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People Failed to Demonstrate Seizure of Heroin from Defendant’s Impounded Vehicle Was Pursuant to a Standard Inventory Search—Heroin Should Have Been Suppressed

The Third Department, over a dissent, determined that heroin seized from inside defendant’s vehicle after a stop for speeding should have been suppressed.  The defendant was arrested at the scene of the stop based upon an outstanding warrant. The People failed to demonstrate the heroin was found pursuant to a standard inventory search of the impounded vehicle:

Following a lawful arrest of the driver of a vehicle, “the police may impound the car, and conduct an inventory search, where they act pursuant to ‘reasonable police regulations relating to inventory procedures administered in good faith'” … . To this end, “courts have insisted that an inventory search be conducted according to a familiar routine procedure and that the procedure meet two standards of reasonableness” … . Specifically, the procedures must be “designed to meet the legitimate objectives of the search while limiting the discretion of the officer in the field” … .

Here, the transcript of the … suppression hearing fails to support a determination that the conduct of the police was reasonable. Although not fatal to their argument against suppression …, the People failed to offer a copy of the State Police procedure manual into evidence. Additionally, the People also failed to ask any substantive questions of their witnesses so as to otherwise establish (1) that the State Police had a standardized procedure, (2) that such procedure was reasonable, and (3) that it was followed here. People v Leonard, 2014 NY Slip Op 05468, 3rd Dept 7-24-14

 

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Mother Could Not Maintain a Cause of Action for Emotional Harm Based Upon the Death of Her Baby—Although the Baby Was “Pre-Viable” and Unconscious, the Baby Was Born Alive and the Mother Suffered No Independent Injury

The First Department determined mother could not bring a cause of action for emotional harm as a result of the death of her premature baby.  Although the baby was “pre-viable,” the baby was born alive and the mother suffered no independent injury.

The mother’s argument that the fact that the baby was “pre-viable” unconscious and lived for only a few hours distinguished this case from the controlling cases was rejected:

Plaintiff argues that the rationale of Mendez v Bhattacharya (15 Misc 3d 974) should be applied to this case. In Mendez, the infant had an Apgar score of one at one minute and zero at five minutes (15 Misc 3d at 981). It was uncontroverted that “even if there was a technical sign of life due to the lingering heartbeat, the child was not viable, since there was no other sign of life besides the momentary heartbeat” (id. at 982). The infant had no respiration and efforts to resuscitate by mechanical ventilation and CPR were unsuccessful (id. at 981). The court found that under those facts, the presence of a “momentary heartbeat” did not rise to the level of a live birth within the purview of the Broadnax and Sheppard-Mobley decisions, and therefore the plaintiff mother had a viable cause of action for emotional distress (id. at 983).

That is clearly not the situation before us. To accept plaintiff’s contention that, where there is a live birth but the infant never attains consciousness, a mother should be permitted to maintain a cause of action for emotional distress would impermissibly expand the narrow holdings in Broadnax and Sheppard-Mobley. Plaintiff was entitled to bring a wrongful death action on behalf of the estate of the person who was injured, i.e., the infant who survived, albeit briefly … . Levin v New York City Health & Hosps Corp…, 2014 NY Slip Op 05492, 1st Dept 7-24-14

 

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Parole Board’s Role and Court’s Review Role Explained in Depth

The Third Department, in an extensive and detailed decision, over a dissent, determined petitioner had been properly denied parole, despite his extraordinary achievements in prison, including his earning bachelor’s and master’s degrees.  The petitioner was convicted of felony murder in connection with the death of a police officer:

[T]he record establishes that the Board acknowledged petitioner’s extensive rehabilitative success along with the additional statutory factors, but placed greater emphasis on the seriousness of petitioner’s crime in its determination that release would be incompatible with the welfare of society and so deprecate the seriousness of the crime as to undermine respect for the law, as it is “entitled” to do … . We are thus constrained to affirm — to do otherwise is to implicitly overrule the decades of our well-settled jurisprudence set forth above … . Matter of Hamilton v New York State Div of Parole, 2014 NY Slip Op 05487, 3rd Dept 7-24-14

 

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Criteria for Determining a Motion to Amend the Pleadings Explained

In reversing Supreme Court’s denial of a motion for leave to serve a second amended complaint, the Second Department explained the criteria for determining the motion:

“Applications for leave to amend pleadings under CPLR 3025(b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit” … .

“No evidentiary showing of merit is required under CPLR 3025(b)” … . “The court need only determine whether the proposed amendment is palpably insufficient’ to state a cause of action or defense, or is patently devoid of merit” (id.). “[A] court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt” … . Favia v Harley-Davidson Motor Co Inc, 2014 NY Slip Op 05408, 2nd Dept 7=23=14

 

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Extremely Forgiving Nature of CPLR 3216 (Dismissal for Neglect to Prosecute) Explained

The Second Department noted the “extremely forgiving” nature of CPLR 3216 in affirming Supreme Court’s denial of a motion to dismiss for neglect to prosecute:

CPLR 3216 is “extremely forgiving” … in that it “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … . While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a meritorious cause of action (see CPLR 3216[e]…), such a dual showing is not strictly necessary to avoid dismissal of the action … . Altman v Donnenfeld, 2014 NY Slip Op 05402, 2nd Dept 7-23-14

 

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Disclaimer of Coverage Unreasonably Untimely as a Matter of Law

The Second Department determined the defendant insurer’s disclaimer of coverage was unreasonably untimely as a matter of law:

An insurance company has an affirmative obligation to provide written notice of a disclaimer of coverage as soon as is reasonably possible, even where the policyholder’s own notice of the claim to the insurer is untimely … . Here, the defendant learned by January 6, 2012, at the latest, about the underlying personal injury action. The defendant was aware by that date of the grounds for disclaimer of coverage … . Nevertheless, it did not disclaim coverage until March 28, 2012, almost three months later, a delay that, under the circumstances of this case, is unreasonable as a matter of law … . Darling Ferreira v Global Liberty Ins Co of NY, 2014 NY Slip Op 05409, 2nd Dept 7-23-14

 

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Failure to Specifically Demonstrate When Area Where Fall Occurred Was Last Inspected or Cleaned Required Denial of Summary Judgment

The Second Department determined the defendant did not meet its burden of demonstrating a lack of constructive notice of the condition of the stairway where plaintiff fell (allegedly the presence of dirty paper and urine):

Although the defendant submitted an affidavit from the supervisor of the caretaker assigned to clean the subject building on the day immediately preceding the plaintiff’s nighttime accident, that affidavit was insufficient to establish when the stairway was last inspected and cleaned relative to the plaintiff’s fall. The affidavit was conclusory and only referred, in a general manner, to the janitorial schedule followed on normal weekdays. Moreover, another caretaker testified at his deposition, and the defendant concedes, that the normal weekday janitorial schedule was not in effect on the day preceding the plaintiff’s accident, which was the Thanksgiving holiday. Since the defendant did not provide evidence regarding any specific cleaning or inspection of the area in question on that day, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law… . Williams v New York City Hous Auth, 2014 NY Slip Op 05425, 2nd Dept 7-23-14

 

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Building Owner Entitled to Summary Judgment in Slip and Fall Case Based Upon Tracked In Water (Inclement Weather)–Tenant Ordinarily Does Not Have a Duty of Care Re: Common Areas

The Second Department determined the building owner was entitled to summary judgment in a slip and fall case based upon water tracked in during inclement weather.  The court noted that a tenant does not have a duty of care with respect to the condition of common areas of the building:

“In a slip-and-fall case, the defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . Moreover, a property owner is not obligated to provide a constant remedy to the problem of water being tracked into a building during inclement weather …, and has no obligation to cover all of its floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation … . A tenant ordinarily owes no duty of care with respect to a dangerous condition in a common area of a building … .

The owner and the tenant, on their respective motions, established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them. In support of their motions, the owner and the tenant each presented evidence that it had not created the alleged defective condition. The owner also presented evidence that it had neither actual nor constructive notice of the alleged defective condition, i.e., the alleged presence of water on the vestibule floor of the subject building. Paduano v 686 Forest Ave LLC, 2014 NY Slip Op 05415, 2nd Dept 7-23-14

 

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City Can Not Be Held Liable for Injuries Caused by Attacking Dogs About Which Complaints Had Been Made—No Special Relationship Between Plaintiff’s Decedent and City

The Second Department determined no special relationship existed between plaiintiff’s decedent and the city such that the city could be held liable for the alleged failure to address complaints about the dogs which attacked plaintiff’s decedent, who died from the injuries.  The court explained why none of the criteria for a special relationship applied:

” A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'” … .

As for the first way of forming a special relationship, contrary to the plaintiff’s contention, a private right of action may not be fairly implied from Agriculture and Markets Law (hereinafter AML) § 123 … . The Supreme Court properly determined that the recognition of a private right of action would be inconsistent with the legislative scheme underlying AML § 123 … . Accordingly, no special relationship was created between the City and the decedent through the breach of a statutory duty.

As for the second way of forming a special relationship, the City met its prima facie burden of demonstrating its entitlement to judgment as a matter of law by submitting evidence that it did not voluntarily assume a duty toward the decedent. To demonstrate that a municipality voluntarily assumed an affirmative duty and a plaintiff justifiably relied on the municipality’s undertaking, four elements must be shown: “(1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of a municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … . Here, the City established and the plaintiff concedes that the decedent never made direct contact with the City, and the circumstances here did not give rise to one of the narrow exceptions to this requirement … . The absence of direct contact negates the existence of a special relationship pursuant to the City’s voluntary assumption of a duty to the decedent … .

As for the third way of forming a special relationship, which has been recognized in only rare circumstances, the City must affirmatively act to place the plaintiff in harm’s way … . Contrary to the plaintiff’s contention, the evidence established, prima facie, that the City did not take positive direction and control in the face of a known, blatant, and dangerous safety violation. Sutton v City of New York, 2014 NY Slip Op 05421, 2nd Dept 7-23-14

 

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County Water Authority Had Standing to Bring Action Based Upon the Chemical Contamination of Its Wells—CPLR 214-c Governs Actions Based Upon Contamination—Action Was Untimely

The Second Department, in a full-fledged opinion by Justice Hinds-Radix, determined that the plaintiff Suffolk County Water Authority (SCWA) had standing to bring a negligence/nuisance/trespass/products liability action against defendants alleging contamination of wells caused by chemicals (PCE and TCE).  However, the court determined the action was barred as untimely by CPLR 214-c.  In the course of the opinion, the court explained what the “two-injury” rule is in the context of a continuing wrong.  The court determined that CPLR 214-c was designed to eliminate the continuing-wrong statute of limitations calculation in contamination cases.  In addition, the court explained the difference between latent and patent injuries with respect to CPLR 214-c:

Generally, a plaintiff has standing to sue if it has suffered an injury in fact … in some way different from that of the public at large and within the zone of interests to be protected by relevant statutory and regulatory provisions … .

We reject the movants’ contention that the SCWA lacked standing to seek damages for injury to 115 wells where the PCE contamination level fell below the MCL (federal and state “maximum contamination level” for PCE). The MCL is only a regulatory standard which governs conduct in supplying water to the public. While the MCL may be helpful in determining whether an injury has occurred, the MCL does not set a bar below which an injury cannot have occurred … . Similarly, the MCL does not define whether an injury has occurred, since contamination below that level could result in some injury, such as increased monitoring costs … . It is undisputed that the SCWA has expended resources in its effort to address the widespread contamination, even at wells where the contamination has not risen to or exceeded the MCL. Thus, the SCWA has alleged that it has suffered an injury for which it may seek redress, irrespective of the level of contamination. * * *

CPLR 214-c was enacted in 1986 to ameliorate the effect of a line of cases which held that toxic tort claims accrued upon the impact or exposure to the substance, even though the resulting injury or illness did not manifest itself until some time later … . CPLR 214-c provides for a three-year limitations period for actions to recover damages for injuries to person or property “caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property” (CPLR 214-c[2]). The three-year period is “computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” (CPLR 214-c[2]…). For the purposes of CPLR 214-c, “discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based'” … . Suffolk County Water Auth v Dow Chem Co, 2014 NY Slip Op 05420, 2nd Dept 7-23-14

 

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