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DEFENDANT DRIVER ATTEMPTED TO RAISE A FEIGNED FACTUAL ISSUE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BY CONTRADICTING A STATEMENT ATTRIBUTED TO DEFENDANT IN THE POLICE REPORT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this intersection traffic accident case should have been granted. Defendant driver (Karen) made a statement included in the police report indicating she did not see plaintiffs’ motorcycle before the accident. In response to plaintiffs’ motion for summary judgment defendant driver (Karen) averred that she came to a stop at the stop sign, pulled out into the intersection and then saw the motorcycle moving “extremely fast.” The Second Department held that defendant had raised a feigned factual issue. The court also noted that, although the motion for summary judgment was made before discovery was complete, defendants did not show that additional discovery would lead to relevant evidence:

In support of their motion, the plaintiffs submitted, among other things, affidavits from the injured plaintiff and a witness, Shahiem Smith, who observed the collision. According to those affidavits, Karen drove … into the intersection without yielding the right-of-way to the injured plaintiff’s motorcycle in violation of Vehicle and Traffic Law § 1142(a) and struck the motorcycle as it was lawfully proceeding through the intersection … . “A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law” … . Moreover, the plaintiffs also submitted a copy of a police accident report which contained Karen’s statement that she did not see the injured plaintiff. Therefore, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability … . Kerolle v Nicholson, 2019 NY Slip Op 03959, Second Dept 5-22-19

 

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PETITIONER’S MOTION TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE CITY HAD TIMELY NOTICE OF THE FACTS UNDERLYING PETITIONER’S INJURIES, THE FACTS SUPPORTING THE CITY’S NEGLIGENCE COULD HAVE BEEN DISCOVERED DURING THE INVESTIGATION WITH A MODICUM OF EFFORT, CITY DID NOT DEMONSTRATE PREJUDICE RELATING TO THE DELAY, PETITIONER’S FAILURE TO OFFER A REASONABLE EXCUSE FOR THE DELAY WAS NOT FATAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined that petitioner’s motion to serve a late notice of claim should have been granted. Petitioner, a medical technician, alleged she was struck by an inmate in the custody of the Department of Correction (DOC) while the inmate was being treated at Bellevue Hospital. The petitioner reported and discussed the incident with a DOC captain (Obigumeda) on the day it happened and sought to file the notice of claim seven months late:

Supreme Court presumably agreed with respondent’s argument that it lacked notice because petitioner never specified that she had told Obigumeda the manner in which DOC was negligent (namely, by failing to ensure that a correction officer was present when she spoke with the inmate). We disagree.

To the extent that petitioner did not establish actual notice because she did not specify that her description of the assault included a recitation of who was in the room, “municipal authorities have an obligation to obtain the missing information if that can be done with a modicum of effort” … . Here, negligence is the only theory of liability that could be implied by petitioner’s conversations with Obigumeda and, in any event, he could have determined who was in the room during the course of his investigation with “a modicum of effort.” To hold otherwise would turn the statute into a sword, contrary to its remedial purpose … . …

… [R]espondent never provided Supreme Court with any evidence to substantiate that it was prejudiced by the mere passage of time. Instead, respondent made “[g]eneric arguments and inferences” which cannot establish substantial prejudice “in the absence of facts in the record to support such a finding” … .

While petitioner did not demonstrate a reasonable excuse for service of her late notice of claim, the lack of excuse is not fatal here … . Matter of Rodriguez v City of New York, 2019 NY Slip Op 03921, First Dept 5-21-19

 

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THE CITY AND DEFENDANT CORRECTION OFFICER ARE NOT UNITED IN INTEREST BECAUSE THE CITY IS NOT VICARIOUSLY LIABLE FOR ITS EMPLOYEES’ VIOLATION OF 42 USC 1983, THEREFORE THE RELATION-BACK DOCTRINE CAN NOT BE RELIED UPON TO SUBSTITUTE THE CORRECTION OFFICER FOR “JANE DOE” AFTER THE STATUTE OF LIMITATIONS HAS RUN (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the relation-back doctrine could not be relied upon to substitute the name of a correction officer for “Jane Doe” in the complaint in this 42 USC 1983 action. The correction officer and the city are not “united in interest.” The city cannot be held vicariously liable for its employees’ violation of 42 USC 1983:

In this action alleging a claim of deliberate indifference under the Eighth Amendment and 42 USC § 1983, plaintiff did not serve the Jane Doe correction officer defendant before the statute of limitations ran. Although the claims against the intended defendant arise out of the same transaction as the claims alleged in the complaint, plaintiff cannot rely on the relation-back doctrine. The correction officer and defendant City are not “united in interest” because “the City cannot be held vicariously liable for its employees’ violations of 42 USC § 1983” … . Nor can plaintiff’s more than two-year delay in seeking to add the new defendant as a party after learning her identity be characterized as a mistake for relation-back purposes … .

Plaintiff’s reliance on CPLR 1024 is unavailing, as he does not demonstrate diligence in seeking to identify the unknown correction officer prior to the expiration of the statute of limitations … . Burbano v New York City, 2019 NY Slip Op 03937, First Dept 5-21-19

 

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PETITIONER, IN THIS JUDICIARY LAW 509 PROCEEDING, CAN NOT COMPEL THE COMMISSIONER OF JURORS TO REVEAL THE RESPONDENT’S ADDRESS AND DATES OF JURY SERVICE IN ORDER TO IMPEACH RESPONDENT’S TESTIMONY THAT HE RESIDED IN PETITIONER’S BUILDING IN 2008 AND 2009 AND WAS THEREFORE ENTITLED TO LOFT LAW PROTECTION UNDER THE MULTIPLE DWELLING LAW (FIRST DEPT).

The First Department, over a dissent, determined the petitioner in this Judiciary Law 509 (a) proceeding was not entitled to compel the Commissioner of Jurors to disclose respondent’s (Swezey’s) home and mailing address, as well as the dates of Swezey’s jury service. Petitioner was seeking to disprove Swezey’s testimony that he resided in a building owned by petitioner in 2008 and 2009 and was therefore entitled to Loft Law protection under the Multiple Dwelling Law:

Judiciary Law § 509(a) requires that juror “questionnaires and records shall be considered confidential and shall not be disclosed except to the county jury board or as permitted by the appellate division.” The purpose of the statute is to “provide a cloak of confidentiality for the information which the [juror] questionnaires contain” and to shield all information from disclosure in order to protect a juror’s privacy interest and/or safety (Matter of Newsday, Inc. v Sise , 71 NY2d 146, 152 [1987] … ). This blanket rule bars an individual from seeking any juror records unless the individual “present[s] some factual predicate which would make it reasonably likely that the records would provide relevant evidence” (People v Guzman , 60 NY2d 403, 415 [1983] …).

Here, petitioner failed to provide the necessary factual predicate to obtain these confidential records. Petitioner’s sole reason for requesting Swezey’s juror records is to impeach his testimony … . However, disclosure for the purpose of impairing someone’s credibility has been expressly rejected by the Court of Appeals in People v Guzman.  Matter of A. Trenkmann Estate, Inc. v Tingling, 2019 NY Slip Op 03923, First Dept 5-21-19

 

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THE PUBLIC ASSISTANCE BENEFIT RECEIVED BY CLAIMANT DURING PARTICIPATION IN A WORK EXPERIENCE PROGRAM (WEP) CONSTITUTED WAGES FOR THE PURPOSE OF CALCULATING WORKERS’ COMPENSATION BENEFITS FOR ON THE JOB INJURY (THIRD DEPT).

The Third Department, in a matter of first impression, determined that the public assistance benefit received by claimant when he participated in the work experience program (WEP) constituted wages for the purpose of calculation the workers’ compensation benefit for injury on the job:

Wages are defined as “the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident” (Workers’ Compensation Law § 2 [9]). A recipient of public assistance may be required to participate in work activities, including work experience in the public sector (see Social Services Law §§ 331, 336 [1] [d]) … . The amount of assistance that a participant in a WEP receives is not determined by the number of hours worked; rather, the number of hours that a recipient of public assistance is required to participate in a WEP is determined by dividing the amount of assistance received by the higher of the federal or state minimum wage (see Social Services Law § 336-c [2] [b]). Significantly, the benefits of a recipient who fails to participate in a required WEP without good cause are subject to reduction or forfeiture (see Social Services Law § 342). The fact that recipients of public assistance must participate in a WEP to receive benefits without reduction means that the public assistance paid to WEP participants directly serves as compensation for the work performed … . Accordingly, we conclude that public assistance benefits paid to WEP participants are wages as defined in the Workers’ Compensation Law. We note that our conclusion is consistent with the Court of Appeals’ observation that that the “rate and method of payment of WEP workers” is determined by the Social Services Law … . Matter of Covert v Niagara County, 2019 NY Slip Op 03870, Third Dept 5-16-19

 

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AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT APPLIES TO PARKED UNOCCUPIED CARS, SMELL OF MARIHUANA (FROM OUTSIDE THE CLOSED UNOCCUPIED CAR) PROVIDED PROBABLE CAUSE TO SEARCH THE CAR, OFFICER’S SUBJECTIVE INTENT TO SEARCH THE CAR BEFORE HE SMELLED THE MARIHUANA IS IRRELEVANT (THIRD DEPT).

The Third Department determined the warrantless search of defendant’s car, which was parked outside the apartment where defendant had been arrested, was valid under the automobile exception to the warrant requirement. The officer who opened the car door with keys taken from the defendant, testified that he smelled marihuana as he approached the car, and that he intended to search the car before he smelled the marijuana. The Third Department held that the officer’s subjective intent to search before he smelled the marihuana did not invalidate the search, and the officer’s claim he could smell marihuana outside a closed car was a credibility issue resolved by County Court:

The automobile exception to the warrant requirement is not based solely upon the mobility of vehicles, but also on the “reduced expectation of privacy in an automobile” … . Thus, the automobile exception is not limited to vehicles that are moving or occupied when observed by police and may also be applied when, as here, a vehicle is parked in “a public place where access [is] not meaningfully restricted” … . …

The warrantless search was permissible under the automobile exception. “[I]t is well established that the odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle” … . …

… [P]robable cause analysis is based upon reasonableness, and a search or seizure is permissible where, as here, “the circumstances, viewed objectively, justify the action” … . As the smell of marihuana outside the vehicle objectively provided probable cause for the warrantless search, the lieutenant’s subjective intentions are irrelevant. People v Hines, 2019 NY Slip Op 03853, Third Dept 5-16-19

 

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PAROLE OFFICER’S SEARCH OF PAROLEE’S APARTMENT, BASED UPON A TIP FROM A PERSON KNOWN TO THE PAROLE OFFICER, WAS SUPPORTED BY REASONABLE SUSPICION, TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined that the parole officer’s, Rosa’s, search of defendant-parolee’s apartment, which was based on a tip from a person known to the parole officer, was supported by reasonable suspicion:

Although a parolee does “not surrender his [or her] constitutional rights against unreasonable searches and seizures[,] . . . what may be unreasonable with respect to an individual who is not on parole may be reasonable with respect to one who is” … . Accordingly, a search of a parolee undertaken by a parole officer is constitutional if “the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer’s duty . . . [and was] substantially related to the performance of duty in the particular circumstances” … . A parole officer’s duty is twofold and sometimes inconsistent in nature because a parole officer not only “has an obligation to detect and to prevent parole violations for the protection of the public from the commission of further crimes[, but] he [or she] also has a responsibility to the parolee to prevent violations of parole and to assist [the parolee] to a proper reintegration into [the parolee’s] community” … .

Here, there can be little doubt that Rosa’s search of defendant’s residence due to the informant’s tip was reasonably related to Rosa’s duties as a parole officer … . Therefore, the key inquiry is whether Rosa, based upon the information provided by the informant, had reasonable suspicion to conduct the search … . Rosa’s testimony at the suppression hearing revealed that the information was not from an anonymous tipster (compare People v Burry, 52 AD3d at 858), but rather was from another parolee with whom Rosa was familiar and with whom he had interacted prior to receiving the information. Rosa testified that the informant indicated that he or she had firsthand knowledge of the drug activity at defendant’s residence. Therefore, based upon the circumstances of this case — including that defendant had been on parole for less than a month and therefore had no proven track record of compliance with parole rules — Rosa’s search of defendant’s residence was founded on reasonable suspicion and, as such, was lawful … . People v Wade, 2019 NY Slip Op 03851. Third Dept 5-16-19

 

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MOLINEUX/SANDOVAL HEARING IN THE HARVEY WEINSTEIN SEXUAL MISCONDUCT PROSECUTION WAS PROPERLY CLOSED TO THE PUBLIC AND THE RECORD OF THE HEARING WAS PROPERLY SEALED, NEWS-MEDIA COMPANIES’ PETITION TO UNSEAL THE RECORD DENIED (FIRST DEPT).

The First Department denied the Article 78 petition brought by news-media companies seeking to unseal the Molineux/Sandoval hearing transcript in the felony sexual misconduct prosecution of Harvey Weinstein. The presiding judge had closed the hearing to the public and sealed the record of it:

While the First Amendment guarantees the public and the press a qualified right of access to criminal trials … , this right of access may be limited where courtroom closure is necessitated by a compelling state governmental interest, and where the closure is narrowly tailored to serve that interest … . Such compelling interests may include the defendant’s right to a fair trial, including the right to “fundamental fairness in the jury selection process” … . …

Proceedings cannot be closed unless specific findings are made on the record, demonstrating that “closure is essential to preserve higher values and is narrowly tailored to serve that interest” … . Where the interest asserted is the right of the accused to a fair trial, specific findings must be made demonstrating that, “there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent,” and “reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights” … .

The subject matter of the Molineux /Sandoval hearing – allegations of prior uncharged sexual offenses by the defendant, the admissibilty of which is disputed – was likely to be prejudicial and inflammatory. Further, some or all of the allegations may have been determined to be inadmissible at trial, or may not be offered at trial even if found potentially admissible. Contrary to petitioners’ suggestion, the People have represented that some of the information has not yet been made public. Matter of New York Times Co. v Burke, 2019 NY Slip Op 03903, First Dept 5-16-19

 

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PLAINTIFF-STUDENT WAS WATCHING FOOTBALL PRACTICE FROM THE SIDELINES WHEN A BLOCKING SLED, PUSHED BY SEVERAL PLAYERS, VEERED OFF TO THE SIDE AND RAN OVER PLAINTIFF’S FOOT, THE ASSUMPTION OF THE RISK DOCTRINE APPLIES TO SPECTATORS, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this negligent supervision action, determined plaintiff-student assumed the risk of injury from a blocking sled during football practice. Plaintiff was not feeling well and was on the sidelines watching practice. He was not paying attention when a blocking sled, pushed by several players, veered toward him and ran over his foot. The court noted that the assumption of risk doctrine applies to bystanders and spectators:

The doctrine of primary assumption of the risk applies not only to participants in a qualified activity, but also to bystanders or spectators who have placed themselves in close proximity to it, “particularly where the record shows that the plaintiff had viable alternatives to [his or] her own location” … . “[T]he spectator at a sporting event, no less than the participant, accepts the dangers that inhere in it so far as they are obvious and necessary'”… .

Here, the defendant established its prima facie entitlement to judgment as a matter of law. The defendant submitted evidence that the plaintiff fully comprehended the risks inherent in the sport of football, specifically, that a blocking sled could veer to the left or the right while it was being used in a drill … . M.F. v Jericho Union Free Sch. Dist., 2019 NY Slip Op 03781, Second Dept 5-15-19

 

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DEFENDANT DID NOT STRIKE PLAINTIFF AND WAS UNDER NO DUTY TO PROTECT PLAINTIFF FROM AN ASSAULT BY OTHERS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS BAR-FIGHT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion for summary judgment in this third-party assault bar-fight case should have been granted. Defendant did not strike the plaintiff and was not under a duty to protect plaintiff from the conduct of others:

The plaintiff commenced this action, inter alia, to recover damages for personal injuries he sustained on January 7, 2013, at premises owned by the defendant Bulldog Grille, when he allegedly was physically assaulted by the defendants John Heinbuch, John Doe #1, and/or John Doe #2, who were patrons of the Bulldog Grille. …

“Generally, there is no duty to control the conduct of third persons to prevent them from causing injury to others'”  … . Here, Heinbuch established his prima facie entitlement to judgment as a matter of law by demonstrating that he did not strike the plaintiff and that he had no duty to control the conduct of the persons who assaulted the plaintiff … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether Heinbuch created the situation which led to the assault, or acted tortiously pursuant to a tacit agreement to assault or batter the plaintiff … . Lanfranchi v Grille, 2019 NY Slip Op 03780, Second Dept 5-15-19

 

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