You are here: / THE PLACEMENT OF THE LADDER WAS DEEMED THE CAUSE OF PLAINTIFF’S FALL...

Search Results

/

THE PLACEMENT OF THE LADDER WAS DEEMED THE CAUSE OF PLAINTIFF’S FALL AND PLAINTIFF HAD PLACED THE LADDER, THEREFORE PLAINTIFF’S ACTIONS WERE DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY PRECLUDING RECOVERY IN THIS LABOR LAW 240 (1) CASE (FOURTH DEPT).

The Fourth Department, over a dissent, determined that plaintiff’s actions were the sole proximate cause of his fall from a ladder in this Labor Law 240 (1) case. The court determined it was the placement of the ladder which was the cause of the accident and defendant had placed the ladder:

Plaintiff alleged in his second amended complaint that he fell due to the placement of the ladder, and he admitted in his deposition testimony that he had placed the ladder himself. Plaintiff’s theory of liability is that the ladder was not an adequate safety device because it could not be placed directly below his work site. Defendants, however, submitted photographs and a video recording from their safety expert that depicted the expert placing the ladder directly under the work site and standing on it. Furthermore, plaintiff conceded in his deposition testimony that other safety devices were available at the site, and that he asked if they were available before using the ladder. Thus, we conclude that defendants established as a matter of law that the ladder was an adequate safety device and that plaintiff’s own conduct was the sole proximate cause of his injuries. Kipp v Marinus Homes, Inc., 2018 NY Slip Op 04859, Fourth Dept 6-29-18

LABOR LAW-CONSTRUCTION LAW (THE PLACEMENT OF THE LADDER WAS DEEMED THE CAUSE OF PLAINTIFF’S FALL AND PLAINTIFF HAD PLACED THE LADDER, THEREFORE PLAINTIFF’S ACTIONS WERE DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY PRECLUDING RECOVERY IN THIS LABOR LAW 240 (1) CASE (FOURTH DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, THE PLACEMENT OF THE LADDER WAS DEEMED THE CAUSE OF PLAINTIFF’S FALL AND PLAINTIFF HAD PLACED THE LADDER, THEREFORE PLAINTIFF’S ACTIONS WERE DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY PRECLUDING RECOVERY IN THIS LABOR LAW 240 (1) CASE (FOURTH DEPT))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, HE PLACEMENT OF THE LADDER WAS DEEMED THE CAUSE OF PLAINTIFF’S FALL AND PLAINTIFF HAD PLACED THE LADDER, THEREFORE PLAINTIFF’S ACTIONS WERE DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY PRECLUDING RECOVERY IN THIS LABOR LAW 240 (1) CASE (FOURTH DEPT))

/ , ,

THE COLLECTIVE BARGAINING AGREEMENTS ARE AMBIGUOUS ON THE ISSUE WHETHER COUNTY RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE ENTITLED TO THE FULL MEDICAL BENEFITS AFFORDED THEM AT RETIREMENT, EXTRINSIC EVIDENCE, I.E., WHAT HAD BEEN DONE IN THE PAST, SUPPORTS THE DETERMINATION THAT RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE NOT ENTITLED TO FULL BENEFITS (FOURTH DEPT).

The Fourth Department determined retired Monroe County employees who become eligible for Medicare are not entitled to the full medical insurance benefits which were afforded them at retirement. The collective bargaining agreements (CBAs) were deemed ambiguous on the issue and the court looked to what had been done in the past as controlling extrinsic evidence:

Inasmuch as the contract language is reasonably susceptible of more than one interpretation, we conclude that the CBAs are ambiguous with respect to whether retirees who are eligible for or enrolled in Medicare are entitled to fully-paid health insurance coverage that is equivalent to the insurance coverage in effect at the time they retired. Thus, we turn to extrinsic evidence to determine the parties’ intent with respect to the health insurance coverage to be provided to those retirees who are eligible for or enrolled in Medicare. Where, as here, “a contract is ambiguous, its interpretation remains the exclusive function of the court unless determination of the intent of the parties depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence’ ” … . …

For decades, defendants provided retirees who were not yet eligible for Medicare with health insurance benefits, but provided retirees enrolled in Medicare with only Medicare supplement plans. No objection was made and, until recently, the union representing plaintiffs never sought to negotiate any additional benefits for retirees eligible for or enrolled in Medicare. Ames v County of Monroe, 2018 NY Slip Op 04886, Fourth Dept 6-29-18

​MUNICIPAL LAW (EMPLOYMENT LAW, THE COLLECTIVE BARGAINING AGREEMENTS ARE AMBIGUOUS ON THE ISSUE WHETHER COUNTY RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE ENTITLED TO THE FULL MEDICAL BENEFITS AFFORDED THEM AT RETIREMENT, EXTRINSIC EVIDENCE, I.E., WHAT HAD BEEN DONE IN THE PAST, SUPPORTS THE DETERMINATION THAT RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE NOT ENTITLED TO FULL BENEFITS (FOURTH DEPT))/CONTRACT LAW (MUNICIPAL LAW, THE COLLECTIVE BARGAINING AGREEMENTS ARE AMBIGUOUS ON THE ISSUE WHETHER COUNTY RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE ENTITLED TO THE FULL MEDICAL BENEFITS AFFORDED THEM AT RETIREMENT, EXTRINSIC EVIDENCE, I.E., WHAT HAD BEEN DONE IN THE PAST, SUPPORTS THE DETERMINATION THAT RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE NOT ENTITLED TO FULL BENEFITS (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, THE COLLECTIVE BARGAINING AGREEMENTS ARE AMBIGUOUS ON THE ISSUE WHETHER COUNTY RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE ENTITLED TO THE FULL MEDICAL BENEFITS AFFORDED THEM AT RETIREMENT, EXTRINSIC EVIDENCE, I.E., WHAT HAD BEEN DONE IN THE PAST, SUPPORTS THE DETERMINATION THAT RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE NOT ENTITLED TO FULL BENEFITS (FOURTH DEPT))/COLLECTIVE BARGAINING AGREEMENTS (MUNICIPAL LAW, THE COLLECTIVE BARGAINING AGREEMENTS ARE AMBIGUOUS ON THE ISSUE WHETHER COUNTY RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE ENTITLED TO THE FULL MEDICAL BENEFITS AFFORDED THEM AT RETIREMENT, EXTRINSIC EVIDENCE, I.E., WHAT HAD BEEN DONE IN THE PAST, SUPPORTS THE DETERMINATION THAT RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE NOT ENTITLED TO FULL BENEFITS (FOURTH DEPT))/MEDICAL INSURANCE BENEFITS (MUNICIPAL LAW, EMPLOYMENT LAW, THE COLLECTIVE BARGAINING AGREEMENTS ARE AMBIGUOUS ON THE ISSUE WHETHER COUNTY RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE ENTITLED TO THE FULL MEDICAL BENEFITS AFFORDED THEM AT RETIREMENT, EXTRINSIC EVIDENCE, I.E., WHAT HAD BEEN DONE IN THE PAST, SUPPORTS THE DETERMINATION THAT RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE NOT ENTITLED TO FULL BENEFITS (FOURTH DEPT))

/ ,

DEFENSE COUNSEL PROVIDED DEFENDANT WITH ERRONEOUS INFORMATION ABOUT THE LENGTH OF HIS SENTENCE SHOULD HE BE CONVICTED AFTER TRIAL AND ERRONEOUSLY TOLD THE DEFENDANT HIS PLEA TO SEX TRAFFICKING WOULD NOT MAKE HIM SUBJECT TO THE SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. CONVICTION BY GUILTY PLEA REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined defendant did not receive effective assistance of counsel. Defense counsel told the defendant he could receive a 75-year sentence if convicted on the charged offenses, when the most the defendant could receive was 15 to 30 years. Defense counsel also erroneously told the defendant the sex trafficking offense to which he pled guilty would not make him subject to the Sex Offender Registration Act (SORA):

The evidence, including a letter from defense counsel to the prosecutor during plea negotiations and the testimony of defendant and defense counsel at the hearing on defendant’s motion to vacate the judgment, established that defendant and defense counsel perceived a viable defense to the sex trafficking charges and were leaning toward going to trial, but defendant—under the misapprehension that he risked the possibility of an aggregate maximum term of imprisonment that would be the equivalent of a life sentence for him—relied upon defense counsel’s erroneous advice in accepting a plea that addressed his primary concerns by providing the ostensible benefit of greatly reducing his sentencing exposure while also avoiding any SORA implications. We thus conclude on this record that defendant was denied meaningful representation inasmuch as defense counsel’s erroneous advice compromised the fairness of the process as a whole by depriving defendant of the ability to make an intelligent choice between pleading guilty or proceeding to trial … . People v Oliver, 2018 NY Slip Op 04885, Fourth Dept 6-29-18

​CRIMINAL LAW (DEFENSE COUNSEL PROVIDED DEFENDANT WITH ERRONEOUS INFORMATION ABOUT THE LENGTH OF HIS SENTENCE SHOULD HE BE CONVICTED AFTER TRIAL AND ERRONEOUSLY TOLD THE DEFENDANT HIS PLEA TO SEX TRAFFICKING WOULD NOT MAKE HIM SUBJECT TO THE SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. CONVICTION BY GUILTY PLEA REVERSED (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL PROVIDED DEFENDANT WITH ERRONEOUS INFORMATION ABOUT THE LENGTH OF HIS SENTENCE SHOULD HE BE CONVICTED AFTER TRIAL AND ERRONEOUSLY TOLD THE DEFENDANT HIS PLEA TO SEX TRAFFICKING WOULD NOT MAKE HIM SUBJECT TO THE SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. CONVICTION BY GUILTY PLEA REVERSED (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENSE COUNSEL PROVIDED DEFENDANT WITH ERRONEOUS INFORMATION ABOUT THE LENGTH OF HIS SENTENCE SHOULD HE BE CONVICTED AFTER TRIAL AND ERRONEOUSLY TOLD THE DEFENDANT HIS PLEA TO SEX TRAFFICKING WOULD NOT MAKE HIM SUBJECT TO THE SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. CONVICTION BY GUILTY PLEA REVERSED (FOURTH DEPT))

/ , , ,

PETITION SEEKING MEDICAL ASSISTANCE SHOULD NOT HAVE BEEN DENIED BASED UPON THE INABILITY TO DETERMINE THE FINANCIAL RESOURCES AVAILABLE TO THE NURSING HOME RESIDENT’S ESTRANGED WIFE, COURT MAY NOT CONSIDER THEORY NOT RAISED BEFORE THE AGENCY (FOURTH DEPT).

The Fourth Department, annulling the determination of the Erie County Department of Social Services, held that petitioner’s application for medical assistance should not have been denied on the ground that the financial resources available to the nursing home resident’s estranged wife could not be determined. The court noted that it may not consider any theories argued on appeal that were not raised before the agency

[18 NYCRR] Section 360-2.3 (a) (2) provides that a medical assistance “applicant/recipient will not have eligibility denied or discontinued solely because he/she does not possess and cannot obtain information about the income or resources of a nonapplying legally responsible relative who is not living with him/her.” Although denial of an application may nonetheless be appropriate under section 360-2.3 (a) (3) if an applicant/recipient refuses to grant permission for the examination of non-public records, here the parties do not dispute that petitioner and the resident cooperated with all efforts to obtain information from the resident’s estranged wife.

We reject respondent’s contention that the determination should be confirmed because, in the absence of a showing that denial would subject the resident to undue hardship, denial of petitioner’s application was permissible pursuant to 18 NYCRR 360-4.10. Regardless of the merits of that contention, we note that ” [i]t is the settled rule that judicial review of an administrative determination is limited to the grounds invoked by the agency’ ” Matter of Waterfront Ctr. for Rehabilitation & Healthcare v New York State Dept. of Health, 2018 NY Slip Op 04881, Fourth Dept 6-29-18

​MEDICAID (PETITION SEEKING MEDICAL ASSISTANCE SHOULD NOT HAVE BEEN DENIED BASED UPON THE INABILITY TO DETERMINED THE FINANCIAL RESOURCES AVAILABLE TO THE NURSING HOME RESIDENT’S ESTRANGED WIFE (FOURTH DEPT))/ADMINISTRATIVE LAW (MEDICAID, PETITION SEEKING MEDICAL ASSISTANCE SHOULD NOT HAVE BEEN DENIED BASED UPON THE INABILITY TO DETERMINED THE FINANCIAL RESOURCES AVAILABLE TO THE NURSING HOME RESIDENT’S ESTRANGED WIFE (FOURTH DEPT))/APPEALS (ADMINISTRATIVE LAW, MEDICAID, PETITION SEEKING MEDICAL ASSISTANCE SHOULD NOT HAVE BEEN DENIED BASED UPON THE INABILITY TO DETERMINED THE FINANCIAL RESOURCES AVAILABLE TO THE NURSING HOME RESIDENT’S ESTRANGED WIFE, COURT MAY NOT CONSIDER THEORY NOT RAISED BEFORE THE AGENCY  (FOURTH DEPT))

/ , ,

INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction under a weight of the evidence analysis, determined there was insufficient proof that defendant intended to destroy a motorcycle that was in the garage in which she started a fire. She testified she started the fire because she was angry with her husband and she expected he would put the fire out. The fire was started in an area of the garage which was not near the motorcycle:

We agree with defendant, however, that the verdict finding her guilty of criminal mischief in the third degree is against the weight of the evidence. County Court instructed the jurors that defendant was guilty of that crime if they found that she intentionally “damage[d] property of another person in an amount exceeding $250,” specifically “a Suzuki motorcycle.” The People presented evidence that a motorcycle belonging to defendant’s husband was completely destroyed by the fire that defendant allegedly set, a loss valued at over $4,000. No evidence was offered of the value of any damage caused by defendant prior to the fire, and the only evidence of how and why the fire started came from defendant’s statements to law enforcement, wherein she stated that she did not know why she started the fire, but that she was angry at her husband with whom she had been fighting and thought that he would return to the garage to put out the fire. Moreover, defendant told law enforcement that she started the fire by igniting a fleece blanket in a part of the garage different from where the motorcycle was located. Defendant’s statements are consistent with the testimony of the fire protection inspector regarding the origin of the fire and are not contradicted by any other evidence in the record. Thus, viewing the evidence in light of the elements of the crime of criminal mischief in the third degree as charged to the jury …, we conclude that the jury’s determination that defendant set the fire with the intention of damaging her husband’s motorcycle is against the weight of the evidence … . People v Colbert, 2018 NY Slip Op 04879, Fourth Dept 6-29-18

​CRIMINAL LAW (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/APPEALS  (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/EVIDENCE (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/WEIGHT OF THE EVIDENCE  (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/CRIMINAL MISCHIEF (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/INTENT (CRIMINAL LAW, CRIMINAL MISCHIEF, (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))

/ , ,

ELIMINATION OF A POSITION WAS ALLEGED TO CONSTITUTE AN IMPROPER DISMISSAL UNDER THE GUISE OF RETRENCHMENT, ALTHOUGH RETRENCHMENT IS NOT ARBITRABLE UNDER THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT, THE CLAIM THAT THE EMPLOYEE WAS IMPROPERLY DISMISSED UNDER THE GUISE OF RETRENCHMENT WAS DEEMED ARBITRABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the petition seeking a permanent stay of arbitration of an employment dispute should not have been granted. The Fourth Department found that the dispute concerned whether an employee of a community college was improperly dismissed (by eliminating the position). The matter was deemed arbitrable based upon the language of the collective bargaining agreement (CBA) and the grievance. Under the CBA, if a position is “retrenched” the action is not arbitrable. Although the term “retrenched” was used in eliminating the position, the grievance alleged the employee was improperly dismissed under the guise of “retrenchment:”

We … agree with respondent that the grievance, as properly construed, should be submitted to arbitration. The CBA defines “grievance,” in relevant part, as “a claimed violation, misinterpretation or inequitable application of this agreement, except as excluded herein.” Pursuant to the CBA, a grievance may be submitted to arbitration if it remains unresolved after the second stage of the grievance procedure. Although the CBA specifies several exclusions from the definition of a “grievance” that are therefore not subject to arbitration, including a decision by petitioner to retrench a position, all other grievances remain subject to arbitration. Contrary to the court’s determination, we conclude that the arbitration clause at issue here is broad, despite the existence of such exclusions … .

Where, as here, “there is a broad arbitration clause and a reasonable relationship between the subject matter of the dispute and the general subject matter of the parties’ [CBA], the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them”… . The grievance at issue concerns whether the member was improperly dismissed without just cause under the guise of retrenchment, and a reasonable relationship exists between the subject matter of the grievance and the general subject matter of the CBA … . Thus, ” it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]’ ” … . Matter of Onondaga Community Coll. (Professional Adm’rs of Onondaga Community Coll. Fedn. of Teachers & Adm’rs), 2018 NY Slip Op 04878, Fourth Dept 6-29-18

​ARBITRATION (EMPLOYMENT LAW, ELIMINATION OF A POSITION WAS ALLEGED TO CONSTITUTE AN IMPROPER DISMISSAL UNDER THE GUISE OF RETRENCHMENT, ALTHOUGH RETRENCHMENT IS NOT ARBITRABLE UNDER THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT, THE CLAIM THAT THE EMPLOYEE WAS IMPROPERLY DISMISSED UNDER THE GUISE OF RETRENCHMENT WAS DEEMED ARBITRABLE (FOURTH DEPT))/CONTRACT LAW (COLLECTIVE BARGAINING AGREEMENT, ELIMINATION OF A POSITION WAS ALLEGED TO CONSTITUTE AN IMPROPER DISMISSAL UNDER THE GUISE OF RETRENCHMENT, ALTHOUGH RETRENCHMENT IS NOT ARBITRABLE UNDER THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT, THE CLAIM THAT THE EMPLOYEE WAS IMPROPERLY DISMISSED UNDER THE GUISE OF RETRENCHMENT WAS DEEMED ARBITRABLE (FOURTH DEPT))/COLLECTIVE BARGAINING AGREEMENT (ARBITRATION, ELIMINATION OF A POSITION WAS ALLEGED TO CONSTITUTE AN IMPROPER DISMISSAL UNDER THE GUISE OF RETRENCHMENT, ALTHOUGH RETRENCHMENT IS NOT ARBITRABLE UNDER THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT, THE CLAIM THAT THE EMPLOYEE WAS IMPROPERLY DISMISSED UNDER THE GUISE OF RETRENCHMENT WAS DEEMED ARBITRABLE (FOURTH DEPT))/EMPLOYMENT LAW (ARBITRATION, COLLECTIVE BARGAINING AGREEMENT, ELIMINATION OF A POSITION WAS ALLEGED TO CONSTITUTE AN IMPROPER DISMISSAL UNDER THE GUISE OF RETRENCHMENT, ALTHOUGH RETRENCHMENT IS NOT ARBITRABLE UNDER THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT, THE CLAIM THAT THE EMPLOYEE WAS IMPROPERLY DISMISSED UNDER THE GUISE OF RETRENCHMENT WAS DEEMED ARBITRABLE (FOURTH DEPT))

/ ,

SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined defendant’s motion for summary judgment in this ice-skating slip and fall case should not have been granted. The claimant could not assume the risk created by a negligently maintained ice surface, and claimant’s awareness of the dangerous condition relates only to the issue of comparative fault (which does not preclude summary judgment):

We … agree with claimant that her claim is not barred by the doctrine of assumption of the risk. It is well settled that “[a claimant] will not be held to have assumed those risks that are not inherent . . . , i.e., not ordinary and necessary in the sport” … . Although the risk of falling while ice skating is ” inherent in and arise[s] out of the nature of the sport generally’ ” … , we conclude that skating on a negligently maintained ice surface is not a risk that is inherent in the sport. Contrary to defendant’s contention, under the circumstances presented here, claimant’s awareness of the poor ice conditions and her decision to continue skating for some period of time, apparently to have a photograph taken, relate only to the issue of her comparative fault, if any … . Wyzykowski v State of New York, 2018 NY Slip Op 04875, Fourth Dept 6-29-18

​NEGLIGENCE (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SLIP AND FALL  (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/ICE SKATING (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/ASSUMPTION OF RISK (ICE SKATING, (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/COMPARATIVE NEGLIGENCE (ICE SKATING, SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SUMMARY JUDGMENT (COMPARATIVE NEGLIGENCE, SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/COURT OF CLAIMS (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

/ , ,

NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP).

The Court of Appeal, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined that the NYC Department of Health and Mental Hygiene and the NYC Board of Health properly amended the health code to provide that children between the ages of 6 and 59 months who attended city regulated child care or school programs must receive annual flu vaccinations. The court went through all the Boreali (71 NY2d 11-14) factors, as well as all the preemption theories:

Separation of powers challenges often involve the question of whether a regulatory body has exceeded the scope of its delegated powers and encroached upon the legislative domain of policymaking … . * * *

In Boreali and subsequent cases, we have clarified the “difficult-to-define line between administrative rule-making and legislative policy-making” by articulating four “coalescing circumstances” relevant to rendering such a determination (71 NY2d at 11 …). These circumstances are: whether (1) the regulatory agency ” balanc[ed] costs and benefits according to preexisting guidelines,’ or instead made value judgments entail[ing] difficult and complex choices between broad policy goals to resolve social problems'”… ; (2) the agency “merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance'” … ; (3) the legislature had unsuccessfully attempted to enact laws pertaining to the issue… ; and (4) the agency used special technical expertise in the applicable field … . * * *

Public Health Law §§ 2164 and 2165 set forth mandatory vaccinations that are preconditions to enrollment in school and in institutions of higher education. Those statutes include exemptions, incorporate an appeal process, and explain the procedures to be followed when a student is unable to afford the necessary vaccinations. Taking each of the aforementioned statutes into consideration, the Appellate Division correctly determined that the flu vaccine rules are not preempted by state law. Garcia v New York City Dept. of Health & Mental Hygiene, 2018 NY Slip Op 04778, CtApp 6-28-18

​ADMINISTRATIVE LAW (FLU VACCINES, NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/MUNICIPAL LAW (FLU VACCINES, NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/FLU VACCINES (NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/SEPARATION OF POWERS (FLU VACCINES, NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/PREEMPTION (ADMINISTRATIVE LAW,  NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/DEPARTMENT OF HEALTH (NYC)  (FLU VACCINES, NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))

/

STRICT REQUIREMENTS FOR NOTIFICATION OF COUNSEL OF THE CONTENTS OF JURY NOTES AND THE CREATION OF A COMPLETE RECORD OF HOW THE NOTES WERE HANDLED REAFFIRMED (CT APP).

The Court of Appeals, in a memorandum decision with an extensive three-judge dissent, determined that the trial judge’s failure to comply with the notice requirements for jury notes pursuant to Criminal Procedure Law 310.30 and O’Rama mandated reversal:

“[M]eaningful notice means notice of the actual specific content of the jurors’ request'” … . Although the record demonstrates that “defense counsel was made aware of the existence of the note, there is no indication that the entire contents of the note were shared with counsel”… . We therefore reject the People’s argument that defense counsel’s awareness of the existence and the “gist” of the note satisfied the court’s meaningful notice obligation, or that preservation was required. “Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note—as it is in this case—preservation is not required” …  .

Moreover, “[w]here a trial transcript does not show compliance with O’Rama’s procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to” (id.). In other words, “[i]n the absence of record proof that the trial court complied with its [meaningful notice obligation] under CPL 310.30, a mode of proceedings error occurred requiring reversal”… . We again decline “to disavow our holding in Walston [23 NY3d 986] . . . that imposes an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and O’Rama” … . People v Morrison, 2018 NY Slip Op 04777, CtApp 6-28-18

​CRIMINAL LAW (JURY NOTES, STRICT REQUIREMENTS FOR NOTIFICATION OF COUNSEL OF THE CONTENTS OF JURY NOTES AND THE CREATION OF A COMPLETE RECORD OF HOW THE NOTES WERE HANDLED REAFFIRMED (CT APP))/JURY NOTES (CRIMINAL LAW, STRICT REQUIREMENTS FOR NOTIFICATION OF COUNSEL OF THE CONTENTS OF JURY NOTES AND THE CREATION OF A COMPLETE RECORD OF HOW THE NOTES WERE HANDLED REAFFIRMED (CT APP))/O’RAMA (CRIMINAL LAW, JURY NOTES, STRICT REQUIREMENTS FOR NOTIFICATION OF COUNSEL OF THE CONTENTS OF JURY NOTES AND THE CREATION OF A COMPLETE RECORD OF HOW THE NOTES WERE HANDLED REAFFIRMED (CT APP))

/ , , ,

VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over two dissents, reversing the Appellate Division, determined that the street stops and searches of the defendants (Nonni and Parker) were valid under the DeBour criteria. The police had received a report of a robbery at the location, the defendants were the only persons seen when the police arrived, and both ran or walked away when asked to stop. The court noted that justification for street stops presents a mixed question of law and fact which can be reviewed by the Court of Appeals only to the extent of determining whether the lower court rulings have support in the record. The Court of Appeals reversed, however, because the record did not allow review of two jury notes received by the judge but not specifically addressed by the trial judge or counsel:

Here, for both defendants, the police had a founded suspicion of criminal activity to support a common-law right of inquiry. The police received a radio transmission of a burglary in progress, and their encounter with defendants at the reported address occurred a mere five minutes later. The officers first saw defendants exiting private property, the scene of a suspected crime. The officers observed no other persons or cars in the secluded, residential area, and it was early in the morning on a federal holiday. In accordance with De Bour, those circumstances were sufficient to justify the officers asking defendants what they were doing and where they were going, and to continue inquiring when defendants did not respond after the officers identified themselves. Further, the officers’ testimony, credited by the court, that defendant Nonni then “actively fled from the police,” combined with the specific circumstances observed by the officers during their initial encounter with defendants, provides sufficient record support for the court’s determination that there was reasonable suspicion of criminal activity to justify defendant Nonni’s pursuit, forcible stop, and detainment … .  …

According to the arresting officers’ testimony, after defendant Parker saw defendant Nonni run and some police officers give chase, defendant Parker increased his pace, acted in an evasive manner, and crossed the street onto the front lawn of another property. The officer twice characterized Parker’s movements as “running,” albeit at a slow pace. While active avoidance of a confrontation between the police and an acquaintance does not itself give rise to reasonable suspicion, its combination with the specific, highly-suspicious circumstances observed by the police may give rise to heightened suspicion. Thus, record support exists for the court’s conclusion that the officers had reasonable suspicion, and that the pursuit, stop, and detainment of defendant Parker, as well as the subsequent search of his bag, were permissible. * * *

… .[T]he court did not read into the record the contents of the notes at issue here …. Further, there is no hint in the record that the court provided counsel the contents of the notes; rather, an inference may be drawn to the contrary. Tellingly, while the court had read other notes, and had confirmed that counsel had read their contents on the record in the past, there is no such record regarding these two substantive notes. Indeed, the court’s reference with respect to the first note—that it believed counsel had agreed to the readback it would provide in response—made no reference to the other two notes, suggesting that there was no discussion about those notes. Whether the record demonstrates a court has shown counsel prior jury notes as a matter of practice is irrelevant, since there must be specific, record proof that the court did so for each note. People v Parker, 2018 NY Slip Op 04776, CtApp 6-28-18

​CRIMINAL LAW (VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/APPEALS (CRIMINAL LAW, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/STREET STOPS  (VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/EVIDENCE (CRIMINAL LAW, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/SUPPRESSION (CRIMINAL LAW, STREET STOPS, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/DE BOUR (STREET STOPS, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/EVIDENCE (CRIMINAL LAW, STREET STOPS, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/JURY NOTES (CRIMINAL LAW, COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/O’RAMA (JURY NOTES, CRIMINAL LAW, COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy