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THE SNOWPLOW DRIVER DID NOT VIOLATE THE “RECKLESS DISREGARD” STANDARD IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the reckless disregard standard applied in this traffic accident case involving a municipal snowplow:

“A snowplow operator ‘actually engaged in work on a highway’ is exempt from the rules of the road and may be held liable only for damages caused by an act done in ‘reckless disregard for the safety of others'” … . Reckless disregard requires more than a momentary lapse in judgment … . “This requires a showing that the operator acted in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow” … .

Oviedo-Mejia [the snowplow driver] testified that he was traveling in reverse at a speed of five to seven miles per hour with the lights and beeping alert of the snowplow vehicle activated. Oviedo-Mejia testified that he kept looking in the mirrors as the snowplow vehicle was moving in reverse, but he did not see the plaintiff prior to the alleged impact. Under the circumstances, the defendants demonstrated, prima facie, that Oviedo-Mejia did not act with reckless disregard for the safety of others … . Kaffash v Village of Great Neck Estates, 2021 NY Slip Op 00159, Second Dept 1-13-21

 

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AN ALLEGED CONTROLLED SUBSTANCE WAS NOT IN PLAIN VIEW IN THE VEHICLE; THEREFORE THE WARRANTLESS SEARCH OF A CLOSED CONTAINER IN THE VEHICLE, WHICH REVEALED A WEAPON, WAS NOT JUSTIFIED; WEAPONS CHARGES DISMISSED (SECOND DEPT).

The Second Department, dismissing the weapons charges, determined the search of defendant’s vehicle was not justified. The officer (Chowdhury) saw the top of a prescription bottle, pulled the bottle out of a pouch, determined it contained a controlled substance, a searched a closed container to find the weapon:

Chowdhury observed “two clear cups of brown liquid, alcohol” in the cup holders in the vehicle’s front console and smelled an odor of alcohol emanating from the vehicle. Chowdhury asked the defendant and an individual in the front passenger seat to exit the vehicle, and they complied. Chowdhury further testified that the rear passenger side door was open and that, with the aid of a flashlight, he observed the “white top” of a prescription bottle sticking out of the pouch on the back of the front passenger seat. Chowdhury then entered the vehicle, pulled the bottle out, and observed that it was clear, with no prescription label, and had unlabeled white pills inside that Chowdhury and [officer] Carrieri identified as Oxycodone. Carrieri then began searching the vehicle for any weapons or other contraband and found a handgun inside of a closed compartment under the rug behind the driver’s seat. The defendant was arrested, and later made a statement to the police regarding the gun. …

The Supreme Court should have granted that branch of the defendant’s omnibus motion which was to suppress the gun and his statement. The officers’ observations of the brown liquid in the cups in the front console and the smell emanating from the vehicle gave them probable cause to suspect a violation of Vehicle and Traffic Law § 1227, which prohibits the possession of open containers containing alcohol in a vehicle located upon a public highway, and would have justified their entry into the vehicle to seize the cups of liquid and search for additional open containers … . However, since there was nothing from Officer Chowdhury’s observation of the top of the prescription bottle located in the seat pocket that indicated that the bottle contained contraband, there was no justification for his removal of the bottle and detailed inspection of it and its contents or for the subsequent search of the car for weapons or other contraband. Chowdhury testified that it was only after he pulled the bottle out of the pouch and pulled upward on the top of it that he was able to see that it was unlabeled and contained what he identified as Oxycodone. Thus, contrary to the People’s contention, it cannot be said that a suspected controlled substance was in plain sight … . People v Boykin, 2020 NY Slip Op 07085, Second Dept 11-25-20

 

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EVEN IF THE OFFICER WERE WRONG ABOUT WHETHER A NON-FUNCTIONING CENTER BRAKE LIGHT VIOLATES THE VEHICLE AND TRAFFIC LAW, THE OFFICER’S INTERPRETATION OF THE LAW WAS OBJECTIVELY REASONABLE; THEREFORE THE STOP WAS VALID AND THE SUPPRESSION MOTION SHOULD NOT HAVE BEEN GRANTED (CT APP).

The Court of Appeals, reversing the Appellate Term, over a concurring memorandum, a concurring opinion, and two dissenting opinions, determined the police officer who stopped defendant reasonably believed the non-functioning center brake light violated the Vehicle and Traffic Law. Therefore the stop was valid and the DWI evidence should not have been suppressed. The Vehicle and Traffic Law requires at least two functioning brake lights. Here there were two functioning lights but the center brake light was not working:

We conclude that the officer’s interpretation of the Vehicle and Traffic Law was objectively reasonable. Vehicle and Traffic Law § 375 (40) (b) mandates that motor vehicles manufactured after a certain date be “equipped with at least two stop lamps, one on each side, each of which shall display a red to amber light visible at least five hundred feet from the rear of the vehicle when the brake of such vehicle is applied.” Vehicle and Traffic Law § 376 (1) (a) prohibits, in relevant part, (1) operating a vehicle “during the period from one-half hour after sunset to one-half hour before sunrise, unless such vehicle is equipped with lamps of a type approved by the commissioner which are lighted and in good working condition”; and (2) operating a vehicle at any time “unless such vehicle is equipped with signaling devices and reflectors of a type approved by the commissioner which are in good working condition.” Vehicle and Traffic Law § 375 (19), in turn, prohibits the operation of a motor vehicle on highways or streets if the vehicle “is defectively equipped and lighted.” Taken together, these provisions could reasonably be read to require that all lamps and signaling devices be in good working condition, and that all equipment and lighting be non-defective, regardless of whether a vehicle is actually required to be equipped with those lamps, signaling devices, equipment, or lights. Even assuming the officer was in fact mistaken on the law, it was nevertheless objectively reasonable to conclude that defendant’s non-functioning center brake light violated the Vehicle and Traffic Law … . Because any error of law by the officer was reasonable, there was probable cause justifying the stop … . People v Pena, 2020 NY Slip Op 06836, CtApp 11-19-20

 

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VEHICLE AND TRAFFIC LAW 388 (1), WHICH IMPOSES VICARIOUS LIABILITY ON THE OWNER OF A VEHICLE, DOES NOT PERMIT A NEGLIGENT DRIVER TO SUE THE VEHICLE OWNER FOR THE DRIVER’S OWN NEGLIGENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Chambers, determined defendant vehicle-owner’s motion to dismiss the complaint should have been granted. The deceased driver’s estate sued the owner of the car under the vicarious liability statute, Vehicle and Traffic Law 388 (1). The Second Department held that the statute does not permit a negligent driver to recover against the vehicle-owner for the driver’s own negligence:

Vehicle and Traffic Law § 388(1) provides that “[e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner.” The predecessor of this provision—section 282-e of the Highway Law, which was enacted in 1924 …—was intended to alleviate the harshness of the common law rule whereby the owner of a vehicle who merely permitted another to drive it could not be held liable for the driver’s negligence unless the driver was the owner’s employee or agent and was using the vehicle as part of the owner’s business … . Thus, the purpose of the new legislation was to ensure that persons injured by a negligent driver had access to “a financially responsible insured person against whom to recover for injuries” … . In other words, while the driver’s own negligence remained grounded in common law, the new statute simply made owners vicariously liable for injuries caused by the driver’s negligence, so long as the driver was operating the vehicle with the owner’s express or implied permission … . The Legislature “did not otherwise change any of the rules of liability,” and “may not be presumed to make any innovation upon the common law further than is required by the mischief to be remedied” … .

In light of the history and purpose of Vehicle and Traffic Law § 388, we hold that the statute does not permit a negligent driver (or, in this case, the driver’s estate) to recover damages against the owner for injuries resulting from the driver’s own negligence … . Shepard v Power, 2020 NY Slip Op 06568, Second Dept 11-12-20

 

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INFANT PLAINTIFF WAS A PASSENGER ON DEFENDANTS’ ALL TERRAIN VEHICLE (ATV), DRIVEN BY DEFENDANTS’ DECEDENT, WHO WAS INTOXICATED, WHEN THE ATV CRASHED INTO A TREE; THE NEGLIGENT SUPERVISION CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; THERE IS NO COMMON LAW “NEGLIGENT PROVISION OF ALCOHOL TO A MINOR” CAUSE OF ACTION IN NEW YORK; SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED ON THE NEGLIGENCE CAUSE OF ACTION BASED ON THE VIOLATION OF THE VEHICLE AND TRAFFIC LAW; CAUSES OF ACTION FIRST ADDRESSED IN PLAINITIFFS’ REPLY PAPERS PROPERLY DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) there is no common law cause of action in New York for negligent provision of alcohol to a minor; (2) summary judgment should have been granted on the negligence cause of action against the estate of the infant driver and owner of the all terrain vehicle (ATV); and (3) the negligent supervision cause of action properly survived summary judgment. Infant plaintiff was a passenger on the ATV driven by defendants’ decedent, who was intoxicated, when the ATV struck a tree. The court noted that the two causes of action which plaintiffs addressed only in their reply papers were properly dismissed:

… [T]he Supreme Court should have granted the plaintiffs’ cross motion for summary judgment on the issue of the liability of Nicola Trivigno [ATV owner} and Frankie’s [defendants’ decedent’s] estate. A plaintiff is no longer required to show freedom from comparative fault in order to establish his or her prima facie entitlement to judgment as a matter of law on the issue of liability … . A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law …  Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by presenting evidence that Frankie operated the ATV while intoxicated in violation of the Vehicle and Traffic Law (see Vehicle and Traffic Law § 1192). Frankie’s negligence is imputed to Nicola Trivigno, who was the owner of the ATV which was being driven by Frankie with Nicola Trivigno’s permission … . Abtey v Trivigno, 2020 NY Slip Op 06233, Second Dept 11-4-20

 

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THE DRIVER OF THE STATE DUMP TRUCK WHO SIDESWIPED PLAINTIFF’S MOPED IN THE BICYCLE LANE WHILE LOOKING FOR DEAD DEER DID NOT ACT RECKLESSLY WITHIN THE MEANING OF THE VEHICLE AND TRAFFIC LAW (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the driver of a Department of Transportation (DOT) dump truck did not act recklessly within the meaning of Vehicle and Traffic law 1103 [b]. The driver was traveling partially in the bicycle lane looking for dead deer and didn’t see the plaintiff on a moped in the bicycle lane:

A State vehicle “actually engaged in work on a highway” is exempt from the rules of the road and may be held liable only for damages caused by an act done in “reckless disregard for the safety of others” (Vehicle and Traffic Law § 1103[b] … ). “Reckless disregard . . . requires more than a momentary lapse in judgment” … . In order to meet the standard required by Vehicle and Traffic Law § 1103(b), a claimant must show 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”… .

… [T]he evidence was insufficient to establish that the DOT workers exhibited a “reckless disregard for the safety of others” (Vehicle & Traffic Law § 1103[b]). The claimant failed to establish that the DOT workers acted in conscious disregard of a known or obvious risk that was so great as to make it highly probably that harm would follow … . Rascelles v State of New York, 2020 NY Slip Op 05788, Second Dept 10-14-20

 

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DEFENDANT, IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW, FAILED TO YIELD THE RIGHT OF WAY WHEN PULLING OUT OF A PARKING LOT IN THIS TRAFFIC ACCIDENT CASE; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this traffic accident case should have been granted. Defendant failed to yield the right of way when entering the roadway from a parking lot:

“It is well settled that a driver who has the right-of-way is entitled to anticipate that the drivers of other vehicles will obey the traffic laws that require them to yield. Because [defendant] was entering the roadway from a parking lot, []he was required to yield the right-of-way to [plaintiff’s] vehicle” ( … see Vehicle and Traffic Law § 1143). Here, plaintiffs met their initial burden of proof with respect to defendant’s negligence by submitting, inter alia, plaintiff’s deposition testimony recounting the circumstances of the accident and the corroborating police report, which established as a matter of law that defendant violated Vehicle and Traffic Law § 1143, breached his duty to operate his vehicle with due care, and thereby caused the accident … .

… Defendant’s claimed inability to recall the circumstances of the accident “is not affirmative proof that the event did not happen[ and is] . . . thus insufficient to create an issue of fact” … . Moreover, while defendant made inconsistent statements about his actions before pulling into the street from the parking lot, those statements offered no basis for a rational factfinder to excuse his violation of Vehicle and Traffic Law § 1143 or negate his responsibility for the accident … . Kowalyk v Wal-Mart Stores, Inc., 2020 NY Slip Op 05346, Fourth Dept 10-2-20

 

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TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT IN THIS BUS-PASSENGER INJURY CASE SHOULD HAVE BEEN GRANTED; THE BUS DRIVER REACTED APPROPRIATELY TO A CAR SUDDENLY PULLING OUT IN FRONT OF THE BUS TO MAKE A U-TURN (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant transit authority’s motion for summary judgment in this bus-passenger injury case should have been granted. The driver of a double-parked car pulled out in front of the bus to make a u-turn and the driver properly slammed on the brakes:

… [D]efendants established their prima facie entitlement to judgment as a matter of law by showing that their bus driver was presented with an emergency situation that was not of his own making when a vehicle that was double-parked on the right side of the roadway suddenly made a U-turn in front of him, and that he took reasonable and prudent action to avoid a collision … . They also met their initial burden of showing that their bus driver’s actions before the accident did not cause or contribute to the emergency, because the bus driver testified at his deposition that he was traveling no more than 15 miles per hour, warned the double-parked car before he attempted to pass by sounding his horn, and had his foot hovering over the brakes when the sedan suddenly made a U-turn in front of his bus when it was approximately five feet away. What is more, the driver had no duty to anticipate that another driver would make a sudden, illegal maneuver … .

… [T]he record shows that the driver was obliged to take immediate action when the car suddenly cut in front of the bus to make a U-turn, and stepping on the brakes to avoid a collision was a reasonable response to a situation not of defendants’ own making … . Santana-Lizardo v New York City Tr. Auth., 2020 NY Slip Op 05164, First Dept 9-29-20

 

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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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