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Question of Fact Whether Board of Education Liable for Negligent Supervision of Violent Student

The Second Department determined questions of fact existed re: whether the school had notice of a student’s propensity for violent behavior.  The student allegedly held plaintiff partially outside a fourth-floor window at the school. The court noted that the city was not a proper party to the suit:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Actual or constructive notice to the school of prior similar conduct generally is required, and “an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence” … . A plaintiff also must establish that the alleged breach of the duty to provide adequate supervision was a proximate cause of the injuries sustained … .

Here, in support of their motion for summary judgment, the defendants failed to establish, prima facie, that the Board of Education lacked sufficiently specific knowledge or notice of the dangerous conduct that caused the injury … . The defendants’ motion papers reflect the existence of triable issues of fact as to whether the Board of Education had knowledge of the offending student’s dangerous propensities arising from his involvement in other altercations with classmates in the recent past … . Thus, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the cause of action sounding in negligent supervision insofar as asserted against the Board of Education.  Mathis v Board of Educ. of City of New York, 2015 NY Slip Op 02459, 2nd Dept 3-25-15

 

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Psychological Injury Stemming from Witnessing the Aftermath of a Suicide Deemed Compensable

The Third Department determined claimant was properly awarded benefits for psychological injury stemming from witnessing the aftermath of a suicide:

Psychological injuries caused by witnessing the aftermath of a suicide have been held to be compensable where “the claimant was an active participant in the tragedy,” as opposed to a bystander … . The facts here are not in significant dispute. On March 31, 2006, a patient leapt from a window at the facility where claimant worked and impaled himself on picnic tables outside of claimant’s office. Claimant was one of the first workers to reach the scene and, despite her lack of medical training, was directed by her supervisor to retrieve an oxygen tank for the patient. Claimant did so, but began to feel anxious and hyperventilate and “lost it” altogether after she was ordered by facility officials not to speak to investigators about her prior interactions with the patient. Therefore, substantial evidence exists for the Board’s finding that claimant was indeed an active participant in the events surrounding the suicide … . The Board was further free to, and did, credit medical evidence indicating that claimant developed disabling depression, anxiety and posttraumatic stress disorder as a result of the incident … Matter of Demperio v Onondaga County, 2015 NY Slip Op 02533, 3rd Dept 3-26-15

 

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Summary Judgment May Be Based Upon an Unpled Affirmative Defense/Oral Waiver May Be Effective in the Face of a “Written Waiver” Requirement in the Contract

The First Department noted that a motion for summary judgment can be based upon an unpleaded affirmative defense in the absence of surprise and determined there was a question of fact whether an oral waiver was effective in the face of a contract provision requiring any waiver to be in writing:

Defendants’ failure to plead the affirmative defense of waiver in their answer did not preclude them from asserting such defense for the first time on summary judgment, since “[t]here is no prohibition against moving for summary judgment based on an unpleaded defense where the opposing party is not taken by surprise and does not suffer prejudice as a result” … . * * *

Although the management agreement contained a provision that any waivers must be in writing, “a contracting party may orally waive enforcement of a contract term notwithstanding a provision to the contrary in the agreement. Such waiver may be evinced by words or conduct, including partial performance”… . Matthew Adam Props., Inc. v The United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, 2015 NY Slip Op 02419, 1st Dept 3-24-15

 

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Heavy Shelves Bolted to the Wall Constituted a “Structure” and Dismantling the Shelves Constituted “Demolition” within the Meaning of the Labor Law

The First Department, reversing Supreme Court, granted summary judgment to the plaintiff on liability re: his Labor Law 240(1)  and 241(6) claims.  The court determined the dismantling of heavy shelves which were bolted to the wall constituted demolition of a structure within the meaning of the Labor Law:

Plaintiff was injured in a fall from an unsecured ladder while working in a warehouse, where his job was to “clean out, remove machines, break down structures . . . and ship them out.” The work included removal of heavy machinery and shelves that ran from floor to ceiling across three second-floor walls, each 50 feet long and 8 feet high, and were bolted to the floors and walls. The breaking down and removing of the shelves required the use of impact wrenches and sawzalls to cut the bolts. Removed materials, including shelving, were heavy, and had to be loaded in cages, which were then lifted by a pallet jack, moved to the edge of the second floor, and lowered to the first floor with a forklift. The dismantling of the shelves was a sufficiently complex and difficult task to render the shelving a “structure” within the meaning of Labor Law §§ 240(1) and 241(6) … . Moreover, in dismantling the shelving, plaintiff was engaged in “demolition” for purposes of §§ 240(1) and 241(6) … . Phillips v Powercrat Corp., 2015 NY Slip Op 02407, 1st Dept 3-24-15

 

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The “Following the Settlements” Doctrine and “Following Form” Clauses as They Apply to Reinsurers Discussed in Some Depth

The First Department, in a full-fledged opinion by Justice Friedman, determined questions of fact precluded summary judgment in an action by an insurance company, New Hampshire, against a reinsurer, Clearwater.  The underlying actions were against the manufacturer Kaiser and consisted primarily, but not entirely, of asbestos-related products liability claims.  AIG, an insurer-participant in the Kaiser/AIG settlement of the claims, had allocated 100% of Kaiser’s settlement to asbestos liability claims. Clearwater challenged that allocation.  A summary of the nature of the primary action is quoted below, followed by descriptions of the “follow the settlements” doctrine and “following form” clauses:

New Hampshire has brought this action against defendant Clearwater Insurance Company (Clearwater), a reinsurer of the excess policy New Hampshire issued to Kaiser, seeking to require Clearwater to indemnify New Hampshire for the share prescribed by its reinsurance certificate of the portion of the Kaiser settlement payments (which are being made over a 10-year period) that AIG has allocated to the New Hampshire policy. In its defense, Clearwater challenges AIG’s allocation of 100% of the settled losses to asbestos products liability claims, contending that this allocation unreasonably results in the reinsured New Hampshire policy bearing part of the cost of settling the premises, bad faith and defense cost claims that Kaiser had not asserted against New Hampshire or that were not covered by the New Hampshire policy. … * * *

…[T]he “follow the settlements” doctrine “ordinarily bars challenge by a reinsurer to the decision of [the cedent] to settle a case for a particular amount” … . Specifically, under this doctrine,

“a reinsurer is required to indemnify for payments reasonably within the terms of the original policy, even if technically not covered by it. A reinsurer cannot second guess the good faith liability determinations made by its reinsured . . . . The rationale behind this doctrine is two-fold: first, it meets the goal of maximizing coverage and settlement and second, it streamlines the reimbursement process and reduces litigation . . .” … .

Stated otherwise, as “an exception to the general rule that contract interpretation is subject to de novo review” …, the “follow the settlements” doctrine “insulates a reinsured’s liability determinations from challenge by a reinsurer unless they are fraudulent, in bad faith, or the payments are clearly beyond the scope of the original policy or in excess of the reinsurer’s agreed-to exposure” … . * * *

The purpose of a “following form” clause is “to achieve concurrency between the reinsured contract and the policy of reinsurance, thereby assuring the ceding company, that by purchasing reinsurance, it has covered the same risks by reinsurance that it has undertaken on behalf of the original insured under its own policy” … . Accordingly, “[a] following form’ clause in a policy of reinsurance incorporates by reference all the terms and conditions of the reinsured policy, except to the extent that the reinsurance contract by its own terms specifically defines the scope of coverage differently” … .  * * * The authors of one treatise on reinsurance law caution that “a follow the form’ clause should not be confused with a follow the fortunes’ clause or a follow the settlements’ clause” (Ostrager § 2:03[a] at 73).  New Hampshire Ins. Co. v Clearwater Ins. Co., 2015 NY Slip Op 02438, 1st Dept 3-24-15

 

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No Notice of Claim Requirement for Suit Against Sheriff/Sheriff Can Be Liable for Negligently Training and Supervising Deputies/Whether Sheriff Entitled to Governmental Immunity Cannot Be Decided at the Pleading Stage

The Fourth Department determined no notice of claim need be filed in an action by an inmate against the county sheriff.  The court further determined the sheriff has a duty to keep prisoners safe, the sheriff can be liable for negligently training and supervising deputies who work at the jail, and the factual question whether the sheriff is entitled to governmental immunity could not be decided at the pleading stage:

Service of a notice of claim upon a public corporation is not required for an action against a county officer, appointee, or employee unless the county “has a statutory obligation to indemnify such person under [the General Municipal Law] or any other provision of law” (General Municipal Law § 50-e [1] [b]) and, here, Erie County has no statutory obligation to indemnify defendant. Plaintiff “was not required to file a notice of claim naming [defendant] in his official capacity prior to commencing” an action against defendant … .

We further conclude that the court erred in determining that defendant owed no duty of care to plaintiff. Pursuant to Correction Law § 500-c, a sheriff has a “duty to receive and safely keep’ prisoners in the jail over which he has custody” …, and plaintiff’s first cause of action is based on an alleged violation of that duty to him. A sheriff may also be held liable for negligent training and supervision of the deputy sheriffs who worked in the jail …, which forms the basis of plaintiff’s second cause of action.

We reject defendant’s contention that the court properly determined that he is immune from liability because his alleged negligence arises from discretionary acts for which he is entitled to governmental immunity. In the context of this CPLR 3211 motion, the issue whether defendant’s alleged acts of negligence “were discretionary and thus immune from liability is a factual question which cannot be determined at the pleading stage’ ” … . Villar v Howard, 2015 NY Slip Op 02232, 4th Dept 3-20-15

 

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Application for Variance Properly Denied—Courts’ Review Powers Re: Actions of Zoning Board Explained

The Fourth Department determined the zoning board properly denied the petitioner’s application for a variance and explained the courts’ review powers in this context:

It is well settled that the determination whether to grant or deny an application for an area variance is committed to the broad discretion of the applicable local zoning board … . Consequently, when reviewing the denial of an application for an area variance, “[j]udicial review [of such a determination] is . . . limited to the issue whether the action taken by the [board] was illegal, arbitrary, or an abuse of discretion’ . . . [, and the b]oard’s determination should therefore be sustained so long as it has a rational basis and is supported by substantial evidence’ ” … . A reviewing court may not substitute its judgment for that of a local zoning board …, “even if there is substantial evidence supporting a contrary determination” … .

Here, the record establishes that respondent reviewed the appropriate statutory factors in making its determination (see General City Law § 81-b [4] [b]), and concluded that the application should be denied because, inter alia, the variances would cause an undesirable change to the character of the neighborhood, the variances are substantial, and petitioners’ hardship is self-created (see § 81-b [4] [b] [i], [iii], [v]). Matter of People, Inc. v City of Tonawanda Zoning Bd. of Appeals, 2015 NY Slip Op 02257, 4th Dept 3-20-15

 

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Actus Reus for Burglary and Murder Not the Same—Consecutive Sentences Valid

The Fourth Department, over a two-justice dissent, determined the defendant was properly sentenced to consecutive terms for burglary and murder.  The defendant broke into the victim’s home, dragged her downstairs and murdered her.  The court held that the actus reus for the burglary was completed before the murder:

Defendant was convicted of burglary for unlawfully entering the victim’s dwelling, with the aggravating factors of causing physical injury to the victim (§ 140.30 [2]), and using or threatening the immediate use of a dangerous instrument (§ 140.30 [3]), i.e., a butcher knife. Defendant was charged with intentionally causing the victim’s death by repeatedly stabbing her with a butcher knife. It is well established that, in considering whether sentences must run concurrently under Penal Law § 70.25 (2), “the court must determine whether the [actus reus] element is, by definition, the same for both offenses (under the first prong of the statute), or if the [actus reus] for one offense is, by definition, a material element of the second offense (under the second prong)” … . “[W]hen the actus reus is a single inseparable act that violates more than one statute, single punishment must be imposed” … . Although the actus reus elements of the burglary counts and the murder count overlap under the facts presented here, we nevertheless conclude that the People “establish[ed] the legality of consecutive sentencing by showing that the acts or omissions’ committed by defendant were separate and distinct acts” … . The evidence established that, after defendant entered the apartment through a window that he smashed with a cinder block, he dragged the victim from her bed and down the stairs to the living room, where he killed her. People v Brahney, 2015 NY Slip Op 02227, 4th Dept 3-20-15

 

 

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Abuse of Discretion to Deny Defendant’s Request for New Defense Counsel—Request Was Supported by Specific Legitimate Concerns and Was Joined by Defense Counsel

The Fourth Department, over a dissent, determined Supreme Court should not have denied defendant’s request for new counsel, which was echoed by defense counsel and supported by specific, legitimate concerns.  The conviction was reversed and a new trial ordered. The Fourth Department outlined the analytical criteria:

The determination “[w]hether counsel is substituted is within the discretion and responsibility of the trial judge . . . , and a court’s duty to consider such a motion is invoked only where a defendant makes a seemingly serious request[]” … . Thus, where a defendant makes “specific factual allegations” against defense counsel … , the court must make at least “some minimal inquiry” to determine whether the defendant’s claims are meritorious … . Upon conducting that inquiry, “counsel may be substituted only where good cause’ is shown” … .

Here, the court erred in determining that a breakdown in communication between attorney and client cannot constitute good cause for substitution of counsel. Although the mere complaint by a defendant that communications have broken down between him and his lawyer is not, by itself, good cause for a change in counsel …, where a complete breakdown has been established, substitution is required … . Here, both defendant and defense counsel agreed that they were unable to communicate, and nothing said by either of them during the court’s lengthy inquiry indicated otherwise.

We conclude that the court also erred in suggesting that any breakdown in communication was “initiated or promoted by the defendant as opposed to defense counsel.” That conclusion is not supported by the record, which shows that the breakdown in communication resulted from legitimate concerns defendant had about defense counsel’s performance. People v Gibson, 2015 NY Slip Op 02236, 4th Dept 3-20-15

 

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Motion to Vacate Conviction Based Upon Victim’s Recantation Should Not Have Been Denied Without a Hearing

The Fourth Department determined Supreme Court erred when it denied defendant’s motion to vacate his conviction without a hearing.  The motion was primarily based upon the victim’s, defendant’s daughter’s, recantation of her rape allegations:

In her affidavit, the victim, who was the sole witness to give testimony at trial with respect to the crimes, averred that she wanted to live with her maternal grandmother. In order to effectuate that move, her maternal grandmother advised her to accuse defendant of having sexually assaulted her. The victim averred that she did not care about defendant at the time and, therefore, she agreed to accuse defendant of sexually assaulting her. She further averred that, since the trial, she had reconnected with her paternal grandmother and had seen how the latter was suffering because defendant was in prison. Witnessing that suffering resolved her to tell the truth. Although the court found the victim’s recantation to be inherently unbelievable or unreliable, we conclude that, based on the totality of the circumstances, such a finding was unwarranted in the absence of a hearing … .

The victim’s trial testimony that defendant had sexually assaulted her was crucial to the prosecution’s case. Her subsequent averments that she was encouraged by her maternal grandmother to accuse defendant of crimes so that she could live with her maternal grandmother indicate that she had a motive to lie at trial. We therefore conclude that the victim’s trial testimony, if false, was extremely prejudicial to defendant inasmuch as, without that testimony, there would have been no basis for the jury to convict defendant … . Under those circumstances, the court’s denial without a hearing of that branch of defendant’s motion based on the victim’s recantation was an improvident exercise of discretion … . People v Martinez, 2015 NY Slip Op 02286, 4th Dept 3-20-15

 

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