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THE ACCIDENT WAS NOT THE TYPE OF GRAVITY-RELATED INCIDENT COVERED BY LABOR LAW 240 (1); BUT THERE WAS A QUESTION OF FACT WHETHER THE GENERAL CONTRACTOR WAS LIABLE PURSUANT TO LABOR LAW 200 (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 240(1) cause of action was properly dismissed but the Labor Law 200 cause of action should not have been dismissed. Plaintiff was injured when a pipe rolled over his foot, not the type of gravity-related accident covered by Labor Law 240 (1). But the accident related to the means and methods of the work over which the defendant general contractor (Gilbane) may have exercised supervisory control:

Plaintiff was injured while employed by nonparty Titan Industrial Corporation (TIC) when a pipe rolled onto his foot. On the day of the accident, plaintiff’s foreman instructed plaintiff and his two coworkers to insert some pipes under a concrete planter to relocate it. Plaintiff and his coworkers were pushing and pulling the planter from the sides, while the foreman was pushing it with a bobcat, when one of the pipes rolled over plaintiff’s foot, causing an injury. …

The operation, according to plaintiff’s foreman, was normally performed with two Bobcats, one pushing and one pulling the load; in this case, however, the operation was performed with only one Bobcat because the others were in use elsewhere on the site. Gilbane required that onsite Bobcat operators be licensed and kept track of all such operating engineers; in the event an unlicensed person were found to be operating a Bobcat contrary to instructions, the subcontractor would be notified by Gilbane and instructed to shut down the equipment. It is undisputed that the foreman who was operating the Bobcat involved in plaintiff’s accident lacked the required license and, if [the onsite supervisor’s] testimony is to be credited, should have been prohibited from doing so by Gilbane. Lemache v MIP One Wall St. Acquisition, LLC, 2021 NY Slip Op 00019, First Dept 1-5-21

 

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AN ANSWER TO AN AMBIGUOUS QUESTION ON AN APPLICATION FOR INSURANCE COVERAGE IS NOT A MATERIAL MISREPRESENTATION; THEREFORE THE ANSWER DID NOT VOID THE POLICY WHICH REMAINS IN FULL FORCE AND EFFECT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined a question in the application for insurance coverage was ambiguous. Therefore the answer to the question was not a material misrepresentation and the policy remains in full force and effect:

A misrepresentation in an insurance application is material, voiding the policy ab initio, if, had the true facts been known, either the insurer would not have issued the policy or would have charged a higher premium … . Even an innocent misrepresentation is sufficient to void the policy … . However, “an answer to an ambiguous question on an insurance application cannot be the basis for a claim of misrepresentation” in procuring insurance … .

Here, on defendants-respondents’ insurance application submitted to plaintiff, Question 9, which asked “Any uncorrected code violations?” is ambiguous. While the plain language asks whether there are “any uncorrected fire code violations” and not uncorrected fire code notices of violation, different witnesses provided five different understandings as to what the question was asking. In any event, this Court has used the term “violation” to mean the issuance of a citation … . Indeed, the question is not even posed as a complete sentence but a sentence fragment lacking a verb, which could have clarified the question. Starr Indem. & Liab. Co. v Monte Carlo, LLC, 2021 NY Slip Op 00044, First Dept 1-5-21

 

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QUESTIONS OF FACT WHETHER DEFENDANT HAD CONSTRUCTIVE NOTICE OF THE RAISED SIDEWALK FLAG AND WHETHER THE DEFECT WAS TRIVIAL IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact about whether defendant had constructive notice of a raised sidewalk flag and whether the defect was trivial in this slip and fall case:

Although the property manager states that the premises were regularly inspected, and any condition observed would have been reported to him, reference to a generalized inspection practice “is insufficient to satisfy defendant[‘s] burden of establishing that [he] lacked notice of the alleged condition of the sidewalk prior to the accident” … .

As a general rule, whether a defect is trivial depends on “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . The relevant inquiry is whether the defect was “difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances” … . Although defendant relies on photographs to prove his defense that the defect is trivial, summary judgment should not be granted where, as here, “the dimensions of the alleged defect are unknown and the photographs and descriptions inconclusive” … . Trinidad v Catsimatidis, 2021 NY Slip Op 00047, First Dept 1-5-21

 

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THE WRONGFUL DEATH COMPLAINT ALLEGED PORT AUTHORITY WAS NEGLIGENT IN FAILING TO INSTALL SUICIDE-PREVENTION BARRIERS ON THE GEORGE WASHINGTON BRIDGE; THE COMPLAINT STATED A CAUSE OF ACTION AND SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined the complaint alleging the Port Authority was negligent for failure to install suicide-prevention barriers on the George Washington Bridge should not have been dismissed. Plaintiff’s decedent had jumped off the bridge. Supreme Court held the maintenance of the bridge was a governmental function and there was no special relationship between Port Authority and plaintiff’s decedent. The Second Department held the complaint alleged Port Authority was acting in a proprietary capacity and therefore was subject to ordinary principles of negligence:

… [T]he complaint did not need to allege that the Port Authority owed a special duty to the decedent, as opposed to the public generally, as the Port Authority did not establish that it was acting in a governmental capacity in maintaining the bridge … . Since the complaint has alleged facts that support a determination that the Port Authority was acting in a proprietary capacity, the Port Authority would be subject to the same principles of tort law as a private landowner, and as such, the complaint states a cause of action … . Here, accepting all facts alleged in the complaint as true for the purposes of this motion, the Port Authority’s remaining contentions likewise do not establish that the complaint fails to state a cause of action. Perlov v Port Auth. of N.Y. & N.J., 2020 NY Slip Op 08092, Second Dept 12-30-20

 

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THE POLICE WITNESSES AT THE SUPPRESSION HEARING WERE NOT CREDIBLE; THEREFORE DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED AND THE INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Miller, determined defendant’s motion to suppress should have been granted because the People’s witnesses at the suppression hearing were not credible. Therefore the People did not meet their burden to show the legality of the police conduct. The indictment was dismissed. The police witnesses offered conflicting versions of the stop of the car in which defendant was a passenger and the ability to determine, from outside the car, that a credit card on the console was forged:

“Given the severely undermined credibility of the arresting officer[s], it is unclear exactly what happened during the encounter between the officer[s] and the defendant, and the hearing court was confronted with choices of possible scenarios” … . Under similar circumstances, this Court has stated that, “where credibility is in issue, multiple choice questions are neither desirable nor acceptable,” and the fact-finder should refuse to “select a credible version based upon guesswork”… . …

… [W]e decline to credit any of the testimony of the People’s witnesses … . Accordingly, “[u]pon scrutiny of the People’s evidence at the suppression hearing, we can only conclude that they failed to carry their burden of going forward and demonstrating the legality of the police conduct in the first instance[,]” including the legality of the stop … . In view of this failure, “all further actions by the police as a direct result of the stop were illegal . . . [and] the evidence recovered as a result of the unlawful stop must be suppressed” … . Accordingly, “exercising our independent power of factual review, we conclude that the defendant’s motion to suppress . . . should have been granted”… . Without the suppressed evidence, there would not be legally sufficient evidence to prove the defendant’s guilt. Accordingly, the indictment must be dismissed … . People v Harris, 2020 NY Slip Op 08079, Second Dept 12-30-20

 

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A GENERAL BUSINESS LAW 349 DECEPTIVE BUSINESS PRACTICE ACTION AGAINST THE CITY SOUNDS IN TORT TRIGGERING THE NOTICE OF CLAIM REQUIREMENT (SECOND DEPT).

The Second Department noted that a deceptive business practice cause of action pursuant to General Business Law 349 sounds in tort. The GBL 349 cause of action against the city did not state a cause of action because no notice of claim was filed:

Administrative Code of the City of New York § 7-201 and General Municipal Law § 50-e together require a plaintiff, in order to bring an action sounding in tort against the City of New York, to serve a notice of claim within ninety days after the date the claim arises … . Failure to comply with a statutory notice of claim requirement is a ground for dismissal pursuant to CPLR 3211(a)(7) for failure to state a cause of action … .

General Business Law § 349(a) prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” … . We agree with the Supreme Court’s determination that the plaintiffs’ first cause of action, which sought to recover damages for violations of General Business Law § 349, was a claim sounding in tort, and therefore was subject to the requirements of General Municipal Law § 50-e, as a cause of action sounding in fraud … . Accordingly, we agree with the court’s determination granting that branch of the defendants’ motion which was to dismiss the first cause of action due to the plaintiffs’ failure to serve a notice of claim within 90 days after the claim arose … . Singh v City of New York, 2020 NY Slip Op 08123, Second Dept 12-30-20

 

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DEFENDANT WAS ENTITLED TO NOTICE THE PEOPLE WERE GOING TO PRESENT EVIDENCE SHE TYPED IN THE COMBINATION TO A SAFE IN RESPONSE TO A REQUEST FROM A DETECTIVE, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, in a full-fledged opinion by Justice Chambers, determined defendant was entitled to notice that the People were going to introduce evidence that she typed in the combination of a safe in response to a request from a detective:

Here, the Supreme Court erred in determining that the defendant’s act of typing in the combination to the safe, which was made in direct response to Detective Theodore’s request that the safe “needed to be opened,” did not amount to a statement made to a law enforcement officer which, “if involuntarily made would render the evidence thereof suppressible upon motion pursuant to [CPL 710.20(3)]” … .

It is well settled that “any pertinent communication, whether made by statement or conduct,” may be suppressed if made in violation of the defendant’s right against self-incrimination … . Our view is that the defendant physically entering the combination to open the safe, rather than verbally communicating that combination to the police … , does not make her response any less communicative or testimonial in nature, since the act unquestionably expressed the contents of the defendant’s mind … . To the extent our decision in People v Morales (248 AD2d 731) suggests a different conclusion, it should no longer be followed.

Moreover, since the defendant’s knowledge of the safe’s combination was the only evidence establishing her dominion and control over its contents, the act of unlocking the safe was undoubtedly incriminating … . In addition, the fact that the defendant was still in handcuffs and had not yet been advised of her Miranda rights when Detective Theodore made his request raises questions as to whether her act of unlocking the safe was voluntary … . Thus, this is not a situation where the requirement of a CPL 710.30 notice was obviated because there was no question of the voluntariness of the challenged statement. People v Porter, 2020 NY Slip Op 08122, Second Dept 12-30-20

 

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ALTHOUGH IT APPEARS THE POLICE HAD PROBABLE CAUSE TO ARREST THE DEFENDANT BEFORE THEY ENTERED THE HOME AND THEREFORE COULD HAVE GOTTEN AN ARREST WARRANT, THERE WAS NO CONSTITUTIONAL VIOLATION BECAUSE THE POLICE ENTERED THE HOME WITH CONSENT; DEFENSE COUNSEL ARGUED THE POLICE DID NOT GET A WARRANT TO DELAY THE ATTACHMENT OF THE RIGHT TO COUNSEL AND PROCURE STATEMENTS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers raising a question of first impression, determined the police did not violate the New York Constitution when they entered the home looking for defendant and made a warrantless arrest. The police had probable cause when they went to the home and defense counsel argued they did not get a warrant in order to delay the attachment of the right to counsel and obtain statements. The Second Department determined there was no Payton violation because the motion court credited the police testimony claiming they entered the home with the consent of the person who answered the door:

… [T]he defendant’s appellate counsel specifically contends that where the police, armed with probable cause and ample time to obtain an arrest warrant, nevertheless choose to make a warrantless arrest in the absence of exigent circumstances, their conduct must be deemed to violate the defendant’s indelible right to counsel under the New York State Constitution (see People v Harris, 77 NY2d at 440).

While this issue presents what appears to be an important constitutional question of first impression, we see no viable path to resolving this question in the defendant’s favor within the current framework of New York law. Although the hearing evidence fully supports the defendant’s view that the police went to the subject residence with the intent of making a warrantless arrest—indeed, the People did not present any evidence to suggest any alternative motive for the early morning visit—New York law does not presently recognize a “new category of Payton violations based on subjective police intent” (… People v Harris, 77 NY2d 434). Therefore, we decline to find that the police conduct in this case amounted to a violation of the defendant’s constitutional rights under Payton and/or Harris.

Moreover, since the hearing court’s supportable finding of voluntary consent negates the defendant’s Payton claim, we need not consider the defendant’s further contention regarding the causal link between the warrantless arrest and his subsequent statements to the police. People v Cuencas, 2020 NY Slip Op 08118, Second Dept 12-30-20

 

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DEFENDANT, AT THE PLEA PROCEEDINGS, WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION TO BE IMPOSED OR THE MAXIMUM WHICH COULD BE IMPOSED; GUILTY PLEA VACATED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, noted County Court did not specify the period of postrelease supervision which would be imposed, or the maximum which could be imposed at the plea proceedings:

“‘[A] trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences'” … . “To meet due process requirements, a defendant ‘must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action'” … , and “[w]ithout such procedures, vacatur of the plea is required” … . It is not enough for a court to generally inform a defendant that a term of postrelease supervision will be imposed as a part of the sentence … . Rather, for a plea of guilty to be knowing, intelligent, and voluntary, the court must inform the defendant of either the specific period of postrelease supervision that will be imposed or, at the least, the maximum potential duration of postrelease supervision that may be imposed … .

Here, at the plea proceeding, the County Court did not specify the period of postrelease supervision to be imposed or, alternatively, the maximum potential duration of postrelease supervision that could be imposed. The court’s failure to so advise the defendant prevented his plea from being knowing, voluntary, and intelligent. People v Cabrera, 2020 NY Slip Op 08074, Second Dept 12-30-20

 

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