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Delay In Arrival of an Ambulance During a Snow Storm Not Actionable

The causes of action against the city based upon delay in the arrival of an ambulance during a snow storm were dismissed.  The Second Department determined that both the ambulance service and the snow removal were governmental functions and, in the absence of a special relationship with the decedent, were not actionable:

A municipal emergency response system is “a classic governmental, rather than proprietary, function” … . Contrary to the plaintiffs’ contentions, the amended complaint fails to allege any facts tending to show that there was any “justifiable reliance” on any promise made to the decedent by the defendants. Accordingly, the amended complaint fails to state facts from which it could be found that there was a special relationship between the decedent and the defendants and, therefore, the amended complaint does not state a viable cause of action against the defendants based upon their alleged negligence in responding to the plaintiffs’ 911 call … . Estate of Radvin v City of New York, 2014 NY Slip Op 05302, 2nd Dept 7-16-17

 

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Arbitration Award Based Upon Collective Bargaining Agreement Does Not Have a Preclusive Effect Upon a Subsequent Employment Discrimination Action Based on the Same Facts

The Second Department noted that an arbitration award based upon the terms of a collective bargaining agreement does not bar a subsequent employment discrimination action under the doctrine of collateral estoppel.  Here the employee was terminated based upon excessive absences.  He subsequently  brought a discrimination action alleging the employee failed to accommodate his disability.  (The Second Department determined the “disability” alleged by the employee did not require accommodation):

An arbitrator’s award may be given preclusive effect in a subsequent judicial proceeding … . However, arbitration is an inappropriate forum for the disposition of an employment discrimination claim where “the arbitrator’s sole task is to effectuate the intent of the parties in connection with the collective-bargaining agreement, and not to consider a statutory claim of discrimination . . . The violation of these contractual and statutory rights by the same factual occurrence does not vitiate their separate nature” … . Thus, the arbitrator’s decision did not have preclusive effect on the plaintiff’s separate action based on unlawful discrimination in employment …, and the complaint is not barred by the doctrine of collateral estoppel. Caban v New York Methodist Hosp, 2014 NY Slip Op 05292, 2nd Dept 7-16-14

 

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No Showing Attorney Had Acquired Any Client Confidences Before Changing Firms

The Second Department determined there was no basis for disqualifying a law firm which represented the plaintiffs in a personal injury case based upon the firm’s hiring of an attorney who had represented the defendant in the same case.  It was sufficiently demonstrated that the attorney had not acquired any client confidences during his representation of the defendant:

While generally, a party seeking to disqualify an opponent’s attorney “must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” …, “no presumption of disqualification will arise if either the moving party fails to make any showing of a risk that the attorney changing firms acquired any client confidences in [his or her] prior employment … or the nonmoving party disproves that the attorney had any opportunity to acquire confidential information in the former employment” … . Sharifi-Nistanak v Coccia, 2014 NY Slip Op 05318, 2nd Dept 7-16-14

 

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Untimely Summary Judgment Motion Which Is Nearly Identical to a Summary Judgment Motion Already Before the Court Should Be Considered

The Second Department explained when an untimely summary judgment motion, which is nearly identical to a timely summary judgment motion already before the court, should be considered:

While the cross motion was made more than 120 days after the note of issue was filed and, therefore, was facially untimely …, an untimely cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds … . “In such circumstances, the issues raised by the untimely cross motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212 [a]) to review the merits of the untimely cross motion. Notably, a court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party” (…see CPLR 3212 [b]). Therefore, the Supreme Court should have entertained the plaintiff’s cross motion for summary judgment. Wernicki v Knipper, 2014 NY Slip Op 05324, 2nd Dept 7-16-14

 

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Transactional Res Judicata Analysis Explained

In determining a motion to amend the answer was precluded by the doctrine of res judicata, the Second Department wrote:

“[U]nder New York's transactional analysis approach to res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'” … . “In determining whether a factual grouping constitutes a transaction for res judicata purposes, a court must apply a pragmatic test and analyze how the facts are related as to time, space, origin or motivation, whether they form a convenient trial unit, and whether treating them as a unit conforms to the parties' expectations or business understanding” … . Matter of Haberman v Zoning Bd of Appeals of the City of Long Beach, 2014 NY Slip Op 05335, 2nd Dept 7-16-14

 

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Defendant’s Actions In Driving Under the Influence and Causing a Collision Did Not Support Convictions for Offenses Requiring Proof of a Depraved Indifference to Human Life

The Second Department determined that there was insufficient proof of “depraved indifference” to support defendant’s convictions for first degree assault and reckless endangerment stemming from a collision with a vehicle driven by Petrone:

Depraved indifference is ” best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not'” … . It is embodied in conduct that is ” so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes [serious physical injury to] another'” … .

The issue of whether a defendant possessed a state of mind evincing depraved indifference to human life is highly fact-sensitive, requiring a case-by-case analysis … . Here, the prosecution’s witnesses established that the defendant’s vehicle, without braking, collided into the back of Petrone’s vehicle while both were traveling eastbound in the left lane on Northern Boulevard. The collision was of such force that both vehicles left the roadway and flipped over. Moreover, the testimony of the forensic toxicologist demonstrated that, at the time of the accident, the defendant was significantly impaired due to his ingestion of six different drugs, including methadone. Nevertheless, the evidence of the defendant’s conduct did not support a finding of depraved indifference. The defendant was not driving well in excess of the speed limit, he was not driving the wrong way into oncoming traffic, he had not failed to obey traffic signals, and there was no evidence that he was driving erratically prior to the collision … . Under these factual circumstances, the prosecution failed to establish that the defendant possessed an “utter disregard for the value of human life” or that he “simply [did not] care whether grievous harm result[ed] or not” from his actions … . Consequently, there is simply no “valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion” … that the defendant acted with depraved indifference to human life when he caused the injuries to Petrone… . People v Jakobson, 2014 NY Slip Op 05354. 2nd Dept 7-16-14

 

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Failure to Trace the Allegedly Separate Funds Used for the Purchase of Property During the Marriage Allows the Court to Treat the Property as Marital

The Second Department found a lot of mistakes in the division of property and the support awards made by Supreme Court.  The discussion of each category of mistake is substantive enough to be instructive.  With respect to an improperly awarded separate property credit, the court explained that a party’s failure to trace the source of the funds for a purchase made during the marriage allows the court to treat the property as marital:

“Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property” … . Here, BSH was formed and the building was acquired during the marriage, and the plaintiff failed to meet his burden of tracing the use of claimed separate funds to establish that they were used for the purchase of his portion of the property’s acquisition costs … . Marital property is to be viewed broadly, while separate property is to be viewed narrowly … . Where, as here, a party fails to trace sources of money claimed to be separate property, a court may treat it as marital property… . Hymowitz v Hymowitz, 2014 NY Slip Op 05306, 2nd Dept 7-16-14

 

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Question of Fact Whether Tenants Entitled to Equitable Renewal of Lease

The Second Department determined issues of fact were raised concerning whether the tenants should be allowed to remain in the leased premises.  Although the written option to renew the lease was never executed. the tenants alleged that oral assurances the tenants could remain were made by the landlord:

Although the documentary evidence conclusively established that the [tenants] failed to exercise the option to renew in accordance with the express terms of the lease …., contrary to [the landlord’s] contention, that evidence failed to conclusively establish that the [tenants] were not entitled to equitable renewal of the lease. Equity will intervene to relieve a commercial tenant’s failure to timely exercise an option to renew in accordance with the terms of the lease where “(1) the tenant’s failure to exercise the option in a timely fashion resulted from an honest mistake or inadvertence, (2) the nonrenewal of the lease would result in a substantial forfeiture by the tenant, and (3) the landlord would not be prejudiced by the renewal” … .

Here, the record reveals the existence of issues of fact as to whether the [tenants’] failure to exercise the option in accordance with the terms of the lease resulted from their mistaken belief that alleged discussions with [tenant’s agent] were sufficient to exercise the option, whether nonrenewal of the lease would result in the [tenants’] substantial forfeiture of a benefit as a result of the loss of valuable goodwill that they established at the present location, and whether [the landlord]  would suffer prejudice if the lease were renewed… . Waterfalls Italian Cuisine Inc v Tamarin, 2014 NY Slip Op 05323, 2nd Dept 7-16-14

 

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Action Against Broker for Failure to Procure Correct Coverage Should Not Have Been Dismissed/Question of Injured Worker’s Employment Status Must First Be Determined by the Workers’ Compensation Board

The Second Department determined that a cause of action alleging the insurance broker (Crystal) failed to purchase adequate insurance in response to a request from the insured (Mariani) should not have been dismissed.  The insured’s worker was injured on the job and the insurer disclaimed coverage because the policy did not cover subcontractors.  The Second Department also determined that it was up to the Workers’ Compensation Board to first determine the injured worker’s employment status and Supreme Court should not inject itself into that question until the Board acts:

“An insurance agent or broker . . . may be held liable under theories of breach of contract or negligence for failing to procure insurance . . . An insured must show that the agent or broker failed to discharge the duties imposed by the agreement to obtain insurance, either by proof that it breached the agreement or because it failed to exercise due care in the transaction” … . Crystal was not entitled to judgment as a matter of law because it failed to establish, prima facie, that it procured the adequate coverage that Mariani had engaged it to procure … . Siekkeli v Mark Mariani Inc, 2014 Slip Op 05319, 2nd Dept 7-16-14

 

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Police Did Not Have Sufficient Information to Justify Request that 12-Year-Old Lift His Shirt–Weapon Recovered After Juvenile’s Refusal (and a Police Pursuit) Should Have Been Suppressed

The Second Department determined the police did not have sufficient information to justify a request that appellant, who was 12 years old, to lift his shirt.  The weapon found on the appellant’s person should have been suppressed:

At issue here is whether the officers could ask the appellant to lift his shirt, even after he refused, and then pursue him as he fled the scene. Based upon a founded suspicion that criminal activity is afoot, the subject may be asked to produce identification …, may be asked whether he has weapons, and may be asked to remove his hands from his pockets … . However, asking a person to open his or her coat is an “intrusive step” which requires sufficient evidence of criminal activity to permit more than an inquiry by the police … . Here, the police acknowledge they did not see an object until they took their “intrusive step” of demanding that the appellant lift up the front of his shirt after he refused to do so, whereupon a police officer pursued him with his gun drawn.

The appellant had the “right to be let alone” … . The police may lawfully pursue an individual if they have a reasonable suspicion that he or she has committed or is about to commit a crime … . However, in this case, the police only acquired a basis to pursue the appellant after they took the intrusive step of demanding that he raise the front of his shirt and saw the butt of a gun. Since the pursuit of the appellant was unlawful, the gun which he abandoned in response to the pursuit should have been suppressed… . Matter of Shakir J, 2014 NY Slip Op 05336, 2nd Dept 7-16-14

 

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