You are here: / Defendant May Be Liable for Obstruction in Municipal Right of Way

Search Results

/ , ,

Defendant May Be Liable for Obstruction in Municipal Right of Way

The Second Department determined the defendant’s (Argyros’s) motion for summary judgment in a slip and fall case should have been denied.  Plaintiff tripped on a piece of wood that was anchored into the ground.  Argyros owned the land and the piece of wood was in the town’s municipal right of way over the land.  There was evidence most property owners cared for the areas in the right of way:

” The law imposes a duty to maintain property free and clear of dangerous or defective conditions only upon those who own, occupy, or control property, or who put the property to a special use or derive a special benefit from it'” … . Here, while Argyros owned the real property on which the accident occurred and the Town possessed a right of way over the portion of it where the plaintiff fell, title to the land under the right of way is not determinative in assessing the issue of duty, as issues of control and maintenance of the property must also be considered … . * * *

The Supreme Court should have denied Argyros’s motion for summary judgment dismissing the complaint insofar as asserted against him, as the evidence submitted in support of the motion failed to eliminate all triable issues of fact as to whether he controlled or maintained the area of the property where the plaintiff fell … . Riccardi v County of Suffolk, 2013 NY Slip Op 06673, 2nd Dept 10-16-13

 

/ ,

Existence of Elevator Maintenance Contract Did Not Rule Out Duty of Care to Elevator User

The Second Department determined plaintiff had stated a cause of action in negligence against a company with a contract to maintain an elevator.  The elevator escape door and debris fell on plaintiff.  The court explained that the existence of a contract did not rule out that the company owed a duty of care to the plaintiff:

” Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party'” … . “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … Exceptions to this general rule exist “(1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launch[e]s a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties[;] and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … .

Here, [defendant] failed to meet its prima facie burden of demonstrating that no questions of fact existed as whether it failed to exercise reasonable care while repairing the subject elevator and whether it thereby launched a force or instrument of harm that caused the accident… . Dautaj v Alliance El Co, 2013 NY Slip Op 06657, 2nd Dept 10-16-13

 

/ ,

Conveyance Was For Convenience (Getting a Loan) and Was Not a Gift—Property Therefore Remained in Decedent’s Estate

The Second Department determined Surrogate’s Court correctly found that the conveyance of a one-third interest in property was for the decedent’s convenience and was not a gift.  Therefore, the one-third interest was in the decedent’s estate:

The petitioner presented evidence establishing that the decedent’s conveyance was for his convenience, and was designed to obtain a refinance mortgage loan on the property at a more favorable interest rate than would have been offered had decedent’s name remained on the title. The petitioner also presented evidence that, after the refinancing was completed, the decedent’s one-third interest in the subject real property was to be reconveyed to him. …

“In a turnover proceeding, the burden of establishing that the property was that of the decedent rests with the petitioner, and once that burden is met, it shifts to the respondent to establish that it was a gift” … . Here, the petitioner met her initial burden of establishing that the one-third interest in the subject real property belonged to the decedent. The petitioner’s proof included, inter alia, deposition testimony given by [decedent’s brother] George in a related proceeding, wherein he acknowledged that the decedent’s one-third interest was to be reconveyed to the decedent after the refinancing. [Decedent’s sister] Elaine failed to come forward with clear and convincing proof that the decedent intended to make a gift of his interest in the subject real property… .  Matter of Voyiatgis, 2013 NY Slip Op 06700, 2nd Dept 10-16-13

 

/ ,

Law School Properly Rescinded Student’s Application for Admission Based Upon Omissions Concerning Criminal Record

The Second Department affirmed a law school’s rescission of admission of a student based upon the student’s responses to a question about criminal charges on the school’s admission form:

When the petitioner endeavored to obtain an advance ruling on his eligibility for and the likelihood of his admission to the New York State bar in light of his conviction, the law school first learned of the original charges that had been asserted against the petitioner, including, inter alia, charges for distribution of LSD in the second degree, possession of LSD with the intent to distribute in the second degree, possession of Ecstasy in the third degree, and possession of Ecstasy with the intent to distribute. The law school then advised the petitioner that he must amend his application for admission and include a full accounting of what transpired with respect to his arrest in July 1999 and an explanation with respect to his failure to initially disclose this information. Although the petitioner advised the law school that the statement in his application concerning his criminal record was not factually incorrect and did not need to be amended, he nonetheless supplemented his application and made available all details and documents surrounding his expunged record. In his supplement, the petitioner acknowledged that he had been arrested for distribution and had knowingly distributed illegal substances, and freely admitted his guilt of that crime, although he maintained that he did not engage in distribution of illegal substances on a regular basis.

The law school’s determination was made on the grounds of the petitioner’s misrepresentations and omissions on his application regarding the extent of his prior criminal background, and was based upon the exercise of discretion after a full review. Despite the petitioner’s subsequent disclosure, under the circumstances presented here, and in light of the true nature of the petitioner’s prior criminal activity, the law school’s determination to rescind his acceptance was not arbitrary and capricious, and does not warrant judicial intervention… . Matter of Powers v St John’s Univ Sch of Law, 2013 NY Slip Op 06688, 2nd Dept 10-16-13

 

/ ,

Variance Should Not Have Been Granted to Homeowner Who Built Swimming Pool In Violation of Set-Back Requirements

The Second Department reversed Supreme Court’s annulment of a Zoning Board of Appeals (ZBA) determination that a variance should not be granted to a homeowner who, without a permit, constructed a swimming pool in violation of a rear-yard setback:

In deciding whether to grant an application for an area variance, the Board “is required to engage in a balancing test that weighs the benefit to the applicant if the variance is granted against the detriment to the health, safety, and welfare of the neighborhood or community” … . The Board must consider whether (1) an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will result by the granting of the area variance, (2) the benefit sought by the applicant can be achieved by some feasible method other than an area variance, (3) the requested area variance is substantial, (4) the proposed variance will adversely impact the physical or environmental conditions in the neighborhood if it is granted, and (5) the alleged difficulty was self-created (see Town Law § 267-b[3][b]). * * *

Contrary to the conclusion reached by the Supreme Court, the ZBA’s determination had a rational basis and was not arbitrary and capricious. The evidence before the ZBA supported its conclusions that granting the requested variance would produce an undesirable change in the character of the neighborhood, the variance was substantial, and any hardship was self-created (see Town Law § 267-b[3][b]). Contrary to the petitioner’s contention, the ZBA’s granting of two prior applications seeking, inter alia, area variances for rear-yard setbacks of in-ground swimming pools, did not constitute a precedent from which the ZBA was required to explain a departure, because the two prior applications, inter alia, involved lots that were not near the subject property and were located in different zoning districts. Thus, the petitioners failed to establish that either of the two cases in which a variance was granted bore sufficient factual similarity to the subject application so as to require an explanation from the ZBA… . Matter of Blandeburgo v Zoning Bd of Appeals Town of Islip, 2013 NY Slip Op 06680, 2nd Dept 10-16-13

 

/ ,

Uncharged Crime Evidence (911 Call) Admissible to Explain Aggressive Actions of Police

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined it was not an abuse of discretion to allow in evidence a 911 call, which could have been interpreted to have implicated defendant in an uncharged robbery, to explain the aggressive actions of the police when they stopped and seized the defendant, who was convicted of a weapon-possession charge:

Determining whether the probity of such evidence exceeds the prejudice to the defendant “is a delicate business,” and as in almost every case involving Molineux or Molineux-type evidence, there is the risk “that uncharged crime testimony may improperly divert the jury from the case at hand or introduce more prejudice than evidentiary value” … .  Yet this case-specific, discretionary exercise remains within the sound province of the trial court …, which is in the best position to evaluate the evidence … .  Thus, the trial court’s decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable.  Rather, it must constitute an abuse of discretion as a matter of law … .

On this record, we cannot say that the admission of the 911 evidence was an abuse of discretion.  The trial court reasonably determined that, given the aggressive nature of the police confrontation with defendant and the attendant risk of improper speculation by the jury, the 911 evidence was necessary to provide background information explaining the police actions, and that its probative value outweighed the potential prejudice to defendant … .  Defendant claims that the 911 evidence had no probative value because he admitted to possessing the gun and agreed not to challenge the propriety of the police stop.  But the 911 evidence was probative of all of the police conduct in this case, not just the stop itself.  The police behaved aggressively after the stop and before they discovered the gun by singling out defendant, grabbing him, and forcing him up against their patrol car.  By specifying why the officers stopped defendant in the first instance, the 911 evidence allowed the jury to put this conduct in the proper context.

The evidence was also probative of the officers’ credibility, which was a central issue for the jury to resolve on the resisting arrest charge ….  The People had the burden of proving every element of the resisting arrest charge …, and meeting that burden depended largely on the jury’s evaluation of the officers’ testimony and, particularly, the weight the jury accorded it in relation to contrary testimony proffered by defendant … .  Although the officers admitted to grabbing defendant, pushing him against the car, and tackling him when he tried to escape, defendant testified that the officers hit him several times in the head and face, that he never tried to escape, and that the officers’ violent acts were essentially unprovoked.  There was also contrary testimony about how the officers recovered the gun, which direction defendant was walking when he was stopped, and whether he was alone or with two black men as described in the radio run.  The 911 evidence better enabled the jury to resolve these discrepancies and assess the credibility of the officers’ testimony.  Without a complete picture of the events preceding the encounter, the jury would have had little reason not to fault the officers for being overly aggressive and to discredit their testimony as untruthful.

Any potential for prejudice here was offset by the trial court’s four strong limiting instructions, which emphasized that the 911 evidence “was not to be considered proof of the uncharged crime” … .  People v Morris, 147, CtApp 10-15-13

 

/ ,

SORA Determination Made at Sentencing (Which Included Incarceration) Invalid

The Second Department reversed Supreme Court’s SORA determination because the court failed to follow the procedure required for an incarcerated defendant.  The SORA determination was made at sentencing:

In this case, the Supreme Court sentenced the defendant to a nine-month term of incarceration without any probation supervision. The court conducted the risk assessment hearing and made its risk level determination immediately after sentencing, using a risk level assessment instrument prepared by the District Attorney’s office. This violated SORA and deprived the defendant of his right to due process … . Pursuant to the SORA statutory scheme, a risk level determination should not have been made until 30 days before his release from custody (see Correction Law § 168-n[2]… ). The court’s determination should have been preceded by the Board’s risk level recommendation, and the defendant should have been notified of the opportunity to submit to the Board any information that he believed was relevant for its review (see Correction Law § 168-n[2], [3]). Under the circumstances presented here, the fact that the defendant did not explicitly object to this procedure does not indicate that he knowingly and intelligently waived these statutory and due process rights or failed to preserve the issue for appellate review … . Moreover, while Correction Law § 168-l(8) provides that, notwithstanding the Board’s failure to act, a court may still make a determination regarding a sex offender’s risk level, “this must be read as applying only where the Board had the opportunity to make a recommendation in the first instance” … . Here, the Board had no such opportunity, since the risk level determination was erroneously made immediately after the defendant was sentenced. As a result, “the Supreme Court was without a statutorily-authorized basis for making a risk level determination”… .  People v Game, 2013 NY Slip Op 06670, 2nd Dept 10-16-13

 

/ ,

Failure to Allow Hearsay Admissible as Statement Against Penal Interest Required Reversal

In a weapon-possession case, the Court of Appeals, over a dissent, reversed the appellate division and held the defendant should have been allowed to call an attorney to testify that a (separately tried and acquitted) co-defendant told the attorney the weapon at issue was hers.  The court found the attorney’s testimony was admissible under the statement-against-penal-interest exception to the hearsay rule:

The declaration against penal interest exception to the hearsay rule “recognizes the general reliability of such statements . . . because normally people do not make statements damaging to themselves unless they are true” … .  The exception has four components:    (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability … .  The fourth factor is the “most important” aspect of the exception … .  Assuming that the other elements are satisfied, such statements can be admissible if there is “a reasonable possibility that the statement might be true” … .

We conclude that the courts below erred by focusing on the inconsistency between the … codefendant’s trial testimony and her pretrial statement to [the] lawyer. Knowledge that a declaration is against penal interests must be assessed “at the time” it was made …, and later recantations generally affect the weight and credibility that a fact-finder should ascribe to the statement.  Applying this legal standard, there was adequate evidence to establish admissibility under the particular facts of this case:  the handgun was found in a handbag located in the rear of the automobile directly adjacent to the … codefendant; she was the only woman in the vehicle; and the circumstances under which the utterance was declared make it clear that the statement was against her interests.  Contrary to the dissent’s contention, there was also sufficient proof that the woman was not available to testify.  Finally, the exclusion of the statement cannot be deemed harmless because the People’s case was not overwhelming.  Defendants are therefore entitled to a new trial.  People v Shabazz, 150, CtApp 10-15-13

 

/

Out of State Conviction of then 15-Year-Old Could Not Serve as Basis for Second Felony Offender Sentence

The Court of Appeals determined that the defendant’s Pennsylvania conviction for third degree murder (when the defendant was 15) could not serve as the basis for a second felony offender sentence.  In so finding, the court noted that the error did not need to be preserved for the Court of Appeals to reach it:

As an initial matter, we conclude that this case falls within the narrow exception to our preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the trial record … . * * *

Penal Law § 30.00 (1) specifies that a person must be at least 16 years old to be criminally responsible for his conduct.  Penal Law § 30.00 (2) lists crimes that are exceptions to this age requirement, but second-degree manslaughter is not among them.  So assuming as we must for purposes of this appeal that third-degree murder in Pennsylvania is equivalent to second degree manslaughter in New York, defendant’s Pennsylvania conviction was not a predicate felony conviction within the meaning of Penal Law § 70.06 (b) (i) because he could not even have been prosecuted for second-degree manslaughter in New York at the age of 15.  People v Santiago, 159, CtApp 10-15-13

 

/ , , ,

Erasure of Audio Recording Constituted Negligent Spoliation of Evidence Under New York Common Law—No Need to Turn to Federal Law Re: Preservation of Electronically Stored Information

In a full-fledged opinion by Justice Saxe, the First Department determined the City’s erasure of an audio recording related to a police chase that resulted in injuries to plaintiffs constituted negligent spoliation under New York common law and there was no need to rely on federal authority re: the spoliation of electronically stored information [ESI]:

…[P]laintiffs’ spoliation claim can be fully addressed under New York’s common-law spoliation doctrine. However, because plaintiffs rely exclusively on the [federal] Zubulake IV rule that “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold'” to preserve evidence (220 FRD at 218), we briefly address the question of whether we need to import Zubulake’s rules into the established New York common-law rules as to spoliation of non-ESI evidence.

The cases in which this Court has explicitly adopted the Zubulake rulings have involved ESI discovery … . The usefulness of the Zubulake standard in the e-discovery arena, is … that it “provides litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context and when those obligations are triggered” (93 AD3d at 36). At the same time, … Zubulake “is harmonious with New York precedent in the traditional discovery context” … . This is an area that did not need greater certainty or clarification. * * *

We … conclude that reliance on the federal standard is unnecessary in this context. Zubulake interpreted federal rules and earlier federal case law to adapt those rules to the context of ESI discovery. However, the erasure of, and the obligation to preserve, relevant audiotapes and videotapes, can be, and has been, fully addressed without reference to the federal rules and standards. Strong v City of New York, 2013 NY Slip Op 06655, 1st Dept 10-15-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy