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CLAIMANT INITIALLY BELIEVED THE ROAD WHERE HE STEPPED IN A POTHOLE AND FELL WAS OWNED BY THE VILLAGE, BUT IN FACT IT WAS OWNED BY THE STATE; CLAIMANT’S LATE NOTICE OF CLAIM SHOULD HAVE BEEN ACCEPTED BY THE COURT OF CLAIMS (THIRD DEPT). ​

The Third Department, reversing the Court of Claims, determined claimant’s late notice of claim in this roadway defect case should not have been rejected. Plaintiff alleged he stepped in a depression in the road and fell. Plaintiff initially believed the road was owned by the village, when, in fact, it was owned by the state. The defect in the road was patched within a week of plaintiff’s fall:

The delay here was minimal, with defendant having received notice approximately three weeks after the 90-day deadline lapsed … . It is significant that when [claimant] returned to the accident scene … , he discovered that the pothole had been patched with blacktop, as shown in the photographs taken that day. Claimant further averred that the depression was “almost a foot wide and around ten feet long,” specifying that it was “about three to four inches deep where [his] foot ended up.” Given this postaccident development, claimant’s attorney argued that “[w]hile [defendant] may not have obtained notice of the . . . accident within 90 days of its occurrence, it is highly likely that it had notice of the condition of the pavement that caused the accident as it patched it within a week of when the accident happened,” emphasizing that defendant’s “records should indicate precisely when it was patched as well as when the decision to patch it occurred and why.” * * *

“A claim has the appearance of merit so long as it is not patently groundless, frivolous or legally defective, and the record as a whole gives reasonable cause to believe that a valid cause of action exists” … . To hold defendant liable for his injuries, claimant will need to prove that defendant either created the condition itself by affirmative acts of negligence, or had actual or constructive notice of a dangerous condition and failed to remedy such condition, thereby causing claimant’s injuries … . Constructive notice exists where a depression in the roadway was “visible and apparent and existed for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . Grasse v State of New York, 2024 NY Slip Op 03110, Third Dept 6-6-24

Practice Point: The criteria for acceptance or rejection of a late notice of claim in the Court of Claims is explained.

 

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A SCHEDULE LOSS OF USE (SLU) EVALUATION BASED UPON THE EXPIRED 2012 GUIDELINES SHOULD NOT HAVE BEEN CONSIDERED BY THE WORKER’S COMPENSATION BOARD; A SECOND SLU EVALUATION BASED UPON THE CURRENT 2018 GUIDELINES HAD BEEN SUBMITTED BUT WAS NOT RELIED UPON BY THE BOARD (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the fact that the claimant’s treating physician’s (Harley’s) initial schedule loss of use (SLU) evaluation was based on the expired 2012 guidelines, not the most recent 2018 guidelines, and therefore should not have been considered. The treating physician had subsequently submitted another SLU evaluation based on the 2018 guidelines with a significantly higher percentage of loss:

Inasmuch as Harley’s permanency examination of claimant was “the first medical evaluation of SLU” and occurred after January 1, 2018, Harley improperly relied upon and applied the 2012 Guidelines in rendering his SLU opinion. As such, the Board’s reliance upon Harley’s medical report and testimony was erroneous; its decision is therefore not supported by substantial evidence and must be reversed … . Matter of Garofalo v Verizon N.Y., Inc., 2024 NY Slip Op 02961, Third Dept 5-30-24

Practice Point: A schedule loss of use (SLU) evaluation based upon expired guidelines should not be relied upon in a Worders’ Compensation proceeding.

 

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A LOOSE DOOR HANDLE CAUSED THE GLASS DOOR TO SHATTER; DEFENDANTS PRESENTED INSUFFICIENT EVIDENCE OF WHEN THE DOOR HANDLE WAS LAST INSPECTED AND THEREFORE DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendants did not demonstrate the glass door which shattered had been inspected close in time to the incident. Therefore a question of fact remained whether defendants had constructive knowledge of the loose handle which caused the door to shatter when plaintiff attempted to open it:

Although 730-Gen’s urban portfolio manager testified that he inspected the interior vestibule doors following an incident that involved the exterior doors in the weeks prior to plaintiff’s accident, his testimony only provided a vague description of the inspection performed. Importantly, he could not identify exactly when the inspection occurred, and he did not indicate that any steps were taken to examine the door’s metal handle.

The urban portfolio manager further testified that defendants had a daily inspection protocol in place to inspect the vestibule doors. However, he admitted that he had never seen anyone perform a daily inspection and he could not identify when the last inspection occurred prior to plaintiff’s accident. …

730-Gen also asserts that the doors received cursory inspections, in that they were used on a daily basis. Yet, there is no record of these cursory inspections taking place … , or any indication that they involved a reasonable inspection of the door handle … .

… 730-Gen’s reliance on the urban portfolio manager’s inspection, which occurred almost two weeks prior to plaintiff’s accident, failed to establish, prima facie, that inspecting the door handle on a biweekly basis is reasonable, especially in light of the daily inspection protocol defendant contends was in place to ensure the handles were tightly secured … . Doherty v 730 Fifth Upper, LLC, 2024 NY Slip Op 02979, First Dept 5-30-24

Practice Point: Unless the defendant can show the instrumentality which caused plaintiff’s injury was inspected and found safe close in time to the injury, a defendant’s motion for summary judgment will not be granted.

 

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ALTHOUGH PLAINTIFF DID NOT KNOW WHICH STEP SHE SLIPPED AND FELL FROM, THERE WAS EVIDENCE ALL THE STEPS WERE UNLEVEL AND SLOPING; DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE STAIRWAY WAS LATENT AND NOT DISCOVERABLE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant did not demonstrate plaintiff could not identify the cause of her stairway fall and defendant did not demonstrate the nonlevel and sloping condition of the steps was latent and could not have been discovered:

… [T]he plaintiff testified that her fall was caused by the fact that the “stairs were not level . . . not straight.” Although the plaintiff testified that she might have lost her balance on either the fourth step from the top of the staircase or the fourth step from the bottom of the staircase, the report of the plaintiff’s expert witness … stated that the treads on the staircase were “uneven and pitched forward,” creating an “inherent walking hazard,” and that the “out-of-level and sloping condition” affected “the entire staircase.”

* * * “In moving for summary judgment on the ground that [a] defect was latent, a defendant must establish, prima facie, that the defect was indeed latent—i.e., that it was not visible or apparent and would not have been discoverable upon a reasonable inspection”…..  Here, the evidence proffered in support of the defendant’s motion failed to establish, prima facie, that the nonlevel and sloping condition that allegedly caused the plaintiff to fall amounted to a latent condition and could not have been discovered upon a reasonable inspection. Toro v McComish, 2024 NY Slip Op 02945, Second Dept 5-29-24

Practice Point: Here the unlevel and sloping condition of the steps in the stairway where plaintiff fell was not shown to be latent and undiscoverable upon inspection.

 

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THE NEGOTIATED PLEA REQUIRED NO POST-PLEA ARRESTS; DEFENDANT WAS ARRESTED AFTER THE PLEA BUT THE PROCEEDINGS WERE DISMISSED ON SPEEDY TRIAL GROUNDS AND THE RECORDS SEALED; THE POST-PLEA ARRESTS WERE THEREFORE A NULLITY AND SHOULD NOT HAVE BEEN CONSIDERED BY THE SENTENCING JUDGE (SECOND DEPT). ​

The Second Department determined defendant’s sentence was based upon post-plea arrests which resulted in dismissal on speedy trial grounds and for which the records had been sealed. Criminal records sealed pursuant to Criminal Procedure Law (CPL) 160.50(1) have thereby been rendered a nullity. Therefore the sealed proceedings can not be the basis for a sentence:

… [T]he defendant … pleaded guilty to criminal possession of a firearm … and criminal possession of a weapon in the fourth degree …  as part of a negotiated disposition. It was agreed that if the defendant successfully completed one year of interim probation and complied with certain conditions during that time, including a no-arrest condition, the criminal possession of a firearm charge would be dismissed and he would be sentenced to a conditional discharge on the conviction of criminal possession of a weapon in the fourth degree. However, if the defendant failed to satisfy the conditions, he would be sentenced to a one-year term of imprisonment on the conviction of criminal possession of a firearm.

It is undisputed that during the term of the defendant’s interim probation, he was arrested three times. The proceedings with regard to those arrests were dismissed on speedy trial grounds and the records sealed. However, after an Outley hearing … , the Supreme Court determined that there was “a legitimate basis for [the defendant’s] arrest” and that the defendant failed to comply with the terms of his interim probation. Based upon that determination, the court sentenced the defendant to a one-year term of imprisonment on the conviction of criminal possession of a firearm. * * *

The proceedings resulting from the defendant’s postplea arrests were dismissed on speedy trial grounds, which were terminations in his favor … , and the records of those proceedings were sealed pursuant to CPL 160.50(1). Thus, the “arrest[s] and prosecution[s] [are] deemed a nullity” … , and the sealed records were “not available for consideration at sentencing” … . People v Desdunes, 2024 NY Slip Op 02932, Second Dept 5-29-24

Practice Point: Arrests and prosecutions dismissed on speedy trial grounds and sealed pursuant to CPL 160.50(1) are a nullity and cannot be considered in sentencing.

 

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THE CUSTODY-RELATED PRINCIPALS UNDERLYING MICHAEL B, 80 NY2D 299, APPLY TO THIS SURROGATE’S COURT GUARDIANSHIP PROCEEDING WHERE BOTH PARENTS SEEK TO BE APPOINTED GUARDIAN OF THEIR DEVELOPMENTALLY DISABLED SON AS HE TURNS 18; NEW EVIDENCE RENDERED THE RECORD INSUFFICIENT FOR A GUARDIANSHIP DETERMINATION; A NEW HEARING WAS ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, in this Surrogate’s Court guardianship proceeding, determined the principals underlying Matter of Michael B, 80 NY2d 299, a custody case, should apply to this action to determine which parent should be appointed guardian of their developmentally disabled son, Joseph J D II, as he turned 18. Because new evidence was brought to light after the hearing, the record is no longer sufficient and a new hearing was ordered:

These appeals present us with the narrow question of whether a rule set forth by the Court of Appeals in Matter of Michael B. (80 NY2d 299)—that an appellate court may remit a child custody matter for a new hearing if subsequent developments reflect that the record has become insufficient to determine the issues presented—may be extended to this appeal from a Surrogate’s Court decree determining a guardianship contest between the parents of an adult with a developmental disability within the meaning of article 17-A of the Surrogate’s Court Procedure Act. In light of certain commonalities between this dispute and a custody dispute, including a focus on the best interest of the individual who is the subject of the proceedings, we conclude that the rule and underlying rationale set forth in Matter of Michael B. is equally applicable here. Thus, in this proceeding pursuant to Surrogate’s Court Procedure Act article 17-A, we will consider new facts and allegations brought to our attention by the parties for the limited purpose of ascertaining whether the record before us is sufficient make a best interest determination, which is the same standard applied in appeals involving child custody. Upon doing so, we find that a new hearing is warranted because the record is no longer sufficient to determine what, at this juncture, is in the best interest of Joseph J. D. II. Matter of Joseph J.D. (Robert B.D.), 2024 NY Slip Op 02813, Second Det 5-22-24

Practice Point: The custody-related principals underlying Matter of Michael B, 80 NY2d 299, were applied to this Surrogate’s Court guardianship proceeding where both parents sought to be appointed guardian of their developmentally disabled son as he turned 18. Because new evidence came to light rendering the record inadequate, a new hearing was ordered.

 

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THE SEARCH OF A SMALL EARBUD CASE IN DEFENDANT-PAROLEE’S POCKET WAS NOT REASONABLY RELATED TO THE CLAIMED PURPOSE OF THE PAROLE OFFICERS’ PRESENCE IN DEFENDANT’S RESIDENCE, I.E., A SEARCH FOR A PAROLE ABSONDER; THE HEROIN FOUND IN THE EARBUD CASE SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the Appellate Division, determined the search of defendant-parolee’s person by a parole officer was not rationally and reasonably related to the parole officers’ duty. The parole officers claimed they entered defendant’s residence to look for a parole absconder. The search of a small earbud case found inside defendant’s pocket, which turned up heroin, was not reasonably related to the claimed purpose of the parole officers’ presence:

… [T]he People failed to meet their burden to establish that the search of defendant’s pocket was substantially related to the performance of the parole officers’ duties in the particular circumstances presented, i.e., the search of defendant’s residence for a parole absconder. Nor did the People present any evidence at the hearing that circumstances that developed after the parole officers arrived at defendant’s residence rendered the search of his pocket substantially related to the performance of their duties. On this record, the parole officer had no reason to continue the brief pat-down search of the exterior of defendant’s person by searching his pocket and investigating the contents of an earbud case. People v Lively, 2024 NY Slip Op 02767, CtApp 5-21-24

Practice Point: Here the parole officers claimed to be in defendant-parolee’s residence to search for a parole absconder. Therefore the search of a small earbud case found in defendant-parolee’s pocket was not reasonably related to the parole officers’ duties and the drugs found in the case should have been suppressed.

 

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THE SEARCH OF DEFENDANT-PAROLEE’S RESIDENCE WAS “RATIONALLY AND REASONABLY RELATED TO THE PERFORMANCE OF THE PAROLE OFFICER’S DUTY” AND THEREFORE DENIAL OF THE MOTION TO SUPPRESS THE WEAPON FOUND IN THE RESIDENCE WAS PROPER (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the search of defendant-parolee’s residence after a tip from defendant’s mother about defendant’s possession of a firearm was “rationally and reasonably related to the performance of the parole officer’s duty:”

As a condition of his parole, defendant agreed not to “own, possess, or purchase” any firearm without permission from his parole officer. Defendant was given “the most severe” mental health designation from the Department of Corrections and Community Supervision, OMH Level 1-S, indicating there were “serious” concerns regarding his mental health. Shortly after defendant’s release to parole, his parole officer received information from his supervisor that defendant’s mother contacted the parole office to inform them that she saw a photograph of defendant with a firearm, and gave the parole officers permission to search the residence that she shared with defendant … . Acting on this information, defendant’s parole officer, with the assistance of other officers, conducted a search of defendant’s home and recovered an AR-15 style rifle and two thirty-round extended magazines with extra gun parts from defendant’s bedroom.

Based on the foregoing, there is record support for the lower courts’ conclusion … that the search of defendant’s residence by defendant’s parole officer was “rationally and reasonably related to the performance of the parole officer’s duty” and so defendant’s motion to suppress this evidence was properly denied … . The Aguilar-Spinelli test … for evaluating whether a tip provides police with probable cause for a search or seizure does not apply in these circumstances … . People v Spirito, 2024 NY Slip Op 02766, Fourth Dept 5-21-24

Practice Point: The criteria for a search of a parolee’s residence by a parole officer is not subject to the same constitutional restraints as are searches by the police. Here a tip from defendant’s mother about her son’s possession of a weapon was sufficient to justify the parole-officer search.

 

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THE POLICE MAY STOP A VEHICLE IN THE EXERCISE OF THE “COMMUNITY CARETAKING” FUNCTION IF THERE IS CAUSE TO BELIEVE SOMEONE IN THE VEHICLE NEEDS ASSISTANCE; THE QUICK OPENING AND CLOSING OF A PASSENGER DOOR WAS NOT ENOUGH (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, over a two-judge concurrence, recognized that a vehicle may be stopped by the police exercising the “community caretaking” function if the police have cause to believe someone in the vehicle needs assistance. Here defendant’s car was stopped after the passenger door opened and closed quickly. The defendant driver was arrested after admitting he possessed ecstasy. The Court of Appels, after describing the criteria for a “community caretaking” vehicle stop, found that the quick opening and closing of the passenger door was not enough to conclude an occupant needed help:

We conclude that the police may stop an automobile in an exercise of their community caretaking function if two criteria exist. First, the officers must point to specific, objective, and articulable facts that would lead a reasonable officer to conclude that an occupant of the vehicle is in need of assistance. Second, the police intrusion must be narrowly tailored to address the perceived need for assistance. Once assistance has been provided and the peril mitigated, or the perceived need for assistance has been dispelled, any further police action must be justified under the Fourth Amendment and Article I, section 12 of the State Constitution. People v Brown, 2024 NY Slip Op 02765, CtApp 5-21-24

Practice Point: The police may stop a vehicle if there is cause to believe someone in the vehicle needs assistance. Here the quick opening and closing of a passenger door was not enough to justify the stop.

 

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THE DETECTIVE’S TESTIMONY AT THE SUPPRESSION HEARING THAT THE VEHICLE WAS PULLED OVER BECAUSE OF “EXCESSIVELY TINTED WINDOWS” WAS NOT SUFFICIENT TO DEMONSTRATE PROBABLE CAUSE FOR THE STOP; SUPPRESSION SHOULD HAVE BEEN GRANTED (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the police officer’s testimony at the suppression hearing the vehicle in which defendant was a passenger was stopped based on “excessively tinted window” was not sufficient to demonstrate probable cause for the vehicle stop. Therefore the drugs seized from the defendant should have been suppressed:

Vehicle and Traffic Law § 375 (12-a) (b) generally provides that “[n]o person shall operate any motor vehicle upon any public highway, road[,] or street” with windows which have a light transmittance of less than 70%. * * *

When a defendant challenges “the sufficiency of the factual predicate for the stop,” it is the People’s burden “to come forward with evidence sufficient to establish that the stop was lawful” … . “Summary statements that the police had arrived at a conclusion that sufficient cause existed will not do” … . * * *

… Detective Fortunato’s testimony that the tint was “excessive” is … a legal conclusion that the tint violated the Vehicle and Traffic Law. Yet, the People failed to elicit any factual basis for this conclusion. The detective did not testify, for example, that the windows were so dark that he could not see into the vehicle … or that he had training and experience in identifying illegally tinted windows or conducting this type of stop … . Nor did the detective testify that he measured the tint after stopping the vehicle and the results confirmed that the tint level violated the Vehicle and Traffic Law, which could have provided objective, corroborative evidence of the reasonableness of his conclusion … . People v Nektalov, 2024 NY Slip Op 02725, CtApp 5-16-24

Practice Point: To demonstrate probable cause for a vehicle stop based upon “excessively tinted windows” there must be some demonstration the tint violated the Vehicle and Traffic Law (less that 70% light transmittance). Simply testifying the windows were “excessively tinted” is not enough.

 

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