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DEFENDANT MAY HAVE PLED GUILTY AND ACCEPTED A 16-YEAR SENTENCE IN MONORE COUNTY BECAUSE HE WAS ALREADY SENTENCED TO 14 – 24 YEARS FOR ANOTHER OFFENSE IN ONTARIO COUNTY; ON APPEAL THE ONTARIO COUNTY SENTENCE WAS REDUCED TO FOUR YEARS; MONROE COUNTY GUILTY PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant may have pled guilty and accepted a 16-year sentence in Monroe County because he was already serving a 14-24 year sentence for another offense in Ontario County. Subsequently, on appeal, the Fourth Department reduced the Ontario County sentence to four years:

“The critical question is whether the removal or reduction of the preexisting sentence nullified a benefit that was expressly promised and was a material inducement to the guilty plea” … . Here, when defendant pleaded guilty in Monroe County, the court expressly informed him that the aggregate 16-year term of imprisonment would run concurrently with the aggregate 14-to-24-year term already imposed in Ontario County, and thus the plea would result in no or relatively little additional prison time … . Once the Ontario County sentence was reduced as a result of our determination on the prior appeal to a term of four years, defendant lost the benefit previously conferred by the concurrent nature of the Monroe County plea, and “we cannot say defendant would have accepted the plea bargain . . . had it not been for his [14-to-24]-year sentence in the [Ontario County] case, now reduced to [four years]” … . People v Ringrose, 2022 NY Slip Op 00569, Fourth Dept 1-28-22

 

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PLAINTIFF FELL THROUGH A SKYLIGHT HOLE WHEN ATTEMPTING TO REMOVE PLYWOOD WHICH WAS COVERING THE HOLE; PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly granted. Plaintiff fell through a skylight hole while attempting to remove plywood which was covering the hole:

Plaintiff submitted his own deposition testimony, in which he testified that, at the time of his injury, he was removing the plywood covering of the skylight hole as part of his work of preparing to install the final roofing. Plaintiff further testified that, upon removing the plywood, he fell through the skylight hole, and he was given no safety device to protect him from falling. Even assuming, arguendo, that the plywood cover constituted a safety device … , we note that “the availability of a particular safety device will not shield an owner or general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures” … . While the plywood cover “may have provided proper protection when it was in place over the opening, . . . once it was removed plaintiff was exposed to an elevation-related risk which required additional precautionary measures or devices” … . Tanksley v LCO Bldg. LLC, 2022 NY Slip Op 00567, Fourth Dept 1-28-22

 

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DEFENDANT’S AGREEMENT TO PURCHASE PLAINTIFF’S BUSINESS WAS NOT ENTWINED WITH AN EMPLOYMENT AGREEMENT BETWEEN PLAINTIFF AND DEFENDANT WHICH INCLUDED A COVENANT NOT TO COMPETE; THEREFORE PLAINTIFF’S ALLEGED BREACH OF THE COVENANT NOT TO COMPETE WAS NOT A DEFENSE TO DEFENDANT’S BREACH OF THE PURCHASE AND SALE AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined an employment contract between plaintiff and defendant, which included a covenant not to compete, was not entwined with the separate sales agreement in which defendant promised to pay $200,000 for plaintiff’s business. Therefore plaintiff was entitled to summary judgment on the sales contract because defendant defaulted after making the first payment:

“Generally, breach of a related contract will not in the ordinary course defeat summary judgment on [a promissory] note[]” … . Nonetheless, that “rule does not apply where the contract and instrument are intertwined” and inseparable … . Whether two agreements are inextricably intertwined is a question of law for the court to decide because it involves a matter of contract interpretation … .

Here, the sales contract and employment agreement are not inextricably intertwined such that plaintiff’s purported breach of the noncompetition covenants in the latter constitute a defense to defendant’s default on the promissory note … . Saulsbury v Durfee, 2022 NY Slip Op 00566, Fourth Dept 1-28-22

 

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PLAINTIFF FAILED TO RAISE A QUESTION OF FACT WHETHER AN ALLEGED DEFECT IN THE ROAD WAS CAUSED BY DEFENDANT’S SPECIAL USE OF THE ROAD; TWO DISSENTERS DISAGREED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant demonstrated it did not create a dangerous condition in the street by a special use. Plaintiff alleged defendant created the dangerous condition by storing heavy materials in the street. Plaintiff alleged a steel beam fell on his foot from a forklift when the forklift struck a defect in the road (Simmons Avenue):

“Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk or street is placed on the municipality, and not on the owner or lessee of abutting property, unless the landowner or lessee has either affirmatively created the dangerous condition, voluntarily but negligently made repairs, caused the condition to occur through a special use, or violated a statute or ordinance expressly imposing liability on the landowner or lessee for a failure to maintain the abutting street” … . Defendant met its initial burden on the motion by establishing, as relevant here, that “[it] neither owned nor made special use of [Simmons Avenue], and that [it] had no connection to the condition” that caused the accident … .

From the dissent:

In our view, defendant failed to establish as a matter of law that it did not make special use of Simmons Avenue or affirmatively create the defective condition on Simmons Avenue that allegedly caused plaintiff’s injuries. Beck v City of Niagara Falls, 2022 NY Slip Op 00563, Fourth Dept 1-28-22

 

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“REFUSING A BREATH TEST” IS NOT A COGNIZABLE OFFENSE; A CONVICTION IS THEREFORE A FUNDAMENTAL ERROR WHICH MUST BE CORRECTED ON APPEAL EVEN IF THE ISSUE IS NOT BRIEFED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of “refusing a breath test,” explained that it is not a cognizable offense. The court noted that it was obligated to correct this fundamental error which cannot be waived, even though the issue was not briefed on appeal:

… [T]he purported traffic infraction to which defendant pleaded guilty under count two of the indictment—refusing the breath test mandated by Vehicle and Traffic Law § 1194 (1) (b)—is not a cognizable offense for which a person may be charged or convicted in a criminal court … . People v Adams, 2022 NY Slip Op 00562, Fourth Dept 1-28-22

Same issue in People v Harris, 2022 NY Slip Op 00568, Fourth Dept 1-28-22

 

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IN THIS MODIFICATION OF CUSTODY PROCEEDING, FATHER PRESENTED SUFFICIENT EVIDENCE OF A CHANGE OF CIRCUMSTANCES TO WARRANT A HEARING ON THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined respondent-father had presented sufficient evidence of a change in circumstances to warrant a hearing on the best interests of the child:

Where … ” ‘a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner’s proof, the court must accept as true the petitioner’s proof and afford the petitioner every favorable inference that reasonably could be drawn therefrom’ ” … . Here, the father testified that, at the time the order of custody and visitation was entered into and for a short time thereafter, the mother and the father were communicating effectively and, in addition to scheduled visitation, were able to agree to further overnight and weekend visitation. That arrangement subsequently changed, however, and the father could not get the mother to agree to any visitation time apart from his scheduled day. The father further testified that communication with the mother regarding additional visitation time essentially ended after he moved to a new home 30 miles away. Taking the father’s testimony as true and considering the circumstances of the father’s move and the development of “extreme acrimony between the parties,” we conclude that the father met his burden of showing a change in circumstances warranting an inquiry into the best interests of the child … . Matter of Cooley v Roloson, 2022 NY Slip Op 00534, Fourth Dept 1-28-22

 

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WHEN THE TERMS OF THE PLEA AGREEMENT WERE DISCUSSED BOTH TWO AND THREE-YEAR SENTENCES WERE MENTIONED; DEFENDANT WAS SENTENCED TO THREE YEARS; DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; THE ISSUE WAS NOT PRESERVED BY A MOTION AND WAS CONSIDERED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined defendant was not clearly informed of the sentence, rendering his plea involuntary. Although the issue was not preserved by a motion, the Third Department considered the appeal in the interest of justice:

… [W]hen the terms of the plea agreement were placed on the record, it was stated that the prison term to be imposed would be two years. County Court then, in discussing defendant’s second felony offender status, stated that the prison term was three years but, thereafter, informed defendant that, if he violated any jail rules prior to sentencing, it would not be bound by the promise of a two-year prison term. The record does not reflect that there was any clarification or correction regarding the misstatements as to the agreed-upon sentence either during the plea colloquy or at sentencing before a three-year prison term was imposed. As “[t]he record thus fails to reveal that defendant was accurately advised of the essential terms and conditions of the plea agreement” … , we find that his plea was not knowing, voluntary and intelligent. People v Lumpkin, 2022 NY Slip Op 00477, Third Dept 1-27-22

 

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PETITIONER POLICE OFFICER’S SITTING IN A DESK CHAIR (WHICH WAS SUBSEQUENTLY FOUND TO BE BROKEN), LEANING BACK, FALLING BACKWARD AND INJURING HIS HEAD CONSTITUTED AN “ACCIDENT” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT).

The Third Department, reversing the Comptroller, over a dissent, annulled the determination that petitioner police officer was not injured in an “accident” within the meaning of the Retirement and Social Security Law. Petitioner alleged he sat in a desk chair, leaned back and fell over striking his head. There was evidence the chair was broken:

Petitioner’s burden was to demonstrate that his disability arose out of an accident which, for purposes of the Retirement and Social Security Law, is defined as “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” … . * * *

In our view, the incident as described constitutes an accident. Contrary to the findings of the Hearing Officer, whether the chair was broken prior to or during the fall is of no moment, as either way petitioner was unaware of any defect. In either situation, the collapse of a chair back would be a sudden, unexpected outcome for anyone who simply sits and leans back. Matter of Crone v DiNapoli, 2022 NY Slip Op 00481, Third Dept 1-27-22

 

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THE DOCTRINE OF COLLATERAL ESTOPPEL DID NOT PRECLUDE THIS ACTION TO DETERMINE THE VALIDITY OF THE PURPORTED 2017 ELECTION OF THE BOARD OF DIRECTORS; THE PRIOR ACTION CONCERNED ONLY THE VALIDITY OF THE PURPORTED 2019 ELECTION OF THE BOARD OF DIRECTORS (THIRD DEPT).

The Third Department, reversing Supreme Court, held the doctrine of collateral estoppel did not preclude this Sullivan County action, which sought to determine whether a 2017 election of the board of dIrectors of plaintiff religious corporation was valid. A prior action in Kings County determined a 2019 election of the board of directors of the same corporation was a nullity:

As defendants’ amended petition and the order of Supreme Court … in the Kings County proceeding reflect, the issue to be determined therein was the validity of the 2019 election, not the validity of the 2017 election. Defendants sought in that proceeding to declare the 2019 election a nullity and, as a result, enjoin the individual plaintiffs, purportedly elected in 2019, from acting as the board of directors. Indeed, the court went out of its way during oral argument in that matter to so limit the issue when it stated that it “want[ed] to be very clear that [it was] making no determination in this case as to whether [defendants] have any right to control the corporation by virtue of any acts that predated the [June 2019 election.]” The court further clarified “that [it] take[s] no position on the validity of any actions that [defendants] claim[] to have taken in 2017 and thereafter,” and added that the allegations relating to the 2017 election was part of “[t]he Sullivan County matter” which “is not before [it],” and that the proceeding “has nothing to do with the Sullivan County matter.” More importantly, the order signed by the court was so circumscribed, and granted the amended petition “to the sole extent that it [sought] to invalidate” the 2019 election. Congregation Machne Ger v Berliner, 2022 NY Slip Op 00483, Third Dept 1-27-22

 

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DEFENDANTS ARGUED PLAINTIFF WAS NOT AN EMPLOYEE IN THE WORKERS’ COMPENSATION PROCEEDING; HERE THE DEFENDANTS ARGUED PLAINTIFF WAS AN EMPLOYEE AND HIS REMEDY WAS LIMITED TO WORKERS’ COMPENSATION; THE DOCTRINE OF JUDICIAL ESTOPPEL PRECLUDED THE WORKERS’ COMPENSATION AFFIRMATIVE DEFENSE IN THIS ACTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, over a dissent, determined the judicial estoppel doctrine applied and plaintiff’s motion to dismiss the workers’ compensation affirmative defense in this personal injury action should have been granted. Plaintiff was injured on the job. In the Workers’ Compensation proceeding defendants argued plaintiff was an not an employee. In this action defendants argued he was an employee and his recovery is limited to Workers’ Compensation:

… [T]he record makes clear that defendants, through Old Republic [insurance company], consistently advanced in the Workers’ Compensation Law proceeding the theory that plaintiff was not its employee. Old Republic, as the workers’ compensation carrier for defendants, was subsequently discharged from this proceeding. As such, defendants achieved its desired result after asserting the lack of an employer-employee relationship. Although the record is not explicit as to the basis for the discharge of Old Republic from the Workers’ Compensation Law proceeding, “[t]he policy behind judicial estoppel would not be served by limiting its application to cases where the legal position at issue was ruled upon in the context of a judgment” … .

In this action … defendants have taken a contrary position — i.e., plaintiff was employed by defendants as a special employee and, therefore, his sole remedy for compensation was to pursue workers’ compensation benefits. Allowing defendants to argue in this action that plaintiff was their employee, after they had disavowed an employer-employee relationship in the Workers’ Compensation Law proceeding and received a benefit from this position, would subvert the equitable policy behind the doctrine of judicial estoppel … . Walker v GlaxoSmithKline, LLC, 2022 NY Slip Op 00484, Third Dept 1-27-22

 

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