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Knowledge of Dangerous Condition May Make Owner Liable Even Where Owner Exercises No Supervisory Control Over Contractor’s Operation.

The Fourth Department held: “ ‘It is settled law that where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attached to the owner under the common law or under section 200 of the Labor Law …’.  Defendant, however, may be liable for common-law negligence or the violation of Labor Law [section] 200 if it ‘had actual or constructive notice of the allegedly dangerous condition on the premises which caused the … plaintiff’s injuries, regardless of whether [it] supervised [plaintiff’s] work’ …”.  Ferguson vs Hanson Aggregates New York, Inc. 1460 CA 12-00596 Fourth Dept. 2-1-13

 

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“Open and Obvious” Nature of Defect Does Not Negate Duty to Keep Premises Safe.

Plaintiff brought a Labor Law and common law negligence action based upon the allegation that a 1 1/2 inch depression in a marble step at the Buffalo City Hall caused him to slip.  At the time of the accident, plaintiff was employed by a subcontractor which had been hired by defendant company.  The defendant company claimed on appeal that its duty to maintain the premises in a safe condition was obviated by the open and obvious defect in the stair.  The Fourth Department noted that the fact that the defect was “open and obvious” speaks only to plaintiff’s comparative negligence, and does not negate the defendant’s duty to keep the premises reasonably safe.  The Fourth Department went on to hold that the defendant company “failed to establish as a matter of law that the hazard posed by the stair was open and obvious and that they had no duty to warn plaintiff of that tripping hazard.”  Landahl v City of Buffalo and U & S Services, Inc., 1333, CA 12-01208 Fourth Dept. 2-1-13

 

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Single Policy Limit Held to Apply to Successive Tenants in Lead-Paint-Tainted Apartment.

In a full-fledged opinion by Justice Smith, the Fourth Department discussed the liability-limits of an insurance carrier for injuries caused to children by lead paint in the insured apartment.  The policy, which had a $500,000 limit, included the following sentence:  “All bodily injury and property damage resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss.”  Children in one family who lived in the apartment suffered injury from lead paint and the carrier paid out $350,000.  Subsequently children in another family who moved into the same apartment suffered injury from lead paint.  The question before the Court was whether the liability to the second family was capped at $150,000 because the total liability of the carrier could not exceed $500,000, or whether the injury to the second family triggered another $500,000 in policy coverage.  The Fourth Department determined the carrier was liable for a total of $500,000 for the injuries to both families and the second family could recover no more than $150,000.   Nesmith, et al v Allstate Insurance Company, 1252, CA 12-00182 Fourth Dept. 2-1-13

 

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Right to Counsel.

In a proceeding pursuant to part three, article six of the Family Court Act to allow a mother visitation with her child in her home, the Fourth Department determined the grandmother, who had primary physical custody of the child, should have been advised of her right to assigned counsel (Family Court Act section 262 (a)(iii)).  The court’s failure to so advise her constituted reversible error.  Matter of Wright vs Walker, 11, CA-12-00962 Fourth Dept. 2-1-13

 

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No “Reasonable Suspicion,” Defendant Should Not Have Been Stopped and Detained.

A new trial was ordered and the defendant’s motion to suppress identification evidence was granted by the Second Department.  A police radio broadcast described a robbery in progress by two males wearing black jackets, one wearing blue jeans, the other wearing black jeans. The complainant described the robbers only as “wearing dark clothing,” one taller than the other, and one with a hood.  The Court held that these descriptions were not sufficient to provide reasonable suspicion to stop and detain the defendant, who was dressed in a dark gray and dark green camouflage jacket and was standing alone 20 blocks from the crime scene.  People v Polhill, 2010-01680, Ind. No. 943/09 Second Dept. 1-30-13

DeBour, street stops

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Queens County District Attorney’s Standard “Preamble” to the Miranda Warnings Struck Down.

In a full-fledged opinion by Justice Skelos, the Second Department struck down a so-called “program” which had been put in place by the Queens County District Attorney’s Office.  Pursuant to the “program,” a “preamble” was read to the defendant just before the Miranda warnings were given.  The Second Department determined the preamble rendered the Miranda warnings ineffective.  The Court noted that the defendant was told of his privilege against self-incrimination only after being told (in the preamble) that this was his “only opportunity” to refute what others have said, to correct any misperceptions, and to try to help himself.  The preamble suggested that the prosecutor would not investigate his version of events if he declined to speak with the prosecutor at that time.  Conversely the preamble suggested that, if the defendant agreed to be interviewed, the prosecutor would assist him with such an investigation.  This suggestion, the Second Department held, “is contrary to the very purpose of the warning that anything a suspect says can be used against him … . In essence, the preamble suggests that invoking [the right to remain silent] will bear adverse, and irrevocable, consequences.”  People v Dunbar, 2010-04786, Ind. No. 1217/09 Second Dept. 1-30-13

 

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Criminal Impersonation—Falsely Attributed E-Mails.

Defendant was convicted of criminal impersonation (and other offenses) because he sent e-mails which he falsely attributed to scholars who disagreed with the defendant’s father, an expert on the Dead Sea Scrolls.  The First Department explained why the defendant’s falsely-attributed e-mails were not protected by the First Amendment: “Defendant was not prosecuted for the content of any of the emails, but only for giving the false impression that his victims were the actual authors of the emails.” People v Golb, 9101, Ind. 2721/09 1st Dept. 1-29-13

Substantially modified by the Ct. of Appeals in People v Golb, 2014 NY Slip Op 03426 [23 NY3d 455], CtApp 5-13-14

 

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Flight Elevated Level of Suspicion and Justified Pursuit.

The police received a late-night report that three men had committed a robbery and fled into a park. At the park, the police saw the defendant and two other men.  The defendant’s flight upon seeing the officers, who were in plainclothes and were getting out of an unmarked police car, “elevated the level of suspicion to reasonable suspicion of criminality and justified pursuit.”  People v Pitman, 9092, Ind. 2908/10 First Dept. 1-29-13

DeBour, street stops

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Spoliation, Discovery Abuse Sanctions, Equitable Estoppel.

In a full-fledged opinion by Justice Richter discussing a breach of contract case with a convoluted history, the First Department dealt with the spoliation of evidence and the appropriate sanctions for spoliation under the CPLR.  It was alleged that a document was deliberately scorched so its authenticity could not be determined by scientific tests.  The Court remanded the case for a hearing on the spoliation issue and determined that, under the facts of the case, if spoliation is demonstrated at the hearing, striking the pleadings would not be an appropriate sanction.  The Court suggested a monetary sanction. Although most of the decision deals with the factual history of the case, there are substantive discussions of sanctions for discovery abuse under CPLR 3126 and the doctrine of equitable estoppel. Melcher v Appolo Medical Fund Management, LLC, et al, 4759-4764, Index 604047/03 First Dept. 1-29-13.

 

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