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Question of Fact Whether Snow Removal Efforts Created or Exacerbated Icy Condition

The Second Department determined summary judgment should not have been granted in favor of the property owner in a slip and fall case.  The plaintiff slipped on ice on metal vault doors in the sidewalk in front of defendants’ restaurant.  The defendants failed to demonstrate that their snow removal efforts did not create or exacerbate the condition:

A property owner that elects to engage in snow removal activities must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm … . Contrary to the defendants’ contention, they failed to demonstrate their prima facie entitlement to judgment as a matter of law, as they failed to establish that the snow removal efforts that were undertaken prior to the accident neither created nor exacerbated the allegedly hazardous icy condition which caused the plaintiff to fall.. . Gwinn v Christina’s Polish Rest Inc, 2014 NY Slip Op 03485, 2nd Dept 5-14-14

 

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Vehicle On a Flatbed Tow Truck Is Not In “Use or Operation” Within Meaning of Vehicle and Traffic Law 388

The Second Department reversed Supreme Court finding that the owner (Rosa) of a vehicle which is on a flatbed tow truck when the truck is involved in an accident cannot no be liable under Vehicle and Traffic Law 388:

Vehicle and Traffic Law § 388(1) imposes liability on all vehicle owners for accidents resulting from negligence in the permissive “use or operation” of their vehicles, including use “in combination with one another, by attachment or tow” (Vehicle and Traffic Law § 388[1]…). The statute’s primary objective is ” to provide recourse to an injured party against a person, financially able to respond, without whose conduct in permitting use of the vehicle the accident would not have happened'” … .

Here, Rosa’s vehicle was not in use at the time of the accident, either on its own or in combination with the flatbed tow truck… . Rather, it was merely cargo on the flatbed tow truck. Gibson v Sing Towinf Inc, 2014 Slip Op 03483, 2nd Dept 5-14-14

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Plaintiff Bicyclist Entitled to Summary Judgment—Defendant Driver Made a Left Turn into a Parking Lot When Plaintiff Was Riding in Oncoming Lane

The Second Department determined summary judgment was properly granted to plaintiff bicyclist who was struck by defendants’ vehicle.  Defendant driver (Robert) made a left turn into a parking lot when plaintiff was riding in the oncoming lane:

“There can be more than one proximate cause [of an accident] and thus, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” … . Consequently, “[t]o prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault” … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that Robert, who testified at his deposition that he did not see the plaintiff until seconds before the impact, was negligent in violating Vehicle and Traffic Law §§ 1141 and 1163(a) by making a left turn into the path of oncoming traffic without yielding the right of way to the plaintiff when the turn could not be made with reasonable safety … . The plaintiff also demonstrated that Robert’s negligence was the sole proximate cause of the accident and that he was not comparatively at fault in the happening of the accident through his deposition testimony that he saw Robert’s vehicle stopped and waiting to make the turn, slowed down in response, stood up on his pedals to make eye contact with Robert to ensure that Robert was aware of his presence, and continued riding when he believed that Robert had made eye contact with him. Further, the plaintiff testified that, upon seeing Robert commence making the left turn in front of him, he immediately attempted to apply his brakes and maneuver around Robert’s vehicle, but there was an insufficient amount of time to successfully do so … . Sirlin v Schreib, 2014 NY Slip Op 03504, 2nd Dept 5-14-14

 

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Plaintiffs’ Failure to Attend Depositions Warranted Dismissal of Complaint

The Second Department determined the motion to dismiss plaintiffs’ complaint because of plaintiffs failure to attend depositions should have been granted:

A court may, inter alia, issue an order “prohibiting the disobedient party . . . from producing in evidence . . . items of testimony” or “striking out pleadings” as a sanction against a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126[2], [3]). Before a court invokes the drastic remedy of striking a pleading or the alternative remedy of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious … . While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court … , the Appellate Division is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse … .

Here, in opposition to the appellants’ motion to dismiss the complaint, the plaintiffs’ counsel asserted that the infant plaintiff resides in Georgia and was unable to travel to New York on his own. The plaintiffs’ counsel did not proffer any excuse as to why the remaining plaintiffs could not appear for court-ordered depositions. The willful and contumacious character of the plaintiffs’ conduct can be inferred from their failures to comply with several court orders over a period of one year and five months directing them to appear for depositions, and the lack of a reasonable excuse for those failures … . That the infant plaintiff and his parents had made themselves unavailable does not preclude the dismissal of the complaint … . Harris v City of New York, 2014 NY Slip Op 03486, 2nd Dept 5-14-14

 

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Plaintiff Did Not Raise an Issue of Fact Re: Vicious Propensities of Defendants’ Dog

The Second Department determined plaintiff failed to raise a question of fact about the vicious propensities of a dog which was alleged to have bitten plaintiff:

“To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities” … . “Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, [the fact that the dog was kept as a guard dog,] and a proclivity to act in a way that puts others at risk of harm” … .

The defendants separately established their respective prima facie entitlement to judgment as a matter of law on their respective motions by demonstrating, through their deposition testimony, as well as the plaintiff’s, that they “were not aware, nor should they have been aware, that this dog had ever bitten anyone or exhibited any aggressive behavior” … . Indeed, the defendants testified that they had no knowledge that the dog involved in this alleged attack on the plaintiff had ever growled at, chased, bitten, or attacked anyone prior to the subject incident … .

The plaintiff failed to raise a triable issue of fact in opposition. Henry v Higgins, 2014 NY Slip Op 03489, 2nd Dept 5-14-14

 

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Pretrial Motion to Dismiss the Accusatory Instrument, Arguing the Facts Alleged Did Not Constitute the Crime Charged, Preserved the Legal-Sufficiency Issue for Appeal, Despite the Absence of a Motion for a Trial Order of Dismissal on the Same Ground

The Court of Appeals, in a full-fledged opinion by Judge Smith, with three judges dissenting, determined defendant's pretrial motion to dismiss the charges, arguing that the facts alleged by the People did not constitute the crime charged, preserved the “legal sufficiency” issue for appeal, despite the absence of a motion for a trial order of dismissal on the same ground. The defendant was charged with trespass and resisting arrest. The defendant had permission to be on the property.  County court had dismissed the trespass conviction, but upheld the resisting arrest conviction.  The Court of Appeals determined the arresting officer, because of prior dealings with the defendant, did not have probable cause to believe the defendant was trespassing, therefore the resisting arrest charge could not stand either.  The bulk of the majority opinion, and both dissenting opinions, dealt with the preservation issue.  The majority took great pains to explain that this holding did not affect the two leading cases concerning the preservation requirements re: the insufficiency of trial evidence (People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56):

As a general matter, a lawyer is not required, in order to preserve a point, to repeat an argument that the court has definitively rejected … . When a court rules, a litigant is entitled to take the court at its word. Contrary to what the dissent appears to suggest, a defendant is not required to repeat an argument whenever there is a new proceeding or a new judge.

It is true that a challenge to the sufficiency of the accusatory instrument at arraignment is conceptually different from a challenge based on the proof at trial, and that often an issue decided in one proceeding will not be the same as the issue presented in another. But here the issue was the same. People v Finch, 2014 NY Slip Op 03424, CtApp 5-13-14

 

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Courts Charged with Supervising Defendants Found Not Responsible by Reason of Mental Disease or Defect Have the Power To Impose a Condition Allowing the Office of Mental Health to Seek Judicial Approval for a Mandatory Psychiatric Evaluation When the Defendant Does Not Comply with Release Conditions and Refuses to Be Examined Voluntarily

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that a court charged with supervising a defendant who has been found not responsible by reason of mental disease or defect can include in “an order of conditions a provision allowing the [NYS] Office of Mental Health (OMH) to seek judicial approval of a mandatory psychiatric evaluation in a secure facility when a defendant found not responsible by reason of mental disease or defect fails to comply with the conditions of his release and refuses to undergo voluntary examination.”  The appellate division had held that Criminal Procedure Law section 330.20 prohibited the inclusion of such a requirement in an order of conditions:

Section 330.20 mandates an order of conditions whenever a track-one defendant moves from secure to nonsecure confinement, or is no longer institutionalized (Criminal Procedure Law § 330.20 [11], [12]), and allows the court to fashion these orders in whatever way, in its judgment, most effectively protects the public while serving the defendant's interest in remaining in the least restrictive environment possible. “[T]he order of conditions is the vehicle by which the . . . court effectuates its continuing supervisory authority over” a defendant found not responsible for a crime by reason of mental disease or defect … . And while the Commissioner and the district attorney may appeal from an order of conditions, the defendant may not (see Criminal Procedure Law § 330.20 [21]). This insulates the supervising court from a defendant's attempt to argue that a condition, thought by the judge to be a necessary prophylactic measure, excessively restricts his freedom.

Accordingly, section 330.20 authorizes orders that, along with a prescribed treatment plan, include “any other condition which the court determines to be reasonably necessary or appropriate” (Criminal Procedure Law § 330.20 [1] [o] [emphases added]). * * *

The effective-evaluation provision enables OMH to evaluate a track-one defendant who does not comply with court-ordered conditions and refuses to be examined voluntarily. Track-one defendants are released into the community with the express understanding that they may endanger the public and themselves if their mental health declines. Indeed, reported cases illustrate the perils posed when such defendants do not follow the regime designed by mental-health professionals and imposed by courts to safeguard their stability and functioning in the community … . The dangers of noncompliance are exacerbated when a track-one defendant also refuses to submit to a psychiatric evaluation thereby denying vital information to the Commissioner, whom section 330.20 (12) makes responsible for ensuring compliance with orders of conditions issued with release orders. Matter of Allen B v Sprout, 2014 NY Slip Op 03427, CtApp 5-13-14

 

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Complaint Pursuant to the “Whistleblower” Statute Need Not Identify the Particular Statute or Regulation Alleged to Have Been Violated by the Employer

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a complaint brought under the “whistleblower”  provision of the Labor Law (section 740) need not identify the particular statute or regulation alleged to have been violated by the employer:

Labor Law § 740 (2), commonly referred to as the “whistleblower statute,” provides, in relevant part, that “[a]n employer shall not take any retaliatory personnel action against an employee because such employee . . . discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation” that either “creates and presents a substantial and specific danger to the public health or safety, or . . . constitutes health care fraud” (Labor Law § 740 [2] [a]). The narrow issue on this appeal is whether a complaint asserting a claim under that provision must identify the specific “law, rule or regulation” allegedly violated by the employer. We conclude that there is no such requirement. * * *

To be sure, in order to recover under a Labor Law § 740 theory, the plaintiff has the burden of proving that an actual violation occurred, as opposed to merely establishing that the plaintiff possessed a reasonable belief that a violation occurred … . And, the violation must be of the kind that “creates a substantial and specific danger to the public health or safety” … . However, for pleading purposes, the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct. Webb-Weber v Community Action for Human Servs Inc, 2014 NY Slip Op 03428, CtApp 5-13-14

 

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School District Owed No Duty of Care to Student Struck by Car Before School Bus Stopped to Pick Her Up/Bus Driver Had Missed Student’s Stop, Had Turned Around, and Was Driving Back Toward the Student When She Was Struck

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that a school district did not owe any duty to a student who was struck by a car before the bus stopped to pick her up.  The bus driver mistakenly drove past the stop where the student was waiting.  The driver turned the bus around.  As the driver was heading back toward the student's stop, the student was struck by a car. The Court of Appeals essentially agreed with the dissenting appellate division justices, whose position was described as follows:

The dissenting Justices would have reversed Supreme Court's order and granted the District's motion in its entirety. …[T]hey observed the “well settled” rule that the District's duty flowed from physical custody and control; that at the time of the accident the District did not have physical custody of the child, who thus remained outside its orbit of authority; and that the District therefore “owed no duty to the child in this situation, and, absent duty, there can be no liability” … .

The dissenting Justices rejected plaintiff's contention, endorsed by the majority, that the District “assumed a duty to the child as a consequence of the potentially hazardous situation allegedly created by the school bus driver in turning the bus around after missing the bus stop” … . Williams v Weatherstone, 2014 NY Slip Op 03425, CtApp 5-13-14

 

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Release Time Certificates, Allowing Full Pay for Police Officers Doing Union Work, Properly Rescinded Based Upon the Indictment of the Officers

The First Department, in a full-fledged opinion by Justice Andrias, over a two-justice dissent, determined that police officers who were indicted in connection with a ticket-fixing scheme were properly denied Release Time certificates based upon the indictments.  Release Time certificates are issued by the Office of Labor Relations (OLR) pursuant to the Mayor’s Executive Order 75 (EO 75) and allow full-time leave with pay and benefits for union work:

The right of union-designated employees to be released from their job duties to perform union or joint labor-management activities is established in EO 75, which generally vests the City with broad oversight of employee representatives. Section 4(4) of EO 75 provides:

“Organizing, planning, directing, or participating in any way in strikes, work stoppages, or job actions of any kind, are excluded from the protection or coverage of this Order. Any employees assigned on a full or part-time basis or granted leave of absence without pay pursuant to this Order who participate in such excluded activity may have such status suspended or terminated by the City Director of Labor Relations.”

Section 4(10) provides: “Employees assigned on a full-time or part-time basis or granted leave without pay pursuant to this Order shall at all times conduct themselves in a responsible manner.” Section 5 provides that “[n]othing contained in this Order shall be deemed to have the effect of changing the character of any subject matter hereof which is a managerial prerogative and as a non-mandatory subject of collective bargaining.”

Enforcement of EO 75 is committed to the OLR Commissioner, who may issue implementing rules and regulations. The indictments of the individual petitioners on charges related to a ticket-fixing scheme that include allegations of grand larceny, official misconduct, tampering with public records, and criminal solicitation constitute a sufficient basis for the City to determine that the individual petitioners did not “at all times conduct themselves in a responsible manner” … . Accordingly, OLR was entitled to unilaterally rescind the Release Time certificates. Matter of Patrolmen’s Benevolent Assn of the City of New York Inc v City of New York, 2014 NY Slip Op 03464, 1st Dept 5-13-14

 

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