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CRUEL AND UNUSUAL PUNISHMENT ARGUMENT NOT PRESERVED FOR REVIEW.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined defendant’s argument that three consecutive 25-year sentences arising from the same incident constituted cruel and unusual punishment was not preserved for review:

Defendant failed to preserve for review his claim that the sentence imposed by the court was “cruel and unusual.” Although defendant generally objected to the length of the sentence before the sentencing court, arguing that the sentence was draconian, he did not alert the court to his constitutional argument. Thus, the sentencing court was never given an opportunity to address any of the constitutional challenges that defendant now lodges with this Court. Accordingly, defendant’s “claim [ ] that his sentence constituted cruel and inhuman punishment [ ] is not properly before us” … . People v Pena, 2017 NY Slip Op 01142, CtApp 2-14-17

CRIMINAL LAW (CRUEL AND UNUSUAL PUNISHMENT ARGUMENT NOT PRESERVED FOR REVIEW)/APPEALS (CRIMINAL LAW, CRUEL AND UNUSUAL PUNISHMENT ARGUMENT NOT PRESERVED FOR REVIEW)/CRUEL AND UNUSUAL PUNISHMENT (CRIMINAL LAW, CRUEL AND UNUSUAL PUNISHMENT ARGUMENT NOT PRESERVED FOR REVIEW)

PLEA TO HINDERING PROSECUTION FOR PROVIDING AND HIDING WEAPON STANDS, DESPITE ACQUITTAL OF THE SHOOTER.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant’s plea to hindering prosecution should stand, in spite of the acquittal in the murder prosecution of the codefendant whose weapon defendant provided and subsequently hid:

Defendant … challenges the denial of his motion to withdraw his guilty plea to one count of hindering prosecution in the second degree … . The courts below properly rejected defendant’s claims that his plea is constitutionally infirm and that his codefendant’s acquittal of the underlying felony renders defendant innocent. Neither claim is supported by existing precedent, and his innocence theory is counter to this Court’s holdings in People v Chico (90 NY2d 585 [1997]), People v O’Toole (22 NY3d 335 [2013]), and People v Berkowitz (50 NY2d 333 [1980]). * * *

The logical basis for rejecting defendant’s proposed rule — an assisted person’s acquittal forecloses any finding of a defendant’s criminal liability for hindering prosecution — is rooted in the nature of the crime itself. The intended goal of hindering prosecution is the assisted person’s evasion of criminal liability for the underlying felony. The more effective a defendant’s attempts to obstruct law enforcement, the more likely the assisted person will escape prosecution or be acquitted. Defendant’s rule would have the perverse result of treating as innocent a defendant who stymies an investigation, hides evidence — as in this case — or otherwise sabotages the prosecution, because those efforts lead to the assisted person’s acquittal. People v Fisher, 2017 NY Slip Op 01143, CtApp 2-14-17

 

CRIMINAL LAW (PLEA TO HINDERING PROSECUTION FOR PROVIDING AND HIDING WEAPON STANDS, DESPITE ACQUITTAL OF THE SHOOTER)/HINDERING PROSECUTION (PLEA TO HINDERING PROSECUTION FOR PROVIDING AND HIDING WEAPON STANDS, DESPITE ACQUITTAL OF THE SHOOTER)

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CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT.

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined damages could not be apportioned against the (non-party) state in a negligence action in Supreme Court. The plaintiffs alleged a tree branch fell on plaintiffs’ car as plaintiffs were driving on a public street. The plaintiffs sued the property owner, but also filed a claim against the state alleging the state was negligent. The state can only be sued in the Court of Claims. Although, by statute (CPLR 1601], damages can be apportioned against a non-party defendant in the Court of Claims, the Court of Appeals held the statute does not allow damages to be apportioned against the non-party state in Supreme Court:

The statutory language permitting the State to seek apportionment in the Court of Claims against a private defendant if the claimant could have sued that defendant in any court of this State was specifically requested by the office of the Attorney General … . Pursuant to that language, as long as a claimant in the Court of Claims could have commenced an action against a private tortfeasor in any court in the State of New York, then the tortfeasor’s culpable conduct can be considered by the Court of Claims in determining the State’s equitable share of the total liability … . The statute does not, however, contain similar, express enabling language to allow apportionment against the state in a Supreme Court action … .

Plaintiffs, along with the State, argue that the inclusion of unambiguous language permitting the Court of Claims to consider the liability of a nonparty tortfeasor — while, at the same time, omitting language to allow the factfinder in Supreme Court to consider the liability of the State — demonstrates the Legislature’s intent not to allow apportionment of the State’s liability in Supreme Court. Moreover, even apart from the absence of language permitting apportionment against the State in Supreme Court, CPLR 1601 (1) provides that a nonparty tortfeasor’s relative culpability must not be considered in apportioning fault “if the claimant . . . with due diligence . . . was unable to obtain jurisdiction over such person in said action” … . Artibee v Home Place Corp., 2017 NY Slip Op 01145, CtApp 2-14-17

 

CIVIL PROCEDURE (NEGLIGENCE, CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT)/NEGLIGENCE (DAMAGES,  CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT)/DAMAGES (NEGLIGENCE, CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT)/IMMUNITY (NEGLIGENCE, CPLR 1601 DOES NOT ALLOW DAMAGES TO BE APPORTIONED AGAINST THE NON-PARTY STATE IN A NEGLIGENCE ACTION IN SUPREME COURT)

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COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined the county was immune from suit by a student who was assaulted by a worker at a county-owned facility. The worker was referred to the lessee of the premises, the North Amityville Community Economic Council (NACEC), as part of a welfare to work program. NACEC only accepted referrals for persons with no criminal record. The Suffolk County Department of Labor (SWEP) referred the worker despite knowledge of his status as a level three sex offender. The court determined the county was acting in its governmental, not proprietary, capacity when it referred the worker and there was no special relationship between the county and the victim of the assault:

In this case, the specific act or omission that caused plaintiff’s injury was the County’s referral of Smith to NACEC through the County’s SWEP program, a referral made in spite of NACEC’s caveat that it would not accept candidates with a criminal record. The administration of SWEP … was quintessentially a governmental role. The County’s conduct in referring Smith was undertaken solely in connection with its administration of that program and was part of the County’s fundamental governmental activity. Therefore, we hold that the County was acting in its governmental capacity when it referred Smith to NACEC. * * *

There is no view of the evidence that could allow one to conclude that the County voluntarily assumed a special duty to plaintiff. Even if the County promised that it would not refer anyone with a criminal background, that promise would have been made only to NACEC and there is no evidence that plaintiff ever had any knowledge of NACEC’s request. In addition, … it is undisputed that there was no direct contact between plaintiff and the County. Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 2017 NY Slip Op 01255, CtApp 2-16-17

 

MUNICIPAL LAW (COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/IMMUNITY (COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/GOVERNMENTAL FUNCTION (MUNICIPAL LAW, IMMUNITY, COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/PROPRIETARY FUNCTION (MUNICIPAL LAW, IMMUNITY, COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM)/SPECIAL RELATIONSHIP (MUNICIPAL LAW, IMMUNITY, COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM) 

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EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined the statutory scheme for a potential child-neglect case referred to the Family Assessment Response Track (FAR track) does not provide a mechanism for expungement. Here a potential educational neglect case was referred to the FAR track and ultimately no action was taken by the caseworker and the case was closed. The petitioners requested expungement:

Petitioners contend that the right to seek early expungement may be inferred from the silence of Social Services Law § 427-a on this topic. We disagree. Principles of statutory construction teach that “the failure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended” … . Moreover, this is not a case in which the two statutes that petitioners seek to interpret in identical fashion “relate to the same subject matter, contain identical language and were adopted together” … . Rather, the FAR track was created as a new and entirely separate means of addressing certain allegations of child abuse in a program geared toward the provision of social services, rather than an investigation assessing blame. In other words, the subject matter of the FAR track cannot be deemed identical to that of a traditional child abuse investigation. Matter of Corrigan v New York State Off. of Children & Family Servs., 2017 NY Slip Op 01020, CtApp 2-9-17

FAMILY LAW (EDUCATIONAL NEGLECT, EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))/CHILD ABUSE (EDUCATIONAL NEGLECT, EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))/CHILD NEGLECT (EDUCATIONAL NEGLECT, EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))/EDUCATIONAL NEGLECT (EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))/EXPUNGEMENT (EDUCATIONAL NEGLECT, EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))/SOCIAL SERVICES LAW  (EDUCATIONAL NEGLECT, EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))/FAMILY ASSESSMENT RESPONSE TRACT (FAR TRACK) (EDUCATIONAL NEGLECT, EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))

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ELEMENTS OF OFFICIAL MISCONDUCT, MALFEASANCE AND NONFEASANCE, EXPLAINED; COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, affirmed the conviction of a Nassau County Police Department detective on two counts of official misconduct and conspiracy. The opinion is too detailed to fairly summarize here. The charges stemmed from allegations defendant participated in an attempt to prevent the arrest of the son of a prominent supporter of the police department. It was alleged the supporter's son stole electronic equipment from his high school. Despite many attempts by members of the police department to have the high school withdraw the charges, the school refused. The opinion explains in detail the proof requirements for official misconduct, based upon malfeasance and nonfeasance. In a question of first impression, the Court of Appeals ruled that statements made by coconspirators before a defendant joins the conspiracy and after a defendant leaves the conspiracy are admissible:

We now hold that when a conspirator subsequently joins an ongoing conspiracy, any previous statements made by his or her coconspirators in furtherance of the conspiracy are admissible against the conspirator pursuant to the coconspirator exception to the hearsay rule. …

We further conclude, in line with federal case law, that statements made after a conspirator's alleged active involvement in the conspiracy has ceased, but the conspiracy continues, are admissible unless this conspirator has unequivocally communicated his or her withdrawal from the conspiracy to the coconspirators … . People v Flanagan, 2017 NY Slip Op 01018. CtApp 2-9-17

CRIMINAL LAW (ELEMENTS OF OFFICIAL MISCONDUCT, MALFEASANCE AND NONFEASANCE, EXPLAINED, COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE)/EVIDENCE (CRIMINAL LAW, COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE)/CONSPIRACY (CRIMINAL LAW, COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE)/OFFICIAL MISCONDUCT (ELEMENTS OF OFFICIAL MISCONDUCT, MALFEASANCE AND NONFEASANCE, EXPLAINED)

NO EVIDENCE JURY COULD SEE ORANGE CORRECTIONS DEPARTMENT PANTS WORN BY DEFENDANT ON THE FIRST DAY OF TRIAL, DEFENDANT NOT DENIED A FAIR TRIAL.

The Court of Appeals determined the fact that defendant appeared on the first day of the trial wearing orange sweat pants issued by the department of corrections did not require reversal. There was no evidence the jury could see the defendant's legs:

Under the circumstances described here by the trial judge on the record, there is no merit to defendant's contention that he was denied a fair trial because he was compelled to appear before the jury in correctional garb. We have previously held that “to require [a defendant] to appear in convict's attire — a continuing visual communication to the jury — is to deny” the defendant the right to appear “with the dignity and self-respect of a free and innocent” person … , consistent with the Supreme Court's holding that “[t]he State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes” … . These concerns are not implicated here, however, where there is no evidence that defendant's orange correctional pants were visible to the jury and the clothing that was visible to the jury was clearly not identifiable as correctional garb … . People v Then, 2017 NY Slip Op 01021, CtApp 2-9-17

CRIMINAL LAW (NO EVIDENCE JURY COULD SEE ORANGE CORRECTIONS DEPARTMENT PANTS WORN BY DEFENDANT ON THE FIRST DAY OF TRIAL, DEFENDANT NOT DENIED A FAIR TRIAL)/PRISON CLOTHES (CRIMINAL LAW, (NO EVIDENCE JURY COULD SEE ORANGE CORRECTIONS DEPARTMENT PANTS WORN BY DEFENDANT ON THE FIRST DAY OF TRIAL, DEFENDANT NOT DENIED A FAIR TRIAL)

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ETHICAL VIOLATION CANNOT BE USED AS A SWORD TO AVOID PAYMENT OF ATTORNEY’S FEE; BECAUSE TRIAL PREPARATION NOT NECESSARY, LOWER ATTORNEY’S-FEE PERCENTAGE APPLIED.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined the fee arrangement contracts between plaintiff's attorney, Menkes, and two attorneys Menkes contracted with for assistance, Manheimer and Golomb, should be enforced according to standard prinicples of contract interpretation. Menkes argued that Manheimer was not entitled to payment because the clients were never informed (by Menkes) of Manheimer's involvement (an ethical violation). Golomb argued he was entitled to 40% of the fees because the matter did not settle at the mediation session. The Court of Appeals determined the 40% term only applied if it became necessary to prepare for trial (the case settled before trial preparation):

Menkes's attempt to use the ethical rules as a sword to render unenforceable, as between the two attorneys, the agreements with Manheimer that she herself drafted is unavailing. Her failure to inform her clients of Manheimer's retention, while a serious ethical violation, does not allow her to avoid otherwise enforceable contracts under the circumstances of this case … . * * *

Here, the mediator and Golomb communicated in the days following the May 20 mediation session, with the mediator continuing to act as go-between. Ten days after the session, the mediator communicated the final $8 million offer, which Golomb accepted. Reading the agreement as a whole, the plain language of the agreement entitles Golomb to 12% of net attorneys' fees. Marin v Constitution Realty, LLC, 2017 NY Slip Op 01019, CtApp 2-9-17

ATTORNEYS (FEES, ETHICAL VIOLATION CANNOT BE USED AS A SWORD TO AVOID PAYMENT OF ATTORNEY'S FEE, BECAUSE TRIAL PREPARATION NOT NECESSARY, LOWER ATTORNEY'S-FEE PERCENTAGE APPLIED)/CONTRACT LAW (ATTORNEY'S FEES, ETHICAL VIOLATION CANNOT BE USED AS A SWORD TO AVOID PAYMENT OF ATTORNEY'S FEE, BECAUSE TRIAL PREPARATION NOT NECESSARY, LOWER ATTORNEY'S-FEE PERCENTAGE APPLIED)

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QUESTION OF FACT WHETHER ALLOWING A CALF TO ESCAPE FROM A FARM WAS A PROXIMATE CAUSE OF THE DEATH OF A MOTORIST WHO STOPPED TO HELP THE CALF AND WAS STRUCK.

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the appellate division, determined the proximate cause of the accident presented a jury question. Defendants own a farm from which a calf, born that day, escaped. Plaintiff’s decedent saw the calf in the roadway, stopped her car and got out to help the calf. She was then struck by a vehicle and killed. The appellate division held that the escaped calf created a condition for the accident, but was not a proximate cause of the accident. The Court of Appeals reviewed the case law addressing when an intervening act severs the causal connection and held that, under these facts, proximate cause presented a jury question:

The very same risk that rendered negligent the Farm’s alleged failure to restrain or retrieve its farm animal — namely, that the wandering calf would enter a roadway and cause a collision — was, in fact, the risk that came to fruition … . That the Farm could not predict the exact manner in which the calf would cause injury to a motorist does not preclude liability because the general risk and character of injuries was foreseeable … . … Thus, we cannot say, as a matter of law, that the Farm’s negligence merely furnished the occasion for the collision or that the accident resulting in decedent’s death did not flow from the Farm’s negligent conduct in permitting its calf to stray.

A factfinder could reasonably conclude that decedent’s actions in exiting her vehicle and entering the roadway were an entirely “‘normal or foreseeable consequence of the situation created by the defendant’s negligence'” … . In Hastings v Sauve, we held that a property owner may be liable under ordinary principles of tort law when he or she, through negligent acts or omissions, allows a farm animal — specifically, a domestic animal as defined in Agriculture and Markets Law § 108 (7) — to stray from the property on which the animal is kept (see 21 NY3d at 125-126). …  Thus, a jury could reasonably conclude that it is foreseeable that a motorist who encounters such an animal on a rural roadway would attempt to remove the animal from the thoroughfare. Such conduct cannot, as a matter of law, be considered so “extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct,” that it breaks the chain of causation … . Hain v Jamison, 2016 NY Slip Op 08583, CtApp 12-22-16

NEGLIGENCE (QUESTION OF FACT WHETHER ALLOWING A CALF TO ESCAPE FROM A FARM WAS A PROXIMATE CAUSE OF THE DEATH OF A MOTORIST WHO STOPPED TO HELP THE CALF AND WAS STRUCK)/ANIMAL LAW (QUESTION OF FACT WHETHER ALLOWING A CALF TO ESCAPE FROM A FARM WAS A PROXIMATE CAUSE OF THE DEATH OF A MOTORIST WHO STOPPED TO HELP THE CALF AND WAS STRUCK)/PROXIMATE CAUSE (QUESTION OF FACT WHETHER ALLOWING A CALF TO ESCAPE FROM A FARM WAS A PROXIMATE CAUSE OF THE DEATH OF A MOTORIST WHO STOPPED TO HELP THE CALF AND WAS STRUCK)/INTERVENING CAUSE (QUESTION OF FACT WHETHER ALLOWING A CALF TO ESCAPE FROM A FARM WAS A PROXIMATE CAUSE OF THE DEATH OF A MOTORIST WHO STOPPED TO HELP THE CALF AND WAS STRUCK)/CONDITION VERSUS PROXIMATE CAUSE (QUESTION OF FACT WHETHER ALLOWING A CALF TO ESCAPE FROM A FARM WAS A PROXIMATE CAUSE OF THE DEATH OF A MOTORIST WHO STOPPED TO HELP THE CALF AND WAS STRUCK)/FORESEEABILITY (QUESTION OF FACT WHETHER ALLOWING A CALF TO ESCAPE FROM A FARM WAS A PROXIMATE CAUSE OF THE DEATH OF A MOTORIST WHO STOPPED TO HELP THE CALF AND WAS STRUCK)

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CITY PROPERLY HELD LIABLE FOR ACCIDENT RELATED TO SPEEDING BECAUSE OF ITS FAILURE TO IMPLEMENT TRAFFIC CALMING MEASURES TO REDUCE DRIVERS’ TENDENCY TO SPEED.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissenting opinion, determined the city was properly held liable for an accident on a road known for speeding. Plaintiff, a twelve-year-old boy, was struck while trying to cross the road on his bicycle. The driver was going 54 miles per hour in a 30-mile-an-hour zone. The city had received numerous speeding complaints over the years and had undertaken four studies to determine whether traffic control devices should be installed on the road. Plaintiffs presented evidence that traffic control devices would not solve the speeding problem and so-called “traffic calming” measures were needed (speed humps, raised cross-walks, etc.). The Court of Appeals, affirming Supreme Court, found that maintaining safe roadways was a proprietary function, not a governmental function. Therefore there was no need for a special relationship with plaintiff as a prerequisite for liability. The court further found that the city was not entitled to qualified immunity stemming from the traffic studies, because the studies did not address “traffic calming” measures:

We do not suggest that a municipality has a proprietary duty to keep its roadways free from all unlawful or reckless driving behavior. Under the particular circumstances of this case, however, plaintiffs demonstrated that the City was made aware through repeated complaints of ongoing speeding along Gerritsen Avenue, that the City could have implemented roadway design changes in the form of traffic calming measures to deter speeding, and that the City failed to conduct a study of whether traffic calming measures were appropriate and therefore failed to implement any such measures. … [W]hether the City’s negligence was a substantial factor in causing the accident or [the driver’s] speeding was the sole proximate cause, and whether the City was entitled to qualified immunity based on its response to those repeated complaints, were both issues to be resolved by the jury.  Turturro v City of New York, 2016 NY Slip Op 08579, CtApp 12-22-16

MUNICIPAL LAW (CITY PROPERLY HELD LIABLE FOR ACCIDENT RELATED TO SPEEDING BECAUSE OF ITS FAILURE TO IMPLEMENT TRAFFIC CALMING MEASURES TO REDUCE DRIVERS’ TENDENCY TO SPEED)/IMMUNITY (CITY PROPERLY HELD LIABLE FOR ACCIDENT RELATED TO SPEEDING BECAUSE OF ITS FAILURE TO IMPLEMENT TRAFFIC CALMING MEASURES TO REDUCE DRIVERS’ TENDENCY TO SPEED)/PROPRIETARY FUNCTION (MUNICIPAL LAW, CITY PROPERLY HELD LIABLE FOR ACCIDENT RELATED TO SPEEDING BECAUSE OF ITS FAILURE TO IMPLEMENT TRAFFIC CALMING MEASURES TO REDUCE DRIVERS’ TENDENCY TO SPEED)

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