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THE TOWN CONTRACTED FOR THE CONSTRUCTION PROJECT ON WHICH PLAINTIFF WAS INJURED; DEFENDANT CONTRACTED WITH THE TOWN TO HANDLE BIDS FOR THE PROJECT; DEFENDANT WAS NOT AN AGENT FOR THE TOWN AND THE LABOR LAW 240(1), 241(6), 200 AND NEGLIGENCE ACTIONS AGAINST DEFENDANT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court in this Labor Law 240(1), 241(6), 200 and negligence action, determined the defendant was not an agent for the town which had contracted for the work plaintiff was doing when injured. Defendant had contracted with the town to prepare a bid package, solicit bids, obtain grant money and review bids for the construction project:

“An agency relationship for the purposes of section 240 (1) arises only when work is delegated to a third party who obtains the authority to supervise and control the job” … . “Thus, unless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law” … . Pursuant to the express terms of the contract between the Town and the nonparty contractor—i.e., plaintiff’s employer—as well as the terms of the contract between the Town and defendant, defendant had no control over the means or methods of the performance of the work by the contractor, and it also had no control over safety precautions for the workers at the construction site … .

For those same reasons, it was error to deny defendant’s motion with respect to the Labor Law § 241 (6) cause of action … . Defendant also established that it did not actually direct or control the work that brought about plaintiff’s injuries, and plaintiff raised no issue of fact with respect thereto. Therefore, it was error to deny defendant’s motion with respect to the Labor Law § 200 and common-law negligence causes of action … . Smith v MDA Consulting Engrs., PLLC, 2022 NY Slip Op 06389, Fourth Dept 11-10-22

Practice Point: In order for a party to be liable as an agent for the owner in a Labor Law action, the party must have some control over the work the injured plaintiff was engaged in. Here the defendant was in charge of bids for the town’s construction project and exercised no control over the work. The Labor Law causes of action against defendant should have been dismissed.

 

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THE DEFENDANT CONSTRUCTION COMPANY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF THE SIGN ON THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL AND DID NOT DEMONSTRATE IT WAS NOT RESPONSIBLE FOR THE PRESENCE OF THE SIGN ON THE SIDEWALK (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant construction company (Pinto) did not demonstrate that it did not have constructive notice of the condition alleged to have caused plaintiff’s slip and fall (a construction sign on the sidewalk) and that it did not create the condition:

Pinto failed to meet its initial burden on its cross motion with respect to constructive notice because its submissions “failed to establish as a matter of law that the [dangerous] condition [was] not visible and apparent or that [it] had not existed for a sufficient length of time before the accident to permit [Pinto] or [its] employees to discover and remedy [it]” … . Testimony from Pinto’s superintendent that Pinto had a general policy of taking down and storing its construction signs at the end of each workday was insufficient to establish that Pinto lacked constructive notice of the dangerous condition because Pinto failed to establish that it had complied with that general policy prior to the occurrence of the incident in question … .

Pinto also failed to establish as a matter of law that it did not create the allegedly dangerous condition because its own submissions raise triable issues of fact with respect to that issue … . There is no dispute that Pinto’s submissions established that the sign plaintiff tripped over belonged to Pinto. Although the deposition testimony from Pinto’s superintendent established that, at the time of the accident, Pinto had not been present at the work site for about a week, he did not know how the sign ended up on the ground or how long it had been there, and he only speculated that the sign may have been used by another contractor who failed to properly put it away.  Brioso v City of Buffalo, 2022 NY Slip Op 06380, Fourth Dept 11-10-22

Practice Point: Defendant construction company did not demonstrate it did not have constructive knowledge of and was not responsible for the presence of the construction sign on the sidewalk over which plaintiff allegedly tripped and fell.

 

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DIRECT APPEAL, AS OPPOSED TO AN ARTICLE 78, WAS APPROPRIATE IN THIS CONTEMPT PROCEEDING; MOTHER SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO ARGUE AGAINST THE CONTEMPT ADJUDICATIONS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined direct appeal of the contempt adjudications in this custody matter, as opposed to an Article 78 action, was appropriate under the circumstances. The contempt adjudications were vacated because mother was not given the opportunity to argue she should not be held in contempt:

… [T]he mother’s challenge to the summary contempt adjudications is properly raised via direct appeal from the order under the circumstances of this case. Although a direct appeal from an order punishing a person summarily for contempt committed in the immediate view and presence of the court ordinarily does not lie and a challenge must generally be brought pursuant to CPLR article 78 to allow for development of the record (see Judiciary Law §§ 752, 755 …), an appeal from such an order is appropriately entertained where, as here, there exists an adequate record for appellate review … .

With respect to the merits, “[b]ecause contempt is a drastic remedy, . . . strict adherence to procedural requirements is mandated” … . Here, we conclude that the court committed reversible error by failing to afford the mother the requisite “opportunity, after being ‘advised that [she] was in peril of being adjudged in contempt, to offer any reason in law or fact why that judgment should not be pronounced’ ” … . S.P. v M.P., 2022 NY Slip Op 06377, Fourth Dept 11-10-22

Practice Point: A contempt adjudication based upon actions in the court’s presence are usually properly contested in an Article 78 proceeding. Under the circumstances here, direct appeal was appropriate. The contempt adjudications were vacated because mother (in this custody proceeding) was not given the opportunity to contest them.

 

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THE INFORMATION SOUGHT BY DEFENDANT IN THIS SUIT BY THE INSURER TO DISCLAIM COVERAGE WAS PROTECTED BY ATTORNEY-CLIENT PRIVILEGE AS MATERIAL PREPARED IN ANTICIPATION OF LITIGATION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the information sought by defendant (Charleus) in this insurance coverage dispute was privileged as material prepared in anticipation of litigation. Plaintiff insurance company brought this suit against the defendant, who was injured in a car accident involving its insured, to disclaim coverage because of the insured’s lack of cooperation:

“[A]n insurance company’s claim file is conditionally exempt from disclosure as material prepared in anticipation of litigation” ( … see CPLR 3101 [d] [2]). Nevertheless, material prepared in anticipation of litigation may be subject to disclosure upon “a party’s showing that he or she is in substantial need of the material and is unable to obtain the substantial equivalent of the material by other means without undue hardship” … . Here, we conclude that the materials sought by Charleus and ordered by the court to be disclosed following its in camera review constitute material prepared in anticipation of litigation … and were prepared at a time after plaintiff had already determined to reject and defend against the claim made by Charleus … .

Because the materials sought by Charleus and ordered to be disclosed by the court’s order were prepared in anticipation of litigation and because Charleus has not made a showing justifying disclosure … , we modify the order by denying the motion in its entirety and granting the cross motion. Merchants Preferred Ins. Co. v Campbell, 2022 NY Slip Op 06370, Fourth Dept 11-10-22

Practice Point: In this suit by an insurer to disclaim coverage of defendant’s injuries stemming from an accident with the insured, the information sought by defendant was prepared in anticipation of litigation and was therefore protected by attorney-client privilege.

 

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A WITNESS WHO WOULD HAVE TESTIFIED THE COMPLAINANT IN THIS SEXUAL ABUSE PROSECUTION HAD OFFERED TO GIVE FALSE TESTIMONY ABOUT THE WITNESS’S BOYFRIEND SHOULD HAVE BEEN ALLOWED TO TESTIFY (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction in this sexual abuse prosecution, determined a witness who would have testified about the complainant’s offer to give false testimony about the witness’s boyfriend should have been allowed to testify:

County Court erred in precluding him from calling a witness who would testify that the complainant offered to make a false allegation of abuse against the witness’s boyfriend. “Questioning concerning prior false allegations of rape or sexual abuse is not always precluded . . . , and the determination whether to allow such questioning rests within the discretion of the trial court” … . Evidence of a complainant’s prior false allegations of rape or sexual abuse is admissible to impeach the complainant’s credibility where a “defendant establishe[s] that the [prior] allegation may have been false[, and] . . . that the particulars of the complaints, the circumstances or manner of the alleged assaults, or the currency of the complaints were such as to suggest a pattern casting substantial doubt on the validity of the charges made by the complainant” … . Here, based on the proffer made at trial, defendant’s proposed witness would have testified that the complainant offered to knowingly make a false allegation against the witness’s boyfriend and that this conduct took place around the same time as the first incident alleged against defendant and just months before the second such incident. Further, per defense counsel’s proffer, the nature and circumstances of the allegations against defendant and the offered allegation against the witness’s boyfriend were sufficiently similar to “suggest a pattern casting substantial doubt on the validity of the charges” … . People v Andrews, 2022 NY Slip Op 06366, Fourth Dept 11-10-22

Practice Point: A witness who would have testified the complainant in this sexual abuse prosecution offered to give false testimony against her boyfriend should have been allowed to testify. Evidence of a complainant’s prior false allegations of sexual abuse can be admissible to impeach the complainant under certain circumstances (present here).

 

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UNAUTHORIZED USE OF A VEHICLE THIRD DEGRESS IS A LESSER INCLUSORY COUNT OF GRAND LARCENY FOURTH DEGREE (FOURTH DEPT).

The Fourth Department determined the unauthorized use of a vehicle third degree count should nave been dismissed as a lesser inclusory count of grand larceny fourth degree:

… [T]he part of the judgment convicting defendant of unauthorized use of a vehicle in the third degree must be reversed and count two of the indictment dismissed because that offense is a lesser inclusory concurrent count of count one, grand larceny in the fourth degree … . People v Mitchell, 2022 NY Slip Op 06359, Fourth Dept 11-10-22

Practice Point: Unauthorized use of a vehicle third degree is a lesser inclusory count of grand larceny fourth degree.

 

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DEFENSE COUNSEL STATED DEFENDANT’S PRO SE MOTION TO WITHDRAW THE PLEA WAS WITHOUT MERIT; DEFENSE COUNSEL AND THE COURT INCORRECTLY TOLD THE DEFENDANT THE ISSUES RAISED IN THE MOTION TO WITHDRAW HAD BEEN DECIDED IN A PRIOR APPEAL: DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE (FOURTH DEPT).

The Fourth Department, remitting the matter to determined defendant’s pro se motion to withdraw his plea, determined defendant did not receive effective assistance of counsel. Counsel stated the pro se motion did not have merit, taking a position adverse to the client’s position. In addition, defense counsel and the court incorrectly told defendant that the issues raised in defendant’s motion to withdraw the plea had been determined in a prior appeal:

When defense counsel takes a position adverse to his or her client, “a conflict of interest arises, and the court must assign a new attorney to represent the defendant on the motion” … .

Here, by stating that there were no grounds for defendant’s pro se motion, defense counsel essentially said that it lacked merit, which constitutes taking a position adverse to defendant … .

It appears from the record that defense counsel advised defendant that the issues raised by defendant in his pro se motion to withdraw his plea had already been decided against him in the prior appeal. The court agreed with defense counsel’s interpretation of our ruling. Both defense counsel and the court were incorrect. People v Hemingway, 2022 NY Slip Op 06356, Fourth Dept 11-10-22

Practice Point: If defense counsel takes a position adverse to defendant’s position, the defendant has not received effective assistance and is entitled to new counsel. Here defense counsel stated defendant’s pro se motion to withdraw the plea was without merit. The matter was remitted for assignment of new counsel and consideration of defendant’s motion.

 

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DEFENDANT PLED GUILTY TO DWI AND THE JUDGE REVOKED HIS DRIVERS LICENSE FOR ONE YEAR; THE DMV SUBSEQUENTLY DENIED DEFENDANT’S APPLICATION TO REINSTATE HIS LICENSE; DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON THE GROUND HE WAS NOT AWARE HE COULD PERMANENTLY LOSE HIS LICENSE SHOULD HAVE BEEN DENIED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a comprehensive decision worth consulting, determined defendant’s motion to vacate his DWI conviction should not have been granted: Defendant pled guilty and Supreme Court revoked his driving license for one year. When defendant applied to reinstate his drivers license he was notified by the Department of Motor Vehicles (DMV) that, based on his prior DWI-related convictions or incidents, his application had been denied. Defendant brought a  motion to vacate his conviction, arguing that his guilty plea was not knowing and voluntary because the plea was based on his understanding he would lose his license for one year. Supreme Court granted the motion and the People appealed:

The Supreme Court erred in granting the defendant’s motion to vacate the judgment of conviction on the ground that his plea of guilty was not entered knowingly, voluntarily, and intelligently. The subject regulation that led to the denial of the defendant’s application for relicensing did not exist at the time he entered his plea of guilty, and it would have been impossible for the court to inform the defendant of consequences flowing therefrom … . “‘The defendant’s grievance lies with the enactment and enforcement of the new regulation, not the manner of his conviction'” … .

To the extent that the potentially permanent license revocation authorized under the subject regulation is a consequence of the defendant’s instant plea of guilty at all (see People v Avital, 64 Misc 3d 483, 485 [Town of East Fishkill Just Ct, Dutchess County] [denial of relicensing under 15 NYCRR 136.5 results not from any particular conviction, but from the applicant’s “complete driving history”]), it is, as the defendant acknowledges, a collateral consequence of his plea … . * * *

… [A] consequence of a conviction must represent an exceptionally severe liberty deprivation [i.e., deportation] in order to fall within the narrow category of collateral consequences of which a defendant must be advised at the time of entering the plea. … [W]e cannot conclude that the permanent loss of a driver license fits into that category. People v Maggio, 2022 NY Slip Op 06262, Second Dept 11-9-22

Practice Point: Defendant pled guilty to DWI knowing his license would be revoked by the court for one year. His application to reinstate his license was subsequently denied by the DMV. The fact that defendant’s license could be revoked permanently by the DMV was a collateral consequence of the plea which did not affect the voluntariness of the plea. A defendant need not be aware of a collateral consequence to render a plea voluntary. The rare exception is a collateral consequence which affects a liberty interest, deportation for example.

 

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IN THIS SIDEWALK SLIP AND FALL CASE, THE TOWN DID NOT HAVE WRITTEN NOTICE OF THE DEFECT AND THE TOWN DEMONSTRATED THE “CREATION OF THE DEFECT” EXCEPTION TO THE WRITTEN-NOTICE REQUIREMENT DID NOT APPLY; THE DEFECT WAS THE RESULT OF DETERIORATION OF THE REPAIRED AREA OVER A 10-YEAR PERIOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town demonstrated it did not create the sidewalk condition which allegedly caused plaintiff’s slip and fall. Rather the sidewalk repair was done by the town 10 years ago and the current deteriorated condition had developed over time:

The Court of Appeals “has recognized only two exceptions to the statutory rule requiring prior written notice, namely, where the locality created the defect or hazard through an affirmative act of negligence and where a ‘special use’ confers a special benefit upon the locality” Only the affirmative negligence exception is implicated in this case, and it “‘is limited to work [done] by [a municipality] that immediately results in the existence of a dangerous condition'” … . The defendant was not required to eliminate all triable issues of fact with respect to the affirmative negligence exception to the prior written notice rule in order to satisfy its prima facie burden … . Nevertheless, the defendant did eliminate all triable issues of fact with respect to that exception. In particular, the defendant submitted an affidavit of its employee, John Carroll, who averred that the asphalt patch would have been “rolled smooth and level to remove any existing tripping hazard between the two existing concrete slabs,” but now, “the tar was eroded from the patch” and “[p]ortions of the asphalt patch . . . appear to be missing.” Based on Carroll’s “observation of the asphalt repair as it exist[ed] in 2019,” he believed that the repair was “[more than] 10 years old” and that its separation from the concrete slabs “would be caused by natural erosion, wear and tear over time, and/or in this case tree roots causing the concrete slabs to uplift, not by the method of its installation.” Parthesius v Town of Huntington, 2022 NY Slip Op 06254, Second Dept 11-9-22

Practice Point: A municipality will be responsible for a sidewalk slip and fall only when the town was notified of the defect in writing. There are two exceptions. Plaintiff argued the negligent-repair exception applied here. But that exception only applies to defects immediately resulting from a repair. Here the town demonstrated the repair was not properly 10 years ago and the defect developed over time.

 

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THE JUDGE SHOULD NOT HAVE PRECLUDED MOTHER FROM BRINGING FURTHER PETITIONS WITHOUT COURT APPROVAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the judge should not have precluded mother from filing petitions for custody of a family offense without the court’s permission:

… [T]he provisions of the order … directing the mother to seek permission from the court before filing any additional petitions, whether for custody or alleging a family offense, constituted an improvident exercise of discretion. Here, the mother filed one family offense petition, ultimately determined to be unfounded, and filed one related petition to modify the parties’ custody arrangement. On this record, it cannot be said that the mother engaged in vexatious litigation or that her petitions were filed in bad faith … . Matter of McDowell v Marshall, 2022 NY Slip Op 06248, Second Dept 11-9-22

Practice Point: Mother should not have been precluded from bringing further custody of family offense petitions without court permission. She had not filed petitions in bad faith.

 

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