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A STATEMENT FROM THE DEPARTMENT OF TRANSPORTATION AUTHENTICATING PHOTOGRAPHS OF PETITIONER’S CAR RUNNING A RED LIGHT NEED NOT BE NOTARIZED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city (NYC) was not required to submit a notarized statement from the Department of Transportation authenticating photographs of petitioner’s car running a red light:

For over half a century, the legislature has consistently provided for prima facie liability for minor traffic offenses to be established by a simple, nonnotarized affirmation under penalty of perjury, using the same “sworn to or affirmed” language. Legislative history establishes the plain intent and meaning of the “sworn to or affirmed” language of Vehicle and Traffic Law § 1111-a(d): that the reviewing technician merely affirm, under penalty of perjury, the veracity of his statement. No notarization is necessary.

In the instant administrative proceeding, the notice of liability was supported by the requisite affirmation. The video images authenticated by the technician show petitioner’s car running a red light. This constitutes, as per the statute, “prima facie evidence” of the traffic violation (Vehicle and Traffic Law §1111-a[d]). Matter of Monroe St. v City of New York, 2022 NY Slip Op 00972, First Dept 2-15-22

 

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THE SO-CALLED TWO-HOUR RULE, REQUIRING THE REQUEST FOR A DWI BREATH TEST BE MADE AND THE REFUSAL WARNINGS BE GIVEN WITHIN TWO HOURS OF ARREST, DOES NOT APPLY TO THE ADMINISTRATIVE LICENSE REVOCATION HEARINGS HELD BY THE DEPARTMENT OF MOTOR VEHICLES (DMV); THEREFORE THE FACT THAT THE PETITIONER WAS ASKED TO TAKE THE BREATH TEST AND WAS GIVEN THE REFUSAL WARNINGS THREE HOURS AFTER ARREST DID NOT PRECLUDE THE DMV FROM CONSIDERING PETITIONER’S TEST REFUSAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFore, over a dissenting opinion, determined the so-called two-hour rule does not apply to a driver’s license revocation administrative hearing after a DWI arrest. Within two hours of arrest the police can warn the driver that a refusal to submit to the blood-alcohol breath test is admissible at trial. If the request to submit to the test is made and the refusal warnings are given more than two hours after arrest, however, the refusal is not admissible at trial. Here the petitioner refused the DWI breath test three hours after arrest, after the refusal warnings were given. He argued the two-hour rule should apply and the refusal should not be considered at the Department of Motor Vehicle’s (DMV’s) administrative license revocation hearing:

Petitioner’s reliance on the statutory interpretation analysis in People v Odum [31 NY3d 344] as support for a motorist’s substantive right to refuse a chemical test without consequence is misplaced. Odum addressed the admissibility at trial of the results of a chemical test administered more than two hours after the defendant’s arrest, and whether the refusal warnings, including the inaccurate warning regarding the use of any refusal at a criminal trial, as given to him rendered his consent to the test involuntary. We emphasized that the 1973 statute authorizing the admissibility of evidence of a test refusal at a criminal trial was in derogation of common law and concluded as a result that the statutory provision authorizing such admission—Vehicle and Traffic Law § 1194 (2) (f)—had to be strictly construed to include the two-hour rule … . In stark contrast, the limitation on the scope of the revocation hearing in section 1194 (2) (c) is not in derogation of the common law and is a subsequently enacted provision that specifically governs the issues that may be considered at an administrative hearing … . Matter of Endara-Caicedo v Vehicles, 2022 NY Slip Op 00959, CtApp 2-15-22

 

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“REFUSING A BREATH TEST” IS NOT A COGNIZABLE OFFENSE; A CONVICTION IS THEREFORE A FUNDAMENTAL ERROR WHICH MUST BE CORRECTED ON APPEAL EVEN IF THE ISSUE IS NOT BRIEFED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of “refusing a breath test,” explained that it is not a cognizable offense. The court noted that it was obligated to correct this fundamental error which cannot be waived, even though the issue was not briefed on appeal:

… [T]he purported traffic infraction to which defendant pleaded guilty under count two of the indictment—refusing the breath test mandated by Vehicle and Traffic Law § 1194 (1) (b)—is not a cognizable offense for which a person may be charged or convicted in a criminal court … . People v Adams, 2022 NY Slip Op 00562, Fourth Dept 1-28-22

Same issue in People v Harris, 2022 NY Slip Op 00568, Fourth Dept 1-28-22

 

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EVEN THOUGH PARTY DEPOSITIONS HAD NOT YET BEEN TAKEN IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAS NOT PREMATURE AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT; DEFENDANT’S OPPOSITION PAPERS DID NOT RAISE A QUESTION OF FACT BECAUSE NO EXPLANATION OF THE ACCIDENT WAS OFFERED; PLAINTIFF ALLEGED DEFENDANT’S BUS CROSSED A DOUBLE YELLOW LINE AND STRUCK HIS TAXI CAB (SECOND DEPT).

The Second Department, reversing Supreme Court determined; (1) the motion for summary judgment in this traffic accident case was not premature; and (2) plaintiff was entitled to summary judgment on liability. Plaintiff alleged his taxi cab was struck by defendant’s bus which crossed the double yellow line. Party depositions had not yet been taken:

“Pursuant to CPLR 3212(f), where facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, summary judgment may be denied” … . “[M]ere hope that some evidence might be uncovered during further discovery is insufficient to deny summary judgment” … . Here, the defendants’ opposition to the plaintiff’s motion consisted solely of legal argument that the motion was premature. However, the defendants did not explain why the bus operator offered no affidavit in opposition countering the plaintiff’s testimony as to how the alleged incident occurred. Moreover, the defendants offered nothing beyond mere speculation and bald conjecture concerning what relevant evidence they hoped to uncover during discovery which would bear on their liability for the alleged incident. …

“To be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” … ; instead, “[a] violation of the Vehicle and Traffic Law constitutes negligence as a matter of law” … . Shah v MTA Bus Co., 2022 NY Slip Op 00327, Second Dept 1-19-22

 

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DEFENDANT EMPLOYEE DID NOT HAVE HIS EMPLOYER’S PERMISSION TO DRIVE THE TRUCK INVOLVED IN THE ACCIDENT; THEREFORE THE EMPLOYER’S INSURER PROPERLY DISCLAIMED COVERAGE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the driver, Nichols, did have the permission of his employer (Monro) to drive the truck involved in the accident. Therefore Monro’s insurer properly disclaimed coverage:

Under Vehicle and Traffic Law § 388 (1), the negligence of the operator of a motor vehicle may be imputed to the owner of the vehicle who “operat[ed] the same with the permission, express or implied, of such owner”… . The statute “creates a presumption that the vehicle is being operated with the owner’s consent, but the presumption may be rebutted by substantial evidence showing that the operation was without permission”… .

We find that respondents rebutted the presumption of permissive use. Michael Kio, Monro’s store manager and Nichols’ superior, testified that he advised Nichols on more than one occasion of the company’s longstanding policy proscribing an employee’s personal use of company vehicles, including the truck. Nichols acknowledged to Kio that he was aware and understood this policy and that he did not have permission to operate the truck for personal use or use outside of business hours, and that it was to be used for store business only. As Nichols stated in his written submission to Supreme Court, “I knew I was not supposed to be driving the company truck off company time.” The statements of Kio and Nichols regarding company policy and their understanding of that policy proscribing personal use stand uncontradicted. “Uncontradicted statements by both the vehicle’s owner and its driver that the driver was operating the vehicle without the owner’s permission will constitute substantial evidence that rebuts the presumption” … . Matter of Progressive Specialty Ins. Co. (Travelers Prop. Cas. Co. of Am.), 2021 NY Slip Op 07598, Third Dept 12-30-21

 

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THE $1000 FINE FOR THE DWI COUNT WAS HARSH AND EXCESSIVE; THE FAILURE TO IMPOSE A FINE FOR AGGRAVATED UNLICENSED OPERATION WAS ILLEGAL; REFUSING TO SUBMIT TO A BREATH TEST IS NOT A COGNIZABLE OFFENSE (FOURTH DEPT).

The Fourth Department determined: (1) the $1000 fine imposed for the driving while intoxicated count (in addition to a period of incarceration) was harsh and excessive; (2) the sentence for aggravated unlicensed operation was illegal; and (3) refusing to submit to a breath test is not a crime:

… [T]he sentence imposed on count two of the indictment is illegal because a fine of between $500 and $5,000 is mandatory upon a conviction of aggravated unlicensed operation of a motor vehicle in the first degree, even where, as here, the court also imposes a sentence of incarceration (see Vehicle and Traffic Law § 511 [3] [b] …). …

… [W]e note that the Appellate Term, Second Department, has repeatedly stated that a defendant’s “refusal to submit to a breath test did not establish a ‘cognizable offense’ ” … . We agree, and we therefore further modify the judgment by reversing that part convicting defendant of count four of the indictment, vacating the plea with respect to that count of the indictment and dismissing that count. People v Bembry, 2021 NY Slip Op 06235, Fourth Dept 11-21-21

 

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PLAINTIFF’S DECEDENT WAS KILLED BY A DRIVER WHO WAS BEING PURSUED BY THE POLICE; THE POLICE DEPARTMENT’S INTERNAL RULES IMPOSED A HIGHER STANDARD OF CARE FOR POLICE-CHASES THAN THE VEHICLE AND TRAFFIC LAW; THE JURY SHOULD HAVE BEEN TOLD THE INTERNAL RULES COULD BE CONSIDERED ONLY AS SOME EVIDENCE OF NEGLIGENCE; PLAINTIFF’S JUDGMENT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the plaintiff’s judgment after trial and ordering a new trial in this traffic accident case, determined the defendant police department’s internal police-chase rules should not have been admitted in evidence without a limiting instruction explaining the rules could be considered as some evidence of negligence. The internal rules imposed a higher standard of care for police-chases than the reckless-disregard standard imposed by the Vehicle and Traffic Law. Plaintiff’s decedent was killed by a driver who was being pursued by the police. The jury found both the driver and the police negligent:

The Suffolk County defendants are correct that the Supreme Court erred in admitting into evidence, without any limiting instruction, the Suffolk County Police Department Rules and Procedures on vehicular pursuits. An organization’s internal rules or manuals, “to the extent they impose a higher standard of care than is imposed by law, are inadmissible to establish” a violation of the standard of care … .

Here, the rules and regulations at issue imposed a higher standard of care than the reckless disregard standard imposed by Vehicle and Traffic Law § 1104, which “‘qualifiedly exempts drivers of emergency vehicles from certain traffic laws when they are involved in an emergency operation, and precludes the imposition of liability for otherwise privileged conduct except where the driver acted in reckless disregard for the safety of others'” … . Thus, we conclude that the Supreme Court committed reversible error in admitting the internal rules without providing a limiting instruction that the rules could be considered only as some evidence of recklessness along with other factors … . Foster v Suffolk County Police Dept., 2021 NY Slip Op 05956, Second Dept 11-3-21

 

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EVEN A UBIQUITOUS “DE MINIMUS” VIOLATION OF THE VEHICLE AND TRAFFIC LAW IS VALID JUSTIFICATION FOR A PRETEXTUAL TRAFFIC STOP; HERE THE LICENSE PLATE FRAME OBSCURED “GARDEN STATE” ON THE NEW JERSEY LICENSE PLATE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the pretextual traffic stop was valid and defendant’s suppression motion should not have been granted on that ground. Apparently the license-plate frame obscured New Jersey’s nickname “Garden State” on the plate, which constitutes a violation of Vehicle and Traffic Law 402(1)(b):

The trial court’s concerns of permitting police officers to engage in pretextual traffic stops based on observations of trivial or technical traffic violations, which may lead to impermissible profiling, are noteworthy and merit consideration. However, once the court found that the officers reasonably believed that a traffic violation had been committed, this provided the required probable cause to stop the car … , regardless of whether the violation could be deemed de minimis, ubiquitous, unintentional, or caused by a third party such as a car dealer … . “Probable cause to believe that the Vehicle and Traffic Law has been violated provides an objectively reasonable basis for the police to stop a vehicle and . . . there is no exception for infractions that are subjectively characterized as ‘de minimis'” … . People v Dula, 2021 NY Slip Op 05465, First Dept 10-12-21

 

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NYC’S RIGHT OF WAY LAW CRIMINALIZES ORDINARY NEGLIGENCE WHEN A VEHICLE STRIKES A PEDESTRIAN OR A BICYCLIST WHO HAS THE RIGHT OF WAY; THE LAW IS NOT VOID FOR VAGUENESS, PROPERLY IMPOSES ORDINARY NEGLIGENCE AS THE MENS REA, AND IS NOT PREEMPTED BY OTHER LAWS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a concurring opinion, determined New York City’s “Right of Way Law,” which criminalizes ordinary negligence when a vehicle strikes a pedestrian or bicyclist who has the right of way, is constitutional and is not preempted by other laws. Both defendants were convicted under the Right of Way Law (NYC Administrative Code 19-190), a misdemeanor. The defendants unsuccessfully argued (1) the law is void for vagueness; (2) ordinary negligence cannot constitute the mens rea for a criminal act; and (3) the law is preempted by the Penal Law and the Vehicle and Traffic Law:

Article 15 of the Penal Law lists and defines four “culpable mental states”—”intentionally,” “knowingly,” “recklessly,” and “criminal negligence” … . However, strict liability is also contemplated by article 15: “[t]he minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which [such person] is physically capable of performing,” and, “[i]f such conduct is all that is required for commission of a particular offense, . . . such offense is one of ‘strict liability'” … . * * *

The provisions of the Penal Law “govern the construction of and punishment for any offense defined outside” of the Penal Law, “[u]nless otherwise expressly provided, or unless the context otherwise requires” (Penal Law § 5.05 [2]). The two key provisions at issue, Penal Law § 15.00 (Culpability; definitions of terms) and § 15.05 (Culpability; definitions of culpable mental states), expressly provide otherwise by making clear that they are “applicable to this chapter” only. Further contradicting defendants’ interpretation of article 15 is the legislature’s own use of an ordinary negligence mens rea for offenses defined outside the Penal Law. For example … Vehicle and Traffic Law § 1146 and Agriculture and Markets Law § 370—which were enacted after the relevant provisions in article 15 of the Penal Law—both employ an ordinary negligence standard for imposing criminal liability. People v Torres, 2021 NY Slip Op 05448, CtApp 10-12-21

 

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DEFENDANT CAR DEALERSHIP OWNED THE CAR IN WHICH PLAINTIFF, ITS SALESMAN, WAS INJURED DURING A TEST DRIVE; THE DEALERSHIP, AS PLAINTIFF’S EMPLOYER, IS IMMUNE FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW AND IS NOT VICARIOUSLY LIABLE AS THE OWNER OF THE CAR UNDER THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant Paddock Chevrolet was immune from suit by its employee in this traffic accident case. Plaintiff, a salesman for Paddock, was a passenger in a car owned by Paddock which was being test-driven at the time of the accident. The court noted that the Workers’ Compensation Law protected Paddock from vicarious liability as the owner of the car pursuant to the Vehicle and Traffic Law:

Workers’ Compensation Law § 11 provides that “[t]he liability of an employer prescribed by [section 10] shall be exclusive and in place of any other liability whatsoever, to such employee, . . . or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom . . .” We thus agree with Paddock that plaintiff’s claims against it are barred.

Paddock correctly contends that New York has rejected the “dual capacity” doctrine … , rendering it irrelevant whether the amended complaint and cross claims asserted against Paddock were based on its status as plaintiff’s employer or its status as the owner of the vehicle who is vicariously liable for the negligence of a nonemployee driver under Vehicle and Traffic Law … . Mansour v Paddock Chevrolet, Inc., 2021 NY Slip Op 05190, Fourth Dept 10-1-21

 

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