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Absentee Landlord Granted Summary Judgment in Lead-Paint Exposure Case—No Constructive Notice

The Fourth Department, over a dissent, determined summary judgment was properly granted to an absentee landlord in a lead-paint exposure case.  The landlord had never seen the property:

Defendant and his wife acquired the property by deed in January 1993, and they took title to the property as tenants by the entirety. Defendant’s wife died in 2004. Defendant testified at his deposition that his participation in the acquisition of the property was as an accommodation to the financial situation of his wife’s son and her nephew. Defendant denied that he had anything to do with the property and asserted that he was only an owner “on paper.” Defendant never saw the property, never went there, never received any rent, did not know that a child resided there and never received any correspondence related thereto. Defendant did not execute any lease agreements with respect to the property. “To establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition” … . Hamilton v Picardo, 2014 NY Slip Op 04290, 4th Dept 6-13-14

 

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Defendant Failed to Meet Its Burden on Its Summary Judgment Motion—Not Enough to Point to Deficiencies in Plaintiff’s Proof

The Fourth Department determined Supreme Court erred in dismissing a lawsuit against a residential care facility based upon plaintiff’s decedent’s being fatally injured by another resident. The court noted that the motion for summary judgment was brought by the defendant and it was therefore not enough for the defendant to allege only deficiencies in  plaintiff’s proof:

We conclude that the court erred in granting defendant’s motion because defendant “failed to come forward with any proof to rebut plaintiff[‘s] allegations and merely focused on the claimed deficiency in plaintiff[‘s] proof” … . In support of its motion, defendant repeatedly argued that plaintiff “failed to satisfy [her] burden” of establishing a prima facie case of negligence because of the “absence of proof[]” with respect to duty, breach of duty, foreseeability, and proximate cause. Those arguments are misplaced, however, because “defendant, not plaintiff, moved for summary judgment and defendant cannot meet its burden by relying on claimed deficienc[ies] in plaintiff[‘s] proof’ ” … . Although plaintiff will bear the burden of establishing defendant’s negligence at trial, “on this motion for summary judgment, defendant has the burden of establishing its entitlement to judgment as a matter of law” … , and we conclude that defendant failed to meet that burden … .

Defendant concedes that there was an altercation between decedent and another resident, and that such altercation resulted in decedent’s injuries. With respect to the foreseeability of the resident’s alleged conduct, “defendant[], as the part[y] seeking summary judgment, bore the burden of establishing that the assault on [decedent] was not foreseeable” … . Defendant, however, “failed to submit any evidence to show that [it] lacked knowledge of any danger presented by the [resident],” and thus failed to establish its entitlement to judgment as a matter of law … . Schnorr v Emeritus Corp, 2014 NY Slip Op 04314, 4th Dept 6-13-14

 

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Suit Against City for Attempting to Resuscitate Plaintiff with an Inoperable Defibrillator Properly Dismissed—No Special Duty Owed to Plaintiff

The Fourth Department determined causes of action against the city stemming from an inoperable defibrillator which delayed the resuscitation of plaintiff (Angona) were properly dismissed.  Angona had suffered a heart attack and fire department personnel responded. The rendering of resuscitative care and treatment involved a governmental function and the city owed no special duty to the plaintiff:

All of [the] claims of negligence arise from the City’s exercise of governmental functions … . Thus, “[t]o sustain liability against [the City], the duty breached must be more than that owed the public generally” … . The City met its burden of establishing the absence of a special duty owed to Angona in these circumstances …, and plaintiff failed to raise a triable issue of fact. We reject plaintiff’s contention that the City owed a special duty to Angona by virtue of his status as an off-duty firefighter. Angona v City of Syracuse, 2014 NY Slip Op 04322, 4th Dept 6-13-14

 

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Writs of Coram Nobis Alleging Ineffective Assistance Not Available In the Three Specific Cases Before the Court Involving the Failure to File Notices of Appeal and the Failure to Make a “Leave to Appeal” Application to the Court of Appeals

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined that a writ of coram nobis was not available to two defendants who alleged their attorneys failed to file timely notices of appeal, and to a third defendant who alleged his attorney's failure to make a criminal “leave to appeal” application to the Court of Appeals.  The opinion explains the history of the use of “writs of coram nobis” in this context. People v Andrews, 2014 NY Slip Op 04233, CtApp 6-12-14

 

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Village’s Unauthorized Use of Dedicated Park Land Prohibited by the “Public Trust Doctrine”—Village’s Use of the Land Was a “Continuing Wrong” Which Tolled the Statute of Limitations and Precluded the Application of the Laches Doctrine

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined Supreme Court properly granted a permanent injunction, pursuant to the common law “public trust doctrine,” prohibiting the village from building public works structures on dedicated park land.  The action was brought by residents who live near the park, who were later joined by the state.  Because the park land had been used without legislative authority by the village for many decades, the village argued the action was prohibited by the statute of limitations and the doctrine of laches.  The Court of Appeals determined the “continuing wrong doctrine” tolled the statute of limitations and the laches doctrine did not apply to a continuing wrong, or to actions by the state:

The harm sustained by the public when structures having “no connection with park purposes . . . encroach upon [parkland] without legislative authority plainly conferred” … cannot be traced exclusively to the day when the illegal encroachment began. “In New York, we have consistently characterized an unlawful encroachment as a continuous trespass giving rise to successive causes of action” … . Even though here, because the Village owns the parkland, the encroachment is not trespass, it clearly bears the hallmark of continuity common to the trespass cases: defendants are, continuously, in violation of the public trust doctrine and able to abate that wrong. Just as the failure of a landlord to repair a building's common elements, in violation of by-laws, “constituted a continuing wrong that is not referable exclusively to the day the original wrong was committed” … and “[t]he alleged violation of defendants' contractual obligations to comply with the law and refrain from interfering with the rights of other lessees amounts to a continuous or recurring wrong” …, so does a municipality's ongoing failure to comply with the law and seek legislative authorization for non-park use of parkland. The harm does not consist of the lingering effects of a single, discrete incursion, but rather is a continuous series of wrongs. In short, the claim here is “predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct” …  Capruso v Village of Kings Point, 2014 NY Slip Op 04228, CtApp 5-12-14

 

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Defendant Did Not Demonstrate Standing to Challenge Search of Vehicle

The Third Department determined the defendant did not demonstrate he had standing to contest the inventory search of a vehicle, parked and empty at the time the police seized it, which turned up a weapon.  A police officer had seen the defendant driving the vehicle just before it was seized and a confidential informant had told the police where the defendant kept a handgun in the vehicle. Because the People did not rely solely on the statutory presumption of possession of a weapon (Penal Law 265.15 (3)) the defendant needed to allege and demonstrate standing.  Because the defendant did not own the vehicle and denied driving it on the day it was seized, he was unable to challenge the search:

A defendant seeking to suppress evidence has the burden to allege and, if disputed, establish standing to challenge a search … . “Standing exists where a defendant was aggrieved by a search of a place or object in which he or she had a legitimate expectation of privacy” … . While a defendant is entitled to “automatic standing” if the People “rely solely on the statutory presumption [of possession of a weapon] contained in Penal Law § 265.15 (3) to establish his [or her] guilt” …, defendant here cannot rely on that exception to his burden regarding standing. The People did not depend entirely upon the statutory presumption of standing, but had other evidence, including one officer who witnessed defendant driving the vehicle and the CI who provided information that defendant had a handgun in the vehicle and where within the vehicle the gun would be located … . Inasmuch as defendant did not own the BMW and denied that he was driving it on the day in question, he failed to allege any legitimate expectation of privacy in that vehicle. People v Anderson, 2014 NY Slip Op 04269, 3rd Dept 6-12-14

 

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Plaintiffs in Lead-Paint Exposure Cases Are Not Required to Hire an Expert to Link Injuries to Lead-Paint Exposure at the CPLR 3121 (a) Discovery Stage—However, Plaintiffs Must Provide Medical Reports Which Include a “Recital of the Injuries and Conditions as to which Testimony Will Be Offered at the Trial”

The Court of Appeals, in a full-fledged opinion by Judge Lippman, reversed the appellate division and determined the trial judge abused his discretion in the discovery phase of a lead-paint exposure case.  The trial judge ordered the plaintiffs “to produce, prior to the defense medical examinations, medical reports detailing a diagnosis of each injury alleged to have been sustained by plaintiffs and causally relating those injuries to plaintiffs' exposure to lead-based paint.”

CPLR 3121 (a) provides that when a party's mental or physical condition is in issue, any other party may serve on the party whose condition is in controversy notice “to submit to a physical, mental or blood examination by a designated physician.” A noticed party then is obligated under 22 NYCRR 202.17 (b)(1) to deliver:

“copies of the medical reports of those medical providers who have previously treated or examined the party seeking recovery. These shall include a recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those X-ray and technicians reports which will be offered at the trial, including a description of the injuries, a diagnosis and a prognosis.”

In most personal injury cases, disclosure under this rule is straightforward. The injured plaintiff goes to the doctor for diagnosis and treatment. The doctor drafts a report. The plaintiff turns over the report to the defendant.

This case is more complicated. Plaintiffs allegedly suffered lead poisoning as children. Now adults, plaintiffs allege that their childhood exposure to lead caused them numerous injuries. It appears from the dearth of medical evidence in the record that plaintiffs may never have been treated for or diagnosed with many of the alleged injuries. This raises the question of what plaintiffs must disclose in order to comply with rule 202.17 (b) (1).

Plaintiffs argue that the rule requires them to turn over only those reports that currently exist from providers who have “previously treated or examined” them. They argue that they are not required to document or create medical evidence of every alleged injury. To the extent that plaintiffs are arguing that the rule does not obligate them to hire a medical provider to examine them and create a report solely for purposes of the litigations, we agree. Requiring a personal injury plaintiff to hire a medical professional to draft a report purely to satisfy 22 NYCRR 202.17 (b) (1) could make it prohibitively expensive for some plaintiffs to bring legitimate personal injury suits. Some plaintiffs may not be able to afford a medical examination or may not even have access to a doctor. Plaintiffs therefore need only produce reports from medical providers who have “previously treated or examined” them.

To the extent, however, that plaintiffs claim that they need to turn over only those medical reports that currently exist, we disagree. The rule obligates plaintiffs to provide comprehensive reports from their treating and examining medical providers — the reports “shall include a recital of the injuries and conditions as to which testimony will be offered at the trial” (22 NYCRR 202.17 [b] [1]) [emphasis added]). Plaintiffs therefore cannot avoid disclosure simply because their treating or examining medical providers have not drafted any reports within the meaning of rule 202.17 (b) (1) … . If plaintiffs' medical reports do not contain the information required by the rule, then plaintiffs must have the medical providers draft reports setting forth that information (see id.)… . If that is not possible, plaintiffs must seek relief from disclosure and explain why they cannot comply with the rule (see 22 NYCRR 202.17 [j]). Hamilton v Miller, 2014 NY Slip Op 04230, CtApp 6-12-14

 

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Exclusive Access Not Required for Constructive Possession

The Third Department determined the proof of constructive possession of a weapon was sufficient.  The gun was found in a boot outside the door to the apartment where defendant lived.  He had been seen entering the building with a gun. The court noted that exclusive access to the area where contraband is found is not required to sustain a finding of constructive possession:

Constructive possession can be established by evidence that the defendant had dominion and control over the weapon or the area in which it was found … . Exclusive access, however, is not required to sustain a finding of constructive possession … . Here, the People established that defendant resided in the first-floor apartment with his girlfriend and their young son, and the loaded handgun was found in a man’s boot located in a hallway leading to that apartment among shoes belonging to defendant’s girlfriend and his son. The only other tenant in the building was an elderly woman who lived on the second floor. Although defendant denied ownership of the boots, he admitted that he kept some of his belongings in the hallway, and the People established the presence of his DNA on the weapon. The rational inferences to be drawn from this evidence are sufficient to support the conclusion that defendant exercised dominion and control over the weapon and the area in which it was found … . People v Bellamy, 2014 NY Slip Op 04262, 3rd Dept 6-12-14

 

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A Counteroffer Extinguishes the Initial Offer Which Cannot Be Unilaterally Revived by Subsequent Acceptance

The First Department determined that no binding contract for the sale of real property had been reached after a series of offers and counteroffers.  In the course of the decision, the court noted some of the relevant black letter law:

The record demonstrates that the parties never came to terms and instead proposed a series of offers and counteroffers to which they never mutually agreed. …To enter into a contract, a party must clearly and unequivocally accept the offeror’s terms … . If instead the offeree responds by conditioning acceptance on new or modified terms, that response constitutes both a rejection and a counteroffer which extinguishes the initial offer … . The counteroffer extinguishes the original offer, and thereafter the offeree cannot … unilaterally revive the offer by accepting it … .

…[O]ral acceptance of a written offer can form a binding contract for the sale of real property * * *. Thor Props LLC v Willspring Holdings LLC, 2014 NY Slip Op 04237, 1st Dept 6-12-14

 

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Defendant Did Not Make a Sufficient Showing to Justify Severance of Counts (Counts Related to Different Victims of Sexual Abuse)—-Nor Did the Defendant Make a Sufficient Showing to Justify a “Taint” Hearing (to Explore whether Allegations by a Child Were the Result of Suggestive Questioning)

The Third Department determined the defendant’s motion to sever the counts of the indictment, which involved different child victims of sexual abuse, was properly denied.  The court further determined the defendant’s motion for a taint hearing (to explore whether a child-victim’s allegations were the result of suggestive questioning) was properly denied:

Although charges arising out of different criminal transactions are properly joinable where, as here, “such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law” (CPL 200.20 [2] [c]…), a court nonetheless may — “in the interest of justice and for good cause shown” — exercise its discretion and order that such offenses be tried separately (CPL 200.20 [3]…). Good cause, in turn, may be established by demonstrating, among other things, that there is “[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense” (CPL 200.20 [3] [a]…). Simply put, defendant failed to make such a showing here. * * *

Notwithstanding the absence of “express statutory authority for a hearing to determine whether the testimony of [a] child witness[] has been tainted by suggestive interviewing techniques,” a court nonetheless may — “[u]pon a proper showing” by the defendant — direct that a pretrial taint hearing be held … . Noticeably absent from defendant’s motion papers was any indication that victim B’s mother engaged in leading or otherwise suggestive questioning of victim B regarding any inappropriate contact that she may have had with defendant. Moreover, “any suggestibility, the manner of questioning and its effects on [victim B’s] testimony could be, and was, addressed on cross-examination of [victim B and her mother]” at trial… . People v Milford, 2014 NY Slip Op 04278, 3rd Dept 6=12=14

 

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