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Driver of Middle Car in Chain Collision May Not Be Negligent

The Second Department explained the status of the “middle car” in a “chain” rear-end collision. The driver of a vehicle which is struck from behind and pushed into the rear of plaintiff’s vehicle may not be negligent:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway” (Vehicle and Traffic Law § 1129[a]…). Hence, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . In chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle … .Here, in support of her motion, the plaintiff submitted evidence including the deposition testimony of the defendant driver, who testified that an unidentified vehicle struck his vehicle in the rear, causing his vehicle to move forward and strike the rear of the plaintiff’s vehicle. This testimony revealed the existence of a triable issue of fact as to whether the defendant driver was at fault in the happening of the accident … . Kuris v El Sol Contr & Contr Corp, 2014 NY Slip Op 02268, 2nd Dept 4-2-14

 

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A Forged Deed Is Void Ab Initio and Conveys Nothing to a Bona Fide Purchaser or Encumbrancer

The Second Department explained the effect of a forged deed on all subsequent transactions in which the forged deed is involved:

“A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid” … . “If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing” … . Jiles v Archer, 2014 NY Slip Op 02262, 2nd Dept 4-2-14

 

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Owners of Land Slated for Development Had Standing to Challenge Procedures Used by the NYS Department of Environmental Conservation to Amend Regulations Affecting Endangered Species/The Land In Question Was Home to Two Endangered Species/Therefore the Amendments Affected the Land Owners Differently from the Public at Large

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that the petitioners (land owners) had standing to raise claims that the NYS Department of Environmental Conservation failed to adhere to certain procedural requirements before adopting amendments aimed at protecting endangered species.  The land, which was designated for economic development, was home to two endangered species.  The Court explained why the petitioners had alleged a unique “injury,” different from injury to the public at large, which comported standing to raise the procedural claims:

Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria” … . Petitioner has the burden of establishing both an injury in fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated … . In land use matters, moreover, petitioner “must show that it would suffer direct harm, injury that is in some way different from that of the public at large” … . These requirements ensure that the courts are adjudicating actual controversies for parties that have a genuine stake in the litigation … . * * *

Petitioners, governmental entities titled to land for the purpose of redevelopment, whose property is subject to the amended regulations, have alleged a sufficient injury in fact for these purposes. We do not, and need not, decide whether land ownership, by itself, could satisfy the injury requirement. As the United States Supreme Court has recognized, a litigant’s ” some day’ intentions -— without any description of concrete plans, or indeed even any specification of when the some day will be —- do not support a finding of the actual or imminent’ injury that our cases require” … . Here, however, there is more than an amorphous allegation of potential future injury. Petitioners have asserted a concrete interest in the matter the agency is regulating, and a concrete injury from the agency’s failure to follow procedure. Moreover, in connection with [a] prior proposal to subdivide the land at issue, DEC provided them with an outline for a comprehensive habitat protection plan and indicated its intention to serve as lead agency for the purposes of SEQRA (State Environment Quality Review Act) review. Petitioners’ allegations are sufficient to satisfy the requirements that they have an actual stake in the litigation and suffer a harm that is different from that of the public at large… .

Petitioners further allege that the violation of these procedural statutes deprived them of an adequate “airing” of the relevant issues and impacts of the proposed amendments, as well as an accurate assessment of the projected costs involved. The asserted statutory provisions set forth certain procedural steps to be followed when promulgating rules or regulations. The alleged violations, including the deprivation of an opportunity to be heard, constitute injuries to petitioners within the zone of interests sought to be protected by the statutes. Most significantly, to deny petitioners standing in this case would have the effect of insulating these amendments from timely procedural challenge — a result that is contrary to the public interest … . Given the compressed four-month statute of limitations (see SAPA 202 [8]), we would be erecting an “impenetrable barrier” to any review of this facet of the administrative action… .  Matter of Association for a Better Long Is Inc v New York State Dept of Envtl Conservation 2014 NY Slip Op 02216, CtApp 4-1-14

 

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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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New York City Street-Sweeping Vehicles Are Now Exempt from the Rules of the Road Pursuant to Vehicle and Traffic Law 1103 (b) (Subject to the “Reckless Disregard” as Opposed to the “Ordinary Negligence” Standard) But Were Not So Exempt in 2010 When this Accident Occurred

The First Department, over a dissent, determined street-sweeping vehicles, at the time of the accident in 2010,  were not “hazard vehicles” exempted from the rules of the road under Vehicle and Traffic Law 1103 (b) (apparently, under the Rules of City of New York Department of Transportation, street-sweeping vehicles are now so exempt:)

…Vehicle and Traffic Law § 1103(b), which exempts “hazard vehicles” from the rules of the road and limits the liability of their owners and operators to reckless disregard for the safety of others …, does not apply to the New York City street-sweeping vehicle involved in the collision with plaintiff’s vehicle that gave rise to this action. Therefore, defendants are subject to the ordinary negligence standard of liability, not the reckless disregard standard on which their motion was based. At the time of the accident, in 2010, Vehicle and Traffic Law § 1103(b) was superseded by Rules of City of New York Department of Transportation (34 RCNY) § 4-02, which excepted street sweepers, among others, from compliance with traffic rules to the limited extent of making such turns and proceeding in such directions as were necessary to perform their operations (34 RCNY 4-02[d][1][iii][A]). While subparagraph (iv) contained a broader exception, expressly invoking Vehicle and Traffic Law § 1103, we find that subparagraph (iv) did not include street sweepers because that would have rendered subparagraph (iii) redundant and meaningless. Indeed, when 34 RCNY 4-02 was amended, in 2013, the City Council explained in its “Statement of Basis and Purpose” that the effect of the adopted rule would be “that operators of DOT and New York City Department of Sanitation snow plows, sand/salt spreaders and sweepers will now be subject to the general exemption set forth in subparagraph (iv) of that same subsection” (emphasis added) — a strong indication that they were not so subject before then. Deleon v New York City Sanitation Dept, 2014 NY Slip Op 02221, 1st Dept 4-1-14

 

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Action for Attorney Deceit Originated in New York Common Law, Not Statutory Law—Six-Year “Catch All” Statute of Limitations Applies

The Court of Appeals, in a full-fledged opinion Judge Read, determined that an action for attorney deceit (Judiciary Law 487) was governed by the six-year “catch-all” statute of limitations (CPLR 213(1)), not the three-year statute (CPLR 214(2)). The question came down to whether the attorney-deceit action stemmed from a statute or from the common law. The Court noted that the statutory law of England was incorporated into New York’s common law before the first New York statute dealing with attorney deceit was was enacted.  Therefore the “catch-all” six-year statute applied:

A cause of action for attorney deceit … existed as part of New York’s common law before the first New York statute governing attorney deceit was enacted in 1787 … . The 1787 statute enhanced the penalties for attorney deceit by adding an award for treble damages, but did not create the cause of action … .Thus, even if a claim for attorney deceit originated in the first Statute of Westminster rather than preexisting English common law …, liability for attorney deceit existed at New York common law prior to 1787. As a result, claims for attorney deceit are subject to the six-year statute of limitations in CPLR 213 (1). Melcher v Greenberg Traurig LLP, 2014 NY Slip Op 02213, CtApp 4-1-14

 

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No Probable Cause for Disorderly Conduct Arrest/Defendant Was Standing in Front of a Store with Three Others All of Whom Refused Police Officer’s Request to Move

The Court of Appeals determined the presence of three reputed gang members in front of a store, one of whom was partially blocking the door, was not enough to support a disorderly conduct charge.  Evidence seized as a result of arrest should therefore have been suppressed:

The applicable statute is Penal Law § 240.20 (6), which says:”A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:. . . .”6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse;”

We have made clear that evidence of actual or threatened public harm (“inconvenience, annoyance or alarm”) is a necessary element of a valid disorderly conduct charge … . Here, the evidence was insufficient to provide the arresting officer with probable cause to believe that defendant either intended to cause public inconvenience, annoyance or alarm or was reckless in creating a risk of those consequences. According to the officer’s testimony at the suppression hearing, defendant stood with three other young men, reputed to be gang members, on a street corner, and the four refused to move when asked to do so by the police. The only evidence of any possible impact on the public resulting from their presence was the officer’s testimony that one of defendant’s companions “was partially blocking” the entrance to a store by standing in front of it.  Defendant and the other two men were close to the door, but not in front of it. There is no evidence that anyone trying to enter or leave the store was actually obstructed. This was not sufficient to satisfy the public harm element of the statute.  People v Johnson, 2014 NY Slip Op 02217, CtApp 4-1-14

 

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Jury Should Have Been Instructed that It Could Determine Whether Witness Was an Accomplice and Assess the Witness’ Credibility Accordingly/Propriety of Jury Instruction Is Reviewable by the Court of Appeals as a Matter of Law

In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined the trial court committed reversible error by refusing defendant’s request for an “accomplice-in-fact” jury instruction.  The defendant’s conviction for manslaughter for participation in a beating death involving several assailants was based in large part upon the testimony of an eyewitness.  The Court of Appeals found that there was enough evidence of the eyewitness’ participation in the crime to warrant an instruction which would allow the jury to determine if the eyewitness was an accomplice and to assess the eyewitness’ credibility accordingly.  The Court explained the “accomplice as a matter of law” and “accomplice-in-fact” theories:

An accomplice is “a witness in a criminal action who, according to the evidence adduced in such action, may reasonably be considered to have participated in: (a) [t]he offense charged; or (b) [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2]). Under our criminal law, “[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22 [1]). Testimony of such a witness, marked by obvious self interest, carries the potential for falsification to avoid prosecution … . * * *

Where the court determines on the evidence that a witness comes within the meaning of CPL 60.22 (2), the witness is an accomplice as a matter of law, and the court must instruct the jury that the witness is an accomplice and subject to the statutory corroboration requirement … . * * * In a case where the court concludes that a factual dispute exists as to whether the witness is an accomplice under the statute, the factual question is left for the jury to resolve… . * * *

We have found a witness is an accomplice as a matter of law where, for example, the witness pleads guilty to aiding the defendant in the commission of the crime …, or otherwise confirms participation or assisting in the charged crime … .

In contrast, the witness may be found to be an accomplice in fact where there are factual disputes as to the witness’s participation or intent, such that “different inferences may reasonably be drawn” from the evidence as to the witness’s role as an accomplice … .  * * *  The propriety of a jury instruction is reviewable as a matter of law… .  People v Sage, 2014 NY Slip Op 02214, CtApp 4-1-14

 

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