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Severity of Injuries Compared With the Absence of a Damages Award for Past and Future Economic and Non-Economic Loss Indicates an “Impermissible Compromise Verdict” Was Reached—New Trial on Liability and Damages Properly Ordered

The First Department determined the trial court had properly set aside the verdict because it represented an impermissible compromise.  Despite serious permanent brain and spinal cord injuries, the jury awarded no damages for past or future economic or non-economic loss. Plaintiff, a restaurant patron, was injured falling down a dangerous stairwell after opening a door which was usually locked. Plaintiff sued both the landlord and the tenant restaurant. In addition to the “impermissible compromise verdict” finding, the First Department noted that the danger posed by the stairwell supported a finding of liability re: both the landlord and the tenant.  With respect to the “impermissible compromise verdict,” the court wrote:

…[W]e … believe the trial court correctly set aside that verdict and ordered a new trial. The failure of the jury to award damages beyond reimbursement of medical expenses, despite the severity and permanency of plaintiff’s injuries, supported the trial court’s conclusion that the jury rendered an impermissible compromise verdict … . In cases involving seriously injured plaintiffs, where issues of liability are sharply contested, and the damages awarded are inexplicably low, the verdict is most likely the product of a jury compromise … . The crux of the prohibited trade off is that, “in addition to finding plaintiff partially responsible for the accident, the jury also compromised on liability and damages by finding the total amount for plaintiff’s injuries much too low” … . * * *

Since the extensiveness of plaintiff’s injuries cannot be reconciled with the absence of a damages award, the verdict reached by the jury was likely the outgrowth of a compromise, and a retrial is required … . Contrary to the alternate argument that any retrial should at most be limited to damages, we simply cannot know whether the compromise entailed the issue of liability, attribution of fault, the calculating of damages, or any combination thereof. … When there is a strong likelihood that the jury verdict resulted from some type of a trade off, retrial on all issues is mandated … . Nakasato v 331 W 51st Corp, 2015 NY Slip Op 00619, 1st Dept 1-26-15

 

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Pulling Into Traffic Without Activating Lights and Siren Did Not Constitute Reckless Disregard for the Safety of Others

The Third Department determined the vehicle accident was not the result of “reckless disregard for the safety of others” (vehicle and Traffic Law 1104) on the part of a police officer responding to an emergency.  Apparently the officer (Derkowski) had just began a pursuit and was pulling into traffic without his lights or siren activated when the collision occurred:

Derkowski intended to pursue a fleeing suspect in his patrol car, a pursuit that gained additional urgency when he spotted the suspect driving north on Lafayette Street (cf. Muniz v City of Schenectady, 38 AD3d at 991). Prior to turning onto the street in order to follow the suspect, Derkowski looked in both directions to ensure that no traffic was coming. His view of the southbound lane was obscured, however, by several illegally parked vehicles. Derkowski then turned left onto the street and collided with plaintiff. Derkowski did not activate his emergency lights or siren prior to turning, and plaintiff testified that it did not appear that Derkowski had his headlights on. Inasmuch as the pursuit had just commenced and Derkowski checked for oncoming traffic before turning, his failure to have lights and sirens on constituted nothing more than “a momentary lapse in judgment not rising to the level of ‘reckless disregard for the safety of others'” … . Rouse-Harris v City of Schenectady Police Dept, 2015 NY Slip Op 00591, 3rd Dept 1-22-15

 

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Claimed Gestation Period of 303 Days Requires Reliable Medical Evidence It Is Scientifically Possible/Acknowledgment of Paternity by Another Did Not Preclude Petitioner from Bringing His Paternity Action

The Second Department determined that petitioner must produce reliable medical evidence that a 303-day gestation period (the time between sexual intercourse and birth) is scientifically possible before proceeding with a paternity action.  The court noted that an acknowledgment of paternity by another did not preclude petitioner from bringing his paternity action:

Appellate courts have held that the generally accepted period of gestation is between 38 and 40 weeks… . However, pregnancy periods can exceed that timeframe … . Indeed, in 1992, the Appellate Division, [3rd] Department, held that a period of gestation measured from the last menstrual period prior to the child’s birth can be between 265 and 299 days … . In the beginning of the last century, this Court, citing Code Napoleon, found that the period between sexual intercourse and birth could be up to 300 days … . Here, the petitioner alleges that 303 days, or 43 weeks and 2 days, elapsed between the last date of sexual intercourse with the mother and the birth of the child.

Any material deviation from the generally accepted average period of gestation must be explained with a reliable medical opinion … . Although no such evidence was presented at the hearing, under the circumstances of this case, a new hearing should be conducted to afford the petitioner an opportunity to present such evidence. Since the petitioner has the burden of proof, he must present reliable medical evidence to demonstrate that the 303-day gestational period alleged here is scientifically possible

A prior acknowledgment of paternity made in accordance with Family Court Act § 516-a does not serve as an insuperable bar to a claim of paternity by one who is a stranger to the acknowledgment … . * * * Therefore, upon remittal, if the petitioner satisfies his burden of demonstrating at the hearing, with reliable medical evidence, that a 303-day gestational period is scientifically possible, then the Family Court must determine whether to direct a DNA or genetic marker test in the child’s best interest.

 

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Conviction Reversed Because Court Failed to Inquire About the Reasons for Defendant’s Request for Substitution of Counsel After Trial Began

The Second Department, over a dissent, reversed defendant’s conviction because the trial judge did not take any steps to determine the reasons for defendant’s request for new counsel after the trial had started:

Defendant is entitled to a new trial because the court improperly denied his request for substitution of counsel without conducting any inquiry whatsoever, and without permitting defendant to explain, either orally or in writing, why such an inquiry might be necessary … . At the beginning of the fourth day of trial, defendant asked to speak to the court. In denying his request, the court clearly assumed that he wanted to make a statement pertaining to his defense, even after defendant indicated that the subject matter was “my attorney and advice” and that the attorney was not “doing his proper work.” Defendant then asked to hand up papers that defense counsel immediately identified as “a notice of motion for reassignment of counsel,” but the court refused to look at the papers, and stated, “I will not reassign counsel. The motion is denied.”

…In People v Sides (75 NY2d 822 [1990]), for instance, the trial court was found to have erred in failing to ask “even a single question” about the nature of the disagreement after both the defendant and his counsel spoke of a breakdown in communications and trust … . Here, the court did not even learn the nature of the disagreement, let alone ask any questions about it. While not all requests for new counsel contain the specific factual allegations to show that the complaints and request are “serious,” which then triggers the court’s obligation to make a “minimal inquiry” into the nature of the disagreement and its potential for resolution …, here defendant was not given an opportunity to make any allegations. This is not a situation where a defendant rested on unelaborated claims; the court expressly declined to listen to defendant or read his submissions … . People v McCummings, 2015 NY Slip Op 00610, 1st Dept 1-22-15

 

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One Incident Where Young Children Were Left Alone Overnight Not Enough to Support a Neglect Finding/No Showing of Imminent, as Opposed to Merely Possible, Danger of Impairment to the Children

The Third Department reversed Family Court and determined a single incident of mother’s leaving young children (9 and 3) home alone overnight was not enough to support a neglect finding.  The court explained the proof requirements in some depth:

To satisfy its burden on the neglect petition, petitioner had to prove by a preponderance of the evidence that respondent’s failure “to exercise a minimum degree of care” in providing proper supervision or guardianship resulted in the children’s “physical, mental or emotional condition” being impaired or placed “in imminent danger of becoming impaired” (Family Ct Act § 1012 [f] [i]; see Family Ct Act § 1046 [b] [i]…). There are two prongs: actual or imminent danger, and failure to exercise a minimum degree of care … . The Legislature’s requirement of actual or imminent danger of impairment prevents state intrusion into private family life in the absence of “serious harm or potential harm to the child, not just . . . what might be deemed undesirable parental behavior” … . “Imminent danger, however, must be near or impending, not merely possible” … . * * *

…[T]he record does not indicate that petitioner established the first prong, that the three youngest children were in imminent danger of impairment, when respondent left them alone overnight. One police officer testified that the children were visibly upset when he first arrived at the house. That testimony is too vague to establish impairment of mental or emotional condition, and the record does not contain any expert opinion to that effect … . Even if that testimony was sufficient to show some impairment, it is unclear if the children were upset because of respondent’s actions in leaving them alone … . Leaving young children home alone overnight cannot be condoned, and such behavior satisfies the second prong of neglect in that respondent failed to exercise a minimum degree of care, did not provide proper supervision and her actions fell below what a reasonable and prudent parent would do in those circumstances. Nevertheless, one incident of this improper and irresponsible behavior does not qualify as neglect without a showing of imminent—rather than merely possible—danger of impairment to the children … . Matter of Javan W, 2015 NY Slip Op 00577, 3rd Dept 1-22-15

 

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The Meaning of “Manifest Intent” in the Context of a Fidelity Bond Insuring the Employer Against Dishonest Acts by an Employee Explained

The First Department explained what the term “manifest intent” means as the term appeared in a fidelity bond which insured the employer from dishonest acts by an employee. The coverage was triggered only when the employee acted with the “manifest intent” to cause the insured to sustain loss or to obtain financial benefit for the employee or a third party:

Manifest intent involves a continuum of conduct, ranging from embezzlement, where the employee necessarily intends to cause the employer the loss, to the other end of the continuum, which does not trigger fidelity coverage, where “the employee’s dishonesty at the expense of a third party is intended to benefit the employer, since the employee’s gain results from the employer’s gain”… .

Manifest intent to injure an employer exists as a matter of law where an employee acts with substantial certainty that his employer will ultimately bear the loss occasioned by his dishonesty and misconduct… . Keybank Natl Assn v National Union Fire Ins Co of Pittsburgh PA, 2015 NY Slip Op 00614, 1st Dept 1-22-15

 

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Safety Regulation Asserted to Be the Basis of the Labor Law 241 (6) Cause of Action Did Not Apply to the Defect Which Caused the Injury

The Third Department determined plaintiff’s injury from his use of a utility knife did not entitle him to recovery pursuant to Labor Law 241 (6).  The safety regulation alleged to have been violated prohibited a contractor from supplying tools with split or loose handles.  The problem with the utility knife was a loose locking mechanism.  The court refused to stretch the meaning of “loose or split handles” to include a loose locking mechanism:

Plaintiffs allege in their bill of particulars that defendant violated 12 NYCRR 23-1.10 (a), which states, in pertinent part, that unpowered hand tools with “[s]plit or loose tool handles shall not be used.” Notably, this regulatory provision does not merely impose a general duty to keep unpowered hand tools in a “safe,” “proper” or “adequate” condition …, nor does it proscribe the usage of hand tools with “unsafe” or “defective” handles, but, rather, specifically prohibits the use of hand tools with “[s]plit or loose . . . handles.”

Having determined that plaintiffs have asserted a violation of a regulatory provision that “‘sets forth a specific standard of conduct'” for general contractors and owners …, thereby providing a predicate basis for a claim under Labor Law § 241 (6), we are left to decide whether the regulation applies to the facts presented in this case [FN2]. Plaintiff explained during his examination before trial that, while he was cutting a piece of plastic with a utility knife, the locking mechanism that secures the retractable blade was loose, causing the blade to break in half and cut plaintiff’s wrist. Whether the dysfunctional locking mechanism can fairly be considered to be a “[s]plit or loose tool handle[]” is a question of law to be decided by the courts … . A fair reading of the regulation upon which plaintiffs rely, however, does not compel us to conclude that the looseness of the locking mechanism — an internal component of the knife and not a visible or functional part of the handle itself — was what the Commissioner of Labor had contemplated in his promulgation of 12 NYCRR 23-1.10 (a) … . We are well aware that the Industrial Code “should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” … . However, while the regulation sets forth a strict prohibition against using tools that have loose or split handles, it makes no mention whatsoever of the locking mechanism found within a hand tool, and we are thus constrained to determine that it is inapplicable. Boots v Bette & Cring LLC, 2015 NY Slip Op 00588, 3rd Dept 1-22-15

 

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Annexation of Petitioners’ Land (Located in the Town) by the City Deemed in the Overall Public Interest

The Third Department determined the city’s annexation of petitioners’ land, located in the adjoining town, was in the overall public interest:

A municipality seeking annexation pursuant to General Municipal Law article 17 “has the burden of proving that annexation is in the overall public interest” (…see NY Const, art IX, § 1 [d]; General Municipal Law § 712 [10]). Factors to be considered include “the benefit or detriment to the annexing municipality, the territory proposed to be annexed, and the remaining governmental unit from which the territory would be taken” … . “‘Benefit and detriment are customarily defined in terms of municipal services such as police and fire protection, health regulations, sewer and water service, public utilities and public education'” … . “Another factor entering into the balance is whether the annexing municipality and the territory proposed to be annexed have the requisite unity of purpose and facilities to constitute a community” … .

Here, petitioners established that the lack of municipal water and sewer services in the Town are a major impediment to the development of the property. Mauro testified that he has marketed the property for three years, but potential developers are not interested in it because it lacks access to these services. The services would, however, be available if the property were to be annexed to the City. * * *

The City also established that it provides professional fire and police protection that is better trained and more readily available than the emergency protection services available in the Town. The City bears the expense of full-time, fully-equipped police and fire departments covering a smaller geographic area, while the Town relies on the County Sheriff and volunteer fire departments. As a result, the City’s fire insurance rating is considerably better than that of the Town. Further, any development that occurs in the City will generate more tax revenue to defray the burden on the City’s taxpayers of the expense of maintaining professional police and fire departments, based on the City’s higher tax rate of $21.41 per thousand. For its part, the Town will lose only the minimal annual tax revenue of $51.06, based upon its 2013 tax rate of $1.36 per thousand. Although the Town argues against annexation based on the potential loss of taxes should the parcel be developed, “ordinarily expected adverse tax consequence[s] . . . [are] generally insufficient to defeat an annexation which is otherwise in the over-all public interest”… . Matter of City of Gloversville v Town of Johnston, 2015 NY Slip Op 00575, 3rd Dept 1-22-15

 

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Question of Fact Whether Out-of-Possession Landlord Created the Dangerous Condition Which Caused Gas Escaping from a Propane Tank to Ignite/Question of Fact Whether the Injured Employee’s Negligent Act (the Employee, Against the Direction of His Supervisor, Brought a Partially-Filled Propane Tank Inside the Building) Was Foreseeable

The Third Department determined a question of fact had been raised about the out-of-possession landlord’s liability for an accident which ignited gas from a propane tank.  The landlord had converted the building where the accident occurred for the operation of a propane tank refinishing business.  The business was continued by the tenant.  An expert concluded that there were several ignition sources within the building, installed by the landlord, which could have ignited the gas.  Therefore, there was a question of fact whether the out-of-possession landlord had created the dangerous condition.  In response to the argument that the negligence of injured employee (who brought a propane tank which still had gas in it into the building) was the sole proximate cause of the accident, the Third Department determined there was a question of fact about whether bringing such a partially filled tank inside the building (something employees were directed not to do) was foreseeable:

… [I]t is well established that, generally, “once possession has been transferred to a tenant, an out-of-possession landlord will not be held responsible for dangerous conditions existing upon leased premises” … . Exceptions to the general rule do exist, including situations where the landlord retains control over the leased premises, has agreed to repair or maintain the premises or “has affirmatively created the dangerous condition” … .

… [Landlord and tenant-employer] assert that the reckless conduct of [tenant’s] employees was the sole proximate cause of the explosion and that defendant cannot be held liable to plaintiffs merely because it allegedly furnished the condition that allowed for the accident. In order to sever the causal connection in this matter, it must be demonstrated that the employees’ actions were “extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from … defendant’s conduct” … . Certainly, the act of the [tenant’s] new employee of bringing a tank that was not marked as empty into the building –against the direct instructions of his supervisor–was negligent. Nonetheless, defendant and third-party defendant have failed to show that such conduct was unforeseeable, thereby “sever[ing] any causal link between [defendant’s] negligence and [decedent’s] injuries” … . Miller v Genoa AG Ctr Inc, 2015 NY Slip Op 00586, 3rd Dept 1-22-15

 

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No Foundation Provided for Use of a Notarized Statement for Impeachment (As a Prior Inconsistent Statement)

The Second Department determined the trial court had properly prohibited the defense from cross-examining a complaining witness about a notarized statement the witness denied signing.  The court explained the foundation-requirements for admitting a prior inconsistent statement:

The trial court properly precluded the defendant from cross-examining one of the complaining witnesses regarding a notarized statement which she had denied signing, and for which the notary could not be located. “[T]here must be a proper foundation laid for the introduction of prior inconsistent statements of a witness. In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his [or her] testimony at trial and his [or her] previous statements, he [or she] must first be questioned as to the time, place and substance of the prior statement” … . “If the witness does not admit that he [or she] signed the statement[ ], the genuineness of the signature can be proved by any one or in any legal way. Such proof enables the impeaching party to properly offer the paper in evidence as a part of his [or her] case or, with the permission of the court, at any other stage of the trial” … . Where, as here, the party seeking to admit the writing into evidence has not proven the genuineness of the signature, “the writing cannot be read to the jury, or, provided it can be produced, used as a basis for a cross-examination as to its contents until it is in evidence'” … . People v Haywood, 2015 NY Slip Op 00555, 2nd Dept 1-21-15

 

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