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THREE OF THE FOUR VEHICULAR HOMICIDE COUNTS WERE MULTIPLICITOUS EVEN THOUGH THEY INVOLVED DIFFERENT SUBDIVISIONS OF VEHICLE AND TRAFFIC LAW 1192; THE DWI AND DWAI COUNTS WERE INCLUSORY CONCURRENT COUNTS OF VEHICULAR HOMICIDE SECOND DEGREE (SECOND DEPT).

The Second Department determined three counts of vehicular homicide were multiplicitous and the DWI and DWAI counts were inclusory concurrent counts of vehicular homicide second degree:

While the People contend that each count of vehicular manslaughter required them to prove additional facts that the others did not, in fact, the People were only required to prove that the defendant violated one subdivision of Vehicle and Traffic Law § 1192 in order to prove his guilt under Penal Law § 125.12(1). The People’s election to proceed on a theory that the defendant had violated more than one such subdivision by presenting evidence of his multiple, distinct manners of intoxication was not necessary to establish his guilt … . Thus, a conviction on one count of vehicular manslaughter in the second degree would have been inconsistent with an acquittal on any other count charging the same offense predicated upon a different manner of intoxication … . Accordingly, we agree with the defendant that counts 5, 6, and 7 of the indictment were multiplicitous of count 4 … . Although the dismissal of the multiplicitous counts will not affect the duration of the defendant’s sentence of imprisonment, it is nevertheless appropriate to dismiss these counts in consideration of the stigma attached to the redundant convictions  … .

As the People concede, the defendant’s convictions of driving while intoxicated in violation of subdivisions (2) and (3) of Vehicle and Traffic Law § 1192 and driving while ability impaired under subdivisions (4) and (4-a) of Vehicle and Traffic Law § 1192 are inclusory concurrent counts of vehicular manslaughter in the second degree … . Accordingly, those convictions must also be reversed … . People v O’Brien 2020 NY Slip Op 04971, Second Dept 9-16-20

 

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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IN THIS FALLING OBJECT CASE; DEFENDANTS DID NOT DEMONSTRATE THE JOB WAS NOT A HARD HAT JOB PRECLUDING DISMISSAL OF PLAINTIFF’S LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).

The Second Department, modifying Supreme Court, determined: (1) plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action stemming from his being struck by an unsecured heating duct during demolition; and (2) defendants (appellants) were not entitled to summary judgment dismissing the Labor Law 241 (6) cause of action premised on plaintiff’s failure to wear a hard hat:

With respect to falling objects, liability is not limited to cases in which the falling object is in the process of being hoisted or secured … . Rather, “a plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … . “To succeed on a cause of action under Labor Law § 240(1), a plaintiff must establish that the defendant violated its duty and that the violation proximately caused the plaintiff’s injuries” … . The burden then shifts to the defendant to raise a triable issue of fact … . A worker’s comparative negligence is not a defense to a cause of action under Labor Law § 240(1) … . Rather, only where the worker’s own conduct is the sole proximate cause of the accident is recovery under Labor Law § 240(1) unavailable … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on his Labor Law § 240(1) cause of action insofar as asserted against the owner and the general contractor by submitting evidence that while he was engaged in demolition work, he was injured when an unsecured HVAC duct fell and hit him, causing him to fall to the ground … . …

“In order to prevail on a Labor Law § 241(6) cause of action premised upon a violation of 12 NYCRR 23-1.8(c)(1), the plaintiff must establish that the job was a hard hat job, and that the plaintiff’s failure to wear a hard hat was a proximate cause of his injury” … . Here, the appellants failed to establish, prima facie, that this was not a hard hat job, and that the plaintiff’s lack of head protection did not play a role in the injuries he sustained when he was struck by the falling object. Aguilar v Graham Terrace, LLC, 2020 NY Slip Op 04906, Second Dept 9-16-20

 

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ISSUE WAS NEVER JOINED, THEREFORE THE ACTION COULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action should not have been dismissed pursuant to CPLR 3216 for failure to prosecute because issue was never joined:

CPLR 3216(b)(1) states that no dismissal should be made under this statute unless issue has been joined. ” A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met'” … . Here, none of the defendants submitted an answer to the complaint and, thus, issue was never joined (see CPLR 3216[b][1] …). Since at least one precondition set forth in CPLR 3216 was not met, the Supreme Court was without power to issue an order conditionally dismissing the action pursuant to that statute … . OneWest Bank, FSB v Singh, 2020 NY Slip Op 04957, Second Dept 9-16-20

 

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DEFENDANT PRESENTED SUFFICIENT PROOF SHE DID NOT LIVE AT THE ADDRESS WHERE THE FORECLOSURE COMPLAINT WAS SERVED TO WARRANT A HEARING; THERE WAS NO SHOWING THAT HER FAILURE TO UPDATE HER ADDRESS WITH THE DEPARTMENT OF MOTOR VEHICLES WAS TO PREVENT SERVICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to enter a default judgment in this foreclosure action should not have been granted without first holding a hearing on defendant’s claim she was never served with the complaint. The defendant presented proof, including a lease, demonstrating she did not live at the address where service was made. The fact that defendant had not updated her address with the Department of Motor Vehicles did preclude defendant from demonstrating she lived at a different address because there was no evidence of a deliberate misrepresentation to prevent service:

… [T]he defendant successfully rebutted the process servers’ affidavits through her specific averments that, at the time of each purported service, neither the New York Avenue address, nor the subject premises, was her residence, actual dwelling place, or usual place of abode … . Rather, the defendant averred that at the time of each purported service, she resided at an address on Albany Avenue in Brooklyn. The defendant annexed to her affidavit her lease for the Albany Avenue premises covering the period from January 25, 2014, through January 31, 2015, money orders made payable to the Albany Avenue landlord within the lease period, the defendant’s 2015 W-2 bearing the Albany Avenue address, utility bills during the lease period bearing the Albany Avenue address, and bank statements during the lease period bearing the Albany Avenue address. These records, in conjunction with the defendant’s sworn statements, are evidence that the defendant did not reside at the locations where process was served, and were sufficient to warrant a hearing … . Nationstar Mtge., LLC v Esdelle, 2020 NY Slip Op 04956, Second Dept 9-16-20

 

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SUBSTANTIAL EVIDENCE SUPPORTED THE MISBEHAVIOR REPORT ALLEGING THE INMATE WAS ISSUED A RAZOR FOR SHAVING BUT THE ROUTINE “RAZOR CHECK” INDICATED THE RAZOR WAS MISSING; THE INMATE CLAIMED HE WAS NEVER ISSUED A REPLACEMENT AND UNSUCCESSFULLY SOUGHT TO PRESENT WITNESSES TO DEMONSTRATE THE RAZOR CHECK SYSTEM IS NOT RELIABLE; THERE WAS AN EXTENSIVE DISSENT (CT APP).

The Court of Appeals, over an extensive dissent, determined the hearing officer’s finding the inmate was guilty of the infraction charged in the misbehavior report was supported by substantial evidence. The dissent fleshes out the facts. The misbehavior report alleged the inmate had been issued a razor (for shaving) but no razor was found in a routine “razor check”–raising the possibility that the missing razor could be used to make a weapon. The inmate claimed he had not been issued a replacement razor and sought to present  witnesses to demonstrate the razor security system was unreliable (the witness-request was denied):

Substantial evidence supported the administrative determination because there was “a rational basis for the conclusion adopted by the agency” … . The record proof, including the inmate misbehavior report, “razor check records,”… and contraband receipt, was adequate to permit a reasonable person to conclude that petitioner was guilty of the charged infraction. In reaching the opposite conclusion, the dissent exceeds the judicial function by impermissibly crediting testimony rejected by the agency and re-weighing the record evidence in petitioner’s favor.

The hearing officer did not violate petitioner’s constitutional right to call witnesses, as “implemented by the prison regulations in this State” … . The hearing officer explained that the requested witnesses’ testimony was not material and, in the circumstances presented, that conclusion was justified. Petitioner’s other arguments are unpersuasive … . Matter of Zielinski v Venettozzi, 2020 NY Slip Op 04905, CtApp 9-15-20

 

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PRISON INMATE’S COMPLAINT ALLEGING DENIAL OF ACCESS TO THE COURTS IN VIOLATION OF 42 USC 1983 DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION; PLAINTIFF ALLEGED THE FAILURE TO PRESERVE CERTAIN VIDEO RECORDINGS BUT DID NOT ALLEGE HOW SAID FAILURE HINDERED HIS ACCESS TO THE COURTS (THIRD DEPT).

The Third Department determined plaintiff, a prison inmate, did not state a cause of action under 42 USC 1983 alleging denial of his right to access to the courts. Defendant had requested video recordings concerning the law library and the delivery of legal mail:

“In order to establish a violation of a right of access to courts, a plaintiff must demonstrate that a defendant caused ‘actual injury,’ . . . i.e., took or was responsible for actions that ‘hindered [a plaintiff’s] efforts to pursue a legal claim'” … . In his complaint, plaintiff merely alleges that defendant refused to preserve video recordings of the facility law library on May 2, 2015 and of the mail delivery on May 18, 2015. Plaintiff does not describe what the recordings would show, what legal mail was involved or how defendant’s alleged actions in preventing the preservation of the videos from those two days hindered his opportunity to pursue a legal claim. In light of defendant’s vague and conclusory allegations regarding any actual injury, he has failed to state a cause of action for being denied access to the courts and dismissal of his claim on this ground is proper … . Johnson v Bernier, 2020 NY Slip Op 04894, Third Dept 9-3-20

 

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THE APPLICATION FOR REVIEW OF THE WORKERS’ COMPENSATION LAW JUDGE’S DECISION WAS PROPERLY DENIED BECAUSE THE APPLICATION DID NOT SPECIFY WHEN THE OBJECTIONS TO THE DECISION WERE MADE (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly refused review of the award of benefits sought by the carrier. The application form (requesting Board review) did not specify when the objections to the contested decision by the Workers’ Compensation Law Judge (WCLJ) were made:

… [B]oth the application (form RB-89) and the instructions in effect at the time that it was filed required the carrier to “specify the objection or exception that was interposed to the ruling, and when the objection or exception was interposed” … . This information was to be supplied by the carrier in question number 15 of the application. In response to this question, the carrier stated, “Objections were noted during the course of the hearing and at the conclusion of the hearing regarding the [WCLJ’s] finding that no additional development of the record was necessary on the issue of attachment to the labor market prior to directing awards based solely on the amendment to [s]ection 15 (3) (w) that took effect 04/10/17.” Significantly, the carrier failed to identify the hearing at which the objection was raised, and the record discloses that there was more than one hearing at which claimant’s labor market attachment was addressed. As the carrier failed to provide the temporal information required by the regulations, we cannot conclude that the Board abused its discretion in finding the application to be incomplete and declining to review the WCLJ’s decision … . Matter of Demarco v Trans Care Ambulance, 2020 NY Slip Op 04895, Third Dept 9-3-20

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING CLAIMANT’S INJURY WAS WORK-RELATED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the evidence that claimant suffered a meniscus tear at work was insufficient:

“The Board is empowered to determine the factual issue of whether a causal relationship exists based upon the record, and its determination will not be disturbed when supported by substantial evidence” … . Although the medical opinion evidence relied upon by the Board to demonstrate the existence of a causal relationship does not need to be expressed with absolute or reasonable medical certainty, “it must signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility” … . …

Bruce Greene, claimant’s treating orthopedic surgeon, testified that it was difficult to determine when the meniscus tear occurred. He further testified that there is “a strong possibility [that] there was an acute or chronic tear of [the] meniscus” and that it is “very reasonable that something could have happened at work that exacerbated a chronic [condition].” The Board, finding that the medical testimony expressing that it was “highly possible” that the injury was causally related to work, falls short of the reasonable probability that is required to establish a causal relationship between claimant’s employment and his injury. Matter of Johnson v Borg Warner, Inc., 2020 NY Slip Op 04897, Third Dept 9-3-20

 

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QUESTION OF FACT WHETHER A PERMANENTLY AFFIXED LADDER VIBRATED CAUSING PLAINTIFF TO FALL; PLAINTIFF WAS ENGAGED IN REPAIR NOT ROUTINE MAINTENANCE; NO SHOWING PLAINTIFF WAS AWARE HE SHOULD WEAR A HARNESS AND FAILURE TO DO SO WOULD CONSTITUTE COMPARATIVE NEGLIGENCE WHICH IS NOT A BAR TO RECOVERY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendants’ motion for summary judgment on the Labor Law 240 (1) cause of action should not have been granted. Plaintiff alleged a permanently affixed ladder in an elevator shaft vibrated causing him to fall to the floor of the shaft:

… [W]hile an unsecured ladder that moves or shifts constitutes a prima facie violation of Labor Law § 240(1) … , the ladder from which plaintiff fell was secured to the structure, and, other than allegedly vibrating, it did not move, shift or sway. Under the circumstances, an issue of fact exists whether the secured, permanently affixed ladder that allegedly vibrated provided proper protection for plaintiff.

The record demonstrates, contrary to defendants’ contention, that at the time of his accident plaintiff was performing not routine maintenance but repair work, which falls within the protective ambit of Labor Law § 240(1) … . The work in which plaintiff was engaged occurred over the course of weeks, if not longer, and its purpose was to correct the unguarded condition of traveling cables that caused the cables to strike other objects within the elevator shafts … . …

Defendants failed to establish that plaintiff was the sole proximate cause of his accident, as they submitted no evidence that plaintiff knew that he was supposed to use a harness for climbing ladders or that he disregarded “specific instructions” to do so . Further, to the extent the ladder failed to provide proper protection, plaintiff’s failure to use a harness amounts at most to comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Kehoe v 61 Broadway Owner LLC, 2020 NY Slip Op 04900, First Dept 9-3-20

 

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TWO PSYCHOLOGICAL DIAGNOSES INTRODUCED IN EVIDENCE IN APPELLANT’S MENTAL HYGIENE LAW CIVIL COMMITMENT TRIAL HAVE NOT BEEN ACCEPTED BY THE PSYCHOLOGICAL COMMUNITY; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial in this Mental Hygiene Law civil commitment proceeding, determined two unreliable diagnoses were admitted in evidence. The matter had been sent back for a Frye hearing and Supreme Court issued a report finding the diagnoses are not accepted in the psychological community:

In June 2013, the State of New York commenced this proceeding pursuant to Mental Hygiene Law article 10 for the civil management of the appellant. Two psychologists evaluated the appellant at the State’s request and issued reports and testified that they diagnosed the appellant as suffering from, among other things, paraphilia not otherwise specified (nonconsent) (hereinafter PNOS [nonconsent]) and other specified paraphilic disorder (biastophilia or nonconsent), with sexually sadistic traits in a controlled environment (hereinafter OSPD [biastophilia or nonconsent] with sexually sadistic traits). * * *

… [T]he record supports the Supreme Court’s conclusion that the State failed to establish that the diagnoses of PNOS (nonconsent) and its successor diagnosis, OSPD (nonconsent), are generally accepted in the psychiatric and psychological communities. The evidence at the Frye hearing established that the diagnoses were repeatedly rejected for inclusion in the Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM), and that no consensus on the validity of the diagnoses had been reached subsequent to the publication of the latest edition of the DSM in 2013. There was no clear definition or criteria for the diagnoses. Accordingly, the court erred in admitting evidence of the PNOS (nonconsent) and OSPD (nonconsent) diagnoses at the appellant’s trial. Matter of State of New York v Ronald S., 2020 NY Slip Op 04845, Second Deptp 9-2-20

 

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