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VALID EVIDENTIARY ISSUES WERE NOTICED BY APPELLATE COUNSEL BUT WERE NOT ADDRESSED AT TRIAL, THE STATE’S VERDICT IN THIS MALICIOUS PROSECUTION, FALSE ARREST AND UNLAWFUL IMPRISONMENT ACTION AFFIRMED (THIRD DEPT).

The Third Department, noting the validity of questions raised about the evidence that claimant sold the drugs, affirmed the verdict in favor of the state in this malicious prosecution, false arrest and unlawful imprisonment action. The evidentiary issues were noticed and raised by appellate counsel, but were not raised in the Court of Claims:

If taken at face value, this evidence would validate claimant’s testimony that he did not sell drugs to the informant and that defendant should have known as much. Critically important, however, is the fact that this timing discrepancy was never addressed at claimant’s criminal trial or the subject bench trial before the Court of Claims, and appears only to have been discerned by claimant’s counsel in his appellate brief. Defendant points out in its brief that it was unable to verify when the audio recording began because it did not have the original compact disc. The discrepancy between the commencement of the audio recording and the taking of the photographs is a matter of minutes at best. Missing from this record is any testimony expressly validating the timing as to when the audio recording began. Had this discrepancy been called to the attention of the Court of Claims, corresponding testimony could have been entertained … . As such, on this record, we decline to disturb the credibility determination made by the Court of Claims. Jenkins v State of New York, 2019 NY Slip Op 02932, Third Dept 4-18-19

 

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QUESTIONS OF FACT WHETHER STATE HAD CONSTRUCTIVE NOTICE OF THE CONDITION OF THE ROAD WHICH ALLEGEDLY CAUSED PLAINTIFF’S BICYCLE ACCIDENT (THIRD DEPT).

The Third Department determined claimant’s motion for summary judgment in this bicycling accident case was properly denied. There were questions of fact whether the state had constructive notice of the road conditions which allegedly caused the accident:

There was no evidence that defendant had actual notice of this hazard and only conflicting evidence regarding constructive notice. Savoury testified that there had been no prior complaints or accidents and that the road was regularly inspected . However, defendant may be charged with constructive notice of the hazard if it “existed for a sufficient period of time to allow defendant[] to discover and rectify the problem” … . Although most of the witnesses attributed the bumps to the effects of cars driving over cold patch and the delamination to the effects of the freeze/thaw cycle, evidence regarding the length of time that the bumps and delaminated section were present was equivocal, and there was no evidence regarding how long the debris had been on the shoulder … . Even if defendant had actual or constructive notice of the hazardous condition, claimant’s submissions evince that temporary repair work had been done in the months leading up to the accident, and the submissions fail to demonstrate what “reasonable [corrective] measures” should have been taken given the circumstances … . Given the myriad factual questions presented, including whether defendant had notice of the hazardous condition in the highway but failed to respond with appropriate maintenance measures, the Court of Claims properly denied claimant’s motion. Schleede v State of New York, 2019 NY Slip Op 02188, Third Dept 3-21-19

 

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ALTHOUGH PLAINTIFF DID NOT FALL ALL THE WAY THROUGH THE GAP IN THE ELEVATED PLATFORM WAS WIDE ENOUGH TO HAVE ALLOWED HIM TO FALL THROUGH, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (THIRD DEPT).

The Third Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) claim. Plaintiff’s leg fell through a one foot wide, twelve feet long, gap in the elevated platform he was working on. The fact that plaintiff could have fallen all the way through the gap entitled him to summary judgment. Although there may have been boards to cover the gap nearby, there was no evidence plaintiff was directed to cover the gap with the boards:

The opening presented an elevation-related risk, rather than a usual and ordinary danger of working on a construction site, because it was of sufficient size that claimant could have fallen entirely through to a lower level; therefore, Labor Law § 240 (1) applies to this accident because it was caused by a failure of the suspended metal deck — which was functioning as a scaffold — to provide adequate protection, even though claimant did not fall entirely through the opening … . …

… [T]here is no evidence in the record that claimant received any instruction or directive that would establish that he knew that he was responsible for either covering any openings, or requesting that they be covered by coworkers, before beginning work (see id.). Accordingly, we conclude that the Court of Claims properly determined that claimant was not the sole proximate cause of the accident … . . Santos v State of New York, 2019 NY Slip Op 01479, Third Dept 2-28-19

 

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SNOWPLOW DRIVER WAS EXEMPT FROM STANDARD NEGLIGENCE AND DID NOT ACT RECKLESSLY IN THIS TRAFFIC ACCIDENT CASE, COURT OF CLAIMS REVERSED (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined the snowplow driver was not liable in this traffic accident case. The highway-work exemption from standard negligence applied and the driver was not reckless:

There is little dispute that the Court of Claims erred in applying Vehicle and Traffic Law § 1104, which affords certain privileges to “[t]he driver of an authorized emergency vehicle, when involved in an emergency operation” … and has no applicability to a vehicle such as a snowplow put to its intended use . The pertinent statute is instead Vehicle and Traffic Law § 1103 (b), which “exempts from the rules of the road all vehicles . . . which are ‘actually engaged …  in work on a highway,’ and imposes on such vehicles a recklessness standard of care” … . Inasmuch as “the snowplow [here] was clearing the road during a snowstorm” when the accident occurred, both the snowplow and its driver are exempted “from the rules of the road” … . As such, liability will only attach if defendant and its employees behaved in a reckless manner, meaning a “conscious disregard of ‘a known or obvious risk that was so great as to make it highly probable that harm would follow'” … . Howell v State of New York, 2019 NY Slip Op 01281, Third Dept 2-21-19

 

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COURT OF CLAIMS DID NOT HAVE SUBJECT MATTER JURISDICTION OVER A WORKERS’ COMPENSATION ISSUE, REVIEW OF AN AGENCY DETERMINATION MUST BE BROUGHT AS AN ARTICLE 78 PROCEEDING (THIRD DEPT).

The Third Department determined the Court of Claims did not have subject matter jurisdiction over review of an agency determination, which must be brought as an Article 78 action:

At issue is whether the Court of Claims has subject matter jurisdiction over the action. While claimant seeks significant financial relief, the core of its claim challenges defendant’s determination to classify the therapists as employees for purposes of calculating the premium due under the workers’ compensation policy. This is a threshold agency determination that the Court of Claims lacks subject matter jurisdiction to address … . … Such agency determinations are subject to review in the context of a CPLR article 78 proceeding commenced in Supreme Court, where a successful petitioner would be entitled to recover an overpayment as incidental relief (see CPLR 7806 … ). As such, claimant’s application should have been denied. Family & Educ. Consultants, LLC v New York State Ins. Fund, 2019 NY Slip Op 01273, Third Dept 2-21-19

 

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CONTRACT WAS SUBJECT TO THE STATE FINANCE LAW AND WAS NOT VALID UNTIL APPROVED BY THE STATE COMPTROLLER, NO RECOVERY FOR DELAYS IN THE PERIOD BEFORE THE CONTRACT WAS APPROVED (SECOND DEPT).

The Second Department determined claimant, a company hired by defendant City University to install fire alarms, could not recover damages for alleged delays caused by the defendant prior to the approval of the contract by the comptroller. No contract with the state is valid until approval:

The parties’ contract was subject to State Finance Law § 112(2)(a), which, at the time, provided that any contract exceeding $15,000 made by “any state agency, department, board, officer, commission, or institution . . . shall first be approved by the comptroller and filed in his or her office” “[b]efore . . . be[ing] executed or becom[ing] effective” … . Moreover, the contract itself provided that it would “not be valid, effective or binding upon the State until it ha[d] been approved by the State Comptroller and filed in his [or her] office.” In light of these provisions, the claimants may not recover damages based on delay occurring before the contract was approved by the Comptroller … . C & L Elec., Inc. v City Univ. of N.Y., 2019 NY Slip Op 01051, Second Dept 2-13-19

 

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CLAIMANT WAS CONVICTED OF MURDER AND AN UNRELATED ROBBERY WHICH WERE CHARGED IN A SINGLE INDICTMENT, AFTER A MAN CONFESSED TO THE MURDER, CLAIMANT’S MURDER CONVICTION WAS VACATED BUT THE ROBBERY CONVICTION REMAINED, REVERSING THE COURT OF CLAIMS, THE THIRD DEPT DETERMINED CLAIMANT WAS ENTITLED TO COMPENSATION FOR THE UNJUST MURDER CONVICTION AND RELATED IMPRISONMENT (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined that claimant was entitled to compensation based upon his unjust conviction and imprisonment. Claimant’s murder conviction was vacated after another man confessed to the murder. Claimant had been charged with an unrelated robbery and the murder and robbery charges were joined in a single indictment. At the time the murder conviction was vacated, defendant pled guilty to the robbery. The state contended that the guilty plea to robbery precluded the claimant from compensation for the unjust murder conviction based upon the wording of the statute. The Third Department disagreed and interpreted the statute to allow compensation:

Court of Claims Act § 8-b allows individuals who are unjustly convicted and imprisoned to recover damages from defendant. To avoid dismissal of his claim, claimant was required to establish, as relevant here, that “he did not commit any of the acts charged in the accusatory instrument” … . Claimant admitted that he committed acts charged in the indictment when he pleaded guilty to first degree robbery; however, he argues that the term “accusatory instrument” must be construed as applying only to the murder charges because they arose from an event that had no connection to the robbery. * * *

The term “accusatory instrument” could be literally construed to refer to the single indictment that charged claimant with crimes that arose from both events — the robbery and the subsequent murder. However, that conclusion must be measured against the intent of the legislation plainly expressed in the statute, which states that “[t]he [L]egislature finds and declares that innocent persons who have been wrongly convicted of crimes and subsequently imprisoned have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law and that such persons should have an available avenue of redress over and above the existing tort remedies to seek compensation for damages. The [L]egislature intends by enactment of the provisions of this section that those innocent persons who can demonstrate by clear and convincing evidence that they were unjustly convicted and imprisoned be able to recover damages against [defendant]” … . Hence, “the linchpin of the statute is innocence” … . …

Under the unique facts of this case, a literal interpretation of “accusatory instrument” would lead to an unreasonable result starkly at odds with the clearly-expressed intent of the statute by denying recovery to claimant — who is indisputably innocent of the murder for which he was wrongfully convicted and imprisoned — solely because the charges arising from events now known to be unrelated were joined in a single indictment. Jones v State of New York, 2018 NY Slip Op 08985, Third Dept 12-27-18

 

CLAIM DID NOT MEET THE SPECIFICITY REQUIREMENTS OF COURT OF CLAIMS ACT 11 AND WAS PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined the claim, alleging employment discrimination, did not comply with the specificity requirements of Court of Claims Act section 11 and was properly dismissed:

“Pursuant to Court of Claims Act § 11 (b), a claim must set forth the nature of the claim, the time when and place where it arose, the damages or injuries and the total sum claimed” … . “The purpose of the pleading requirements contained therein is to provide a sufficiently detailed description of the particulars of the claim to enable defendant to investigate and promptly ascertain the existence and extent of its liability” … . To that end, the Court of Claims Act does not require defendant “to ferret out or assemble information that section 11 (b) obligates the claimant to allege”… . Strict compliance with the pleading requirements contained in Court of Claims Act § 11 (b) is required, and the failure to satisfy any of the pleading requirements is a jurisdictional defect … .

We agree with the Court of Claims that the claim, consisting of 88 prolix paragraphs, raises vague, conclusory and non-linear allegations that lack context and fail to provide a coherent and sufficiently detailed description of the particulars of the claim to enable defendant to investigate and promptly ascertain the existence and extent of its liability… . Many of the allegations fail to provide a time and place when and where the alleged conduct occurred (see Court of Claims Act § 11 [b]), and, for those allegations that specify a date or general time period when alleged conduct occurred, the nature of the claim or identity and role of the individuals involved cannot be adequately ascertained… . Clark v State of New York, 2018 NY Slip Op 06844, Third Dept 10-11-18

COURT OF CLAIMS (CLAIM DID NOT MEET THE SPECIFICITY REQUIREMENTS OF COURT OF CLAIMS ACT 11 AND WAS PROPERLY DISMISSED (THIRD DEPT))/CIVIL PROCEDURE (COURT OF CLAIMS ACT, CLAIM DID NOT MEET THE SPECIFICITY REQUIREMENTS OF COURT OF CLAIMS ACT 11 AND WAS PROPERLY DISMISSED (THIRD DEPT))

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STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT’S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT). ​

The Second Department, reversing the Court of Claims, determined the state was entitled to qualified immunity in this motorcycle-car accident case. Claimant's decedent was killed when his motorcycle struck a car, driven by Carranca, as Carranca entered Sunrise Highway and crossed three lanes of traffic. Claimant's decedent alleged negligent design of the roadway. However the state had commissioned a study of the area which found no safety concerns and claimant's decedent's expert did not fault the study:

“To establish its entitlement to qualified immunity, the governmental body must demonstrate that the relevant discretionary determination by the governmental body was the result of a deliberative decision-making process. A municipality is entitled to qualified immunity where a governmental planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury” … .

Here, the State submitted the Urbitran Report as evidence that it had studied the intersection at issue, as part of a larger study of a 1.2-mile stretch of Sunrise Highway. The Urbitran Report considered safety conditions and accident history, traffic volumes, “speeds and delay studies,” and traffic control devices. The State concluded that no additional safety measures were necessary regarding the right turn from Old Sunrise Highway onto eastbound Sunrise Highway. The claimant's expert conceded that the Urbitran Report found no safety problems with traffic from Old Sunrise Highway merging with eastbound Sunrise Highway, and further conceded that she found no deficiencies with the Urbitran Report. The subsequent placement of a traffic light at the intersection for reasons other than preventing the type of accident that occurred in this case does not affect the State's entitlement to qualified immunity for decisions pertaining to the right turn from Old Sunrise Highway onto eastbound Sunrise Highway. Iovine v State of New York, 2018 NY Slip Op 06723, Second Dept 10-10-18

COURT OF CLAIMS (NEGLIGENT HIGHWAY DESIGN, STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))/IMMUNITY (NEGLIGENT HIGHWAY DESIGN, STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))/NEGLIGENCE (HIGHWAY DESIGN,  STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))/HIGHWAYS AND ROADS (NEGLIGENT HIGHWAY DESIGN, STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENT HIGHWAY DESIGN, STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))

SERVICE OF CLAIM BY REGULAR MAIL VIOLATED COURT OF CLAIMS ACT SECTION 11, CLAIM PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the claim in this traffic accident case was properly dismissed because it was served by regular mail:

On March 16, 2011, the claimant was driving on Sunrise Highway and, after missing his exit, attempted to cut across the strip of land separating Sunrise Highway from the exit ramp, losing control of his vehicle and sustaining injuries. After being granted permission to file a late notice of claim, the claimant served the claim on the State of New York by regular mail. The State moved for summary judgment dismissing the claim on the ground that service was improper, as it was not made in accordance with Court of Claims Act § 11. The claimant cross-moved for the court to deem its notice of claim timely served nunc pro tunc. The Court of Claims granted the motion and denied the cross motion. The claimant appeals, and we affirm.

We agree with the Court of Claims' determination to grant the State's motion for summary judgment dismissing the claim, as the claim was improperly served upon the State by regular mail rather than by personal service or certified mail as required by Court of Claims Act § 11 … . Costello v State of New York, 2018 NY Slip Op 06227, Second Dept 9-25-18

COURT OF CLAIMS (SERVICE OF CLAIM BY REGULAR MAIL VIOLATED COURT OF CLAIMS ACT SECTION 11, CLAIM PROPERLY DISMISSED (SECOND DEPT))/CIVIL PROCEDURE (SERVICE OF CLAIM BY REGULAR MAIL VIOLATED COURT OF CLAIMS ACT SECTION 11, CLAIM PROPERLY DISMISSED (SECOND DEPT))

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