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A Third-Party’s Removal of a Safety Device Did Not Require Summary Judgment In Favor of the Manufacturer, Even though the Safety Device Would Have Prevented the Injury/There Was Evidence the Safety Device Itself Was Defective, Leading to Its Removal by the Third Party/Therefore, the “Substantial Modification” Defense Did Not Insulate the Manufacturer from Liability as a Matter of Law

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined the defendant manufacturer of a post-hole digger did not demonstrate entitlement to summary judgment dismissing the product liability suit because a plastic safety shield (which would have prevented the injury) had been removed by a third party after the sale (the “substantial modification” defense).  There was evidence that the plastic shield was defective in that it wore out prematurely:

If the defendant establishes prima facie entitlement to summary judgment based on substantial modification, the burden shifts to the plaintiff to come forward with evidentiary proof in admissible form demonstrating “the existence of material issues of fact which require a trial of the action” …. . The plaintiff may overcome a substantial modification defense by demonstrating that the post-sale modification did not render a “safe product defective” because the product incorporated a defectively designed safety feature at the time of sale … . In other words, the plaintiff must raise a triable issue of fact whether the safety feature “was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury” … . * * *

…[I]f a plaintiff establishes the existence of material issues of fact concerning the defective design of a safety feature, the defendant will not automatically prevail on summary judgment simply because that safety feature was modified post sale. The substantial modification defense is intended to insulate manufacturers and others in the distribution chain from liability for injuries that would never have arisen but for the post-sale modification of a safety feature on an otherwise safe product. [It] does not, however, mandate summary disposal of cases where the plaintiff raises a colorable claim that the product was dangerous because of a defectively designed safety feature and notwithstanding the modification by the third party. We agree with the Appellate Division that, on this record, plaintiff established the existence of material issues of fact sufficient to overcome defendants’ substantial modification defense. Hoover v New Holland N Am Inc, 2014 NY Slip Op 02215, CtApp 4-1-14

 

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Inconsistent Responses to Special-Verdict Interrogatories Required Resubmission to the Jury or a New Trial

The First Department determined the trial judge, faced with inconsistent answers to the special verdict interrogatories, should have either resubmitted the interrogatories or ordered a new trial:

The jury’s responses to the second and third interrogatories are not only in direct conflict with one another, but puzzling given the jury charge. The trial court instructed the jury that “if you find all of the agreed-upon services have been performed, then the [p]laintiff is entitled to recover the fee agreed upon or such part of that fee as you find remains unpaid.” In light of these instructions, the jury’s finding that defendant is obligated to pay plaintiff, even though plaintiff did not perform its obligations under the contract, is “logically impossible” …. .As the verdict was inconsistent, pursuant to CPLR 4111(c), the court was obligated to either resubmit the interrogatories to the jury or order a new trial … . The trial court “engaged in improper speculation as to the jury’s thought process” by attempting to reconcile the jury’s answers with the evidence …, based upon a theory that was not part of the jury’s findings. … The trial court should have required the jury to reconsider the interrogatories or order a new trial, even though defense counsel did not request, on the record, that the verdict be resubmitted to the jury… . Bellinson Law, LLC v Iannucci, 2014 NY Slip Op 02219, 1st Dept 4-1-14

 

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​Monetary Award to Compensate Fraud Victims Ordered by a Czech Court in a Criminal Fraud Prosecution Entitled to Enforcement in New York as a “Foreign Country Judgment”

The First Department, in a full-fledged opinion by Justice Tom, determined a judgment in a Czech criminal proceeding ordering a monetary award to compensate fraud victims was entitled to recognition in New York pursuant to CPLR 5301(b) (a matter of first impression):

CPLR 5301(b) defines a “foreign country judgment” as “any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial or family matters.” The judgment sought to be enforced in this case provides restitution …, directing … the criminal defendant, to pay a specific sum as “compensation for damages to the victim” of his scheme to defraud. Clearly, the judgment is not one for taxes or support obligations; nor is it a fine. Thus, the question is whether a judgment providing compensation to a crime victim (here, a victim of criminal fraud) should be regarded as a “penalty” and denied enforcement.

Where, as here, the purpose of a monetary judgment is to compensate the victim for actual damages, it represents “reparation to one aggrieved” … . Harvardsky Prumyslovy Holding AS -V Likvidaci v Kozeny, 2014 NY Slip Op 02250, 1st Dept 4-1-14

 

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Response to Jury Note Without Notice to Defendant Required Reversal and a New Trial

Over a dissent, the Fourth Department determined the trial court committed a mode of proceedings error by responding to a jury request for exhibits without notice to the defendant:

CPL 310.20 (1) provides that, upon retiring to deliberate, the jurors may take with them “[a]ny exhibits received in evidence at the trial which the court, after according the parties an opportunity to be heard upon the matter, in its discretion permits them to take” (emphasis added). CPL 310.30 provides that, “[a]t any time during its deliberation, the jury may request the court for further instruction or information with respect to . . . the content or substance of any trial evidence . . . Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper” (emphasis added). Here, as part of its instructions to the jury, the court informed the jurors that “[e]xhibits that were received in evidence are available, upon your request, for your inspection and consideration.” The court, however, neither elicited on the record whether defendant, who proceeded pro se at trial, waived his right to be present when such a request was made nor informed defendant on the record that the exhibits would be given to the jury without reconvening. Prior to receiving the jury’s verdict, the court indicated that it had received a jury note “that has been marked as a Court Exhibit which was just the jury requesting certain items of evidence that had already been admitted and received in evidence, that they were provided with those items pursuant to discussions we had and what they were told before deliberations.” We note that those “discussions” do not appear to have been transcribed, and no agreement by defendant to forego the right to be present for the receipt of jury notes appears in the record before us. Inasmuch as the court failed to obtain defendant’s express agreement waiving his right to be present for the reading of the jury note at issue, we conclude that the court committed a mode of proceedings error when it provided exhibits to the jury in response to a jury note without notice to defendant, thereby requiring reversal of the judgment and a new trial … . People v Roberites, 164.1, 4th Dept 3-28-14

 

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Error to Allow Prosecutor to Elicit Testimony that Defendant Invoked His Right to Counsel

Although the error was deemed harmless, the Fourth Department noted that the prosecutor should not have been allowed to elicit testimony that defendant invoked his right to counsel:

We agree with defendant that County Court erred in allowing the People to elicit testimony that defendant invoked his right to counsel …, but we conclude that reversal is not required; the error is harmless beyond a reasonable doubt “inasmuch as there is no reasonable possibility that the error[] might have contributed to defendant’s conviction” … .  People v Daniels, 360, 4th Dept 3-28-14

 

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No Basis in Law for “Automatic Override” Based Upon a Prior Sex Crime Conviction to Raise Sex Offender Status Above the Presumptive Level (SORA)

The Fourth Department reversed County Court’s determination that defendant, who was a presumptive level two sex offender, should be classified as a level three offender on the basis of a prior felony conviction of a sex crime.  The County Court described the authority for the upward departure as an “automatic override.”  The Fourth Department noted that an “automatic override” does not exist in this context and explained the criteria for an upward departure:

Based upon the total risk factor score of 85 points on the risk assessment instrument, defendant was presumptively classified as a level two risk. County Court determined that defendant was a level three risk based on the automatic override for a prior felony conviction of a sex crime. That was error. “[N]o basis in law exists for . . . an automatic override [to] increase[] defendant’s presumptive risk level two designation to risk level three” … . “A departure from the presumptive risk level is warranted where there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the guidelines” … . “ ‘There must exist clear and convincing evidence of the existence of special circumstance[s] to warrant an upward or downward departure’ ” … . People v Moore, 357, 4th Dept 3-28-14

 

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Victim’s Statements Admissible as Excited Utterances Despite the Passage of Some Time Before the Statements Were Made

The Fourth Department determined the victim’s statements to an emergency medical technician were admissible as excited utterances even though some time had elapsed between the victim’s treatment and her statements.  The court determined that the stress of the situation had not diminished at the time the statements were made:

It is well settled that “[t]he admissibility of an excited utterance is entrusted in the first instance to the trial court. In making that determination, the court must ascertain whether, at the time the utterance was made, the declarant was under the stress of excitement caused by an external event sufficient to still his [or her] reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful. The court must assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth. Above all, the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection” … . Notably, “the time for reflection is not measured in minutes or seconds, but rather is measured by facts” … .

There is no dispute that there was a period of time between the victim’s treatment by the EMT and her statements. During that period of time, however, the victim’s child and niece were still in the apartment with defendant, the man who had kidnapped the victim and beaten her with a loaded gun. We thus conclude that “ ‘at the time the utterance[s were] made [the victim] was in fact under the stress of excitement caused by an external event sufficient to still . . . her reflective faculties’ . . . , including both the physical and emotional stress of the [kidnapping and] beating earlier administered by defendant[,] . . . the stress of being confined in [an apartment and car] with defendant following the attack,” and the stress of having two small children still in harm’s way… . People v Miller, 191, 4th Dept 3-28-14

 

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Uninhabited Trailer Met Definition of a “Building” Within the Meaning of the Arson Statute

The Fourth Department determined that a trailer that periodically was used as lodging, although not so used at the time of the fire, constituted a “building” within the meaning of the arson statute:

“The ‘ordinary meaning’ of the term ‘building’ has been alternatively defined as ‘a constructed edifice designed to stand more or less permanently, covering a space of land, usu[ally] covered by a roof and more or less completely enclosed by walls, and serving as a dwelling’ . . . , ‘a structure with a roof and walls’ . . . and ‘[a] structure or edifice inclosing a space within its walls and usually, but not necessarily, covered with a roof’ . . . The term generally, though not always, implies the idea of a habitat for a person’s permanent use or an erection connected with his or her permanent use” … .

Inasmuch as the trailer herein was “a constructed edifice enclosed by walls, covered by a roof, designed to stand permanently, and serving a useful purpose, it is included within the ordinary meaning of the word ‘building’ ” … . …In addition to furnishings for sleeping, the trailer had a bathroom and a kitchen. Moreover, the trailer was equipped with a power cord for immediate access to power and a propane tank that could be used to power the refrigerator and heaters. At the time of the arson, the trailer was being used to secure the owners’ property while they were remodeling the inside of their house. In any event, with respect to the trailer’s character as a building in the ordinary sense of the word, it is of no moment that no one was actually residing in the trailer on the day of the incident … .

Even assuming, arguendo, that the trailer did not fit within the ordinary meaning of the term, we conclude that it constituted a building under the secondary definition of building contained in the statute, i.e., a “structure . . . used for overnight lodging of persons, or used by persons for carrying on business therein” (Penal Law § 150.00 [1]). Defendant recognized that the trailer was used for overnight lodging “on ‘vacations’ or weekend retreats,” and it is undisputed that defendant had previously rented the trailer as overnight lodging for a period of four months. Although no one was residing in the trailer on the day of the fire, we likewise conclude that such fact does not alter the essential character of the structure as one used for overnight lodging. People v Norcutt, 195, 4th Dept 3-28-14

 

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Inadequate Supervision and Unsanitary Living Conditions Warranted a Neglect Finding

The Fourth Department reversed Family Court and found the three and a half year old child to be neglected.  The child wandered off out of the house and was found by a neighbor one and a half blocks away .  And the child had been living in highly unsanitary conditions:

…[A] neglected child is defined as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof” (Family Ct Act § 1012 [f] [i] [B]). As the Court of Appeals has explained, “[t]he statute . . . imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence . . . First, there must be proof of actual (or imminent danger of) physical, emotional or mental impairment to the child . . . Second, any impairment, actual or imminent, must be a consequence of the parent’s failure to exercise a minimum degree of parental care . . . This is an objective test that asks whether a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances” … . Moreover, it is well established that “the statutory requirement of imminent danger . . . does not require proof of actual injury” …, and that “[a] single incident where the parent’s judgment was strongly impaired and the child exposed to a risk of substantial harm can sustain a finding of neglect” … . * * *

As relevant to the second basis for neglect alleged in the petition, a neglected child is defined as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in supplying the child with adequate food, clothing, [or] shelter . . . though financially able to do so or offered financial or other reasonable means to do so” (Family Ct Act § 1012 [f] [i] [A]). We conclude that the court’s determination that the child was not neglected based on the condition of the mother’s apartment lacks a sound and substantial basis in the record. * * * Under the … circumstances, we conclude that the unsanitary and unsafe condition of the mother’s apartment posed an imminent danger of impairment to the child’s physical, mental, or emotional condition … . Matter of Raven B, 77, 4th Dept 3-28-14

 

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Summary Judgment Properly Granted in Favor of Defendant Who Had the Right of Way When Plaintiff Pulled Into Defendant’s Path from a Stop, Even Though there Was Evidence Defendant Was Travelling Slightly Over the Speed Limit/No Evidence Accident Would Have Been Avoided Had the Defendant Been Traveling at the Speed Limit

The Fourth Department, over a dissent, determined that summary judgment was properly granted to defendant truck driver who struck plaintiff’s vehicle as it entered the roadway from a stop.  The truck driver had the right of way (there was no stop sign for the truck driver) and there was evidence the truck was travelling in excess of five miles an hour over the speed limit. The court determined there was no evidence the accident could have been avoided even if the truck had been traveling at the speed limit:

“It is well settled that a driver who has the right-of-way is entitled to anticipate that drivers of other vehicles will obey the traffic laws requiring them to yield” (…see Vehicle and Traffic Law § 1142 [a]). Nevertheless, “a driver cannot blindly and wantonly enter an intersection . . . but, rather, is bound to use such care to avoid [a] collision as an ordinarily prudent [motorist] would have used under the circumstances” … .

Here, we conclude … that defendants met their initial burden of establishing that defendant was operating his vehicle “ ‘in a lawful and prudent manner and that there was nothing [he] could have done to avoid the collision’ ” … . Defendant testified that he saw plaintiff’s vehicle at the stop sign, braked as soon as he entered the intersection, and turned to the left “microseconds” after he braked. Despite defendant’s efforts to avoid the accident, his truck struck the rear of plaintiff’s vehicle on the passenger’s side. In opposition to the motion, plaintiff failed to raise an issue of fact … . Contrary to plaintiff’s contention, “the fact that [defendant] may have been driving at a speed in excess of five miles per hour over the posted speed limit . . . is inconsequential inasmuch as there is no indication that [defendant] could have avoided the accident even if [he] had been traveling at or below the posted speed limit” … . Heltz v Barratt…, 184, 4th Dept 3-28-14

Similar (but not identical) facts, same result, over a dissent, in Johnson v Time Warner…, 175, 4th Dept 3-28-14

 

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