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Skiers Do Not Assume the Risk of Recklessness on the Part of Another Skier

The Fourth Department determined the doctrine of assumption of the risk did not rule out a novice skier’s lawsuit against a skier who ran into her. There was a question whether defendant’s conduct was reckless:

It is well established that, “by engaging in a sport orrecreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “While awareness or appreciation of such risks must be ‘assessed against the background of the skill and experience of the particular plaintiff’ . . . , ‘[t]he risk of injury caused by another skier is an inherent risk of downhill skiing’ ” … . Nevertheless, “a sporting participant ‘will not be deemed to have assumed the risks of reckless or intentional conduct’ ” … . “ ‘Generally, the issue of assumption of [the] risk is a question of fact for the jury’ ”… . Moore… v Hoffman, 138, 4th Dept 2-14-14

 

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Evidence Sufficient to Demonstrate No Constructive Notice of Ice on Step

Over a dissent, the Fourth Department determined defendants had demonstrated they did not have constructive notice of ice alleged to be on a step. The proof submitted by the defendants included evidence that the step was routinely inspected every morning, although no evidence of such an inspection on the morning in question was submitted:

The facilities supervisor testified that he routinely inspects the bank’s steps and sidewalk upon his arrival at the bank between 6:30 a.m. and 7:30 a.m. He or his employees salt or shovel “first thing” in the morning, if the conditions require such action. In addition to inspecting the property upon their arrival, facilities personnel regularly monitor conditions throughout the day and “re-salt or re-shovel” as needed, and do so more frequently during inclement weather or if a customer complains. Defendants did not receive any complaints about snow, ice, or any other dangerous condition on the step prior to the accident. After the accident, which occurred at approximately 12:15 p.m., the facilities supervisor did not salt the steps or direct an employee to do so because he saw nothing to salt. Defendants also submitted the deposition testimony of their regional manager, who testified that there was no ice on the step when he arrived at the bank between 8 a.m. and 8:30 a.m. on the morning of the accident and that, after the accident, he inspected the step and the surrounding area and did not observe any snow or ice. A bank security officer testified that he photographed the step approximately two hours after the accident, at which time there was no snow or ice on the step. The security officer testified that he was “perplex[ed]” when he viewed the accident scene because he observed “nothing . . . to slip or fall on.” The postaccident photographs of the step depict what appears to be salt residue, but no ice. Austin v CDGA National Bank Trust and Canandaigua National Corporation…, 1298, 4th Dept 2-14-14

 

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Landowners Who Have Been Granted a Variance Are Necessary Parties In an Action Challenging the Variance (CPLR 1001 (b))

The Second Department determined that landowners who were issued a zoning variance were necessary parties in the action challenging the variance. The landowners had not been properly served and Supreme Court went ahead and determined the merits without the landowners in the suit. On appeal the petitioners did not dispute that the landowners were necessary parties, but argued their presence should be excused under the factors in CPLR 1001 (b). The Second Department disagreed, finding that, under the facts, factors 2 through 5 required the landowners to be parties to the action:

A court may excuse the failure to join a necessary party and allow an action to proceed in the interest of justice upon consideration of five factors enumerated in CPLR 1001(b):   (1) whether the petitioner has another remedy if the action is dismissed for nonjoinder, (2) the prejudice that may accrue from nonjoinder to the respondent or to the nonjoined party, (3) whether and by whom prejudice might have been avoided or may in the future be avoided, (4) the feasibility of a protective provision, and (5) whether an effective judgment may be rendered in the absence of the nonjoined party… . Matter of Feder v Town of Islip Zoning Board of Appeals, 2014 NY Slip Op 00998, 2nd Dept 2-13-14

 

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Warrantless Entry Into Defendant’s Backyard Constituted a Search/Defendant Had a Legitimate Expectation of Privacy in His Backyard

The Second Department determined that the police officer’s warrantless entry into defendant’s backyard constituted a search because the defendant had an expectation of privacy there. The fact that the officer was aware of an apparently false report of a fire in the area did not justify the application of the emergency doctrine (also analyzed in the decision). The seized evidence (marijuana and a firearm) should have been suppressed:

A search occurs, thereby triggering the protection of the Fourth Amendment to the United States Constitution and article I, section 12 of the New York Constitution, when the police invade an area where a person has a legitimate expectation of privacy … . A legitimate expectation of privacy exists where a person has manifested a subjective expectation of privacy that society recognizes as reasonable … . The curtilage of the home–the area immediately surrounding and associated with the home or the area that is related to the intimate activities of the home—is part of the home itself … . The determination of whether an area falls within the home’s curtilage may be made by reference to four factors: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by” … .Consideration of these factors in connection with the evidence in this record, including two photographs of a portion of the subject premises, compels us to conclude that the defendant’s rear yard was within the curtilage of the home. The rear yard was in close proximity to the home, shielded from view by those on the street, and within the natural and artificial barriers enclosing the home. This physical arrangement made manifest the defendant’s expectation of privacy, and that expectation is one that society recognizes as reasonable… . People v Theodore, 2014 NY Slip Op 01025, 2nd Dept 2-13-14

 

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Fall from Subway Platform Not the Result of Negligent Crowd Control

The Second Department reversed Supreme Court and dismissed a lawsuit stemming from plaintiff’s decedent’s fall from a subway platform to the tracks below. The court explained the negligence criteria with respect to the crowd on a subway platform:

“A subway company is not negligent merely because it permits crowds to gather on its platform. Before proof of negligence in this regard may be said to exist, it must be shown that the crowd was so large and unmanaged that a user of the platform was restricted in his free movements or was unable to find a safe standing place, and that as a result of either of those conditions an injury was sustained” … .Here, there is no evidence that the crowd on the subway platform was so large and unmanaged that it restricted the decedent’s freedom of movement to the extent necessary to impose liability on the Transit Authority. The evidence in the record was insufficient to make out a prima facie case of negligence against the Transit Authority and, in effect, was insufficient to establish that any negligence was a proximate cause of the decedent’s injuries… . Garcia v New York Tr Auth, 2014 NY Slip Op 00961, 2nd Dept 2-13-14

 

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“Vested Right” Doctrine Explained

The Second Department concluded that the plaintiffs, who were seeking to effect a development plan under less restrictive R-3 zoning regulations, did not have a “vested right” in the plan such that the plan could be carried out after the area was rezoned to implement the more restrictive R-1 zoning regulations. Plaintiffs had negotiated a boundary change and had demolished some structures in furtherance of the development plan. The Planning Board, however, had never granted final unconditional approval of the plan. In explaining the “vested interest” doctrine, the Second Department wrote:

“In New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development” … . “Neither the issuance of a permit . . . nor the landowner’s substantial improvements and expenditures, standing alone, will establish the right. The landowner’s actions relying on a valid permit must be so substantial that the municipal action results in serious loss rendering the improvements essentially valueless”… .”Reliance” is an essential element of the doctrine … . Although many cases speak in terms of reliance on permits …, a right may vest in certain situations when “subdivisions” have been given a “final grant of approval” … . Whether a planning board’s final unconditional approval of a site plan may, even in the absence of a building permit, satisfy the first prong of the test has not been settled in New York …, and it is not before us now. Matter of Exeter Bldg Corp v Town of Newburgh, 2014 NY Slip Op 00996, 2nd Dept 2-13-14

 

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Defendant Entitled to Jury Charge on Extreme Emotional Disturbance Despite Lack of CPL 250.10 Notice

In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined the defendant’s request for an “extreme emotional disturbance” jury charge should have been granted, in spite of the defendant’s withdrawing his CPL 250.10 notice re:  offering mental health evidence. At trial the defendant did not introduce any evidence of or cross-examine any witness about the defendant’s mental state. The evidence of defendant’s mental state was contained in defendant’s videotaped confession, which was presented at trial by the People. Because the CPL 250.10 notice concerns only mental-state evidence “offered” by the defendant, the absence of the notice did not preclude the extreme-emotional-disturbance jury charge:

A defendant is entitled to a jury charge on EED where the evidence, viewed in the light most favorable to the defendant, is sufficient for the jury “to find by a preponderance of the evidence that the elements of the affirmative defense are satisfied” … . Accordingly, the trial court must grant the defendant's request for an EED charge if the jury could reasonably conclude from the evidence that, at the time of the homicide, the defendant “was affected by an extreme emotional disturbance, and that [the] disturbance was supported by a reasonable explanation or excuse rooted in the situation as he perceived it” … . This is true even if the “[d]efendant did not testify or otherwise present evidence” and the “request for an extreme emotional disturbance charge [i]s based entirely on proof elicited during the People's case” … . * * *

In its present form, CPL 250.10 requires notice when a defendant “inten[ds] to present psychiatric evidence” … , which the statute broadly defines as “[e]vidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of,” as relevant to this appeal, “extreme emotional disturbance” … . The Legislature did not specify what qualifies as mental health evidence “offered by the defendant”; however, to “offer evidence,” as that legal phrase is traditionally understood, means to put forth evidence and “demand its admission” (Black's Law Dictionary 1081 [6th ed 1991]; see Black's Law Dictionary [9th ed 2009], proffer [“To offer or tender (something, esp. evidence) for immediate acceptance”]). Additionally, the frequently used meaning of “present” is “to bring or introduce into the presence of someone” (MerriamWebster's Collegiate Dictionary 982 [11th ed 2003]). The Legislature's use of these “active” terms suggests that it intended the notice requirement to apply where the defendant affirmatively seeks to admit psychiatric evidence in support of an EED defense. People v Gonzalez, 12, CtApp 2-13-14

 

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No Constitutional Right to a Sua Sponte Inquiry Into Defendant’s Mental Health Before Allowing Defendant to Proceed Pro Se

In a full-fledged opinion by Judge Graffeo, the Court of Appeals acknowledged that a defendant may be competent to stand trial but not competent to proceed pro se, but determined the trial court did not violate defendant’s constitutional rights by not conducting a sua sponte inquiry into his mental health when he asked proceed pro se:

Defendant submits that [Indiana v Edwards (554 US 164 [2008])] requires states to adopt a two-tiered competency standard — a baseline for competency to stand trial and a separate, heightened standard for competency to proceed pro se at trial — and compels a competency hearing before a defendant may be permitted to proceed pro se. But we do not view Edwards as imposing such a requirement — and our interpretation is in accord with the federal appellate courts that have addressed the issue … . Although a court has discretion to require representation by counsel in certain circumstances despite a request to proceed pro se, it does not follow that the Constitution is offended if that discretion is not exercised. People v Stone, 5, CtApp 2-13-14

 

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Two-Year Time Limit On Bringing Suit Against Insurer for Cost of Replacement of Damaged Property Unreasonable If Replacement Cannot Reasonably Be Done Within Two Years

In a full-fledged opinion by Judge Smith, the Court of Appeals, in answering a question posed by the Second Circuit, determined a two-year time-limit on bringing suit against an insurance company was unreasonable because suit could not be brought until the damaged property was replaced. Therefore, as was true in this case, if the damage-repair takes longer than two years, the insured cannot sue for payment:

“[A]n agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to commence an action is enforceable” … . We conclude that the contractual period at issue here — two years from the date of “direct physical loss or damage” (i.e., from the date of the fire) — is not reasonable if, as the Second Circuit's question requires us to assume, the property cannot reasonably be replaced within two years.It is true, as the District Court pointed out, that there is nothing inherently unreasonable about a two-year period of limitation. In fact, we have enforced contractual limitation periods of one year … . The problem with the limitation period in this case is not its duration, but its accrual date. It is neither fair nor reasonable to require a suit within two years from the date of the loss, while imposing a condition precedent to the suit — in this case, completion of replacement of the property — that cannot be met within that two-year period. A “limitation period” that expires before suit can be brought is not really a limitation period at all, but simply a nullification of the claim. It is true that nothing required defendant to insure plaintiff for replacement cost in excess of actual cash value, but having chosen to do so defendant may not insist on a “limitation period” that renders the coverage valueless when the repairs are time-consuming. Executive Plaza LLC v Peerless Insurance Company, 2, CtApp 2-13-14

 

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Proof Sufficient to Support Unlawful Surveillance Conviction/Defendant Was Standing on the Front Door Step Videotaping Woman Inside

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined the proof was legally sufficient to support defendant’s “unlawful surveillance” conviction. Defendant videotaped a woman who was in her bathroom with the door open on the second floor of her townhouse. The defendant was standing on the front door step of the woman’s townhouse holding a video camera over his head in front of a small decorative window in the front door. The court determined that defendant’s actions, at 7:30 a.m. on December 24, could be deemed “surreptitious” within the meaning of the statute, even though he was potentially visible to the public while he was videotaping:

Here, viewing the evidence in the light most favorable to the People, defendant's conduct was surreptitious in nature. Although he was standing on complainant's front step, potentially exposed to public view, it was at 7:30 a.m. on Christmas Eve. The argument that defendant's conduct was completely out in the open, for anyone who happened by to see, is undermined given the pre-dawn hour.* Moreover, defendant was holding the small black camera in his black-gloved hand. In addition, he apparently had to hold the camera over his head, in the air, in order to get the proper angle and used the zoom function. Under the circumstances, there is legally sufficient evidence that defendant was acting in a furtive or stealthy manner, attempting to obtain the video of complainant without being discovered — in other words, that he was acting surreptitiously. People v Schreier, 4, CtApp 2-13-14

 

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