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Questions of Fact Raised Whether Negligent Diversion of Water by Private Property Owner and Negligent Repair by Town Caused Dangerous Icy- Road-Condition; Defendant Driver Lost Control of Her Car on the Ice and Collided with Plaintiffs

The Second Department determined that questions of fact existed about whether defendant abutting property owner (Gromley) and the defendant town created the icy road condition that caused defendant driver to lose control of her car, thereby allegedly injuring the plaintiffs in a collision with the school bus in which plaintiffs were riding:

A private landowner may be liable for injuries sustained in a car accident that is proximately caused by an ice condition occurring on an abutting public roadway, where that ice condition was caused and created by the artificial diversion of naturally flowing water from the private landowner’s property onto the public roadway… . … [T]he plaintiffs raised a triable issue of fact as to whether the artificially diverted water from the Gormley defendants’ property contributed to the ice condition on the subject roadway that caused [defendant driver] to lose control of her car and collide with the school bus… . * * *

…[T]he plaintiffs raised a triable issue of fact as to whether the Town affirmatively created the condition through an act of its own negligence, and whether the Town’s negligence at the time the road was repaired immediately resulted in the existence of the hazardous condition … . Cebron v Tuncoglu, 2013 NY slip Op 05729, 2nd Dept 8-28-13

 

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Question of Fact Whether Defect in Basketball Court Was Concealed Precluded Summary Judgment Based upon Doctrine of Assumption of the Risk

In reversing Supreme Court, the Second Department determined there was a triable issue of fact whether plaintiff, who was injured when he tripped on part of a defunct sprinkler system while playing basketball on defendant-town’s court, assumed the risks associated with using the court.  The Second Department wrote:

Here, the Town failed to satisfy its prima facie burden of establishing its entitlement to judgment as a matter of law by eliminating all triable issues of fact as to the applicability of the doctrine of primary assumption of the risk … . The evidence submitted in support of its motion, including the plaintiff’s deposition testimony and photographs of the basketball court and metal cap, demonstrated that the metal cap was small, was raised only slightly above ground level, was painted the same color as the basketball court, and was difficult to see from more than a few feet away. Under these circumstances, a triable issue of fact exists as to whether the condition was concealed, and it cannot be said as a matter of law that the plaintiff assumed the risks associated with it … .  Bunn v Town of North Hempstead, 2013 NY Slip Op 05727, 2nd Dept 8-28-13

 

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Irreparable Injury to Plaintiffs Not Demonstrated and Balance of Equities Did Not Favor Plaintiffs Who Sought Injunction Prohibiting Landlord from Proceeding with a Water-Damage-Repair Plan Plaintiffs Thought Inadequate

In a full-fledged opinion by Justice Saxe, the First Department affirmed the denial of a preliminary injunction where plaintiffs-tenants sought to prohibit the landlord from going forward with repairs necessitated by water damage. The landlord proposed a repair-plan which involved the installation of insulation in the walls which would reduce the interior space of the 1400 square-foot apartment by about 50 square feet.  The plaintiffs wanted the exterior walls completely removed and replaced.  The First Department applied the standard criteria for injunctive relief and determined plaintiffs did not show irreparable harm and the balance of equities did not favor plaintiffs:

…[A]n alteration to residential quarters may be so minor that even though the tenant may be entitled to some form of compensation, a finding of irreparable harm is not warranted. Cases in which interference was sufficient to justify either injunctive relief or orders preventing the work from proceeding … do not preclude the possibility that interference in other circumstances may be so minimal as to fail to justify injunctive relief. Plaintiff failed to make a clear showing that the possible square footage reduction, a small fraction of the total footprint of the apartment, was more than de minimis. This conclusion, however, does not preclude compensation by other means.

Moreover, the balance of the equities does not weigh in plaintiff’s favor. Although plaintiff proposed an alternative method of performing the work on the exterior, she failed to respond to defendant’s assertion that this method would entail substantial extra expenses that defendant was under a fiduciary duty to avoid imposing on the other cooperative shareholders … . The claimed impact to plaintiff of the planned modifications to her apartment, most of which will be compensable based on plaintiffs’ breach of contract theory, is far outweighed by the expense to the co-op of demolishing and rebuilding exterior walls, especially when those walls have already been repaired and treated for waterproofing. Goldstone v Gracie Terrace Apt Corp, 2013 NY Slip Op 05725, 1st Dept 8-27-13

 

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Causes of Action Based Upon Allegations of Violations of Martin Act Concerning Fraud in the Selling of Securities Allowed to Go Forward— Supreme Court Should Not Have Evaluated Merits on Motion to Dismiss

The First Department determined Supreme Court should not have dismissed certain Martin Act/Executive Law causes of action alleging fraud in the sale of securities brought by the Attorney General against Charles Schwab. The First Department explained that Supreme Court should not have evaluated the merits of the case in determining the motion to dismiss:

The Martin Act causes of action are based on General Business Law § 352-c(1)(a), which, where applicable, prohibits fraud, concealment, suppression or false pretense, and General Business Law § 352-c(1)(c), which prohibits false representations or statements to induce or promote the issuance, purchase or sale of securities within or from the State. It is alleged in the complaint that defendant, Charles Schwab & Co., Inc. (Schwab), a registered securities broker-dealer, engaged in fraudulent and deceptive conduct in the sale of auction rate securities (ARS) to the investing public. The Attorney General asserts that Schwab misrepresented ARS to its customers as safe, liquid investments while concealing the fact that they were complex financial instruments with significant, inherent and increasing liquidity risks. * * *

In dismissing the Martin Act causes of action, the court concluded that the “misrepresentations alleged were true when made and the complaint contains no allegations that ARS were liquid at a time when they were illiquid.” The court based this conclusion on its own finding that there had been no failures in the auctions in the 20 years preceding August 2007. In reaching this conclusion, the court erroneously engaged in an evaluation of the merits of the Martin Act causes of action. On a motion to dismiss for failure to state a cause of action, it is not the function of the court to evaluate the merits of the case… . People v Charles Schwab & Co, Inc, 2013 NY Slip Op 05722, 1st Dept 8-27-13

 

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Level One Request for Information Not Justified by “Drug-Prone” Area or Defendant’s “Flight”—Seized Handgun Should Have Been Suppressed

Over a dissent, the First Department determined the facts did not justify a level one stop of the defendant by the police inside a New York City Housing Authority building and, therefore, the motion to suppress the handgun found in defendant’s pocket should have been granted. The First Department explained that a defendant’s presence in a high-crime or drug-prone alone does not justify a police request for information:

The uniformed police officers entered the building to check on other officers stationed inside. As the officers made their way towards the lobby, they saw defendant descending the stairs. When defendant saw the officers, he froze, jerked back, began to retreat, then stopped and stood on the stairs. Based on defendant’s reaction, and given the drug-prone nature of the building, the officers “suspected [defendant of] trespassing,” and asked him to come down the stairs to “make sure if he lived in the building.”

Defendant initially told the officers that he lived there. However, when asked for identification, he began to stutter, and changed his story to say that he was visiting his girlfriend. Although defendant stated that he had his identification in his pocket, he began moving his hands “all over the place, especially around his chest area,” which the officers interpreted to be threatening and indicative of possession of a weapon. To “take control of the situation” before it could “get out of hand,” an officer grabbed defendant’s left arm and brought it behind defendant’s back, which caused defendant’s open jacket to open up further and reveal a silver pistol in the netted interior coat pocket. One officer removed the pistol from the pocket, and another handcuffed defendant. * * *

Presence in a high-crime or drug-prone location, without more, does not furnish an objective credible reason for the police to approach an individual and request information … . As we have observed, “[T]he reputation of a location, however notorious, does not provide a predicate for subversion of the Fourth Amendment” … .

Nor does an individual’s desire to avoid contact with police—even in a high-crime neighborhood–constitute an objective credible reason for making a level one inquiry… .  People v Johnson, 2013 NY Slip Op 05723, 1st Dept 8-27-13

 

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Plaintiff Assumed the Risk of Injury in Martial Arts Class

In reversing Supreme Court, the First Department determined the defendant, which conducted a mixed martial arts class, was entitled to summary judgment, based on the assumption-of-risk doctrine, in an action brought by a participant in the class injured when sparring with another “stockier” student. The First Department explained the relevant legal principles:

It is well established that the doctrine of assumption of risk generally applies where the plaintiff is injured while voluntarily participating in a sport or recreational activity, and the injury causing event is a “known, apparent or reasonably foreseeable consequence of the participation” … . The participant engaging in a sport or recreational activity “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” … . Further, the assumption of risk doctrine considers the appreciation of risk measured “against the background of the skill and experience of the particular plaintiff” … . Tadmor v New York Jiu Jitsu Inc, 2013 NY Slip Op 05721, 1st Dept 8-27-13

 

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County Law Setting Term Limits for District Attorney Preempted by State Law

The Court of Appeals affirmed the Appellate Division’s ruling that the county law limiting the terms of the district attorney is preempted by state law:

The office of district attorney is plainly subject to comprehensive regulation by state law, leaving the counties without authority to legislate in that respect. In this light, we view the limitation on the length of time a district attorney can hold office to be an improper imposition of an additional qualification for the position … .

Permitting county legislators to impose term limits on the office of district attorney would have the potential to impair the independence of that office because it would empower a local legislative body to effectively end the tenure of an incumbent district attorney whose investigatory or prosecutorial actions were unpopular or contrary to the interests of county legislators. The state has a fundamental and overriding interest in ensuring the integrity and independence of the office of district attorney. Matter of Hoerger v Spota, 237, CtApp 8-22-13

 

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Fraud Sufficiently Pled; Six-Year Statute of Limitations Applied

In reversing Supreme Court, the Second Department determined plaintiff had adequately pled a cause of action sounding in fraud and that, therefore, the six-year statute of limitations applied to both the fraud and the related breach of fiduciary duty causes of action.  In explaining the pleading requirements for fraud, the Second Department wrote:

To state a cause of action sounding in fraud, a plaintiff must allege that “(1) the defendant made a representation or a material omission of fact which was false and the defendant knew to be false, (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it, (3) there was justifiable reliance on the misrepresentation or material omission, and (4) injury”… . “A cause of action to recover damages for fraudulent concealment requires, in addition to allegations of scienter, reliance and damages, an allegation that the defendant had a duty to disclose material information and that it failed to do so”… .

In assessing a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the facts pleaded are accepted as true and the plaintiff is accorded every possible favorable inference … . The court is then to “determine only whether the facts as alleged fit within any cognizable legal theory” … . Pursuant to CPLR 3016(b), a cause of action alleging fraud must be pleaded with particularity so as to inform the defendant of the alleged wrongful conduct and give notice of the allegations the plaintiff intends to prove .. . This pleading requirement “should not be confused with unassailable proof of fraud,” and “may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct.” … .  McDonnell v Bradley, 2013 NY Slip Op 05681, 2nd Dept 8-21-13

 

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Overriding Village Legislative Cap on Number of Taxicab Licenses Not a Proper Subject of Mandamus Action—Applicability of Mandamus Explained

In reversing Supreme Court, the Second Department determined the Article 78 proceeding which sought to override a legislative cap on the number of taxicab licenses which could be issued by the village was not a proper subject of a mandamus action:

“The extraordinary remedy of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated” .. . “A discretionary act 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” … . Thus, mandamus may be employed “to compel acts that officials are duty-bound to perform” … . However, mandamus will not lie to compel the performance of a purely legislative function … . “[T]he courts must be careful to avoid . . . the fashioning of orders or judgments that go beyond any mandatory directives of existing statutes and regulations and intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches”… .  Matter of Gonzalez v Village of Port Chester, 2013 NY slip Op 05691, 2nd Dept 8-21-13

 

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Defendant Denied Constitutional Right to Present a Defense—Evidence Victim Identified Another as the Perpetrator Wrongly Excluded

In a full-fledged opinion by Justice Miller reversing defendant’s conviction, the Second Department determined defendant had been deprived of his constitutional right to present a defense.  The primary problem identified by the Second Department (among many others not mentioned here but worth reading about) was the preclusion of evidence that the victim had repeatedly identified someone other than the defendant as the perpetrator of the crime.  Two crucial pieces of such evidence, an entry in the victim’s diary and a statement made to a third party by the victim, were hearsay.  The court found that the People’s hearsay objection was waived because it wasn’t raised before the appeal. Concerning the failure to allow evidence of the victim’s identification of another as the perpetrator, the Second Department wrote:

“Before permitting evidence that another individual committed the crime for which a defendant is on trial, the court is required to determine if the evidence is relevant and probative of a fact at issue in the case, and further that it is not based upon suspicion or surmise” … . “Then, the court must balance the probative value of the evidence against the prejudicial effect to the People and may, in an exercise of its discretion, exclude relevant evidence that will cause undue prejudice, delay the trial, or confuse or mislead the jury” … . Although a trial court has “broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters” …, “the trial court’s discretion in this area is circumscribed by the defendant’s constitutional rights to present a defense and confront his accusers” … .

Here, the evidence that the victim identified Uppal as the perpetrator was exculpatory evidence that was directly relevant to the fundamental issue in this case—the identity of the attacker. Furthermore, such evidence of third-party culpability, coming from the victim of the crime herself, cannot be properly characterized as “rest[ing] on mere suspicion or surmise”… People v Thompson, 2013 NY Slip Op 05707, 2nd Dept 8-21-13

 

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