You are here: / 2 1/2 Year Delay In Correcting Location of the Slip and Fall Described...

Search Results

/ ,

2 1/2 Year Delay In Correcting Location of the Slip and Fall Described in the Notice of Claim Prejudiced the Defendant/Motion for Leave to File an Amended Notice Properly Denied

The Second Department determined plaintiffs' motion to amend the notice of claim to change the location of the accident (slip and fall on ice and snow) was properly denied. Although the error was not made in bad faith, the 2 1/2 year delay in correcting the error prejudiced the defendant town agency:

Pursuant to General Municipal Law § 50-e(6), a court has discretion to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby … . Here, while there is no indication that the error regarding the location of the subject accident in the original notice of claim was made in bad faith, the record demonstrates prejudice to the respondent, the defendant Town of Babylon Industrial Development Agency (hereinafter the Agency), as a result of the error. The original notice of claim misidentified the location of the accident as the “walkway/pathway” in front of 595 Smith Street, East Farmingdale, rather than the correct location, the “roadway/parking lot” at 540 Smith Street, East Farmingdale. Furthermore, the subsequent complaint, bill of particulars, photographs of the purported accident location, supplemental bill of particulars, and even a second supplemental bill of particulars served almost 2½ years after the accident, all of which continued to misidentify the accident location, failed to dissipate the prejudice to the Agency in its attempt to conduct a timely and meaningful investigation … . The plaintiffs contend that the Agency's ability to conduct a physical examination of the snow and ice condition that allegedly caused the injured plaintiff's accident was not affected by the error in the notice of claim, since that condition undoubtedly had changed by the time the original notice was served. However, the record reveals that the Agency's ability to investigate other aspects of the occurrence and to interview witnesses was hampered by the plaintiffs' delay of more than 2½ years in serving a third supplemental bill of particulars identifying the correct accident location and in moving for leave to serve an amended notice of claim … . Torres v Town of Babylon, 2014 NY Slip Op 08901, 2nd Dept 12-24-14

 

/

T-Shirts With the Victim’s Photo Worn by Family Members During the Murder Trial Did Not Deprive Defendant of a Fair Trial

The Second Department, in a full-fledged opinion by Justice Miller, over a dissent, determined that defendant was not denied a fair trial because the victim's family wore T-shirts “remembering” the victim in the courtroom:

The court stated that “it would be appropriate to make a better record of what the shirt was. It was [a] white tee shirt with a silk screen with a picture of the deceased with some written language on it.” The court stated that the shirts “weren't inflammatory.” The court had “noticed that shirt” previously, but it “couldn't read what was written on it.” The court stated that the members of the Walton family “sat in the second row of the audience” and that the T-shirts were “not flauntily [sic] displayed in front of the jury, nor . . . did any members of the family bring undue attention to [them].” The court further stated that “most of the members of the family had an outer garment on top of the tee-shirt” so that the jury “wasn't even capable of seeing the entire thing.” The court noted that “[w]hen counsel made the objection, [it] responded and made a record at that time indicating that [it] saw nothing wrong with those shirts.” The court concluded that the conduct of Walton's family had “not inflamed” the jury.

A criminal defendant's right to a trial by an impartial jury is guaranteed by both the federal and state constitutions (see US Const, Sixth Amend; NY Const, art I, § 1). “The requirement that a jury's verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury” … . “[O]ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial” … .  * * *

…[A] trial free from a “coercive . . . atmosphere” is a “fundamental principle of due process [that] is well established” … . It has long been recognized in this State that such an atmosphere of coercion may arise through the conduct of spectators: “[i]t is not to be tolerated that men [or women] should go into such a place and manifest their feelings, prejudices or passions, for the purpose of exerting an influence upon those who sit in judgment upon the rights of parties” … .

However, “[t]he safeguards of juror impartiality . . . are not infallible [and] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote” … . “Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen” … .

A trial court, which is in the best position to detect and evaluate the danger that spectator conduct may present to the integrity of the trial process, has a constitutional duty to monitor the atmosphere of the courtroom to ensure that the jury is not exposed to spectator conduct that poses a coercive threat to the jury's ability to remain impartial (see US Const, Sixth Amend; NY Const, art I, § 1…). * * *

… [W]hether any particular conduct, or a court's response to it, has violated a defendant's right to an impartial jury, depends on the particular circumstances of each case … . Such circumstances may include the nature of the crime and the evidence adduced at trial, the nature of the spectator conduct, and the degree to which the jury was exposed to such conduct. It is not necessary for an actual prejudicial effect on the jury to be established … . Ultimately, “the question is whether the [spectator conduct] presents an unacceptable risk . . . of impermissible factors coming into play in the jury's consideration of the case” … . People v Nelson, 2014 NY Slip OP 09019, 2nd Dept 12-24-14

 

/

Emergency Doctrine Does Not Apply Where Party Invoking It Contributed to the Creation of the Emergency

The Second Department affirmed Supreme Court's ruling that the emergency doctrine did not apply to the defendant (Smith). Defendant crossed over the grassy median from the southbound lane striking plaintiff's vehicle in the northbound lane. Defendant argued that the emergency doctrine applied because defendant's vehicle was struck from behind, causing it to leave its lane of traffic.  The Second Department determined the emergency doctrine did not apply because defendant contributed to the rear-end collision by slowing down without signaling at a time when defendant was aware the vehicle behind was tail-gating:

…[T]he defendants failed to raise a triable issue of fact as to whether the emergency doctrine applied … . The emergency doctrine is not a defense available to the defendants because the emergency condition was partially created by Smith's disregard of existing traffic conditions … . Smith had a duty not to stop suddenly or slow down without proper signaling so as to avoid a collision … . At his deposition, Smith admitted that he was aware that the unidentified vehicle had been tailgating him for about 10 to 20 seconds. Despite being aware that he was being tailgated on a highway, he deliberately slowed his vehicle by disengaging the cruise control without proper signaling. Then, the unidentified vehicle hit the rear of his vehicle. Under these circumstances, it was foreseeable that slowing down without proper signaling could result in a rear-end collision. Accordingly, as Smith contributed to the creation of the emergency situation, the emergency doctrine is not applicable. Pearson v Northstar Limousine Inc, 2014 NY Slip Op 08968, 2nd Dept 12-24-14

 

/ ,

Testimony Insufficient to Overcome Presumption Photo Arrays, Which Were Not Preserved, Were Unduly Suggestive—Subsequent Line-Up, Which Included Persons Much Older than Defendant, Was Unduly Suggestive—New Trial Ordered

The Second Department determined both identification procedures were unduly suggestive and ordered a new trial.  The People did not preserve the photo arrays and the testimony about the photo arrays was insufficient to overcome the presumption the arrays were suggestive.  The subsequent line-up included persons much older that the 18-year-old defendant and, therefore, was unduly suggestive:

The Supreme Court erred in denying that branch of the defendant's omnibus motion which was to suppress identification testimony. The People's failure to preserve the original photographic arrays viewed by the complainants gave rise to a presumption of suggestiveness, and the People did not present sufficient evidence to rebut that presumption … . The fact that the police failed to preserve the arrays viewed by the complainants does not warrant suppression in and of itself. However, the detective's testimony at the suppression hearing as to how the computerized procedure operated was insufficiently detailed to establish its fairness … . The detective gave inconsistent testimony regarding what age criteria he entered in the computer system to generate each photo array. Furthermore, he did not recall how many screens either complainant viewed before each of them recognized the defendant, or how long it took each to make an identification. Therefore, the evidence did not overcome the presumption that the arrays were suggestive … . Although the police had not yet focused on any particular suspect, it cannot be said that the sheer volume of photographs viewed was sufficient to dispel any inference of suggestiveness, as it is unknown how many photographs were viewed by the complainants … .

We need not address whether the subsequent lineup was sufficiently attenuated in time from the photo identification procedure to nullify any possible taint, because the lineup procedure was also unduly suggestive … . While there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance, the other individuals in the lineup should sufficiently resemble the defendant so that there is no substantial likelihood that the defendant would be singled out for identification … . Upon our review of a photograph of the lineup viewed by the complainants, it is apparent that the defendant and one of the fillers appear to be of similar ages, but the other three fillers appear visibly older than the defendant … . The age disparity was sufficiently apparent as to orient the viewer toward the defendant as a perpetrator of the crimes charged … . People v Robinson, 2014 NY Slip Op 09024, 2nd Dept 12-24-14

 

/ ,

Questions of Fact Raised About Whether Student Assumed the Risk of Injury from Indoor Soccer Practice–Relevant Law Discussed In Some Depth

The Second Department reversed Supreme Court's grant of summary judgment to the school finding that questions of fact had been raised about whether plaintiff-student assumed the risk of injury.  Because it was raining, soccer practice was held indoors.  As part of the indoor practice, plaintiff was asked to sprint down a hallway and was told the loser in each pair of sprinters would be required to run laps up and down stairs.  Plaintiff was injured when she was unable to stop after passing the finish line and struck her head on the wall just beyond the finish line:

The doctrine of primary assumption of risk is not a defense based on a plaintiff's culpable conduct, but, rather, is a measure of the defendant's duty of care to participants in certain types of athletic or recreational activities … . “Under this theory, a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk'” … . “Because determining the existence and scope of a duty of care requires an examination of plaintiff's reasonable expectations of the care owed him [or her] by others, the plaintiff's consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist” … .

“As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues” … . Here, there is no dispute that the infant voluntarily participated on her school's soccer team, a sponsored athletic activity.

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity, consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … .

“…[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants' negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport” … . * * *

…”[T]the primary assumption of risk doctrine does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased” … . “[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … .

“[A] board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks” … . Braile v Patchogue Medford School Dist of Town of Brookhaven, 2014 NY Slip OP 08949, 2nd Dept 12-24-14

 

/

Child Not Yet Born When Father Neglected Siblings Was Properly Found to Be Derivatively Neglected

The Second Department determined that a child who had not been born at the time father was found to have neglected two siblings was properly determined to be derivatively neglected by the father:

“In determining whether a child born after underlying acts of abuse or neglect should be adjudicated derivatively abused or neglected, the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists'” … . If such a showing is made, ” the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future'” … .

Here, the conduct which formed the basis for the Family Court's finding that the father neglected the subject child's two older siblings was “so proximate in time to [this proceeding] that it can reasonably be concluded that the condition still exists” …, and the father failed to complete the programs mandated by the prior order of disposition relating to the older siblings … . Thus, ACS [Administration for Child Services] demonstrated that the father derivatively neglected the subject child, and because the father ” failed to present any evidence to either rebut [ACS's] prima facie case or establish that the condition leading to [the] neglect finding as to the other child[ren] no longer existed,'” the derivative neglect finding was proper … . Matter of Madison B…, 2014 NY Slip Op 08991, 2nd Dept 12-24-14

 

/

Provisions in Personnel Handbook Refuted Petitioner’s Allegation that Respondent Failed to Follow the Disciplinary Procedures in the Handbook Prior to Terminating Petitioner/In Addition, Limitations on the Right to Terminate an At-Will Employee Will Not Be Inferred Solely from Policy Manuals or the Existence of an Internal Grievance Procedure

The Second Department determined that the provisions of the personnel handbook did not require the employer to follow a particular disciplinary procedure before terminating the petitioner.  Furthermore, the court noted that any limitation of the right to terminate an at-will employee will not be inferred solely from policy manuals or the existence of a grievance procedure:

“Absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party” … . “A disciplined or terminated employee may seek article 78 review to determine whether the employer contravened any of its own rules or regulations in taking . . . disciplinary action” … .

Here, the petitioner alleged that the respondents, who had employed him since June 2009, acted arbitrarily and capriciously by failing to follow certain disciplinary procedures set forth in their personnel handbook prior to terminating his employment on May 3, 2013. Accordingly, the petition states a cause of action (see CPLR 3211[a][7]). However, the documentary evidence submitted by the respondents established a complete defense to the proceeding (see CPLR 3211[a][1]), as it “utterly refute[d]” the petitioner's factual allegations, “thereby conclusively establishing a defense as a matter of law” … . Specifically, the respondents' personnel handbook provided that “[t]he steps of the progressive discipline process are not guaranteed,” and that management reserves the right to decide what disciplinary action is appropriate, including whether to proceed immediately to termination. Hence, the very document relied upon by the petitioner defeated his contention that the respondents were required to strictly comply with the disciplinary procedures articulated in that document. Moreover, “[a] limitation on the employer's right to terminate at-will employment will not be inferred solely from the existence of policy manuals or the existence of an internal grievance procedure” … . Matter of Oliner v Sovereign Bank, 2014 NY Slip OP 09002, 2nd Dept 12-24-14

 

/ , ,

Supreme Court Should Not Have Denied Motion to Set Aside a Stipulation of Settlement Without a Hearing, Criteria Explained/Lower Court Properly Considered Issues Raised for the First Time in Plaintiff’s Reply Papers Because Defendant Availed Himself of the Opportunity to Oppose the Contentions at Oral Argument

The Second Department determined Supreme Court should not have denied plaintiff's motion to set aside the stipulation of settlement without a hearing.  The court explained the analytical criteria.  (It is worth noting that the Second Department found that Supreme Court properly considered matters raised for the first time in plaintiff's reply papers because the defendant availed himself of the opportunity to oppose the contentions at oral argument.):

“Marital settlement agreements are judicially favored and are not to be easily set aside” … . However, because of the fiduciary relationship existing between spouses, ” [a] stipulation of settlement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud, or where it is shown to be manifestly unjust because of the other spouse's overreaching'” … .

“To rescind a separation agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness” … . ” [N]o actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other's overreaching . . . in its execution'” … . “[C]ourts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching” … . However, generally, if the execution of the agreement is fair, no further inquiry will be made … . “[W]hile evidence that one spouse was not represented by counsel is insufficient, standing alone, to find overreaching, it is a significant consideration when determining whether the parties entered into the stipulation freely and fairly” … . “[C]ourts have thrown their cloak of protection [over] separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity” … . Jon v Jon, 2014 NY Slip Op 08961, 2nd Dept 12-24-14

 

/ ,

Petitioner, Who Was Not a Biological or Adoptive Parent of the Child, Was Adjudicated a Parent in a Support Proceeding Brought by the Respondent—Under the Doctrine of Judicial Estoppel, Petitioner Was Deemed a Parent in a Subsequent Custody/Visitation Proceeding Brought by the Petitioner

The Second Department determined a determination that petitioner (Arriago) was the child's parent in a support proceeding precluded the respondent (Dukoff) from arguing petitioner was not the child's parent in a subsequent custody/visitation proceeding.  Arriago and Dukoff were domestic partners in a same-sex relationship.  Arriago was artificially inseminated and gave birth to the child.  After successfully seeking child support from Arriago because Arriago was a parent of the child, Dukoff argued that Arriago did not have standing, as neither the biological or adoptive parent, to bring the custody/visitation proceeding.  Family Court disagreed and awarded Arriago visitation:

Dukoff … argues that the court's conclusion that Arriaga had standing to commence this [custody/support] proceeding is contrary to the Court of Appeals' holdings in Debra H. v Janice R. (14 NY3d 576) and Matter of Alison D. v Virginia M. (77 NY2d 651). We disagree with Dukoff's contentions.

Domestic Relations Law § 70(a) provides, in part, that “either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and [the court] may award the natural guardianship, charge and custody of such child to either parent . . . as the case may require” (emphasis added). This statute has also been construed to grant standing to ” either parent'” to apply for a writ of habeas corpus to determine the issue of visitation rights … . In Debra H., the Court of Appeals reaffirmed its holding …  that the term “parent” in Domestic Relations Law § 70 encompasses only the biological parent of a child or a legal parent by virtue of adoption and that a “de facto parent” or “parent by estoppel” could not seek visitation with a child who is in the custody of a fit parent (Debra H. v Janice R., 14 NY3d at 590 [internal quotation marks and emphasis omitted]…). In Debra H., however, the Court analyzed the significance of the civil union the parties had entered into in Vermont prior to the child's birth. The Court determined that, under Vermont law, a child born during a civil union was a child of both partners. Thus, it concluded, Debra H. was the child's parent under Vermont law. As a matter of comity, the Court recognized her as the child's parent under New York law as well, thereby conferring standing for her to seek visitation and custody at a best interests hearing (see Debra H. v Janice R., 14 NY3d at 601).

The Court of Appeals noted that recognizing Debra H. as a parent did not conflict with the public policy of New York and would not “undermine the certainty that Alison D. promises biological and adoptive parents and their children,” since “whether there has been a civil union in Vermont is as determinable as whether there has been a second-parent adoption. And both civil union and adoption require the biological or adoptive parent's legal consent, as opposed to the indeterminate implied consent featured in the various tests proposed to establish de facto or functional parentage” (Debra H. v Janice R., 14 NY3d at 600-601). At the heart of the Court's reasoning in Debra H. was a desire to provide a bright-line rule affording certainty and predictability to parents and children. The Court expressed concern that an equitable estoppel hearing would create protracted litigation on the issue of standing.

In this proceeding, Arriaga asserts that she has standing as a parent of the child pursuant to the doctrine of judicial estoppel. Under that doctrine, ” a party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed'” … .

The concerns expressed by the Court of Appeals in Debra H. are not implicated in the present case, where Arriaga invoked the doctrine of judicial estoppel, not equitable estoppel. No hearing was required to decide whether the doctrine of judicial estoppel applies in this case, nor did the determination involve a “complicated” or “nonobjective test” (Debra H. v Janice R., 14 NY3d at 594). Just as in Debra H., whether Arriaga was adjudicated a parent of the child was “as determinable as whether there has been a second-parent adoption” (id. at 600).

Moreover, just as in second-parent adoptions, the adjudication of Arriaga as a parent of the child required the biological mother's affirmative legal consent, “as opposed to the indeterminate implied consent featured in the various tests proposed to establish de facto or functional parentage” (id. at 600-601). Indeed, here, Dukoff was the party who sought to have Arriaga adjudicated a parent. Although Dukoff did not consent to adjudicating Arriaga a parent of the child for the purposes of visitation rights, the biological mother in Debra H. also did not do so.  Matter of Arriaga v Dukoff, 2014 NY Slip Op 08990, 2nd Dept 12-24-14

 

/ ,

“Detained Sex Offender,” Under Article 10, Applies Equally to Lawfully and Unlawfully Detained Sex Offenders

In the course of affirming the finding that appellant was a dangerous sex offender who must be civilly confined, the Second Department noted that Article 10 of the Mental Hygiene Law, which applies to “detained sex offenders,” applies equally to lawfully and unlawfully detained sex offenders.  The court went on to briefly describe the relevant analytical criteria and proof burden:

The appellant's contention that this proceeding was “jurisdictionally flawed” because he did not meet the definition of a detained sex offender is without merit. The appellant was incarcerated upon his conviction of attempted sodomy in the first degree pursuant to Penal Law § 110.00 and former Penal Law § 130.50 at the time that this proceeding was commenced (see Mental Hygiene Law § 10.03[g][1]). The Court of Appeals has made it clear that the statutory language of Mental Hygiene Law article 10 does not distinguish between lawfully and unlawfully detained sex offenders … . * * *

A “dangerous sex offender requiring confinement” is defined under Mental Hygiene Law article 10 as “a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.03[e]). The State must establish by clear and convincing evidence that the appellant is a dangerous sex offender requiring confinement (see Mental Hygiene Law § 10.07[f]). Matter of State of New York v Abdul A, 2014 NY Slip OP 09006, 2nd Dept 12-24-14

 

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