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THREE OF THE FOUR VEHICULAR HOMICIDE COUNTS WERE MULTIPLICITOUS EVEN THOUGH THEY INVOLVED DIFFERENT SUBDIVISIONS OF VEHICLE AND TRAFFIC LAW 1192; THE DWI AND DWAI COUNTS WERE INCLUSORY CONCURRENT COUNTS OF VEHICULAR HOMICIDE SECOND DEGREE (SECOND DEPT).

The Second Department determined three counts of vehicular homicide were multiplicitous and the DWI and DWAI counts were inclusory concurrent counts of vehicular homicide second degree:

While the People contend that each count of vehicular manslaughter required them to prove additional facts that the others did not, in fact, the People were only required to prove that the defendant violated one subdivision of Vehicle and Traffic Law § 1192 in order to prove his guilt under Penal Law § 125.12(1). The People’s election to proceed on a theory that the defendant had violated more than one such subdivision by presenting evidence of his multiple, distinct manners of intoxication was not necessary to establish his guilt … . Thus, a conviction on one count of vehicular manslaughter in the second degree would have been inconsistent with an acquittal on any other count charging the same offense predicated upon a different manner of intoxication … . Accordingly, we agree with the defendant that counts 5, 6, and 7 of the indictment were multiplicitous of count 4 … . Although the dismissal of the multiplicitous counts will not affect the duration of the defendant’s sentence of imprisonment, it is nevertheless appropriate to dismiss these counts in consideration of the stigma attached to the redundant convictions  … .

As the People concede, the defendant’s convictions of driving while intoxicated in violation of subdivisions (2) and (3) of Vehicle and Traffic Law § 1192 and driving while ability impaired under subdivisions (4) and (4-a) of Vehicle and Traffic Law § 1192 are inclusory concurrent counts of vehicular manslaughter in the second degree … . Accordingly, those convictions must also be reversed … . People v O’Brien 2020 NY Slip Op 04971, Second Dept 9-16-20

 

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DEFENDANT PRESENTED SUFFICIENT PROOF SHE DID NOT LIVE AT THE ADDRESS WHERE THE FORECLOSURE COMPLAINT WAS SERVED TO WARRANT A HEARING; THERE WAS NO SHOWING THAT HER FAILURE TO UPDATE HER ADDRESS WITH THE DEPARTMENT OF MOTOR VEHICLES WAS TO PREVENT SERVICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to enter a default judgment in this foreclosure action should not have been granted without first holding a hearing on defendant’s claim she was never served with the complaint. The defendant presented proof, including a lease, demonstrating she did not live at the address where service was made. The fact that defendant had not updated her address with the Department of Motor Vehicles did preclude defendant from demonstrating she lived at a different address because there was no evidence of a deliberate misrepresentation to prevent service:

… [T]he defendant successfully rebutted the process servers’ affidavits through her specific averments that, at the time of each purported service, neither the New York Avenue address, nor the subject premises, was her residence, actual dwelling place, or usual place of abode … . Rather, the defendant averred that at the time of each purported service, she resided at an address on Albany Avenue in Brooklyn. The defendant annexed to her affidavit her lease for the Albany Avenue premises covering the period from January 25, 2014, through January 31, 2015, money orders made payable to the Albany Avenue landlord within the lease period, the defendant’s 2015 W-2 bearing the Albany Avenue address, utility bills during the lease period bearing the Albany Avenue address, and bank statements during the lease period bearing the Albany Avenue address. These records, in conjunction with the defendant’s sworn statements, are evidence that the defendant did not reside at the locations where process was served, and were sufficient to warrant a hearing … . Nationstar Mtge., LLC v Esdelle, 2020 NY Slip Op 04956, Second Dept 9-16-20

 

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NOTWITHSTANDING ANY PRECEDENT TO THE CONTRARY, THE APPELLATE DIVISION CAN REVIEW THE RECORD OF A TRIAL AND FIND THE VERDICT UNSUPPORTED BY THE FACTS DESPITE THE ABSENCE OF A MOTION TO SET ASIDE THE VERDICT; HERE THE RECORD IN THIS TRAFFIC ACCIDENT CASE DID NOT SUPPORT THE FINDING THAT THE DRIVER OF A NEW YORK STATE THRUWAY DUMP TRUCK ACTED RECKLESSLY BY PARKING THE TRUCK ON THE SHOULDER OF THE THRUWAY (FOURTH DEPT).

The Fourth Department, refusing to follow any decisions to the contrary, determined, despite the defendant’s failure to make a motion to set aside the verdict, the appellate court may review the record and render a judgment warranted by the facts. The Fourth Department, over a two-justice dissent, reversed the plaintiffs’ verdict in this traffic accident case. Defendant, an employee of the New York State Thruway Authority, was the driver of a dump truck parked on the shoulder of the thruway while other employees picked up debris in the median. The truck was parked 18 inches to the left of the fog line. Plaintiffs’ van drifted out of its lane and struck the back of the dump truck. The plaintiffs argued defendant was required by the relevant regulations to pull off “as far from traffic as feasible.” The Fourth Department held that, although failure to pull off the highway further than 18 inches may demonstrate a lack of due care, it did not demonstrate recklessness as required by Vehicle and Traffic Law 1103:

… [A]t the time of the collision, defendant had parked the truck entirely outside of the travel lane approximately 18 inches to the left of the yellow fog line on or near the rumble strips located on the shoulder. Defendant had also activated multiple hazard lights on the truck, which consisted of regular flashers, two amber lights on the tailgate, beacon lights, and four flashing caution lights on the arrow board. Moreover, the undisputed evidence established that there were no weather, road, or lighting conditions creating visibility or control issues for motorists on the morning of the incident. Even if, as the court found, defendant knew or should have known that vehicles occasionally leave the roadway at a high rate of speed due to motorists being tired, distracted, or inattentive, we conclude that, here, it cannot be said that defendant’s actions were of an “unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and . . . done . . . with conscious indifference to the outcome” … . Alexandra R. v Krone, 2020 NY Slip Op 04631, Fourth Dept 8-20-20

 

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PLAINTIFF BICYCLIST RAN INTO THE BACK OF DEFENDANT’S STOPPED OR STOPPING CAR; DEFENDANT DRIVER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action by plaintiff-bicyclist against defendant-driver should have been dismissed. Plaintiff ran into the back of defendant’s car as defendant was stopped or was stopping to park:

Vehicle and Traffic Law section 1231 provides that every bicyclist is “subject to all of the duties applicable to the driver of a vehicle” … . A bicyclist “approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” ( … see Vehicle and Traffic Law § 1129[a]). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence … .

… The evidence … established that the plaintiff was negligent in failing to see what was there to be seen because he was not paying attention to the road conditions ahead, while he was riding his bicycle at a fast rate of speed, and that he failed to maintain a reasonably safe distance from the defendant’s vehicle which, according to the plaintiff, was stopped at the time of the impact … .

The plaintiff’s contention in opposition that the defendant made a sudden stop before attempting to park his vehicle was insufficient to raise a triable issue of fact as to whether the defendant was negligent in the operation of his vehicle … . Greene v Raskin, 2020 NY Slip Op 04463, Second Dept 8-12-20

 

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REVOCATION OF PETITIONER’S DRIVER’S LICENSE, BASED UPON A 1995 DEFAULT CONVICTION OF WHICH PETITIONER WAS APPARENTLY UNAWARE, WAS ARBITRARY AND CAPRICIOUS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined the revocation of defendant’s driver’s license based upon a 24-year-old default conviction, which involved an error made by the Department of Motor Vehicles in 1994 (misspelling petitioner’s name), was arbitrary and capricious:

Petitioner was issued four summonses in October of 1994 for driving violations including driving without insurance. When entering the violations into the DMV database, a DMV employee entered petitioner’s surname as “Sanders,” rather than “Sonders,” which DMV acknowledges was a “possible data-entry error.” Petitioner claims to the best of his knowledge and memory never to have been issued the summonses in question. A default judgment was entered against petitioner as a result of his failure to contest the tickets. The conviction for driving without insurance carried a mandatory penalty of a one-year license revocation (see Vehicle and Traffic Law § 318[3][a]-[b]). On or about August 6, 2019, petitioner renewed his New York State driver’s license in person at the DMV. At that time, he obtained a copy of his driving record abstract, which indicated that his license status was “valid.”

Thereafter, petitioner received suspension notices, dated August 7, 2019, stating that his license had been suspended on February 3, 1995; and a revocation order dated August 7, 2019 stating that owing to the February 3, 1995 conviction his license would be revoked for one year in accordance with section 318 of the Vehicle and Traffic Law. Petitioner claims that this is the first notice he received of the summonses.

Petitioner paid the outstanding fines and in September 2019 commenced an article 78 proceeding challenging the license revocation. Supreme Court denied the petition and dismissed the proceeding. This appeal followed. …

“A license to operate an automobile is of tremendous value to the individual and may not be taken away except by due process.”

No such due process was afforded to petitioner, who never received notice of the conviction and was led to believe for over 20 years that his license was in order.  Matter of Sonders v New York State Dept. of Motor Vehs. Traffic Violations Bur., 2020 NY Slip Op 04443, First Dept 8-6-20

 

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THE FINDING THAT PETITIONER VIOLATED VEHICLE AND TRAFFIC LAW 1180 (d) (SPEEDING) WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; THE POLICE OFFICER DESCRIBED AN INCIDENT ON A DIFFERENT DATE AT THE HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the administrative finding that petitioner violated Vehicle and Traffic Law section 1180 (d) (speeding) was not supported by substantial evidence because the police officer described an incident on a different date at the hearing:

At the hearing, the police officer, who issued the summons to the petitioner, testified about events which occurred on March 18, 2016, which was not the date that the alleged offense occurred according to the summons issued to the petitioner. While the substantial evidence standard “demands only that a given inference is reasonable and plausible, not necessarily the most probable'” … , here, there was no testimony or evidence provided to demonstrate that the petitioner operated his vehicle in violation of Vehicle and Traffic Law § 1180(d) on March 8, 2016. Given the discrepancy between the date of the offense as set forth in the summons and the testimony of the officer, relying on his notes which also referred to March 18, 2016, the record does not demonstrate that the ALJ was presented with substantial evidence that the petitioner violated Vehicle and Traffic Law § 1180(d) on March 8, 2016 … . Matter of Batra v Egan, 2020 NY Slip Op 04300, Second Dept 7-29-20

 

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WHETHER THE DEFENDANT FIRST STOPPED AT THE STOP SIGN OR DROVE THROUGH THE STOP SIGN DOESN’T MATTER BECAUSE EITHER WAY THE VEHICLE AND TRAFFIC LAW WAS VIOLATED; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a judgment as a matter of law (CPLR 4401) was properly denied, but the motion to set aside the defense verdict in this intersection traffic accident case (CPLR 4404 (a)) should have been granted. Defendant violated the Vehicle and Traffic Law by proceeding into the intersection on a road controlled by a stop sign. Whether defendant first stopped at the stop sign or went through the stop sign doesn’t matter:

… [T]he Supreme Court should have granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. The evidence established that the defendant violated Vehicle and Traffic Law §§ 1142(a) and 1172(a) … . The defendant’s statutory duty to yield to the plaintiff continued even after the defendant entered the intersection. Such statutory violations constitute negligence as a matter of law and could not properly be disregarded by the jury … . Accordingly, the jury could not have returned a verdict that the defendant was not negligent on any fair interpretation of the evidence … . Ramirez v Cruse, 2020 NY Slip Op 04334, Second Dept 7-29-20

 

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LOCAL LAW REVISING ZONING DISTRICTS AND ALLOWING MINING WAS VALIDLY ENACTED; CONTRARY TO SUPREME COURT’S FINDING, TWO PETITIONERS HAD STANDING BY VIRTUE OF THEIR OWNING PROPERTY SUBJECT TO THE NEW ZONING PROVISIONS; ONE PORTION OF THE LOCAL LAW USURPED THE POWERS OF THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) AND WAS ANNULLED; ANOTHER PORTION ADDRESSING TRUCK TRAFFIC VIOLATED THE VEHICLE AND TRAFFIC LAW AND WAS ANNULLED (THIRD DEPT).

The Third Department, in a comprehensive and detailed decision which can not be fairly summarized here, determined a local law which included and new zoning map, revised zoning districts and allowed mining on properties with existing permits was validly enacted. Disagreeing with Supreme Court, the Third Department noted that two of the petitioners, Holser and Hastings, had standing to challenge the State Environmental Quality Review Act (SEQRA) review by virtue of owning property subject to the rezoning ordinance. The court found that one section of the Local Law usurped powers reserved under SEQRA requiring annulment of that section. The court found that another paragraph of the Local Law prohibiting the transport of minerals on town roads did not carve out exceptions for deliveries as required by the Vehicle and Traffic Law. With respect to the standing issue, the court wrote:

For purposes of standing, when a property owner challenges the SEQRA review process undertaken in conjunction with a zoning enactment to which its property is subject, “ownership of the subject property confers a legally cognizable interest in being assured that the Town satisfied SEQRA before taking action to rezone its land”  … . “[S]tanding should be liberally constructed so that land use disputes are settled on their own merits rather than by preclusive, restrictive standing rules. To that end, the allegations contained in a petition are deemed to be true and are construed in the light most favorable to the petitioner” … . Holser and Hastings have demonstrated that they reside in the Town and own property therein. It is not necessary to assert “proof of special damage or in-fact injury” … , nor do they have to state a noneconomic environmental harm. All that is necessary for standing is to demonstrate ownership of property subject to the rezoning ordinance … . Matter of Troy Sand & Gravel Co., Inc. v Town of Sand Lake, 2020 NY Slip Op 04212, Thrid Dept 7-23-20

 

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ALTHOUGH THE EMERGENCY HAD DIMINISHED AND THE POLICE OFFICER HAD TURNED OFF HIS SIREN AND LIGHTS WHEN THE ACCIDENT OCCURRED, THE OFFICER WAS STILL ENGAGED IN AN EMERGENCY OPERATION AND DID NOT ACT IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant police officer (Hurley) was engaged in an emergency operation when the officer’s car struck the plaintiffs’ car as the officer made a turn onto the street where plaintiffs’ car was at a stop sign. Although the officer thought the urgency had diminished and had turned off the siren and lights, he was awaiting word that the emergency was over. The police had been called by a resident who saw someone on her porch who then ran into the woods. Another officer had stopped a man who explained he was looking for his dog. That story was being checked out when the accident occurred:

The fact that Hurley believed the call was no longer a “high” priority and had deactivated the lights and siren on his vehicle does not, as the plaintiffs contend, mean that Hurley was no longer engaged in an emergency operation … . An “emergency operation” is statutorily defined to mean, among other things, “[t]he operation . . . of an authorized emergency vehicle, when such vehicle is . . . responding to . . . the scene of a[ ] . . . police call” (Vehicle and Traffic Law § 114-b … ). Since Hurley was responding to the scene of a police call at the time of the accident, he was engaged in an emergency operation … .

… Hurley was engaged in privileged conduct at the time of the accident, as the driver of an authorized emergency vehicle is permitted to, inter alia, “[d]isregard regulations governing directions of movement” (Vehicle and Traffic Law § 1104[b][4] …). As such, Hurley’s conduct was governed by the reckless disregard standard … .

The reckless disregard standard “demands more than a showing of a lack of due care under the circumstances’—the showing typically associated with ordinary negligence claims. It requires evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” … . “This standard requires a showing of more than a momentary lapse in judgment” … . Here, although Hurley’s conduct may have constituted a momentary lapse in judgment, it did not rise to the level of reckless disregard for the safety of others … . Proce v Town of Stony Point, 2020 NY Slip Op 04195, Second Dept 7-22-20

 

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WHETHER THE TRAFFIC ACCIDENT INVOLVING A SALT-SPREADING TRUCK OCCURRED ON A PUBLIC OR PRIVATE PARKING LOT AFFECTED THE APPROPRIATE STANDARD OF CARE UNDER THE VEHICLE AND TRAFFIC LAW, PROOF ON THAT ISSUE SHOULD HAVE BEEN ALLOWED; DEFENDANTS’ ACCIDENT RECONSTRUCTIONIST SHOULD HAVE BEEN ALLOWED TO TESTIFY; THE $12 MILLION VERDICT WAS PROPERLY SET ASIDE AS EXCESSIVE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined a new trial was necessary on both liability and damages in this traffic accident case. Supreme Court had found the $12,000,000 verdict excessive and had ordered a new damages trial. The accident occurred in a parking lot at LaGuardia Airport during a snowfall and involved a salt-spreading truck. Proof whether the parking was public or private should have been allowed because the reckless disregard standard (Vehicle and Traffic Law) would apply if the parking lot was public. The First Department further found that the defendants’ accident reconstructionist should have been allowed to testify:

Plaintiff, an employee at a Dunkin Donuts franchise in LaGuardia Airport, was involved in an accident with a salt spreading truck operating in parking lot 10 of the airport during a snowfall. The trial court erred in truncating proof on the issue of whether lot 10 was public or private. This error then directly impacted whether the jury should have been charged with the recklessness standard as set forth in Vehicle and Traffic Law § 1103, or Vehicle and Traffic Law § 1163 … . The error in the charge warrants a new trial … .

The court also erred in precluding defendants’ accident reconstructionist from testifying … . The court’s in limine inquiry of the expert concerning scientific studies was not relevant, as the subject of the testimony, accident reconstruction and perception reaction time are not novel scientific theories, such as to require a Frye hearing … . The proposed expert testimony was based on evidence in the record concerning the accident, and was not entirely speculative … . Similarly, defendants’ notice of expert exchange was not insufficient such as to warrant his in toto preclusion. The remedy for any alleged failures in specificity could have been handled by limiting his testimony to the subject matters listed in the exchange (CPLR 3101[d]). Cabrera v Port Auth. of N.Y. & N.J., 2020 NY Slip Op 03993, First Dept 7-16-20

 

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