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REFUSING TO SUBMIT TO A BREATH TEST IS NOT A CRIMINAL OFFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction on one count of the indictment, noted that “refusal to submit to a breath test” is not a criminal offense:

Defendant appeals from a judgment convicting him, upon a jury verdict, of … refusal to submit to a breath test (§ 1194 [1] [b]). As defendant contends and the People correctly concede, refusal to submit to a 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” … . Inasmuch as defendant was convicted by the jury of the nonexistent offense of refusal to submit to a breath test, we modify the judgment by reversing that part convicting him of count 3 of the indictment and dismissing that count … . People v Khadka, 2024 NY Slip Op 01402, Fourth Dept 3-15-24

Practice Point: Here in this DWI case, the defendant was convicted of refusing to submit to a breath test, which is not a criminal offense. Conviction reversed.

 

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NOT ALL REAR-END COLLISIONS ARE SOLELY THE FAULT OF THE REAR DRIVER; HERE PLAINTIFF, THE REAR DRIVER, RAISED CREDIBILITY ISSUES BY CONTRADICTING A STATEMENT ATTRIBUTED TO PLAINTIFF IN THE POLICE REPORT AND AVERRING DEFENDANT STOPPED SUDDENLY WITHOUT USING A TURN SIGNAL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff, the driver of the car which rear-ended defendant’s car, raised a question of fact about the whether the defendant stopped suddenly without using a turn signal:

“There can be more than one proximate cause of an accident” … , and a defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the accident … . “Not every rear-end collision is the exclusive fault of the rearmost driver. The frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision” … .

… [T]he plaintiff raised questions of credibility, which are for the jury to determine … . The plaintiff disputed the content of his statement, as reflected in the police accident report, as well as the veracity of the defendant’s deposition testimony as to how the accident occurred. Specifically, the plaintiff disputed that the defendant utilized his left turn signal and averred that the defendant came to a sudden stop at the intersection. Kerper v Betancourt, 2024 NY Slip Op 01296, Second Dept 3-13-24

Practice Point: In this rear-end collision case, the plaintiff, the rear driver, raised credibility issues which can only be resolved by a jury. Plaintiff contradicted a statement attributed to him in the police report and averred that defendant stopped suddenly without using a turn signal. The rear driver in a rear-end collision is not always solely at fault.

 

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THERE ARE QUESTIONS OF FACT WHETHER DEFENDANT POLICE OFFICER ACTED IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS DURING A HIGH-SPEED CHASE; THE PURSUED CAR STRUCK PLAINTIFF’S CAR; THE ACTION AGAINST THE OFFICER AND THE TOWN SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action against a town police officer (Cunningham) and the town alleging the officer acted in reckless disregard for the safety of others during a high speed chase should not have been dismissed. The car which was pursued by Cunningham struck plaintiff’s (Kolvenbach’s) car:

… [T]he Town defendants failed to eliminate all triable issues of fact as to whether Cunningham acted with reckless disregard for the safety of others and whether such conduct was a proximate cause of Kolvenbach’s injuries … . In support of the Town defendants’ motion, they submitted, among other things, transcripts of the deposition testimony of Cunningham and other witnesses who testified that, on the day at issue, Cunningham pursued Williams at high speeds on damp roads through a main thoroughfare, and that Williams’ vehicle narrowly avoided colliding with other vehicles at earlier points during the pursuit. Thus, contrary to the determination of the Supreme Court, there are triable issues of fact as to whether Cunningham acted in reckless disregard of the safety of others in continuing the pursuit … . There also remain triable issues of fact as to whether Cunningham activated the siren on his police vehicle … and whether he violated police protocols by failing to update his supervisors on the progress of the pursuit via his police radio … . Kolvenbach v Cunningham, 2024 NY Slip Op 00900, Second Dept 2-21-24

Practice Point: This case demonstrates what may constitute “reckless disregard for the safety of others” by a police officer during a high-speed chase which may result in municipal liability for injuries caused by the pursued vehicle.

 

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DEFENDANT-DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER HE WAS NEGLIGENT IN THIS VEHICLE-BICYCLE ACCIDENT CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant driver (Medina) raised a question of fact about whether he was negligent in this vehicle-bicycle collision case. Although plaintiff bicyclist made out a prima facie case, defendant’s affidavit was sufficient to defeat plaintiff’s summary judgment motion:

… [P]laintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability. In support of his motion, the plaintiff submitted, inter alia, his affidavit, which demonstrated that Medina was negligent in attempting to make a left turn at the intersection when the turn could not be made with reasonable safety (see Vehicle and Traffic Law § 1141 …). In opposition, however, the defendants raised triable issues of fact through the submission of Medina’s affidavit. Medina averred that he waited until traffic was clear before turning left with his left-turn indicator activated and a green traffic light in his favor. According to Medina, as he was making the turn, he observed a cyclist traveling west on Myrtle Avenue at a high rate of speed. Medina averred that he immediately brought his vehicle to a stop, but the cyclist was unable to stop due to his speed and collided with Medina’s vehicle. Medina’s affidavit was sufficient to raise triable issues of fact as to how the accident occurred and whether Medina was negligent in the happening of the accident  … . Amancio-Gonzalez v Medina, 2024 NY Slip Op 00400, Second Dept 1-31-24

Practice Point; It is possible that a driver can collide with a bicyclist and not be negligent.

 

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DEFENDANT OPENED THE DRIVER’S-SIDE DOOR OF HIS PARKED CAR WITHOUT MAKING SURE IT WAS SAFE TO DO SO, A VIOLATION OF THE VEHICLE AND TRAFFIC LAW, AND PLAINTIFF WAS UNABLE TO AVOID STRIKING DEFENDANT’S CAR; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY AND THE DISMISSAL OF THE COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. Defendant suddenly opened the driver’s side door of his parked car and plaintiff struck defendant’s car. Opening the door without  making sure it is safe to do so is a violation of the Vehicle and Traffic Law. Plaintiff was entitled to summary judgment on liability and dismissing defendant’s comparative-negligence affirmative defense:

Pursuant to Vehicle and Traffic Law § 1214, “[n]o person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers.” Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting her affidavit, which demonstrated that [defendant] violated Vehicle and Traffic Law § 1214 by opening the door on the side of his vehicle adjacent to moving traffic when it was not reasonably safe to do so, and was negligent in failing to see what, by the reasonable use of his senses, he should have seen, and that his negligence proximately caused the accident … . Gil v Frisina, 2024 NY Slip Op 00407, Second Dept 1-31-24

Practice Point: Opening the drive’s side door of a parked car without checking to see it is safe to do so is a violation of the Vehicle and Traffic Law.

 

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QUESTION OF FACT WHETHER DEFENDANT DRIVER, WHO ALLEGEDLY MADE A TURN IN FRONT OF PLAINTIFF BICYCLIST, SAW WHAT WAS THERE TO BE SEEN (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant driver saw what was there to be seen in this bicycle-vehicle accident. Plaintiff bicyclist alleged he was halfway across the road in a crosswalk when defendant made a sudden turn into his path:

“Pursuant to Vehicle and Traffic Law § 1231, a person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle. A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself into a dangerous position” … . Pursuant to Vehicle and Traffic Law § 1146(a), motorists must “exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal” on the roadway and to “give warning by sounding the horn when necessary” … . A motorist also has a “common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses” … .

… T]he defendant … failed to establish … that his conduct was not a proximate cause of the accident. The defendant testified at his deposition that he slowly made his turn, and that he did not see the plaintiff prior to the impact. The plaintiff testified at his deposition that he saw the defendant’s vehicle make a sudden right turn in front of him one second prior to the impact. Thus, the defendant’s own submissions raised triable issues of fact as to whether the defendant failed to see what was there to be seen through the proper use of his senses … . Khalil v Garcia-Olea, 2023 NY Slip Op 06517, Second Dept 12-20-23

Practice Point: A driver is expected to see what is there to be seen. Here it was alleged defendant driver made a turn into the path of plaintiff bicyclist. Defendant driver’s motion for summary judgment should not have been granted.

 

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LABOR LAW 240(1) DOES NOT COVER INJURY TO A MECHANIC REPAIRING A VEHICLE, EVEN IF THE EVENT IS “GRAVITY-RELATED;” HERE AN ELEVATED TRAILER FELL ON PLAINTIFF (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, determined that injury to a mechanic repairing a vehicle is not covered by Labor Law 240(1). Plaintiff was repairing a trailer which had been lifted up five feet by a backhoe. The backhoe rolled backward and the trailer fell on the plaintiff, causing serious injuries:

Labor Law § 240 (1) applies to workers “employed” in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” … . The statute’s “central concern is the dangers that beset workers in the construction industry” (id. at 525). If an employee is engaged in an activity covered by section 240 (1), “contractors and owners” must “furnish or erect” enumerated safety devices “to give proper protection” to the employee. “Whether a plaintiff is entitled to recovery under [section] 240 (1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies” … . To make this determination, a court must examine the “type of work the plaintiff was performing at the time of injury” … . * * *

Employing a holistic view of the statute, we conclude that the activity in which plaintiff was engaged, ordinary vehicle repair, is not an activity covered by Labor Law § 240 (1). Such work is analogous to that of a factory worker engaged in the normal manufacturing process. Plaintiff is a mechanic who was fixing the brakes on a trailer, a “[v]ehicle” as that term is defined in Vehicle and Traffic Law § 159. Expanding the statute’s scope to cover a mechanic engaged in ordinary vehicle repair would “extend the statute . . . far beyond the purposes it was designed to serve” … . Stoneham v Joseph Barsuk, Inc., 2023 NY Slip Op 06467, CtApp 12-19-23

Practice Point: Labor Law 240(1) does not cover injuries to a mechanic who is repairing a vehicle. Here the elevated trailer plaintiff was repairing fell on him.

 

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THE DRIVER’S LICENSE SUSPENSION REFORM ACT (DLSRA), WHICH ELIMINATED LICENSE SUSPENSIONS FOR FAILURE TO PAY A FINE, DOES NOT VACATE UNLICENSED-OPERATION CONVICTIONS BASED UPON THE FAILURE TO PAY A FINE AND DOES NOT APPLY RETROACTIVELY; THE APPEAL WAIVER HERE WAS INVALID BECAUSE IT SUGGESTED DEFENDANT COULD NOT FILE A NOTICE OF APPEAL (FIRST DEPT).

The First Department, affirming defendant’s unlicensed operation of a vehicle conviction, in a full-fledged opinion by Justice Webber, determined the Driver’s License Suspension Reform Act (DLSRA) did not vacate defendant’s conviction. The DLSRA eliminated the failure to pay a fine as a basis for suspension of a driver’s license and does not apply retroactively. Defendants’ waiver of appeal was deemed invalid because the written waiver indicated a notice of appeal could not be filed:

… [T]he written waiver of appeal contained language … suggesting that the defendant was barred from even filing a notice of appeal … . The People contend that because they did not enforce the language stating that defendant’s appeal would be deemed a motion to vacate, the oral colloquy at the sentencing hearing cures the defect in the written waiver or otherwise renders defendant’s waiver valid. This contention is without merit … . …

The DLSRA amended Vehicle and Traffic Law § 510(4-a) to remove the failure to pay a fine as a basis for the suspension of a driver’s license … . The Legislative intent was to lift suspensions of licenses and lessen the financial burdens on the defendants by structuring an affordable installment payment plan … .

Nothing in the statutory language, which is the “clearest indicator of legislative intent” suggests that there was any intent to authorize the vacatur of convictions under Vehicle and Traffic Law § 511 that arose from license suspensions predicated on failures to pay a fine … . People v Castro, 2023 NY Slip Op 06452, First Dept 12-14-23

Practice Point: The Driver’s License Suspension Reform Act (DLSRA) does not vacate unlicensed-operation convictions stemming from a failure to pay a fine and does not apply retroactively.

Practice Point: A written waiver of appeal which indicates a notice of appeal cannot be filed is invalid.

 

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ALTHOUGH THE BACKHOE WHICH COLLIDED WITH PLAINTIFF’S VEHICLE HAD BEEN USED FOR ROADWORK THAT DAY, AT THE TIME OF THE ACCIDENT THE BACKHOE WAS BEING USED TO TRANSPORT GRAVEL TO THE WORK SITE; THE SECOND DEPARTMENT DETERMINED THE BACKHOE WAS NOT “ACTIVELY ENGAGED” IN ROADWORK AT THE TIME OF THE ACCIDENT AND, THEREFORE, THE HIGHER “RECKLESS DISREGARD” STANDARD FOR LIABILITY IN THE VEHICLE AND TRAFFIC LAW DID NOT APPLY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers, reversing Supreme Court, determined the county employee who rear-ended the plaintiff’s vehicle with a backhoe was not engaged in road construction work within the meaning of the Vehicle and Traffic Law at the time of the accident and, therefore, was not subject to the higher “reckless disregard” standard for liability. Although the backhoe had been used to repair a road, at the time of the accident the backhoe was transporting gravel to the work site. The Second Department determined transporting gravel was did not meet the definition of being “actively engaged” in construction work:

… [W]e conclude that the defendant driver was not actually engaged in work on a highway at the time of the accident …, because the act of transporting gravel to a highway worksite does not itself constitute construction, repair, maintenance, or similar work on a highway … . When a vehicle travels on a highway to transport equipment or materials, the road itself is not being worked on; instead, the road is being used for its intended purpose of facilitating travel. Moreover, the mere transporting of materials or equipment is different in kind from acts that have been deemed to constitute work “on” a highway, such as clearing or cleaning the road or its shoulder … , or actively assessing the conditions of the road or searching for a reported hazard on the road … . …

​… [T]he defendants do not contend that the mere transporting of construction materials on a public road will in every instance constitute being actually engaged in work on a highway. Rather, in advancing their claim, the defendants contend that the defendant driver’s transport of materials fell within the scope of the statute because the defendant driver had been repairing a roadbed on the day of the collision and had not yet completed his work for the day. We disagree. The defendants’ position is inconsistent with the statute’s use of the phrase “actually engaged” (Vehicle and Traffic Law § 1103[b]), as reflected in the plain language of the statute and its interpretation by the courts. Qosaj v Village of Sleepy Hollow, 2023 NY Slip Op 06395, Second Dept 12-13-23

Practice Point: A road-construction vehicle involved in an accident will not be subject to the higher “reckless disregard” standard of liability unless the vehicle is “actively engaged” in roadwork at the time of the accident. Transporting gravel to the work site is not considered “active engagement.”

 

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IN A REAR-END COLLISION CASE, DEFENDANT’S ALLEGATION PLAINTIFF STOPPED SUDDENLY DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end traffic accident cause should have been granted. Defendant’s allegation plaintiff stopped suddenly did not raise a question of fact:

It is well established that a rear-end collision with a slowing or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle … .

… [D]efendant failed to provide a nonnegligent explanation for the accident … . Defendant failed to establish that she maintained a safe following distance (see Vehicle and Traffic Law § 1129[a] … ) and that any repeated braking by plaintiff was not foreseeable due to the existence of the construction zone and 15 mile per hour speed limit. Defendant failed to establish that given the circumstances she could have “reasonably expected that traffic would continue unimpeded” … . While defendant claims that plaintiff made a sudden stop, a “claim by the rear driver that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence” … . Ahmad v Behal, 2023 NY Slip Op 06196, First Dept 11-30-23

Practice Point: In a rear-end collision case, alleging the car in front stopped suddenly does not defeat the presumption that the rear driver was negligent.

 

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