumstances, and that there is otherwise no opposing evidentiary showing sufficient to raise a legitimate question of fact, summary judgment may be granted … . Speculation concerning the possible accident-avoidance measures of a defendant faced with an emergency is not sufficient to defeat summary judgment … . Green v Metropolitan Transp. Auth. Bus Co., 2015 NY Slip Op 02897, 1st Dept 4-7-15

 

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Evidence of a Defendant’s Silence In Response to Questions Posed by the Police Cannot Be Introduced in the People’s Case-In-Chief

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge dissent, determined that state evidentiary rules were violated by testimony, during the People’s case-in-chief, describing the defendant’s silence following some of the questions asked by the police during interrogation. The court noted that although there are (very) limited circumstances when a defendant’s silence, or failure to give a timely exculpatory explanation, can be used to impeach a defendant who takes the stand, no such flexibility applies to the case-in-chief.  There can be many reasons for a defendant’s silence in response to a question, so the probative value of silence is limited.  On the other hand, there is a real danger a jury will interpret a defendant’s silence as evidence of guilt. The error was not harmless as a matter of law–defendant’s conviction was reversed and a new trial ordered:

If silence could constitute an answer, then the People could meet their burden simply by asking a question. Moreover, evidence of a defendant’s selective silence “is of extremely limited probative worth” … . A defendant who agrees to speak to the police but refuses to answer certain questions may have the same legitimate or innocent reasons for refusing to answer as a defendant who refuses to speak to the police at all … . Furthermore, the potential risk of prejudice from evidence of a defendant’s selective silence is even greater than the risk to a defendant who chooses to remain totally silent. Jurors are more likely to construe a defendant’s refusal to answer certain questions as an admission of guilt if the defendant has otherwise willingly answered other police inquiries. The ambiguous nature and limited probative worth of a defendant’s selective silence is outweighed by the substantial risk of prejudice to the defendant from admission of such evidence … . Evidence of a defendant’s selective silence therefore generally may not be used by the People during their case-in-chief and may be used only as “a device for impeachment” of a defendant’s trial testimony in limited and unusual circumstances … .

The People’s use of defendant’s selective silence in this case was improper for another reason. In her opening statement, the prosecutor told the jury that defendant did not admit or deny the accusations when he spoke to the detective. Furthermore, during direct examination of the detective, the prosecutor elicited testimony establishing not only that defendant did not answer when asked whether he had sex with the victim, but also that he did not deny it either. In addition to using defendant’s selective silence as a purported impeachment device during their direct case, the People also invited the jury to infer an admission of guilt from defendant’s failure to deny the accusations. The risk that the jury made such an impermissible inference is substantial where, as here, defendant selectively answered some police questions but not others, and the court refused to provide any curative instruction. The prosecutor’s comments regarding defendant’s selective silence during opening statements were improper, and the court erred in allowing testimony concerning defendant’s selective silence at trial, inasmuch as the comments and testimony allowed the jury to “draw an unwarranted inference of guilt” … . People v Williams, 2015 NY Slip Op 02866, CtApp 4-7-15

 

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Reversal Due to Ineffective Assistance Affirmed Over Forceful Dissent

The Court of Appeals, in a brief memorandum decision, affirmed the Appellate Division’s reversal of defendant’s conviction due to ineffective assistance of counsel, noting counsel’s failure to invoke the court’s prior preclusion order and the presentation of an alibi defense for the wrong day.  Judge Pigott wrote a long and detailed dissent.  People v Jarvis, 2015 NY Slip Op 02869, CtApp 4-7-15

 

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Defendant Cannot Be Convicted of Both Intentional and Depraved Indifference Murder Where there Is a Single Victim/”Transferred Intent” Theory Explained and Applied/Insufficient Evidence Defendant Intimidated a Witness—the Witness’ Grand Jury Testimony Should Not Have Been Admitted

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a partial dissent, resolved a split among the departments and determined a defendant cannot be convicted of both intentional murder and depraved indifference murder where there is a single victim. It was alleged that the defendant fired his weapon at one person, but killed an uninvolved bystander who was several buildings away. The trial judge submitted both the intentional and depraved indifference murder theories to the jury in the conjunctive (not in the alternative). Defendant was convicted of both offenses. The Court of Appeals’ analysis turned on “transferred intent.”  Conviction under New York’s “transferred intent” theory requires the jury to conclude the defendant acted intentionally.  Intentional murder, even where “transferred intent” is involved, is incompatible with depraved indifference murder, which is, by definition, not intentional. Where there is a single victim, only one or the other mental state can apply, not both. The Court of Appeals further determined the trial court erred when it allowed in evidence the grand jury testimony of a witness who refused to testify, purportedly out of fear. There was not sufficient evidence connecting the defendant to any actions or words aimed at instilling fear in the witness.  A new trial was ordered for the intentional, depraved indifference and attempted murder counts:

The purpose of the transferred intent theory is “to ensure that a person will be prosecuted for the crime [that person] intended to commit even when, because of bad aim or some other ‘lucky mistake,’ the intended target was not the actual victim” … . Given this stated goal, the Court has cautioned that transferred intent “should not be employed to ‘multiply criminal liability, but to prevent a defendant who has committed all the elements of a crime (albeit not upon the same victim) from escaping responsibility for that crime” … . Hence, it should be applied where a defendant “could not be convicted of the crime because the mental and physical elements do not concur as to either the intended or actual victim” … .

… Whether based on the defendant’s conscious objective towards the intended victim, or on a transferred intent theory directed at a different, and actual, victim, defendant’s conviction depends on a jury finding that defendant harbored the requisite intentional mental state. Defendant cannot then also be guilty of the same murder premised on a depraved state of mind.

That the People had at their disposal two bases by which to establish the requisite state of mind — transferred intent and depraved indifference — does not permit the People to seek multiple convictions for the one murder for which the defendant was charged, prosecuted and tried. To hold otherwise is contrary to “the basic principle that a defendant should not be convicted and punished more than once for conduct which, although constituting only one prohibited act, may because of statutory definition, be theorized as constituting separate criminal acts” … . Under New York law, defendant is held accountable for the murder he committed, even if it was not the one he set out to complete (Penal Law 125.25 [1]). People v Dubarry, 2015 NY Slip Op 02865, CtApp 4-7-15

 

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