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DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW THAT COKE OVENS USED IN THE MANUFACTURE OF STEEL WERE NOT PRODUCTS TRIGGERING THE DUTY TO WARN OF THE HAZARDS OF BREATHING EMISSIONS FROM THE OVENS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissent, reversing the Appellate Division, determined the defendant (Wilputte), which sold coke ovens for steel production, did not demonstrate, as a matter of law, the ovens were not “products” triggering the duty to warn. Therefore defendant’s motion for summary judgment should not have been granted (by the Appellate Division). Plaintiff’s decedent worked on top of the coke ovens and alleged breathing the toxic substances caused lung cancer. Plaintiffs alleged defendant had a duty to warn plaintiff’s decedent to use a respirator when working on the ovens. The Appellate Division had determined the coke ovens, housed in so-called “batteries,” were akin to buildings and construction of the buildings was a service, not a product:

… [D]efendant has not met its burden in showing that the coke ovens at issue are not products as a matter of law. Regardless of the alterations Bethlehem [the steel manufacturer] may have made to the scale and specifications of the battery at large, the ovens themselves served one function: the production of coke. This process was standard across all variations of coke ovens that Wilputte sold, ultimately placing the hazardous thing at issue squarely within the category of products to which liability has attached in the failure-to-warn context. …

… Wilputte was responsible for placing the ovens into the stream of commerce and that it derived financial benefit from its role in the production process. Indeed, by the time decedent began working for Bethlehem, Wilputte had sold hundreds of coke ovens to plants … . Wilputte also marketed its ovens with informational brochures showing the completed ovens and their functionality, indicating that Wilputte, not Bethlehem, was the commercial source of the product. … Although the ovens were largely assembled and completed on-site, that merely speaks to the logistical realties of the market of which Wilputte had a considerable share. …

… [T]he record supports Supreme Court’s conclusion that Wilputte was in the best position to assess the safety of the coke ovens because of its superior knowledge regarding the ovens’ intended functionality … . “A major determinant of the existence of a duty to warn” is an assessment of “whether the manufacturer is in a superior position to know of and warn against those hazards” inherent to its product … . Matter of Eighth Jud. Dist. Asbestos Litig., 2019 NY Slip Op 04640, CtApp 6-11-19

 

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COUNTY COURT’S DETERMINATION THE EVIDENCE BEFORE THE GRAND JURY WAS LEGALLY SUFFICIENT IS NOT REVIEWABLE AFTER A CONVICTION BASED UPON LEGALLY SUFFICIENT EVIDENCE (FOURTH DEPT).

The Fourth Department noted that appellate review of a court’s determination of the sufficiency of the evidence presented to the grand jury is not reviewing upon appeal of a conviction based upon legally sufficient trial evidence:

Defendant’s contention regarding the legal sufficiency of the evidence with respect to the operability of the stun gun is not preserved for our review inasmuch as her motion for a trial order of dismissal was not ” specifically directed’ at [that] alleged” deficiency in the proof … . In any event, the evidence, which included the testimony of a firearms examiner who tested the device at issue, viewed in the light most favorable to the People … , is legally sufficient to support the conviction. …

County Court’s determination with respect to the legal sufficiency of the evidence before the grand jury is “not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence” (CPL 210.30 [6] …). People v Washington, 2019 NY Slip Op 04553, Fourth Dept 6-7-19

 

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COUNTY COURT PROPERLY FOUND THAT DEFENDANT USED HIS RELATIONSHIP WITH A WITNESS TO PRESSURE HER NOT TO TESTIFY, THE WITNESS’S GRAND JURY TESTIMONY WAS PROPERLY ADMITTED IN EVIDENCE (FOURTH DEPT).

The Fourth Department determined County Court properly determined the defendant pressured a witness to refuse to testify at trial. Therefore the witness’s grand jury testimony was properly admitted in evidence:

Defendant contends that County Court erred in determining, following a Sirois hearing, that the People presented clear and convincing evidence that defendant “wrongfully made use of his relationship with the victim in order to pressure her to violate her duty to testify” … . …

The People presented evidence that the missing witness was ready and willing to testify while defendant was in jail during the grand jury proceedings but became reluctant after defendant was released and the trial date drew closer. Days prior to the trial, the witness’s mother observed the witness leave with defendant and their child for several hours. When the witness returned to the mother’s home, the witness “started talking about the subpoena that she had received. Started saying things like they can’t do anything to me if I don’t show up. The subpoena wasn’t served properly. There’s nothing that they can do if I don’t show up to court. Things of that nature.” The mother reported to the prosecutor that she had never heard the witness use legal terminology like that before. …

Defendant’s relative also observed the witness in defendant’s home during the time in which law enforcement officers were attempting to locate her on a material witness warrant. Further, although the prosecution never informed the witness of the updated trial schedule following the witness’s failure to appear, the witness appeared at court two days after the Sirois hearing “at the perfect moment to save defendant from the impending admission of her damning grand jury testimony” … . People v Haile, 2019 NY Slip Op 04547, Fourth Dept 6-7-19

 

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ALTHOUGH THE DEFENDANT WAS HANDCUFFED AND SITTING ON THE BACKSEAT OF A POLICE CAR WHEN HE WAS ASKED QUESTIONS, INCLUDING WHETHER HE HAD BEEN DRINKING, BY THE OFFICER WHO MADE THE TRAFFIC STOP, THE DEFENDANT WAS NOT IN CUSTODY WHEN THE QUESTIONS WERE ASKED (FOURTH DEPT).

The Fourth Department determined defendant, although handcuffed and seated on the backseat of a police car, was not in custody such that his answers to questions, including whether he had anything to drink, should be suppressed. The officer observed defendant commit several traffic infractions, then the defendant got out of the car, staggering. The defendant would not stop and go back to his car when the officer told him to. When the officer caught up to him he smelled alcohol. The officer then handcuffed the defendant and had him sit on the backseat of the police car with his feet outside the car on the ground:

Contrary to defendant’s contention, we conclude that his answers to the sergeant’s questions were not the product of a custodial interrogation requiring Miranda warnings. ” It is well established that not every forcible detention constitutes an arrest’ ” … and, under the circumstances noted above, we agree with the court that the sergeant’s use of handcuffs did not transform the detention into a de facto arrest. Rather, the sergeant’s use of the handcuffs to effect the detention was warranted in light of the threat that defendant might take additional evasive action … .

We further conclude that seating defendant on the back seat of the police vehicle did not transform the sergeant’s questioning into a custodial interrogation. The sergeant lawfully, although forcibly, detained defendant for investigatory purposes based on his observation of defendant committing several traffic infractions … . Given defendant’s visible intoxication, staggering gait, and prior evasive actions, a ” less intrusive means of fulfilling the police investigation’ ” than seating defendant partially in the police vehicle ” was not readily apparent’ ” … . Here, the sergeant’s “action fell short of the level of intrusion upon defendant’s liberty and privacy that constitutes an arrest” … . In addition, the sergeant’s questions were investigatory rather than custodial in nature … . People v Mcdonald, 2019 NY Slip Op 04546, Fourth Dept 6-7-19

SUPPRESS SUPPRESSION

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BLOCKING THE CAR IN WHICH DEFENDANT WAS A PASSENGER WAS A JUSTIFIABLE LEVEL TWO INTRUSION, THE SUBSEQUENT LEVEL THREE INTRUSION WAS JUSTIFIED BY THE INFORMATION KNOWN TO THE POLICE AT THE TIME THE DEFENDANT STARTED TO GET OUT OF THE CAR AS THE POLICE APPROACHED (FOURTH DEPT).

The Fourth Department determined the blocking of the car in which defendant was a passenger by parking at the entrance to the driveway was only a permissible level two intrusion:

The charges against defendant arose after the police, who were investigating a recent stabbing, encountered defendant in a vehicle matching the description and anticipated location of the stabbing suspect’s vehicle given in a police dispatch.

We conclude that the police conduct was justified in its inception and at every subsequent stage of the encounter leading to defendant’s arrest … . Contrary to defendant’s contention, the police action in pulling up behind the subject vehicle, which had parked in defendant’s driveway after passing the officers’ patrol car, constituted only a level two intrusion … despite the fact that a police vehicle blocked the subject vehicle’s egress from the driveway … . The police at that point had the requisite founded suspicion to justify the level two intrusion.

The police escalated the encounter to a level three intrusion when they approached defendant, who had begun to exit the vehicle, and ordered him to remain in the vehicle … . Evaluating the totality of the circumstances … , we conclude that the police conduct was justified by the officers’ reasonable suspicion that defendant was the suspect described in the dispatch … . The officers found defendant less than two miles away from the scene of the stabbing, which had occurred approximately 20 minutes earlier. Defendant’s gender, race, height, and weight matched the description of the stabbing suspect. Furthermore, witnesses at the scene of the stabbing informed the police that the suspect left the scene in a small silver vehicle driven by a black female and that the vehicle may have been headed toward a residence on Mark Avenue. Defendant was a passenger in a silver vehicle driven by a black female, and the driveway in which the driver parked the vehicle was 50 to 75 yards from Mark Avenue. People v Pettiford, 2019 NY Slip Op 04620, Fourth Dept 6-7-19

SUPPRESSION, SUPPRESS, DE BOUR

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THE POND INTO WHICH THE 96-YEAR-OLD PLAINTIFF’S DECEDENT APPARENTLY SLID WAS OPEN AND OBVIOUS AND THE FACT THAT THE BANK OF THE POND IS SLIPPERY IS INCIDENTAL TO ITS NATURE AND LOCATION, PLAINTIFF’S EXPERT DID NOT SUPPORT THE ASSERTION THAT THE POND WAS DEFECTIVE AND UNSAFE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined defendant property owners’ motion for summary judgment in this wrongful death case was properly granted. Plaintiff’s decedent was 96 years old and resided in defendants’ senior citizen facility. Plaintiff’s decedent was found  dead in a pond on the property. The medical examiner concluded plaintiff’s decedent may has slipped on the sloping bank of the pond and slid into the water where he died of drowning:

… [A] landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it” … .

Here, defendants met their initial burden on the motion by establishing that the pond, including its sloping bank, was an open and obvious condition inherent or incidental to the nature of the property and that it was known to decedent prior to the accident …. “A slippery condition on a [pond’s bank] is necessarily incidental to its nature and location near a body of water” … . …

… [T]he engineering expert’s affidavit that plaintiff submitted fails to indicate that it was based on any studies, regulations, codes, or statutes, “nor is the expert’s conclusion that the [retention pond] was defective and unsafe . . . supported by foundational facts, such as a deviation from industry standards or statistics showing the frequency of injuries caused by” the lack of safety measures proposed by the expert … . Preston v Castle Pointe, LLC, 2019 NY Slip Op 04617, Fourth Dept 6-7-19

 

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THE RECKLESS DISREGARD STANDARD APPLIED TO DEFENDANT POLICE OFFICER WHO WAS RESPONDING TO AN EMERGENCY WHEN THE TRAFFIC ACCIDENT OCCURRED, THE OFFICER TOOK PRECAUTIONARY MEASURES AND THEREFORE HIS CONDUCT DID NOT RISE TO THE LEVEL OF RECKLESS DISREGARD OF THE SAFETY OF OTHERS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined “reckless disregard” standard for the operation of a police car in an emergency situation applied to the facts, and further found that the officer’s conduct did not rise to the level of “reckless disregard:”

We agree with defendants that the court erred in determining that the defendant officer’s conduct was not measured by the “reckless disregard” standard of care under Vehicle and Traffic Law § 1104 (e) … . That standard of care “applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b)” …  and, if applicable, the driver is “shielded from liability unless [he or she] is shown to have acted with reckless disregard’ of the safety of others” … . Here, there is no dispute that the defendant officer was operating an “authorized emergency vehicle” and was “involved in an emergency operation” at the time of the accident (§ 1104 [a]). Furthermore, defendants’ submissions in support of their motion established as a matter of law that the defendant officer was performing exempted conduct when he “proceed[ed] past a steady red signal . . . , but only after slowing down as may be necessary for safe operation” … . …

Here, the defendant officer’s uncontroverted testimony established that he was responding to a disturbance call that was “[p]riority 1,” i.e., the highest priority level, and that he took several precautions before proceeding into the intersection against the red light. Specifically, he slowed his vehicle to an almost complete stop, looked to his right and left, and then slowly proceeded into the intersection at a speed of about five miles per hour. When plaintiffs’ vehicle came into the defendant officer’s peripheral vision, he “slammed” his brake and attempted to avoid colliding with plaintiffs’ vehicle. Where, as here, a defendant officer takes precautionary measures before engaging in exempted conduct under Vehicle and Traffic Law § 1104 (b), the police officer does not act with reckless disregard for the safety of others … . Levere v City of Syracuse, 2019 NY Slip Op 04613, Fourth Dept 6-7-19

 

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PORTIONS OF THE RESPONDENTS’ APPRAISAL REPORT IN THIS CONDEMNATION PROCEEDING SHOULD NOT HAVE BEEN STRUCK BECAUSE THE PROPER VALUATION METHOD WAS USED; THE EVIDENTIARY RULING ON THE MOTION IN LIMINE IS APPEALABLE BECAUSE THE RULING AFFECTS THE SCOPE OF THE TRIAL ISSUES (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the portions of motion in limine seeking to strike parts of respondents’ appraisal report in this condemnation proceeding should not have been granted. The court noted that the evidentiary ruling was appealable because it limited the scope of the trial issues. The court further noted that the proof of valuation offered at trial must be limited to the valuation method(s) described in the appraisal report:

Where, as here, “the highest and best use is the one the property presently serves and that use is income-producing, then the capitalization of income is a proper method of valuation” … . In our view, the stricken portion of respondents’ appraisal report, although titled “investment valuation,” applied an income capitalization approach using the standard income capitalization formula, i.e., value equals net income divided by a capitalization rate … , and applied factors that, according to respondents’ appraiser, accurately reflect the property’s value and would make the property more appealing to prospective purchasers. To the extent that petitioner contends that certain factors considered by respondents’ appraiser in valuing the property do not accurately reflect market value, “[t]he fact that some aspects of the valuation methodology [of respondents’ appraiser] may be subject to question goes to the weight to be accorded the appraisal[],” not its admissibility … . … Matter of Rochester Genesee Regional Transp. Auth. v Stensrud, 2019 NY Slip Op 04612, Fourth Dept 6-7-19

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE A CAUSAL RELATIONSHIP BETWEEN THE ALLEGED DEVIATION FROM THE STANDARD OF CARE AND PLAINTIFF’S INJURY WITH RESPECT TO ONE OF THE DEFENDANT DOCTORS, THE DOCTOR’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined that the medical malpractice action against defendant Dr. Dietz and his employer should have been granted because plaintiff’s expert did not raise a question of fact about whether the alleged departure from the standard of care had a causal relationship with the plaintiff’s injury. The majority concluded the expert’s affidavit was sufficient to raise a question of fact with respect a second defendant, Dr. Pedersen, but the dissent argued the affidavit with respect to Dr. Pedersen was conclusory and did not demonstrate a causal relationship:

… [P]laintiff’s expert did not opine that Dr. Dietz caused the iliac vein injury and instead opined that Dr. Dietz deviated from the standard of care by insufficiently examining or testing the iliac vein following Dr. Pedersen’s repair. Inasmuch as plaintiff’s expert did not indicate the possible results of any such examination or testing, whether those results should have prompted a different course of treatment, or how Dr. Dietz’s alleged departure from the standard of care otherwise caused plaintiff’s injury, plaintiff failed to raise an issue of fact as to causation regarding Dr. Dietz … . Dickinson v Bassett Healthcare, 2019 NY Slip Op 04610, Fourth Dept 6-7-19

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING THAT FATHER ABANDONED THE CHILD, THE PERMANENT NEGLECT FINDING, HOWEVER, WAS SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court determined the evidence did not support the finding that father abandoned the child, but the evidence did support a finding of permanent neglect. The criteria for permanent neglect, not summarized here, are described in some depth in the decision. The matter was sent back for a dispositional hearing or a waiver of the hearing:

“An order terminating parental rights may be entered upon the ground that a child’s parent abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court’ ” … . A child is deemed abandoned “if the parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency’ ” … . “Parents are presumed able to visit and communicate with their children and, although incarcerated parents may be unable to visit, they are still presumed able to communicate with their children absent proof to the contrary” … .

Here, the record establishes that the father—following up on a prior attempt to establish paternity that he had initially failed to adequately pursue—definitively established his paternity, while incarcerated, less than two months into the six-month period preceding the filing of the petition … . Thereafter, throughout the relevant period, the father initiated communications with the child’s caseworker; sent the caseworker at least four letters inquiring about the child and included a card and drawing for the child in at least one of those letters; and participated in a service plan review. We conclude that the father’s contacts “were not minimal, sporadic, or insubstantial” … . Matter of Jarrett P. (Jeremy P.), 2019 NY Slip Op 04609. Second Dept 6-7-19

 

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