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general business law 627-a, which requires that a health club have an automated external defibrillator and a person qualified to use it does not impose tort liability on the club for failure to use it.

The Court of Appeals, in a full-fledged opinion by Judge Read, over a partial dissent, determined that General Business Law 627-a, which requires a health club to have an automated external defibrillator (AED) and a person qualified to use it, does not impose tort liability based upon a failure to use the device. Here plaintiff’s decedent collapsed and the health club employee did not use the AED because plaintiff’s decedent was breathing. Subsequently a doctor and a medical student attended to plaintiff’s decedent. When the ambulance personnel used a AED, plaintiff’s decedent could not be revived. A wrongful death action was brought against the club (Bally) and defendant’s moved to dismiss:

… [W]e hold that General Business Law § 627-a does not create a duty running from a health club to its members to use an AED required by that provision to be maintained on site.

The dissent objects that our interpretation renders section 627-a “virtually meaningless” (dissenting op at 352) and “purposeless” … . On the contrary, there is nothing meaningless or purposeless about a statute that seeks to insure the availability of AEDs and individuals trained in their use at locations—i.e., health clubs—where there is a population at higher risk of sudden cardiac arrest. Obviously, though, AEDs are not meant to be employed mindlessly. …

A law that mandates the presence of AEDs and trained individuals at health clubs is easy to obey and enforce. The implied duty envisioned by the dissent is neither; such a duty… would engender a whole new field of tort litigation, saddling health clubs with new costs and generating uncertainty. The legislature is unlikely to have imposed such a new duty absent an express statement, especially given the remedy of treble damages provided by General Business Law § 628. Miglino v Bally Total Fitness of Greater N.Y., Inc., 2013 NY Slip Op 00780 [20 NY3d 342], CtApp 2-7-13

 

 

 

 

 

 

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Property Owner Responsible for Defect in Sidewalk that Did Not Directly “Abut” Owner’s Property (Liability Based On New York City Ordinance)

In a full-fledged opinion by Justice Richter, the First Department determined a property owner was responsible for ensuring the safe condition of a sidewalk that did not directly abut the defendant’s property. The sidewalk was separated from the defendant’s property by a strip of land owned by the City. The Court determined the terms “abutting” and “adjoining” in the ordinance making a property owner responsible for the condition of a sidewalk should be construed “to include property in close proximity to an improved sidewalk although separated from it by [the strip of land]”… . James v 1620 Westchester Avenue, LLC, 8710A, 17396/06 1st Dept. 2-7-13

 

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Defendant’s Behavior Did Not Justify Arrest for Disorderly Conduct

The defendant’s arrest for “disorderly conduct” was not supported by probable cause.  Specifically, the proof was insufficient to support the “public harm” element of the offense.  “During daylight hours on a public street, defendant made two abusive statements claiming harassment to a police officer who was seated in a patrol car. …[T]he public outburst was extremely brief, lasting about 15 seconds. The statements were not accompanied by menacing conduct … . And there is no basis to infer that [the officer] felt threatened by the statements.”  The “risk to public order” was not sufficient to justify the arrest.  People vs. Baker, No. 16, CtApp 2-7-13

 

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Judge’s Failure to Follow Statutory Requirements for Handling Jury Questions Required Reversal.

The jury sent out a note asking “Is intent defined as premeditated desires or actions once engaged?”  The trial judge responded to the question by reading an expanded definition of intent and explaining “intent does not require premeditation.”  Defense counsel did not object to the way the judge handled the jury’s question.  The First Department explained  the statutory procedure for answering jury questions and held that the judge’s failure comply with CPL 310.30 by affording  “counsel … the opportunity to suggest appropriate responses …,” was a reversible “mode of proceedings” error.  People vs McGhee, 2010-05026, Ind. No. 2434/08 Second Dept. 2-6-13

 

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Mutual Mistake.

“Mutual mistake may furnish the basis for the reformation of a written agreement where the signed writing does not express the actual agreement of the parties…. Parol evidence is admissible to establish the actual agreement.  There is a heavy presumption that the executed agreement reflects the true intention of the parties, and a correspondingly high order of evidence is required to overturn the presumption …”  The First Department found that a question of fact had been raised concerning whether the doctrine of mutual mistake should be applied to reform the contract in this case.  West Vernon Petroleum Corp. vs. Singer Holding Corp., 2010-10522, Second Dept. 2-6-13

 

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Res Judicata and Collateral Estoppel Doctrines Do Not Apply to “Nominal Parties” or to Prior Proceedings With Lower Standard of Proof.

This decision includes a clear discussion of the doctrines of res judicata and collateral estoppel, the (non)application of those doctrines to a “nominal party,” and the (non)application of those doctrines to a prior proceeding with a lower standard of proof.  Matter of Sherwyn Toppin Marketing Consultants, Inc. vs New York State Liquor Authority, 2012-01119, Index No. 24980/11 Second Dept. 2-6-13

 

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Rights of Adopted Children.

In a full-fledged opinion by Justice Austin, the First Department determined, as a case of first impression, an adopted child of the decedent should share in trusts created by the decedent even though the decedent’s wife surrendered the child for a second adoption eight years after the adoptive father’s death and the admission of his will to probate.  The opinion includes a discussion of the rights of adopted children in this context.  Matter of Svenningsen, 2010-11057, 2010-11113, 2010-11114 Second Dept. 2-6-13

 

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Home Addresses of Handgun Licensees and Hate Crime Victims Not Released.

In a Freedom of Information Law (FOIL) case brought by the New York Times against the City of New York Police Department, the First Department determined several important procedural aspects of a FOIL request including the proper vehicle to address an untimely response or ruling (Article 78), the proper vehicle for hybrid FOIL and declaratory relief (combined petition and complaint), and the “futility exception” to the exhaustion of administrative remedies applies to FOIL requests.  With respect to the substance of the FOIL request, the First Department ruled that the home addresses of handgun licensees and the home addresses of hate crime victims should not be released.  New York Times Company vs City of New York Police Department, 7994, 116449/10 First Dept. 2-5-13

 

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“Searching Inquiry” Required Before Proceeding Without Attorney in SORA Hearing.

In reversing a SORA determination, the Fourth Department determined that the SORA court did not make a “searching inquiry” to make sure the defendant’s decision to proceed with the SORA hearing without an attorney was knowing, intelligent and voluntary.  “The requisite inquiry ‘should affirmatively disclose that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver’ “… . People vs Wilson, 1475, KA 11-01197 Fourth Dept. 2-1-13

 

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