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Where There Is Evidence, Other than or in Addition to a Chemical Test, of a Blood Alcohol Content, the Jury Can Be Instructed that It May Base Its Verdict on Its Own Finding Re: Blood Alcohol Content

The Court of Appeals determined defendant was not entitled to a jury instruction that a “blood alcohol content of less that .08 is prima facie evidence defendant was not intoxicated” on the basis of her expert's testimony that her blood alcohol content was below .08 at the time she was driving (her subsequent blood alcohol test result was .09).  However, the Court of Appeals explained the defendant could have requested a jury instruction which would allow the jury to find she was not intoxicated if the jury first made the finding her blood alcohol level was below .08:

Since the evidence of her BAC that defendant presented here was not determined by a chemical test but was contained in the opinion of a defense expert, that evidence did not have the “prima facie” effect specified by the statute and defendant was not entitled to the charge she sought.

…It should not be thought, however, that the BAC thresholds specified in Vehicle and Traffic Law § 1195 (2)(A) must be entirely omitted from a jury charge in a common law DWI case or in a driving while ability impaired (DWAI) case brought under Vehicle and Traffic Law § 1192 (1) (“No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol”). It is obvious from Vehicle and Traffic Law §§ 1192 (2) and 1195 (2) that the Legislature has made judgments about the significance of certain statistical thresholds — i.e., that a BAC of .08% or more justifies an inference of intoxication; that a BAC below .08% justifies an inference of non-intoxication; that a BAC above .07% justifies an inference of impairment; and that a BAC equal to or less than .05% justifies an inference that the driver was neither intoxicated nor impaired in her ability to drive. There is no reason why juries should remain unaware of these legislative judgments.

Thus, in this case Town Court should, if it had been requested to do so, have charged the jury in words or substance: If you find that there was less than .08 of one percent by weight of alcohol in defendant's blood while she was operating the motor vehicle, you may, but are not required to, find that she was not in an intoxicated condition. Similarly, in a DWAI case where the defendant proffers evidence other than chemical tests of a BAC at or below .05%, it would be proper to charge: If you find that there was .05 of one percent or less by weight of alcohol in the defendant's blood while she was operating a motor vehicle, you may, but are not required to, find that her ability to operate the motor vehicle was not impaired by the consumption of alcohol. And the People are entitled to a corresponding charge when they rely on evidence other than chemical tests to show that a defendant's BAC was above .08% in a DWI case, or above .07% in a DWAI case.  People v Fratangelo, 2014 NY Slip Op 04041, CtApp 6-5-14

 

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Ambiguous Termination Notice Will Not Trigger Four-Month Article 78 Statute of Limitations

The First Department explained that when a notice of termination of an at-will employee is ambiguous with respect to finality, the ambiguity is construed against the employer and the four-month statute of limitations for an Article 78 proceeding is not triggered:

Ordinarily, where the employment of an at-will employee, like petitioner, is terminated, the four-month statute of limitations applicable in article 78 proceedings (CPLR 217) begins to run from the date of the termination, notwithstanding the availability of optional administrative review proceedings … . However, where an administrative agency “create[s]; []; ambiguity and [the]; impression of nonfinality,” that ambiguity regarding finality is to be resolved against the agency … .

* * * We find that, notwithstanding the fact that the letter otherwise conveyed the concrete impact ordinarily associated with finality for statute of limitations purposes …, respondent created sufficient ambiguity as to finality such that the language must be construed against it and the petition must be deemed timely. Matter of Burch v New York City Health & Hosp Corp, 2014 NY Slip Op 04060, 1st Dept 6-5-14

 

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Given the Surrounding Circumstances, the Allegation that the Juvenile Was in Possession of a Machete Was Sufficient to Allege the Juvenile Was in Possession of a “Dangerous Knife” within the Meaning of the Penal Law

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined a juvenile delinquency petition which alleged the juvenile was in possession of a machete sufficiently alleged the statutory element of possession of a “dangerous knife:”

The statute does not define the term “dangerous knife.” In Matter of Jamie D. (59 NY2d 589 [1983]), however, this Court held that the term, as used in the statute, “connotes a knife which may be characterized as a weapon” (id. at 592). We explained that certain knives may fall within the scope of the statute based solely on the knife's particular characteristics. For instance,”a bayonet, a stiletto, or a dagger” would come within the meaning of “dangerous knife” because those instruments are “primarily intended for use as a weapon” (id. at 592-93).

We also explained that other knives, which are designed and primarily intended for use as “utilitarian utensils,” may also come within the statutory language in at least two ways (id. at 593). First, a knife may be converted into a weapon, and second, “the circumstances of its possession, although there has been no modification of the implement, may permit a finding that [*4]on the occasion of its possession it was essentially a weapon rather than a utensil” (id. at 593).

A “machete” is generally defined as “a large, heavy knife that is used for cutting plants and as a weapon” (http://www.merriam-webster.com/dictionary/machete). While a machete has utilitarian purposes, under the circumstances of this case, it would be unreasonable to infer from the statement supporting the petition that respondent was using the machete for cutting plants. Rather, the arresting officer's description of the “machete”, with its 14-inch blade, being carried by respondent late at night on a street in Brooklyn, adequately states “circumstances of . . . possession” (Jamie D. at 593) that support the charge that defendant was carrying a weapon. Matter of Antwaine T, 2014 NY Slip Op 04042, CtApp 6-5-14

 

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In the Absence of a Colloquy Conducted by the Court, the Circumstances Indicated that Mother Knowingly, Intelligently and Voluntarily Waiver Her Right to Counsel In a Custody Proceeding

In the course of a decision affirming Family Court’s finding that a change of circumstances warranted modification of the custody arrangement, the Third Department determined the mother had knowingly, intelligently and voluntarily waived her right to counsel.  In the absence of a colloquy conducted by the court, the Third Department found that the relevant circumstances indicated the waiver was valid:

“[A]; party is entitled to self-representation once the court determines that the decision to do so is knowingly, intelligently and voluntarily made. Although it is preferable that the court’s determination be made following an appropriate colloquy with the party on the record, it may also be made upon an examination of all the potential relevant circumstances” .. . Here, at the initial court appearance on April 8, 2011, the mother was represented by an attorney, whom she states was assigned. By the next court date, July 15, 2011, she had terminated the services of the assigned attorney and appeared with a substituted retained attorney. At the next appearance, the father told the court that he was switching attorneys and, at the ensuing appearance on August 10, 2011, the mother informed the court that she wanted to terminate the services of her retained attorney. Her attorney was present and, after confirming that the mother had discussed such action with the attorney, the court permitted the attorney to withdraw.

Noting the multiple adjournments and delays that had occurred by such time, many caused by the switching of attorneys by both parties, the mother was admonished to obtain substitute counsel before the next court date. Over a month later, on September 14, 2011, the mother appeared and stated that she had not been able to retain a new attorney and was involved in a dispute with her former retained attorney about fees. The court stated that it would grant yet another adjournment, but that a trial date would be set with no more adjournments permitted, and the court also reminded the mother that she could apply for assigned counsel. The mother next appeared on November 30, 2011, stating that she was representing herself and that she was ready to proceed with the hearing. The mother had already appeared and prepared documents in many of the proceedings pertaining to the child without an attorney and, among other things, she had obtained subpoenas for several witnesses prior to the hearing. Under all the circumstances, we are satisfied that the record sufficiently reflects that the mother waived her statutory right to counsel knowingly, intelligently and voluntarily… . Matter of Joshua UU v Martha VV, 2014 NY Slip Op 04089, 3rd Dept 6-5-14

 

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Client’s Claim His Attorney Pressured Him Into Changing the Retainer Agreement, Thereby Costing the Client More, Did Not Sound In Malpractice and Was Not an Arbitrable Fee Dispute

The First Department noted that an action by a client alleging he was pressured by his attorney into changing the retainer agreement from an hourly retainer to a contingency retainer (thereby costing the client more) did not sound in malpractice and was not arbitrable under part 137 of the Rules of the Chief Administrator of the Courts:

Plaintiff does not assert that defendants’ conduct caused the result of his dispute with his disability insurer to be worse than it would have been. Rather, he argues that defendants, in bad faith and without full disclosure, pressured him into changing from an hourly retainer to a contingency retainer. The only loss he alleges is the additional fees owed to counsel as a result of changing the retainer. This is fatal to his claim for malpractice … . …

The retainer agreement provided for arbitration under part 137 of the Rules of the Chief Administrator of the Courts. However, the gravamen of the contract claim is that it is invalid because of defendants’ misconduct in inducing plaintiff to sign it, or because it created a windfall for defendants. By the express terms of the rules the parties chose to govern their arbitration, claims such as this are not arbitrable since 22 NYCRR 137.1(b)(3) provides that part 137 does not apply to “claims involving substantial legal questions, including professional malpractice or misconduct” … . Cohen v Hack, 2014 NY Slip Op 04068, 1st Dept 6-5-14

 

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Mother’s Consent to Adoption Not Required

The Third Department determined mother’s consent to adoption was not required due to her failure to seek treatment for drug and alcohol problems and lack of contact with the child:

“Consent to adoption is not required of a parent who ‘evinces an intent to forego his or her parental or custodial rights and obligations as manifested by his or her failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so'” … . “Once the petitioner makes such a showing by clear and convincing evidence, the burden shifts to the parent to demonstrate sufficient contact or an inability to engage in such contact”… . * * *

The record not only reflects that the mother failed to demonstrate an acceptable reason for the absence of contact or communication for over six months, but also that the impediments contributing to such absence of contact resulted from the mother’s own acts and lack of effort … . Matter of Lori QQ, 2014 NY Slip Op 04105, 3rd Dept 6-5-14

 

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Town Could Not Unilaterally Revoke Its Policy of Providing Vehicles for Certain Town Employees—Any Such Change Must Be Negotiated

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined the Public Employees Relation Board (PERB) properly ruled the town could not revoke its policy of providing vehicles for use by certain town employees pursuant to a provision of the Town Code. The town argued that it could unilaterally revoke the vehicle assignments because the provision which purported to allow the vehicle assignments was illegal (the dissent agreed).  The Court of Appeals held that the provision was not illegal and, therefore, any change in the vehicle assignment policy must be negotiated with the union:

…[T]he Town asks us to rule in its favor on the ground that a public employer does not violate section 209-a (1) (d) of the Taylor Law [Civil Service Law} when it unilaterally discontinues a past practice with respect to a term and condition of employment that is illegal under local law. Whatever the merits of the Town's position, we do not reach and need not consider them because the relevant past practice was not, in fact, illegal under the local law. Accordingly, PERB reasonably applied its precedent to determine that the Town engaged in an improper practice when it unilaterally discontinued the permanent assignment of “take home” vehicles to employees who enjoyed this benefit before the Town adopted and implemented the 2008 fleet/vehicle policy, and PERB's determination was based on substantial evidence.  Matter of Town of Islip v New York State Pub Empl Relations Bd., 2014 NY Slip Op 04030, CtApp 6-5-14

 

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City Employee Blocking Roadway to Facilitate Repairs Was Engaged in a Proprietary, Not a Governmental, Function–Ordinary Rules of Negligence Applied

In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed the trial court and the appellate division, finding that a city employee was acting in a proprietary, not a governmental, capacity when he told the plaintiff she could proceed on a roadway that he was closing for repairs but did not warn her of the depression in the roadway which caused her to fall.  The question came down to whether the employee was performing a road repair (proprietary) or a traffic control (governmental) function.  Because the employee was deemed to be performing a proprietary function, the ordinary rules of negligence applied to the city:

We recently explained the framework that must be used when a negligence claim is asserted against a municipality in Applewhite v Accuhealth, Inc. (21 NY3d 420 [2013]). First, a court must decide “whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” (id. at 425). If the municipality's actions fall on the proprietary side, “it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties”… . A governmental entity undertakes a proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises” … . “In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers” (id. [internal question marks and citation omitted]). Generally, “the distinction is that the government will be subject to ordinary tort liability if it negligently provided services that traditionally have been supplied by the private sector” … . In deciding whether a function is proprietary or governmental, a court examines “the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred . . . , not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred” … .

Historically, the maintenance of roads and highways was performed by both private entities and local governments, with each subject to the ordinary rules of negligence… . Wittorf v City of New York, 2014 NY Slip Op 04037, CtApp 6-5-14

 

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Mechanics of a Motion to Change Venue Explained

In finding the moving party, Schwartz, had not complied with the relevant statutes conceerning a discretionary venue change, the Second Department explained some of the mechanics of a motion to change venue:

That branch of Schwartz’s motion which was to change venue pursuant to CPLR 510(3) based on discretionary grounds was improperly made in the Supreme Court, Richmond County. A motion to change venue on discretionary grounds, unlike motions made as of right, must be made in the county in which the action is pending, or in any county in that judicial district, or in any adjoining county (see CPLR 2212[a]…). Schwartz was therefore required to make a motion pursuant to CPLR 510(3) in Nassau County, where the action was pending, in another county in the 10th Judicial District, or in a county contiguous to Nassau County … . Since Nassau County and Richmond County are not contiguous, and Richmond County is not in the 10th Judicial District, the Supreme Court, Richmond County, erred in granting that branch of the motion which was pursuant to CPLR 510(3)

Furthermore, that branch of Schwartz’s motion which was pursuant to CPLR 510(1) to change venue based on an allegedly improper county was untimely made, as it was not served within 15 days after service of his demand for a change of venue (see CPLR 511[b]…). In addition, in response to Schwartz’s demand for a change of venue, the appellant served a timely affirmation with supporting proof that was, prima facie, sufficient to support its choice of venue as of right in the Supreme Court, Nassau County (see CPLR 503[c]; 511[b]; 2103[b];[2]; 2106…). Accordingly, that branch of Schwartz’s motion which was pursuant to CPLR 510(1) also should have been made in the Supreme Court, Nassau County, where the action was pending, and the Supreme Court, Richmond County, erred in granting that branch of the motion as well… . Schwartz v Yellowbook Inc, 2014 NY Slip Op 04000, 2nd Dept 6-4-14

 

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Under the Circumstances, Court Properly Considered New Information Presented in a Surreply

The Second Department explained when the court may consider evidence submitted for the first time in a surreply:

While it is true that unauthorized surreplies containing new arguments generally should not be considered by the court … , the procedural history in this case is analogous to circumstances in which arguments are raised for the first time in reply. Arguments raised for the first time in reply may be considered if the original movant is given the opportunity to respond and submits papers in surreply… . Here, while the motion was fully briefed by its return date, the court granted the defendants’ application for an adjournment to February 8, 2013, in order to respond to the plaintiff’s reply. The defendants submitted the surreply containing the Nolie affidavit dated January 28, 2013, and the plaintiff responded to it on February 7, 2013. In addition, oral argument was held on February 8, 2013. Consequently, the plaintiff had adequate opportunity to address the new arguments raised in the defendants’ surreply, and the Supreme Court properly considered it. Gluck v New York City Tr Auth, 2014 NY Slip Op 03977, 2nd Dept 6-4-14

 

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