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Town Could Not Be Liable for Discretionary Judgment Made by EMT (Third Dept).

The Third Department determined that an EMT employed by the town made a discretionary judgment that plaintiff’s decedent did not need life support during transport to the hospital.  Plaintiff’s decedent’s condition worsened during the trip and he died a week later.  Because the EMT’s judgment was discretionary, the town could not be held liable:

The Court of Appeals recently held that when a municipality provides emergency first responder services in response to a 911 call for assistance, as the Town did here by dispatching its paramedic, “it performs a governmental function[, rather than a proprietary one,] and cannot be held liable unless it owed a ‘special duty’ to the injured party” … .  A plaintiff generally must first establish the existence of a special duty before it becomes necessary for the court to address whether the governmental function immunity defense applies …, but the special relationship issue is irrelevant where the government action in question is discretionary … .  “Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … .  Discretionary authority involves “the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … .

Although the record here at least arguably contains factual issues concerning whether the Town voluntarily assumed a duty to decedent or plaintiff, thereby creating a special duty …, we need not address that question because the Town’s actions were discretionary.  The Town’s paramedic exercised his discretion in making medical determinations concerning decedent’s condition … . DiMeo… v Rotterdam Emergency Medical Services, Inc, 516264, 3rd Dept 10-31-13

 

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Petitioner Was Domiciled in New York at Time of Stock Sale; Taxes Owed to New York

In affirming the Tax Appeals Tribunal’s determination that petitioner was domiciled in New York when she sold shares of stock resulting in $2 million in capital gains, the Third Department explained the relevant principles:

…[A]n individual is a resident of this state for income tax purposes when that individual is domiciled in New York (see Tax Law § 605 [b] [1] [A]).   A domicile “is the place which an individual intends to be such individual’s permanent home” (20 NYCRR 105.20 [d] [1]) and, “once established[, a domicile] continues until the individual in question moves to a new location with the bona fide intention of making such individual’s fixed and permanent home there” (20 NYCRR 105.20 [d] [2]; see Matter of Newcomb, 192 NY 238, 250 [1980]).  “Domicile is established by physical presence and intent”… .  “No single factor is controlling and the unique facts and circumstances of each case must be closely considered” … .  “The fact that a person registers and votes in one place is important but not necessarily conclusive, especially if the facts indicate that such individual did this merely to escape taxation” (20 NYCRR 105.20 [d] [2]). The party seeking to establish a change in domicile must carry the burden of doing so by clear and convincing evidence … .  Upon review, this Court will defer to the Tribunal’s determinations regarding witness credibility and the weight to be accorded the evidence …, and the Tribunal’s determination will be confirmed if it is “rationally based upon and supported by substantial evidence” … . Matter of Ingle v Tax Tribunal of the Department of Taxation…, 514245 3rd Dept 10-31-13

 

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False Imprisonment Claims Against Hospital for Involuntary Confinement Turn on Finding of Medical Malpractice

In affirming the dismissal of a complaint against a hospital for false imprisonment based on involuntary confinement pursuant to the Mental Hygiene Law, the Third Department explained the relevant analysis. Plaintiff had made death threats against family members:

Pursuant to the Mental Hygiene Law, an individual may be temporarily confined on an involuntary basis where he or she has “a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself[, herself] or others” (Mental Hygiene Law § 9.39 [a]).  We agree with Supreme Court that all of plaintiff’s claims against the hospital are, in effect, claims for false imprisonment, inasmuch as they are all based upon allegations of unlawful seizure and involuntary confinement… .  These claims all turn upon a finding of medical malpractice because “[c]ommitment pursuant to Mental Hygiene Law article 9 is deemed privileged in the absence of medical malpractice”… .  Accordingly, the hospital was required to make a prima facie showing that its medical treatment did not depart from accepted standards of care… . Tienken v Benedictine Hospital, 514164, 3rd Dept 10-31-13

 

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Evidence of Availability of Ladders Insufficient to Defeat Summary Judgment in Favor of Plaintiff; Plaintiff Fell While Working Standing on Milk Crates

The First Department determined defendant’s claim that ladders were available was not sufficient to defeat summary judgment in favor of plaintiff who fell while standing on milk crates to work:

Plaintiff alleged that prior to performing his work he unsuccessfully looked for a ladder to use and was directed by the acting foreman to use the milk crates.

Under the circumstances, plaintiff established his entitlement to summary judgment on the issue of liability on his Labor Law § 240(1) claim. The record shows that plaintiff’s accident involved an elevation-related risk and his injuries were proximately caused by the failure to provide him with proper protection as required by section 240(1) … . Defendants’ claim that ladders were available on the site is conclusory and fails to raise an issue of fact … . The sole evidentiary support for defendants’ argument was an affidavit from an individual who claimed …that there more than enough ladders available for plaintiff’s work. Even if admissible, the affidavit failed to raise a triable issue as to whether plaintiff was the sole proximate cause of his injuries since it does not indicate that plaintiff knew that there were ladders available at the site and that he was expected to use them… . Mutadir v 80-90 Maiden Lane Del LLC, 2013 NY Slip Op 07127, 1st Dept 10-31-13

 

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Plaintiff’s Failure to Replace Manhole Cover Was Sole Proximate Cause of Injury

Over a dissent, the Second Department determined plaintiff’s failure to replace a manhole cover was the sole proximate cause of his injury:

As to Labor Law § 240(1), which imposes a non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks, liability would attach where a violation of that duty proximately caused injuries … . Conversely, where a plaintiff’s own actions are the sole proximate cause of the accident or injury, no liability attaches under the statute … . Where a plaintiff has an adequate safety device readily available that would have prevented the accident, and for no good reason chooses not to use it, Labor Law § 240(1) does not apply … .

Here, plaintiff was provided with the perfect safety device, namely, the manhole cover, which was nearby and readily available. He disregarded his supervisor’s explicit instruction given that day to replace the cover before dismantling the enclosure. Plaintiff has not afforded any good reason why he started taking apart the enclosure before ascertaining whether the cover was in place. Having just emerged from it, plaintiff should have known that the manhole was still open, and covering it at that time would have avoided the accident. Barreto v Metropolitan Transp Auth, 2013 NY Slip Op 07118, 1st Dept 10-31-13

 

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Upward Departure in SORA Proceeding Affirmed

The Third Department affirmed County Court’s upward adjustment of defendant’s sex offender status from a presumptive level I to a level III.  Defendant had pled guilty to a course of sexual conduct with a young girl entrusted to his care spanning five years:

“An upward departure from a presumptive risk classification is justified when an aggravating factor exists that is not otherwise adequately taken into account by the risk assessment guidelines and the court finds that such factor is supported by clear and convincing evidence” … .  The circumstances underlying these charges as well as defendant’s past misconduct may be considered within the context of this proceeding … .  Here, additional factors established by the record, not adequately taken into account by the guidelines, included defendant’s disregard and abuse of other children even younger than the victim who were also entrusted to his care, his mental instabilities, and the repeated and lengthy nature of his conduct toward the victim.  Accordingly, we find that the record sufficiently supports County Court’s upward departure from the presumptive risk level… .  People v Muirhead, 511847, 3rd Dept 10-31-13

 

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Defense Counsel’s Statement Defendant “Most Likely” Would Not Be Deported Based on a Guilty Plea Did Not Amount to Ineffective Assistance

The Third Department determined that defense counsel’s statement that the defendant “most likely” would not be deported based on his guilty plea to a misdemeanor did not constitute ineffective assistance. Defendant had subsequently been detained by immigration officials for deportation:

…[D]efendant was required to establish both ‘that counsel’s performance was deficient’ and ‘that the deficient performance prejudiced the defense'” … .  Here, the record indeed makes clear that defendant was concerned about the possibility of being deported.  The record does not, however, establish that defendant was given erroneous advice regarding the potential immigration consequences associated with his guilty plea. People v Obeya, 105313, 3rd Dept 10-31-13

 

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Remedies Re: Purchase and Sale of Furniture Controlled by UCC

In affirming the grant of summary judgment on a breach of contract cause of action  regarding the purchase of furniture accepted by the defendant, the Third Department explained the relevant law under the UCC:

Because the transaction predominantly involved the sale of goods, the parties’ rights and remedies are governed by UCC article 2 … .  The parties’ oral contract is enforceable because both parties acknowledge the existence of that contract (see UCC 2-201 [3] [b]).  The UCC provides that acceptance of goods takes place, among other ways, when the buyer fails to reject them after having a reasonable opportunity to inspect them (see UCC 2-606 [1] [b]…).  A buyer must pay for accepted goods at the contract rate (see UCC 2-607 [1]), but may eliminate or diminish the amount claimed by a seller by asserting a valid counterclaim for breach of the sales agreement … .  Where a seller has allegedly breached the contract, a buyer who has accepted the goods “must within a reasonable time after he [or she] discovers or should have discovered any breach notify the seller of breach or be barred from any remedy” (UCC 2-607 [3] [a]…).

Plaintiff met its burden on the summary judgment motion by submitting proof that it delivered and installed the furniture, defendant accepted the furniture by retaining it without attempting to return it, and defendant only paid the $13,250 down payment on the $44,330.21 contract… .  Accent Commercial Furniture Inc v P. Schneider & Associates, PLLC, 515940, 3rd Dept 10-31-13

 

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Punitive Damages Not Available in Contract Action Absent Independent Tort

The Third Department determined plaintiff had not pled a tort cause of action independent of the breach of contract cause of action and therefore was not entitled to punitive damages.  The plaintiff had alleged defendant insurance company engaged in bad faith by failing to promptly investigate his no-fault claim and failing to renew his insurance policy:

Although “damages arising from the breach of a contract will ordinarily be limited to the contract damages necessary to redress the private wrong, . . . punitive damages may be recoverable if necessary to vindicate a public right” …, but only where a defendant’s conduct was (1) actionable as an independent tort, (2) egregious, (3) directed toward the plaintiff and (4) part of a pattern directed at the public … .  Thus, “[w]here a lawsuit has its genesis in the contractual relationship between the parties, the threshold task for a court considering [a] defendant’s motion to dismiss a cause of action for punitive damages is to identify a tort independent of the contract” … .  In this regard, a “defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations, or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligations” … .  Nonetheless, “where a party is merely seeking to enforce its bargain, a tort claim will not lie” … .

Here, plaintiff seeks an award of punitive damages based upon his allegation that defendant engaged in “bad faith tactics” by failing to promptly investigate his no-fault claim and failing to renew his insurance policy.  Such claim does not allege a breach of duty distinct from defendant’s contractual obligations. Further, while plaintiff alleged a violation of Insurance Law § 2601 based upon defendant’s purported failure to timely investigate his no-fault claim, New York does not recognize a private cause of action under that statute… . Dinstber v Allstate Insurance Company, 515653, 3rd Dept 10-31-13

 

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Affirmative Defense of Arbitration Waived by Participation in Judicial Process

The Third Department determined that defendant waived a contractual provision requiring arbitration by participating in the judicial process:

…[W]hile defendant asserted the contractual arbitration provision as an affirmative defense in its answer, it did not move to stay the action and compel arbitration (see CPLR 7503 [a]).  Instead, it aggressively participated in the discovery process and received the benefit of extensive discovery from plaintiff, which would not otherwise have been available in arbitration … . In doing so, defendant’s acceptance of the judicial forum “manifested a preference ‘clearly inconsistent with . . . [a] claim that the parties were obligated to settle their differences by arbitration'” … .  Thus, we agree with Supreme Court’s determination that defendant’s actions resulted in a waiver of its right to compel arbitration … . Masson v Wiggins & Masson LLP…, 515340, 515427, 3rd Dept 10-31-13

 

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