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Because the Presence of THC Can Be Detected Long After Marijuana Use, the People Were Not Able to Prove Defendant Used Marijuana During a One-Week Furlough

The Third Department determined that the People did not prove by a preponderance of the evidence that the defendant used marijuana when he was on furlough, thereby justifying an enhanced sentence.  THC can be detected long after marijuana-use.  The proof therefore did not establish the defendant used it during a one-week furlough:

…[W]e find merit in defendant’s argument, preserved by objection at sentencing …, that the People failed to establish at the enhancement hearing that he violated a condition of his furlough, as the proof did not demonstrate when he used marihuana, i.e., that it occurred during, rather than prior to, his furlough. When the court granted defendant a one-week furlough, it warned him that it would enhance his prison sentence to 4½ years if he were “charged with any criminal conduct” or “arrested for any reason” and that, “[w]hile you are out, if you engage in the use of any illegal drugs or alcohol and I find out about it” (emphasis added), the enhanced sentence would be imposed. At the hearing, while the investigator testified that defendant’s test was positive for THC, he was not able to estimate the date when defendant used marihuana, and conceded that it could have been months earlier; he also recounted that defendant stated, after being told of the positive test result, that “he had been smoking in the jail prior to his furlough” (emphasis added). Moreover, the reference guide for the test, which was admitted into evidence at the hearing, indicates that “[m]any factors influence the length of time required for drugs to be metabolized and excreted in the urine” and that the “general time” established for cannabinoids with “chronic use” is “less than 30 days typical.”… Defendant admitted to previously being a daily, heavy user of marihuana, and testified that he did not use marihuana during his furlough.

Given the foregoing, we find that the People did not prove by a preponderance of the evidence … and the court did not have a “legitimate basis” for concluding — that defendant used marihuana during his furlough… . People v Criscitello, 2014 NY Slip OP 08678, 3rd Dept 12-11-14

 

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Reference to Statute Cured Any Omissions from the Description of the Elements of the Offense Charged in a Superior Court Information

The Third Department noted that a Superior Court Information (SCI) charging aggravated unlicensed operation was sufficient even though it did not state the road upon which defendant was driving was a public highway because the SCI specifically referenced Vehicle and Traffic Law 511 (3) (a) and therefore incorporated all the elements of the crime:

…[D]efendant argues that the SCI failed to allege all material elements of aggravated unlicensed operation of a motor vehicle in the first degree because the People did not state that the crime occurred on a public highway (see Vehicle and Traffic Law § 511 [3] [a]). While this claim survives defendant’s guilty plea and appeal waiver …, no defect exists when the SCI incorporates elements by specific reference to the crime’s relevant statutory authority, because such incorporation “constitute[s] allegations of all the elements of the crime” …, while also giving the defendant “fair notice of the charges made against him [or her]” … . Here, although the SCI failed to state that the road on which defendant was driving was a public highway, it specifically referenced Vehicle and Traffic Law § 511 (3) (a) and, as such, sufficiently incorporated all of the specific elements of the crime. People v Brothers, 2014 NY Slip Op 08682, 3rd Dept 12-11-14

 

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Teacher Who Was Encouraged by the Superintendent to Resign Her Tenured Teaching Position to Take A Library-Position Which Was Subsequently Eliminated Did Not Thereby Voluntarily Waive Her Seniority Rights—She Was Entitled to Reinstatement In Her Tenured Teaching Position With Back Pay

The Third Department determined that a teacher (petitioner) who, at the request of the school superintendent resigned her teaching position to take a library media specialist (LMS) position, did not waive her seniority rights.  After the LMS position was eliminated and petitioner was terminated, petitioner brought an Article 78 proceeding to reinstate her as a tenured teacher. Supreme Court granted the petition and the Third Department affirmed:

Respondents maintain that Supreme Court erred in finding that the termination of petitioner’s employment was arbitrary and capricious and irrational, inasmuch as petitioner freely waived her seniority rights when she resigned from her position as an English teacher. Although an employee may waive his or her seniority rights by resigning or retiring, “such a relinquishment must be knowing and voluntary” … . An effective waiver of such rights must be free from any indicia of duress or coercion … .

The record demonstrates that, when petitioner was encouraged by the interim Superintendent to take the LMS position, she expressed her reluctance to leave her position as an English teacher and asked if she could take a leave of absence rather than resign. The interim Superintendent indicated that a leave of absence would not suffice and that petitioner’s resignation was required. After tendering her letter of resignation, which the Board accepted a month after appointing her to the LMS position, petitioner received a longevity pay increase, continued to accrue sick and personal leave time that had carried over from her English teaching position and also received a severance payment from the District that would not have been made if petitioner had voluntarily severed her employment. Notably, when petitioner moved into the LMS position, she assumed such position without any interruption in service … . Where, as here, an employee does not take the necessary “affirmative steps to terminate all aspects of his or her employment by a school district,” no waiver of seniority and tenure rights will be found … . Accordingly, as the Commissioner’s dismissal of petitioner’s appeal was arbitrary and capricious and lacking a rational basis, Supreme Court’s judgment annulling that determination shall remain undisturbed … . Matter of Kwasnik v King, 2014 NY Slip Op 08697, 3rd Dept 12-11-14

 

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Indian Point Nuclear Power Plants Exempt from a Consistency Review Under New York’s Coastal Management Program—No State Environmental Impact Statements Required—Federal Environmental Impact Statements Prepared in the 1970’s Deemed Sufficient to Trigger the Exemption Under the Plain Meaning of the Statutory and Regulatory Language

The Third Department, in a full-fledged opinion by Justice Clark, determined that the petitioners, owners and operators of Indian Point nuclear power plants seeking renewal of operating licenses, were exempt from New York’s Coastal Management Program (CMP).  The court explained that the plain language of the relevant statutes and regulations did not require the preparation of environmental impact statements pursuant to New York’s State Environmental Quality Review Act (SEQRA), as the Department of State and the lower court had ruled. The fact that environmental impact statements had been prepared in the 1970’s under the federal National Environmental Policy Act (NEPA) was deemed sufficient to trigger the exemption:

Petitioners particularly focus upon the second exemption in the CMP, which exempts from consistency review “those projects for which a final [e]nvironmental [i]mpact [s]tatement has been prepared prior to the effective date of the Department of State [p]art 600 regulations … .” 19 NYCRR part 600 took effect in 1982. Indian Point 2 and Indian Point 3 went into operation prior to the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) taking effect in 1976 and, as such, environmental impact statements were not prepared under SEQRA. Final environmental impact statements were prepared pursuant to the National Environmental Policy Act of 1969 (42 USC § 4321 et seq. [hereinafter NEPA]), however, and statements were completed for Indian Point 2 and Indian Point 3 in 1972 and 1975, respectively. Accordingly, applying the plain meaning of the language in the CMP, Indian Point 2 and Indian Point 3 are exempt from consistency review.

The Department nevertheless held that the exemption did not apply to Indian Point 2 and Indian Point 3 because their final environmental impact statements had not been prepared pursuant to SEQRA. There is simply no basis in law for injecting such a requirement. The Department noted that 19 NYCRR 600.3 (d) is cited in the exemption and refers to final environmental impact statements prepared under the SEQRA regulatory regime, but that regime permits the use of final environmental impact statements prepared under NEPA (see 6 NYCRR 617.2 [n]; 617.15 [a]; Philip Weinberg, Practice Commentaries, McKinney’s Cons Laws of NY, Book 17½, ECL 8-0111). Indeed, SEQRA is modeled upon NEPA, and there is no indication that the final environmental impact statements prepared for Indian Point 2 and Indian Point 3 would not have complied with SEQRA … . Matter of Entergy Nuclear Operation Inc v New York State Dept of State, 2014 NY Slip Op 08702, 3rd Dept 12-11-14

 

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Failure to Wear a Safety Harness Could Not Constitute the Sole Proximate Cause of Plaintiff’s Fall (Caused by the Failure of a Scaffolding Plank)—Therefore Plaintiff Entitled to Partial Summary Judgment on the Labor Law 240(1) Claim

The Third Department noted that plaintiff’s failure to wear a safety harness did not preclude recovery for a fall caused by the failure of a scaffolding plank. Under the facts, plaintiff’s failure to wear a harness could not constitute the sole proximate cause of the accident:

…[D]efendant alleged that claimant was recalcitrant in, among other things, failing to use an available safety harness. With respect to such defense, liability pursuant to Labor Law § 240 (1) does not attach when safety devices are readily available at the work site and a claimant knows that he or she is expected to use them but, for no good reason, chooses not to and such omission is the sole proximate cause of the accident … . However, where a device intended to support a worker at an elevated height fails and that failure is a proximate cause of the accident, it is “conceptually impossible for a statutory violation (which serves as a proximate cause for a [claimant’s] injury) to occupy the same ground as a [claimant’s] sole proximate cause for the injury” … .

Here, the facts are undisputed that, in an effort to assist with the construction of a platform, claimant stepped onto a plank on the existing scaffold, which was the primary safety device erected for the work, and the plank collapsed, causing claimant to fall and sustain his injuries. Accordingly, claimant’s decision not to wear an available safety harness, or employ other safety measures that might have been available, could not have been the sole proximate cause of the accident, and the Court of Claims correctly awarded claimants partial summary judgment on the issue of liability with respect to their Labor Law § 240 (1) claim … . Fabiano v State of New York, 2014 NY Slip Op 08695, 3rd Dept 12-11-14

 

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Plaintiff’s Expert’s Failure to Address Indications in Plaintiff’s Evidence that the Physical Deficits Were the Result of a Preexisitng Degenerative Condition (Not the Accident) Required the Grant of Summary Judgment to the Defendants—Plaintiff Failed to Raise a Question of Fact Re: Suffering a “Serious Injury” [Insurance Law 5102 (d)] as a Result of the Accident

The First Department determined, over a two-justice dissent, that summary judgment was properly granted to the defendants because plaintiff was unable to raise a question of fact whether plaintiff’s injury was a “serious injury” within the meaning of Insurance Law 5102 (d).  Plaintiff’s evidence indicated plaintiff’s physical deficits may be the result of a preexisting degenerative condition, rather than the accident.  However, plaintiff’s expert did not address the preexisting condition in response to the motion for summary judgment:

Plaintiff submitted his … orthopedic surgeon’s opinion that he suffered a knee injury “secondary” to the car accident. However, the surgeon’s opinion failed to raise an issue of fact since the surgeon not only failed to address or contest the opinion of defendants’ medical experts that any condition was chronic and unrelated to the accident, but also failed to address or contest the finding of degenerative changes in the MRI report in plaintiff’s own medical records, which the same surgeon had acknowledged in his … note.

Our dissenting colleague overlooks that recent precedents of this Court establish that a plaintiff cannot raise an issue of fact concerning the existence of a serious injury under the No-Fault Law where, as here, the plaintiff’s own experts fail to address indications from the plaintiff’s own medical records, or in the plaintiff’s own expert evidence, that the physical deficits in question result from a preexisting degenerative condition rather than the subject accident (see Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014] [plaintiff failed to raise issue of fact where, inter alia, his expert failed to address “detailed findings of preexisting degenerative conditions by defendants’ experts, which were acknowledged in the reports of plaintiff’s own radiologists”]; Farmer v Ventkate, Inc., 117 AD3d 562, 562 [1st Dept 2014] [plaintiff failed to raise issue of fact where, inter alia, “(h)is orthopedic surgeon concurred [*2]that the X rays showed advanced degenerative changes”]; Mena v White City Car & Limo Inc., 117 AD3d 441, 441 [1st Dept 2014] [plaintiff failed to raise issue of fact where, inter alia, “plaintiff’s own radiologists noted degenerative conditions in their MRI reports, but failed to explain why this was not the cause of plaintiff’s injuries”]; Paduani v Rodriguez, 101 AD3d 470, 470, 471 [1st Dept 2012] [plaintiff failed to raise issue of fact where, inter alia, defendants submitted “a radiograph report of plaintiff’s radiologist finding severe degenerative changes” and, “(w)hile (plaintiff’s) expert acknowledged in his own report MRI findings of degenerative changes in the lumbar spine, he did not address or contest such findings, and the MRI report of (plaintiff’s) radiologist found herniations but did not address causation”]; Rosa v Mejia, 95 AD3d 402, 404 [1st Dept 2012] [plaintiff failed to raise issue of fact where, inter alia, “plaintiff’s own radiologist . . . confirmed degenerative narrowing at the L5-S1 intervertebral disc space’ without further comment”]). Rivera v Fernandez & Ulloa Auto Group, 2014 NY Slip Op 08735, 1st Dept 12-11-14

 

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Landlord Properly Granted Summary Judgment in Action Stemming from an Assault on Landlord’s Premises—Plaintiff Unable to Raise a Question of Fact Whether the Assailants Were Intruders, as Opposed to Tenants or Invitees

The First Department determined summary judgment was properly awarded to the landlord in an action based upon an attack upon plaintiff on the landlord’s premises.  Plaintiff was not able to raise a question of fact about whether the assailants were intruders, as opposed to tenants or invitees:

A landlord has a common-law duty to take minimal precautions to protect tenants from a third party’s foreseeable criminal conduct … . In order to recover damages, a tenant must establish that the landlord’s negligent conduct was a proximate cause of the injury … . Where a plaintiff alleges that a criminal attack in a building was proximately caused by a landlord’s failure to provide adequate security, “[the] plaintiff can recover only if the assailant was an intruder” (id. at 551). “To defeat a motion for summary judgment, a plaintiff need not conclusively establish that the assailants were intruders, but must raise triable issues of fact as to whether it was more likely than not that the assailants were intruders who gained access to the premises through the negligently-maintained entrance” … . Applying these principles, no triable issue of fact exists here because there is no evidence from which a jury could conclude, without pure speculation, that the assailants were intruders, as opposed to tenants or invitees. Hierro v New York City Hous Auth, 2014 NY Slip Op -8734, 1st Dept 12-11-14

 

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Under Liberal Construction of Lien Law Defendant Did Not Waive Its Mechanic’s Lien by Failing to Assert Lien-Based Counterclaims and Cross Claims In Its Initial Answer

The Third Department, in a full-fledged opinion by Justice Lahtinen, determined that the defendant had not waived its mechanic’s lien by failing to assert lien-based counterclaims and cross claims it in its initial answer and therefore could amend its answer accordingly:

“The duration of a lien is prescribed by statute and the right to enforce it, like the right to file and create it, is derived therefrom” … . That statutory framework “is remedial in nature and intended to protect those who have directly expended labor and materials to improve real property at the direction of the owner or a general contractor” … . The law governing mechanic’s liens is thus liberally construed to ensure that its purpose is accomplished, and substantial compliance with its provisions is generally sufficient (see Lien Law §§ 23, 40…).

Lien Law § 44 (5) provides in pertinent part that “[e]very defendant who is a lienor shall, by answer in the action, set forth his [or her] lien, or he [or she] will be deemed to have waived the same, unless the lien is admitted in the complaint, and not contested by another defendant.” * * *

…[H]ere, at the time [defendant] made its motion to amend its answer, plaintiff’s complaint, read in conjunction with [defendant’s] answer as well as the other pleadings, constituted a sufficient substantial admission of [defendant’s] lien such that, had the matter gone to trial on those pleadings, [defendant’s] rights would have been preserved under the statutory language … . Since [defendant’s] lien rights had not been already waived as a matter of law when it made its motion to amend its answer, its proposed counterclaim and cross claims were not wholly devoid of merit. Edwards & Zuck PC v Cappelli Enters Inc, 2014 NY Slip Op 08690, 3rd Dept 12-11-14

 

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Out-Of-Possession Landlord Liability Criteria Explained

The Third Department determined an out-of-possession landlord was not liable to an employee of the tenant who slipped and fell on a loose stair tread.  Neither the terms of the lease nor a course of conduct rendered the out-of-possession landlord responsible for repairing the condition.  The Third Department explained the relevant analytical criteria:

“Generally, ‘an out-of-possession landlord who relinquishes control of the premises is not liable to employees of a lessee for personal injuries caused by an unsafe condition existing on the premises'” … . “‘Exceptions to this rule include situations where the landlord retains control of the premises, has specifically contracted to repair or maintain the property, has through a course of conduct assumed a responsibility to maintain or repair the property or has affirmatively created a dangerous condition'” … . Whittington v Champlain Ctr N LLC, 2014 NY Slip Op 08691, 3rd Dept 12-11-14

 

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Statutory Privilege Afforded Emergency Vehicles (Imposing a “Reckless Disregard” Standard for Accident-LiabilIty) Is Not Dependent Upon Whether the Emergency Lights and Siren Were Activated

The First Department determined summary judgment was properly granted to the city in a case stemming from a collision with a police car.  The evidence that the police car, which was “performing an emergency operation,” stopped at a stop sign before proceeding into the intersection where it was struck by the taxi in which plaintiff was a passenger was sufficient to demonstrate the police officer did not act recklessly.  It did not matter whether the emergency lights and siren were activated:

As the police vehicle was an authorized emergency vehicle (Vehicle and Traffic Law § 101), performing an emergency operation by “pursuing an actual or suspected violator of the law” (Vehicle and Traffic Law § 114-b), the operator was authorized to proceed through the red light, once it slowed down “as may be necessary for safe operation” (Vehicle and Traffic Law § 1104 [a],[b][2]). Thus, in order to hold the municipal defendants liable, plaintiff must demonstrate that the officer driving the police vehicle acted with “reckless disregard for the safety of others,” which requires a showing that he “has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome” … .

Here, the officer’s uncontroverted testimony was that he came to a complete stop prior to entering the intersection. That he looked in the direction of, but did not see, the approaching taxi did not render his conduct reckless … . That issues of fact exist as to whether the police lights were on (which plaintiff saw prior to the accident, but the taxi driver testified he did not), or whether the siren was activated, is not material, as a police vehicle performing an emergency operation is not required to activate either of these devices, in order to be entitled to the statutory privilege of passing through a red light (Vehicle and Traffic Law § 1104[c]). Thus, the evidence demonstrates that the officer driving the police vehicle lawfully exercised the privilege, and appellants have produced no evidence of any other facts or circumstances which would raise a triable issue as to any reckless conduct by the officer.  Flynn v Sambuca Taxi LLC, 2014 NY Slip OP 08723, 1st Dept 12-11-14

 

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