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CLAIMANT IN THIS LABOR LAW 240(1) and 241(6) ACTION AGAINST THE STATE SERVED THE ATTORNEY GENERAL WITH THE NOTICE OF INTENTION TO FILE A CLAIM BUT NOT THE NEW YORK STATE THRUWAY AUTHORITY (NYSTA); ALTHOUGH THE EXCUSE (IGNORANCE OF THE LAW) WAS NOT VALID, THE ACTION HAD MERIT AND THE NYSTA HAD TIMELY KNOWLEDGE OF THE FACTS; THEREFORE CLAIMANT’S MOTION TO SERVE AND FILE A LATE CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

​The Second Department, reversing the Court of Claims, determined claimant’s motion for leave to file a late claim in this Labor Law 240(1) and 241(6) action should have been granted. Claimant was injured working on the Tappan Zee Bridge and served a notice of intention to file a claim on the attorney general but not, as required, on the New York State Thruway Authority (NYSTA). The absence of a valid excuse (ignorance of the law) was not determinative. The action had merit and the NYSTA had timely knowledge of the facts underlying the claim:

Court of Claims Act § 10(6) permits a court, in its discretion, upon consideration of the enumerated factors set forth therein, to allow a claimant to file a late claim … . “In determining whether to permit the filing of a [late] claim . . . the court shall consider, among other factors, [1] whether the delay in filing the claim was excusable; [2] whether the state had notice of the essential facts constituting the claim; [3] whether the state had an opportunity to investigate the circumstances underlying the claim; [4] whether the claim appears to be meritorious; [5] whether the failure to file or serve upon the attorney general a timely claim . . . resulted in substantial prejudice to the state; and [6] whether the claimant has any other available remedy” … .. “No one factor is deemed controlling, nor is the presence or absence of any one factor determinative” … . Swart v State of New York, 2022 NY Slip Op 07088, Second Dept 12-14-22

Practice Point: The Court of Claims, pursuant to Court of Claims Act section 10(6), has the discretion to allow a claimant to file a late claim. Here the excuse, ignorance of the law, was not valid. But the claim was deemed to have merit and the respondent had timely knowledge of the underlying facts. Therefore the Court of Claims should have granted claimant’s motion to file a late claim.

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STATING THE WRONG DATE FOR THE ALLEGED NEGLIGENCE IN THE NOTICE OF INTENTION TO FILE A CLAIM RENDERED THE NOTICE JURISDICTIONALLY DEFECTIVE; THE NOTICE THEREFORE DID NOT EXTEND THE 90-DAY PERIOD FOR FILING A CLAIM, RENDERING THE CLAIM FILED MORE THAN A YEAR AND A HALF LATER UNTIMELY; THE DENTAL MALPRACTICE ACTION WAS PROPERLY DISMISSED; THERE WAS AN EXTENSIVE DISSENT (SECOND DEPT).

The Second Department, over a dissent, determined the claimant’s failure to set forth the correct date of the alleged dental malpractice in the notice of intention to file a claim was a jurisdictional defect, notwithstanding the correct date set forth in the subsequently filed claim: Because the notice of intention was jurisdictionally defective it did not extend the 90-day period for filing a claim rendering the claim filed more than a year and a half later untimely:

The claimant served the defendant with a notice of intention to file a claim dated January 9, 2017, which alleged that the claimant was injured when her mouth and lips were burned during the course of her treatment as a patient at a particular address where the defendant operated a school of dental medicine. The notice of intention to file a claim stated that “[t]he claim arose on or about October 15, 2016, the last date of continuous treatment and prior to said date.”

In the subsequent claim, dated October 16, 2018, the claimant stated that she was injured on October 20, 2016, when hot wax was negligently spilled on her face and mouth while an employee of the defendant was attempting to make a wax mold for dentures. * * *

Section 10(3) of the Court of Claims Act sets forth time limitations for asserting “[a] claim to recover damages . . . for personal injuries caused by . . . negligence.” Such a claim “shall be filed and served upon the attorney general within [90] days after the accrual of such claim” (id.). However, if the claimant serves “a written notice of intention to file a claim” within 90 days after the accrual of the claim, “the claim shall be filed and served upon the attorney general within two years after the accrual of such claim” … . * * * Since the claimant’s notice of intention to file a claim was substantively deficient (see Court of Claims Act § 11[b]), it did not extend the claimant’s time to file and serve a claim beyond the 90-day statutory period … . Under the circumstances, the claim was untimely (see Court of Claims Act § 10[3] …). “The claimant’s failure to comply with the filing requirements of the Court of Claims Act deprived the Court of Claims of subject matter jurisdiction” … . Accordingly, the Court of Claims properly granted the defendant’s motion pursuant to CPLR 3211(a)(2) to dismiss the claim for lack of subject matter jurisdiction. Sacher v State of New York, 2022 NY Slip Op 07087, Second Dept 12-14-22

Practice Point: Including the wrong date for the allegedly negligent act in the notice of intention to file a claim renders the notice jurisdictionally defective pursuant to the Court of Claims Act.

Practice Point: Ordinarily filing a notice of intention to file a claim extends the period for filing a claim from 90 days to two years. However, the extension is not triggered by a jurisdictionally defective notice of claim. The claim here, filed more than a year and a half after the notice of intention, was therefore untimely.

 

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THE CITY WAS NOT ENTITLED TO QUALIFIED IMMUNITY IN THIS “UNSAFE INTERSECTION DESIGN” CASE BECAUSE NO STUDIES OF THE INTERSECTON HAD BEEN UNDERTAKEN AND NO HIGHWAY-PLANNING DECISIONS HAD BEEN MADE; THE FACTS THAT THE CITY HAD NO NOTICE OF THE CONDITION AND NO PRIOR ACCIDENTS HAD BEEN REPORTED DID NOT WARRANT SUMMARY JUDGMENT ON WHETHER THE CITY HAD CREATED A DANGEROUS CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the “unsafe intersection design” cause of action against the city in this traffic accident case should not have been dismissed. The city was not entitled to qualified immunity because there was no evidence any studies of the intersection had been undertaken or any highway-planning decision concerning the intersection had been made. The court noted the fact that the city had no notice the intersection was unsafe and no accidents had been reported did not warrant summary judgment on whether the city had created a dangerous condition:

… [W]here the initial traffic design is challenged, the municipality must show that there was a reasonable basis for the traffic plan in the first instance … . As the City defendants failed to establish that the original design of the subject intersection was based on a deliberative decision-making process which entertained and passed on the very same question of risk that the plaintiff would put to a jury, the City defendants did not sustain their prima facie burden on the issue of qualified immunity … .

… [T]he lack of prior similar accidents or notice did not establish the City defendants’ prima facie entitlement to judgment as a matter of law under ordinary negligence principles. Since the City defendants created the alleged dangerous condition with their design of the intersection, “the ‘usual questions of notice of the condition are irrelevant'” … . … [T]he lack of prior similar accidents within the five years preceding the plaintiff’s accident did not establish, by itself, that the intersection was reasonably safe. Whether a dangerous or defective condition exists “depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” … . A lack of prior accidents “is some evidence that a condition is not dangerous or unsafe” … . However, it is only a factor to be considered and does not negate the possibility of negligence … . Petronic v City of New York, 2022 NY Slip Op 07085, Second Dept 12-14-22

Practice Point: In an “unsafe intersection design” case, the municipality is not entitled to qualified immunity unless a study of the intersection had been undertaken and a highway-planning decision concerning the intersection had been made.

Practice Point: Because it was alleged the city created the dangerous intersection, the lack of notice and prior accidents did not warrant summary judgment dismissing the negligent-design cause of action.

 

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PROBABLE CAUSE FOR SEARCH OF DEFENDANT’S VEHICLE UNDER THE AUTOMOBILE EXCEPTION WAS PROVIDED BY THE ODOR AND OBSERVATION OF MARIJUANA; SEIZURE OF A TRANSPARENT BAG OF PILLS WAS NOT JUSTIFIED BY THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT BECAUSE IT WAS NOT IMMEDIATELY APPARENT THE PILLS WERE CONTRABAND AND THERE WAS NO MARIJUANA IN THE BAG (SECOND DEPT).

The Second Department, reversing defendant’s conviction stemming from a transparent plastic bag of pills seized from defendant’s vehicle after a traffic stop. determined the seizure of the pills was not justified by the plain view exception to the warrant requirement. The court noted that the Penal Law statute prohibiting a probable-cause finding based solely on the odor of marijuana is not applied retroactively and therefore the marijuana odor and the observation of the marijuana provided probable cause for a search pursuant to the automobile exception to the warrant requirement here:

The plain view doctrine is not applicable where the object must be moved or manipulated before its illegality can be determined … . The movement or manipulation of an object from its original state in a manner that goes beyond the objectives of the original search constitutes an independent search or seizure … . Such a search or seizure may not be upheld without proof that the officer who moved or manipulated the object had probable cause to believe that the object was evidence or contraband at the time that it was moved or manipulated … .

Here, Cruz [the officer] testified that he did not know what the pills in the ziploc bag were when he seized them. * * *

Since it was obvious that the transparent ziploc bag seized by Cruz did not contain marihuana, and since it was not immediately apparent that the ziploc bag contained any other type of contraband, there was no justification for seizing the bag … . People v Rodriguez, 2022 NY Slip Op 07080, Second Dept 12-14-22

Practice Point: The Penal Law statute prohibiting a probable-cause finding based solely on the odor of marijuana is not applied retroactively.

Practice Point: If an object, i.e., a transparent plastic bag of pills, must be manipulated before it can be determined to be contraband, seizure under the plain view exception is not justified. Here the odor and observation of marijuana provided probable cause for the search of the vehicle, and containers within the vehicle, for marijuana. Because the transparent bag of pills did not contain marijuana, the plain view exception did not apply.

 

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IF A DEFENDANT IS CONVICTED OF A FELONY IN A FOREIGN JURISDICTION WHICH REQUIRES THE DEFENDANT TO REGISTER AS A SEX OFFENDER, THE DEFENDANT WILL BE DESIGNATED A SEXUALLY VIOLENT OFFENDER IN NEW YORK EVEN IF THE FOREIGN FELONY DID NOT INVOLVE VIOLENCE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a dissent, determined a defendant who has been convicted in a foreign jurisdiction of a felony for which the defendant was required to register as a sex offender must be designated a sexually violent offender in New York, even if the foreign offense did not involve violence:

The statutory language is clear and unambiguous: “a felony in any other jurisdiction for which the offender is required to register as a sex offender” therein is, under subdivision (3), a “sexually violent offense” … . “As a general rule, unambiguous language of a statute is alone determinative” … . * * *

Defendant—and the many learned judges, lawyers, and legal scholars—may well be correct that subdivision (3) (b)’s foreign jurisdiction clause contains a legislative drafting error, but that does not give the courts license to ignore it. Courts must not “legislate under the guise of interpretation” … . If we were to take it upon ourselves to delete subdivision (3) (b)’s foreign registration clause as the Committee suggested the legislature should do, we would be impinging on the province of the legislature … . Thus, we are constrained to construe subdivision (3) (b)’s foreign registration clause according to its plain language. If the legislature did err, we unequivocally call upon it to remedy that error … . People v Talluto, 2022 NY Slip Op 07025, CtApp 12-13-22

Practice Point: If a defendant has been convicted of a felony in another state which requires the defendant to register as a sex offender in that state, the defendant will be designated a sexually violent offender in New York, even if the out-of-state conviction did not involve violence.

 

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THE USE OF PEPPER SPRAY BY JAIL PERSONNEL (AFTER A WARNING) WHEN DEFENDANT REFUSED TO TAKE OFF HIS SHOES WAS NOT “EXCESSIVE FORCE;” THEREFORE DEFENDANT, WHO ASSAULTED THE OFFICER FIVE SECONDS AFTER HE WAS SPRAYED, WAS NOT ENTITLED TO A JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE IN HIS ASSAULT TRIAL (CT APP). ​

The Court of Appeals, reversing the appellate division, determined there was no reasonable view of the evidence which would support a jury instruction on the justification defense. At the jail, the defendant was ordered to take off his shoes. When he refused, after being warned, he was sprayed in the face with pepper spray. Five seconds after he was sprayed, defendant charged the officer and punched him in the head:

The Appellate Division concluded that, viewing the evidence in the light most favorable to defendant, there was a “reasonable view of the evidence that the use of the pepper spray constituted excessive force in this scenario” … . …

… [T]here is no reasonable view of the evidence that the sergeant’s use of pepper spray was excessive or otherwise unlawful. The trial evidence was that defendant was given a lawful command to remove his footwear, that he was given that verbal command several times yet persisted in his refusal, and that he was specifically warned that he would be pepper sprayed if he did not comply. The officers further testified that the use of pepper spray was considered a “minimal” use of force compared to using “hands on” force to remove the footwear. People v Heiserman, 2022 NY Slip Op 07024, CtApp 12-12-22

Practice Point: Jail personnel ordered defendant to take off his shoes. He refused and continued to refuse after he was warned he would be pepper-sprayed. Hw assaulted the officer five seconds after being sprayed. The Court of Appeals, reversing the appellate division, determined the use of pepper spray was not excessive force and the defendant was not entitled to a jury instruction on the justification defense.

 

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UPON REMITTAL AFTER THE INITIAL PERSISTENT FELONY OFFENSE SENTENCE WAS OVERTURNED, THE SENTENCING COURT PROPERLY RELIED ON ADDITIONAL INFORMATION TO AGAIN SENTENCE DEFENDANT AS A PERSISTENT FELONY OFFENDER (CT APP).

The Court of Appeal, reversing the Appellate Division, over an extensive dissent, determined the sentencing court, upon remittal after the initial persistent violent felony offender sentence was overturned on appeal, properly relied on additional information to again sentence defendant as a persistent violent felony offender:

Upon the appeal from defendant’s judgment of conviction and original sentence as a persistent violent felony offender in 2013, the People conceded that defendant’s prior incarceration dates did not provide sufficient tolling to qualify his 1987 conviction as a requisite predicate offense … . …

On remittal, Supreme Court resentenced defendant as a persistent violent felony offender, relying on supplemental evidence of defendant’s prior incarceration brought to the court’s attention in connection with collateral motion practice. Defendant appealed, and the Appellate Division, with one Justice dissenting, vacated defendant’s resentence and remitted for a second time. …

At the time of resentencing, Supreme Court was on notice of the supplemental evidence of defendant’s prior incarceration, which conclusively demonstrates that defendant is, in fact, a persistent violent felony offender. … [T]he Appellate Division did not limit its remittal …. … Supreme Court was not precluded from imposing the statutorily required sentence based on the evidence before it, particularly given that court’s “inherent authority to correct illegal sentences” … . People v Kaval, 2022 NY Slip Op 07022, CtApp 12-13-22

Practice Point: Here the appellate division overturned defendant’s sentence as a persistent felony offender because sufficient tolling of the ten-year lookback due to defendant’s incarceration was not demonstrated. The appellate division did not limit its remittal. Therefore, on remittal the sentencing court properly relied upon additional information about defendant’s incarceration which tolled the ten-year lookback and sentenced defendant again as a persistent felony offender.

 

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THE DEFENDANT POLICE OFFICER’S THREATS MADE TO HIS FORMER GIRLFRIEND WERE NOT MERELY ANGRY WORDS; THE EVIDENCE SUPPORTED DEFENDANT’S HARASSMENT CONVICTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Term, determined the police officer’s harassment conviction should stand:

During defendant’s phone call with D.D., he accused D.D. and her husband of extorting him. He also made several threats, first that her children would get a bullet in their heads, then that he would firebomb her home, and finally that he would kill the entire family. Contrary to the Appellate Term’s conclusion, a rational factfinder could have determined that this was not a mere outburst, but escalating threats of deadly violence targeted at D.D. and her family. The angry tone of the call, defendant’s use of profanities to refer to D.D. and her children, and the fact that defendant threatened to use deadly violence all support a finding that the statements were not said in jest. Indeed, the morning after this call defendant admitted to his captain that he said something he should not have—to the effect that he was going to shoot D.D.’s children in the head.

A rational factfinder could have concluded that defendant’s statements were not just a rant or mere angry words said by someone in an intimate personal relationship gone bad, but rather serious threats of specific ways he would kill D.D. and her family: firebombing the home and shooting the children in the head. Defendant also communicated a motive for his threats: his alleged belief that D.D. had extorted him, and, as he had previously claimed, that she had cheated on him. The threats on the call were specific and unequivocal—the type of statements that a reasonable person in D.D.’s position, knowing that defendant was an armed police officer who was trained in the use of deadly force and who believed her to be unfaithful and an extortionist, would commonly understand as words describing intended violent action and not a crude outburst, puffery, or bluffs. People v Lagano, 2022 NY Slip Op 07021, CtApp 12-13-22

Practice Point: Here the line between a mere angry outburst and harassment was crossed by defendant police officer’s threats to kill his ex-girlfriend and her children.

 

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THE HOIST WHICH PLAINTIFF WAS OPERATING WAS A SAFETY DEVICE WITHIN THE MEANING OF LABOR LAW 240(1); WHEN PLAINTIFF OPENED THE EMERGENCY HATCH ON THE HOIST FOR A REPAIRMAN, THE HATCH DOOR SLAMMED BACK DOWN ON HIS HEAD; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gonzalez, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was attempting to aid in the repair of a hoist when he opened the emergency hatch and the hatch door fell back down, striking plaintiff’s head. The court ruled that the hoist was a covered safety device and plaintiff was entitled to some form of protection that would prevent the hatch door from falling back down after it was opened: In the alternative, the court noted that the hatch was a falling object which should have been secured:

Plaintiff was injured when the hatch door slammed onto his head as he stood on a ladder with his head protruding above the hatch aperture. We note that, in isolation, a hatch door is not necessarily a safety device … . Here, however, the hatch door was an essential component of a safety device — the hoist — being employed by plaintiff in an elevation-related capacity. It was foreseeable that the hoist could get stuck; indeed, a purpose of the hatch door was to serve as an emergency egress in such instances. When he was injured, plaintiff was still engaged in an elevation-related activity and attempting to safely remove himself from a height. Under these circumstances, the safety device — the hoist — was inadequate for its purpose of keeping plaintiff safe while engaged in an elevation-related activity. Plaintiff is thus entitled to partial summary judgment on the issue of liability on his claim under Labor Law § 240(1) … . Ladd v Thor 680 Madison Ave LLC, 2022 NY Slip Op 07031, First Dept 12-13-22

Practice Point: Here the hoist plaintiff was operating was deemed a safety device covered by Labor Law 240(1). The door on the hoist’s emergency hatch slammed back down on plaintiffs’ head after he opened it to allow access to the hoist by a repairman. Plaintiff was entitled to some sort of protection which would prevent the open hatch door from falling back down. As an alternative, the hatch door was a falling object which should have been secured.

 

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THE PROOF THE VICTIM SUFFERED “SERIOUS OR PROTRACTED DISFIGUREMENT” IN THIS ASSAULT FIRST CASE WAS INSUFFICIENT; CONVICTION REDUCED TO ATTEMPTED ASSAULT FIRST (FIRST DEPT).

The First Department, reversing defendant’s assault first conviction and reducing it to attempted assault first, determined the People did not prove the scar on the victim’s cheek met the definition of “serious and protracted disfigurement.” The People introduced two photos of the scar and the doctor who treated the injury testified. The victim did not testify:

Defendant’s convictions were not supported by legally sufficient evidence because the People failed to prove that the victim suffered serious and permanent disfigurement, which was the basis of both counts (see Penal Law §§ 120.10[1], [2]). The People relied solely on two photos of the victim depicting a scar on his cheek, and the scar was briefly described by the doctor who treated the victim on the day of the slashing. Despite the scar’s prominent location, neither the photos nor the doctor’s testimony warrant an inference that the scar rendered the victim’s appearance “distressing or objectionable” to a reasonable observer … . The victim did not testify, so the jury had no opportunity to observe the actual scar and evaluate whether it was seriously disfiguring, nor was any other evidence adduced regarding the scar’s effects on the victim’s appearance, health, and life … . People v McBride, 2022 NY Slip Op 07034, First Dept 12-13-22

Practice Point: Here defendant was charged with assault first for causing “serious and protracted disfigurement” to the victim. Although two photos of the scar were introduced in evidence and the treating doctor testified, the victim did not testify. It appears that the jury’s inability to see the victim at the time of trial rendered the proof legally insufficient.

 

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