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Plaintiff, a Pedestrian, Was Injured When a Traffic Sign Struck by a Car Broke Off and Hit Her—County Owed Plaintiff a Duty to Properly Install the Sign—Question of Fact Raised Whether Improper Installation of a “Break Away” Sign Was a Proximate Cause of the Plaintiff’s Injuries

The Fourth Department determined the County had a duty to properly install traffic signs and that duty extended to plaintiff, a pedestrian severely injured when a traffic sign broke off and hit her after the sign post was struck by a car. The court further determined that a question of fact had been raised about whether any negligence in installing the sign was a proximate cause of plaintiff’s injuries:

“The existence and scope of a duty of care is a question of law for the courts entailing the consideration of relevant policy factors” … . “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party,” i.e., a person who is not a party to the contract … . An exception applies where the contracting party has ” entirely displaced the other party’s duty to maintain the premises safely’ ” … . Here, we conclude that the County’s duty to plaintiff arose from its comprehensive agreement with the City inasmuch as, pursuant to that agreement, the County has entirely displaced the City in fulfilling the City’s duty to be responsible for traffic signs … . Specifically, the County had a duty to properly reinstall the sign in October 1999, including using proper materials, installing the sign’s post at the appropriate depth in the ground on a proper base, and placing the sign at the required distance from the roadway. Moreover, that duty “extend[ed] to noncontracting individuals[, such as nearby pedestrians,] reasonably within the zone and contemplation of the intended [traffic engineering] services” encompassed by the County’s agreement with the City … .

…”[I]t is well settled that there may be more than one proximate cause of [an] accident” … . …[P]laintiff’s … expert raised an issue of fact … . Plaintiff’s expert opined in his opposing affidavit that the County improperly installed a breakaway signpost and that the accident would not have occurred but for that improper installation. Plaintiff’s expert also opined that the County’s negligence in installing the sign was a substantial factor in causing plaintiff’s injuries. Specifically, he opined that, had the sign been properly placed, it would not have struck plaintiff because its placement one foot above the ground created a risk that the sign would become a high-flying projectile if hit, rather than bending or projecting closer to the ground. We conclude that the court properly denied the County’s motion because the submission of conflicting expert opinions “present[ed] issues of credibility to be determined by the trier of fact” … . Honer v McComb, 2015 NY Slip Op 02662, 4th Dept 3-27-15

 

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Despite Broad General Language, the Release Applied Solely to the Property-Damage Claim Referenced In It and Not to Plaintiff’s Personal Injury Action

The Fourth Department determined Supreme Court should not have dismissed a complaint based upon a release signed by the plaintiff. The release related only to the particular property damage claims referenced in the document—despite broad prefatory language:

Plaintiff commenced this action seeking damages for injuries she allegedly sustained in a motor vehicle accident. She had previously commenced an action in Rochester City Court seeking $4,741.04 for property damage to her vehicle. In consideration of that sum, plaintiff signed a release in favor of, inter alia, defendant Zacharey A. Taylor (defendant), releasing him from “all actions, causes of action . . . claims and demands whatsoever” that plaintiff “ever had” against defendant “from the beginning of the world to the day of the date of this RELEASE. And more particularly for any and all property damage claims as a result of [the subject] motor vehicle accident.”

We conclude that Supreme Court erred in granting defendant’s motion to dismiss the complaint against him in the instant action pursuant to CPLR 3211 (a) (5) based upon the release. “The meaning and scope of a release must be determined within the context of the controversy being settled” … , and “a release may not be read to cover matters which the parties did not desire or intend to dispose of” … . “Moreover, it has long been the law that where a release contains a recital of a particular claim, obligation or controversy and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby” … . Here, viewing the release in the context of the controversy being settled and in light of the specific reference to plaintiff’s property damage claims, we conclude that the parties intended that plaintiff release only such property damage claims … . Corzatt v Taylor, 2015 NY Slip Op 02621, 4th Dept 3-27-15

 

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Stipulation to a Reduced Tax Assessment Freezes the Assessment at the Reduced Level for Three Years by Operation of Statute

Choosing not to follow the 3rd Department, the Fourth Department, in a full-fledged opinion by Justice Centra, determined a stipulation to a reduced property tax assessment is equivalent to a judicial reduced assessment and is frozen at the reduced level for three years pursuant to Real Property Tax Law (RPTL) 727:

RPTL 727 (1) provides in relevant part that, “[e]xcept as hereinafter provided, . . . where an assessment being reviewed pursuant to this article is found to be unlawful, unequal, excessive or misclassified by final court order or judgment, the assessed valuation so determined shall not be changed for such property for the next three succeeding assessment rolls prepared on the basis of the three taxable status dates next occurring on or after the taxable status date of the most recent assessment under review in the proceeding subject to such final order or judgment. Where the assessor or other local official having custody and control of the assessment roll receives notice of the order or judgment subsequent to the filing of the next assessment roll, he or she is authorized and directed to correct the entry of assessed valuation on the assessment roll to conform to the provisions of this section.”

…[T]he statute imposes a three-year freeze of the assessment where an order or judgment is issued determining that the assessment is unlawful, unequal, excessive, or misclassified … . Where, as here, there is a stipulation between the parties agreeing to a lower assessment, the stipulation has the same effect as a judicial determination that the assessment is unlawful, unequal, excessive, or misclassified … . The three-year freeze applies to the “next three succeeding assessment rolls” from the “date of the most recent assessment under review” (RPTL 727 [1]). Here, the assessment under review was the 2007 tax year, and therefore the next three succeeding assessment rolls, i.e., from 2008 through 2010, must have that same assessment. The second sentence of RPTL 727 (1), which was added a few years after the statute was enacted, specifically addresses the situation in which the assessor receives the order or judgment after the next assessment roll has already been filed. In that case, the assessor is directed to correct the assessed valuation “to conform to” the requirements of RPTL 727. Once the assessment has been corrected, the property owner may make an application for a refund (see RPTL 726 [1] [c]). Therefore, the application of RPTL 727 (1) in this case resulted in an automatic reduction in the assessment for the 2008-2009 school tax year, without the need for any filing of a tax certiorari proceeding by petitioner.  Matter of The Torok Trust v Town Bd. of Town of Alexandria, 2015 NY Slip Op 02632, 4th Dept 3-27-15

 

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After Hours Off-Premises Fight With Co-Employee Can Constitute Disqualifying Misconduct

The Third Department determined that a fight with a co-employee after hours at a bar could constitute disqualifying misconduct if the fight was connected with claimant’s employment.  Because the Board, which granted unemployment benefits, based its determination on where the fight occurred, the matter was remitted:

“Fighting with a coworker, regardless of who initiates the confrontation, has been held to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits” … . Claimant, moreover, was aware that the employer considered fighting to be a major infraction and that it could result in his termination. It is true that the fight occurred at a bar outside of work hours but, in that regard, a claimant is disqualified from receiving benefits whenever his or her misconduct occurs “in connection with” his or her employment (Labor Law § 593 [3]…). Claimant was accordingly obliged, “even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him and . . . he may be denied unemployment benefits as a result of misconduct in connection with his work if he fails to live up to this obligation” … . Therefore, the relevant question is not where or when the attack occurred, but whether it was connected to claimant’s employment … . Inasmuch as “the Board failed to address this relevant issue, its decision must be reversed and the matter remitted for further development of the record” … . Matter of Moniz (Nucor Steel Auburn, Inc.–Commissioner of Labor), 2015 NY Slip Op 02534, 3rd Dept 3-26-15

 

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Whether Arresting Officers Had Reasonable Suspicion to Stop and Detain Is a Mixed Question of Law and Fact Which Cannot Be Reviewed by the Court of Appeals

The Court of Appeals, over a strong dissent, determined it did not have jurisdiction to consider whether the police had reasonable suspicion to justify the stop and detention of the defendant, a mixed question of law and fact:

Whether the circumstances of a particular case rise to the level of reasonable suspicion presents a mixed question of law and fact … . Because the Appellate Division’s reversals were thus not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]), these appeals are not authorized to be taken.

While acknowledging that “determinations as to reasonable suspicion typically present a mixed question of law and fact,” the dissent cites People v McRay (51 NY2d 594 [1980]) for the proposition that these cases instead involve a straight-up question of law — namely, “the minimum showing necessary to establish reasonable suspicion” … . In McRay, though, the Appellate Division reversed the suppression court on the ground that the People’s proof was insufficient as a matter of law to support probable cause to arrest (id. at 605). When we disagreed and reversed, we therefore remitted to the Appellate Division for factual review, emphasizing that an inference of probable cause was permitted, but not required, on the facts established (id. at 605, 606). Here, by contrast, the Appellate Division reversed the suppression court because, when exercising its independent fact-finding powers, it drew a different inference from the established facts, thus deciding a mixed question of law and fact. The dissenting Judge strongly disagrees with the Appellate Division. But the views of individual Judges of this Court on the merits of defendants’ suppression motions are beside the point because the Criminal Procedure Law simply does not vest us with jurisdiction to entertain these appeals… . People v Brown, 2015 NY Slip Op 02552, CtApp 3-26-15

 

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Felony Convictions in Other Jurisdictions Need Not Have a New-York-Felony Counterpart to Be Considered Under the Persistent Felony Offender Statute

The Court of Appeals, in a full-fledged opinion by Judge Read, determined the persistent-felony-offender statute does not require that felonies committed in other jurisdictions have a felony-counterpart in New York in order to be considered re:  persistent-felony-offender status:

New York’s persistent felony offender statute, by its plain terms, does not require that, in order to classify someone as a persistent felony offender, an out-of-state predicate felony must have a New York counterpart. Section 70.10’s silence with regard to New York equivalency is dispositive. As the Second Circuit explained in Griffin, when holding that section 70.10 was rational as applied to the defendant in that case, “[s]ection 70.10 (1) (b) does not distinguish among felony convictions that arise under federal, New York State, or out-of-state law. Thus, if the acts constitute a felony under federal or another state’s law, they will be deemed a felony for purposes of persistent offender status under [s]ection 70.10 even if there is no counterpart felony in New York law” (Griffin, 156 F3d at 290 [emphasis added]…). People v Jones, 2015 NY Slip Op 02553, CtApp 3-26-15

 

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Defendant’s Inability to Participate in the Prison Sex Offender Treatment Program Based Upon His Disciplinary Record Should Not Have Been Deemed a “Refusal” to Participate in the Program

The Court of Appeals determined Supreme Court erred when it assessed points against the defendant in a Sex Offender Registration Act (SORA) proceeding for “refusal to participate” in a prison sex offender treatment program.  Defendant was not eligible for participation in the treatment program because of his disciplinary record.  He did not “refuse” to participate:

Whether a defendant’s prison disciplinary violations which prevent him or her from attending treatment can trigger an assessment of points under risk factor 12 has not been addressed by this Court. We hold that defendant’s inability to participate in sex offender treatment due to his disciplinary violations was not tantamount to a refusal to participate in treatment under the SORA Guidelines. Refusal contemplates an intentional explicit rejection of what is being offered. There is no indication here that defendant explicitly refused treatment. Conduct that places a defendant in a position where he or she could not receive treatment is not equal to refusal to participate in treatment. Inferring refusal from a defendant’s disciplinary record is not supported by the Guidelines, which state that points should be assessed where a defendant refuses treatment or is expelled from treatment. People v Ford, 2015 NY Slip Op 02554, CtApp 3-26-15

 

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Misinformation from Defense Counsel, Prosecutor and Judge Re: Defendant’s Eligibility for Shock Incarceration Warranted Vacation of Guilty Plea In Spite of Appeal Waiver/Overnight Guest Has Standing to Contest Search of Residence

The Third Department, over a dissent, determined that misinformation from the judge, prosecutor and defense counsel about defendant’s eligibility for the shock incarceration program justified the vacation his guilty plea, despite an appeal waiver. In addition, the court determined defendant was entitled to a hearing on whether he had standing to contest the search of another’s mobile home.  The owner of the mobile home (Orrego) had supplied an affidavit stating defendant was an overnight guest, a status the provided standing to contest the search:

Given the mistake by all involved in the plea proceeding, and counsel’s failure to provide meaningful representation on this issue, we agree with defendant’s contention that his motion to withdraw his guilty plea should have been granted. * * *

… [A] trial court is not obligated to conduct a suppression hearing “unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure” … . Pertinent here, “an overnight guest has an expectation of privacy in the host’s home” and, thus, standing to contest a search of that home … . In our view, the facts set forth in the Orrego affidavit necessitated, at a minimum, that a hearing be held to determine whether defendant had standing to contest the search… . People v Wiggins, 2015 NY Slip Op 02517, 3rd Dept 3-26-15

 

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Nervous and Uncooperative Actions by Defendant Justified Search of Area Inside Defendant’s Car After Defendant Was Out of the Car and Had Been Frisked

The First Department, over a dissent, determined the nervous and uncooperative actions of the defendant justified the warrantless search of a bag inside the car defendant was driving, after defendant was outside the car and had been frisked:

The testimony supports the trial court’s finding that the facts available to the officers, including defendant’s furtive behavior, suspicious actions in looking into the back seat on multiple occasions and refusal to follow the officers’ legitimate directions, went beyond mere nervousness. Rather, defendant’s actions both inside and outside of the vehicle created a “perceptible risk” and supported a reasonable conclusion that a weapon that posed an actual and specific danger to their safety was secreted in the area behind the front passenger seat, which justified the limited search of that area, even after defendant had been removed from the car and frisked … . People v Hardee, 2015 NY Slip Op 02573, 1st Dept 3-26-15

 

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Recorded Conversation In Which Defendant Did Not Respond to Statements by Victim that He Had Broken Her Ribs Was Admissible

The First Department determined portions of a recorded phone call in which defendant did not respond to the victim’s statements that he had broker her ribs were admissible because a person in defendant’s position would have been expected to answer:

The court properly exercised its discretion in admitting a phone call placed by defendant to the victim while defendant was incarcerated, in which the victim repeatedly stated that defendant had broken her ribs. The record supports the court’s findings that defendant heard and understood the victim’s accusation, and that a person in defendant’s position would have been expected to answer … . Rather than directly addressing the victim’s statement, defendant repeatedly attempted to change the subject, such as by asking the victim whether she meant that he posed a “threat” to her. It is not dispositive that defendant asked the victim to repeat herself after the fourth out of five times she stated that he had broken her ribs, since defendant did not otherwise indicate that he was unable to hear or understood her. Although the phone call was recorded by the Department of Correction pursuant to a standard policy made known to all inmates, the rule excluding “silence in the face of police interrogation” … was not implicated, since defendant’s admissions by silence were made to a civilian. Moreover, the court’s thorough limiting instructions also minimized any potential unfair prejudice. People v Vining, 2015 NY Slip Op 02570, 1st Dept 3-26-15

 

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