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CITY IS NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN AN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING A POLICE VAN.

The First Department, reversing Supreme Court, determined the city’s motion for summary judgment in this car-accident case should have been granted. Plaintiff was struck by a police van driven by an unlicensed car-wash attendant. The city was not liable for negligently entrusting the vehicle to the unlicensed driver because, inter alia, there was no duty to make sure the attendant had a license before handing over the keys to him. In addition, the city was not vicariously liable as the owner of the van pursuant to Vehicle and Traffic Law 388. Police vehicles are statutorily exempt from such liability. Plaintiff argued that the exemption did not apply because the van was not being “operated” by the police department at the time of the accident. The First Department held that “operated” in this context means “to exercise power over,” and not “driven:”

 

Plaintiff’s argument that the NYPD traffic van does not qualify as a “police vehicle,” because it was not being “operated by the police department” at the time of the accident, but, rather, was being “operated” by the car wash attendant, assumes that the term “operated” means “to cause to function” (Merriam- Webster Online Dictionary, http://beta.merriam-webster.com/dictionary/operate [accessed Jan. 27, 2016]) or is a substitute for the word “driven.” This ignores the common use of the term “operated” as an intransitive verb meaning “to exert power or influence” (id.). Under plaintiff’s interpretation, a police vehicle would not qualify as such under Vehicle and Traffic Law § 132-a, unless it was being driven by “the police department,” which strains common sense, since a police department cannot be the driver of a vehicle.

More importantly, plaintiff’s interpretation would strip the exemption provided to police vehicles in Vehicle and Traffic Law § 388(2) of its force and effect. Vehicle and Traffic Law § 388 specifically contemplates that someone, other than the vehicle’s owner, is driving the vehicle when an injury occurs. If “police vehicles” are only exempted when an owner or owner equivalent is driving, there would be no need for the exemption in Vehicle and Traffic Law § 388(2). This interpretation is untenable as it would render the police vehicle exemption in Vehicle and Traffic Law § 388(2) meaningless … . Guevara v Ortega, 2016 NY Slip Op 01106, 1st Dept 2-16-16

 

NEGLIGENCE (CITY NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING POLICE VAN)/MUNICIPAL LAW (CITY NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING POLICE VAN)/VEHICLE AND TRAFFIC LAW (CITY NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING POLICE VAN)

DEFENDANTS DID NOT DEMONSTRATE LACK OF NOTICE OF DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED.

The First Department determined the defendants in a slip and fall case were not entitled to summary judgment because they did not affirmatively demonstrate a lack of notice of the icy condition:

 

Defendants did not demonstrate that they lacked constructive notice of the icy condition since they did not proffer an affidavit or testimony based on personal knowledge as to when its employees last inspected the driveway or as to the driveway’s condition prior to the accident … . The testimony of defendants’ branch manager as to his usual and customary practice of inspecting the premises each morning does not satisfy defendants’ burden of showing that they lacked notice of the alleged condition of the driveway prior to the accident, as there was no evidence to show that the manager’s customary practice was followed on the day of the accident … . Singh v Citibank, N.A., 2016 NY Slip Op 01120, 1st Dept 2-16-16

 

NEGLIGENCE (SLIP AND FALL, DEFENDANTS FAILED TO AFFIRMATIVELY DEMONSTRATE LACK OF NOTICE OF DANGEROUS CONDITION)/SLIP AND FALL (DEFENDANTS FAILED TO AFFIRMATIVELY DEMONSTRATE LACK OF NOTICE OF DANGEROUS CONDITION)

INSTALLATION OF TEMPORARY FLAG HOLDERS NOT A PROTECTED ACTIVITY UNDER LABOR LAW 240 (1).

The First Department determined plaintiff’s injuries from a two-story fall were not covered by Labor Law 240 (1). Plaintiff was installing temporary flag holders at the time of the fall:

 

The record establishes that plaintiff was not engaged in a protected activity under Labor Law § 240(1) at the time of his accident. Plaintiff testified that the installation of the three flag holder brackets entailed marking the location of the screws, drilling three holes for each bracket, placing plastic fasteners in the holes, and attaching each flag holder with three screws to hold it in place. Such work did not constitute “altering” since it did not result in a “significant physical change” to the building’s structure … . The cosmetic and nonstructural nature of the work is reflected by the temporary placement of the flags to enhance the exterior appearance of the building during the St. Patrick’s Day celebration, after which they were removed … . Lannon v 356 W. 44th St. Rest., Inc., 2016 NY Slip Op 01129, 1st Dept 2-16-16

 

LABOR LAW (INSTALLATION OF TEMPORARY FLAG HOLDERS NOT A PROTECTED ACTIVITY UNDER LABOR ALW 240 (1)

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WAIVER OF APPEAL ENCOMPASSES APPELLATE DIVISION’S INTEREST-OF-JUSTICE JURISDICTION, INCLUDING THE POWER TO REVIEW THE HARSHNESS OF AN AGREED SENTENCE.

The First Department, in a full-fledged opinion by Justice Tom, determined defendant’s waiver of appeal was valid, and included in the waiver was the Appellate Division’s interest-of-justice power to review the harshness of a negotiated sentence:

 

A defendant who has validly waived his right to appeal may not invoke this Court’s interest-of-justice jurisdiction to reduce a bargained-for sentence (Lopez, 6 NY3d at 255-256). “By pleading guilty and waiving the right to appeal, a defendant has forgone review of the terms of the plea, including harshness or excessiveness of the sentence” (id. at 256).

To be sure, as the Court of Appeals clarified in Lopez, the Appellate Division may be divested of its unique interest-of-justice jurisdiction only by constitutional amendment (6 NY3d at 255, citing People v Pollenz, 67 NY2d 264, 267-268 [1986]). However, as Lopez went on to hold, “a defendant is free to relinquish the right to invoke that authority and indeed does so by validly waiving the right to appeal” (id. at 256). People v Jenkins, 2016 NY Slip Op 01056, 1st Dept 2-11-16

 

CRIMINAL LAW (WAIVER OF APPEAL ENCOMPASSES APPELLATE DIVISION’S INTEREST-OF-JUSTICE JURISDICTION, INCLUDING THE POWER TO REVIEW THE HARSHNESS OF AN AGREED SENTENCE)/APPEALS (CRIMINAL, WAIVER OF APPEAL ENCOMPASSES APPELLATE DIVISION’S INTEREST-OF-JUSTICE JURISDICTION, INCLUDING THE POWER TO REVIEW THE HARSHNESS OF AN AGREED SENTENCE)/INTEREST-OF-JUSTICE JURISDICTION (WAIVER OF APPEAL ENCOMPASSES APPELLATE DIVISION’S INTEREST-OF-JUSTICE JURISDICTION, INCLUDING THE POWER TO REVIEW THE HARSHNESS OF AN AGREED SENTENCE)

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DEFENDANT ENTITLED TO TEN DAYS NOTICE OF SORA JUDGE’S INTENT TO, SUA SPONTE, DEPART FROM THE BOARD OF EXAMINER’S RISK ASSESSMENT.

The First Department determined defendant, in a Sex Offender Registration Act (SORA) proceeding, was entitled to notice the judge (not the prosecutor, as is the usual case) intended to seek a risk assessment different from that recommended by the Board of Examiners of Sex Offenders. Because the defendant was not so notified, and new SORA hearing was ordered:

 

SORA protects a defendant’s due process rights by requiring written notice, at least 10 days prior to the hearing, to determine his risk level, if a determination differing from the Board’s recommendation is to be sought (Correction Law § 168-n[3]). The purpose of the notice is to afford the defendant a meaningful opportunity to respond at the hearing … . No less than when the People fail to give the required notice that they will seek a departure from the Board’s recommendation, a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to respond … . Defendant is therefore entitled to a new hearing at which he is afforded a meaningful opportunity to respond to the contention that he should be assessed points for forcible compulsion. People v Segura, 2016 NY Slip Op 01041, 1st Dept 2-11-16

 

CRIMINAL LAW (DEFENDANT ENTITLED TO TEN DAYS NOTICCE OF SORA JUDGE’S INTENT, SUA SPONTE, TO DEPART FROM THE BOARD OF EXAMINER’S RISK ASSESSMENT)/SORA (DEFENDANT ENTITLED TO TEN DAYS NOTICCE OF SORA JUDGE’S INTENT, SUA SPONTE, TO DEPART FROM THE BOARD OF EXAMINER’S RISK ASSESSMENT)

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BOARD OF RESIDENTIAL COOPERATIVE CORPORATION UNREASONABLY WITHHELD CONSENT TO TRANSFER SHARES AND PROPRIETARY LEASE TO TWO SONS OF THE DECEASED APARTMENT RESIDENTS.

The First Department, over a two-justice dissent, determined the board of defendant residential cooperative corporation unreasonably withheld consent for the shares and proprietary lease to be transferred to the two sons of the deceased holders of the shares and proprietary lease. The case turned on the language of the proprietary lease. The application was made by the two sons, only one of whom was to live in the apartment. The dissent emphasized the term “a family member,” arguing the proprietary lease did not allow a transfer to more than one family member. Estate of Del Terzo v 33 Fifth Ave. Owners Corp., 2016 NY Slip Op 01039. 1st Dept 2-11-16

CORPORATION LAW (RESIDENTIAL COOPERATIVE, BOARD UNREASONABLY WITHHELD CONSENT TO TRANSFER OF SHARES AND PROPRIETARY LEASE)/RESIDENTIAL COOPERATIVE (BOARD UNREASONABLY WITHHELD CONSENT TO TRANSFER OF SHARES AND PROPRIETARY LEASE)/PROPRIETARY LEASE (RESIDENTIAL COOPERATIVE, BOARD UNREASONABLY WITHHELD CONSENT TO TRANSFER OF SHARES AND PROPRIETARY LEASE)

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APPLICATION FOR LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DESPITE ABSENCE OF REASONABLE EXCUSE AND NOTICE BY OTHER MEANS; PURPOSE OF NOTICE OF CLAIM REQUIREMENT EXPLAINED.

The First Department, reversing Supreme Court, granted petitioner’s application to file a late notice of claim alleging injury in a slip and fall accident caused by a badly broken sidewalk in front of property owned by the New York City Housing Authority (NYCHA). Petitioner’s attorney had assumed the city, not the NYCHA, owned the abutting property. After noting that an error in identifying the correct public corporation was not a reasonable excuse, and further noting the NYCHA did not have notice of the accident by other means, the First Department explained the purpose of the notice requirement and why late notice was appropriate in this case:

 

After petitioner’s counsel realized that respondent NYCHA, not the City of New York, owned the property abutting the badly broken sidewalk where petitioner’s accident occurred, petitioner sought an extension of time to file a notice of claim under General Municipal Law § 50-e(5). That statute confers upon the court “the discretion to determine whether to grant or deny leave to serve a late notice of claim within certain parameters” … . The factors to be considered by the court include: whether the failure to identify the proper party was an “excusable error,” whether the public corporation received “actual knowledge of the essential facts constituting the claim” within 90 days of the accident or “a reasonable time thereafter,” and whether the delay “substantially prejudiced” the public corporation’s ability to defend the claim on the merits (General Municipal Law § 50-e[5]). The notice of claim requirement “is not intended to operate as a device to frustrate the rights of individuals with legitimate claims,” but to protect the public corporation from “unfounded claims” and ensure that it has an adequate opportunity “to explore the merits of the claim while information is still readily available” … .

While the error of petitioner’s counsel concerning the identity of the responsible public corporation does not provide a reasonable excuse for the delay in giving notice … , “the absence of a reasonable excuse is not, standing alone, fatal to the application” … . Although NYCHA did not receive actual notice of the accident until the petition was served, it did not contest petitioner’s assertion that the condition of the badly broken sidewalk remains unchanged since the time of the accident and that there were no witnesses to the accident, so that NYCHA will not be substantially prejudiced by the eight-month delay in providing notice (… General Municipal Law § 50-e[5]). NYCHA’s conclusory claim that the “passage of time may affect the availability or memories of potential witnesses is insufficient to establish prejudice” … . In light of the policies underlying General Municipal Law § 50-e(5), which is to be liberally construed to achieve its remedial purposes … . Matter of Richardson v New York City Hous. Auth., 2016 NY Slip Op 00909, 1st Dept 2-9-16

 

NEGLIGENCE (LATE NOTICE OF CLAIM ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND NOTICE BY OTHER MEANS)/MUNICIPAL LAW (NOTICE OF CLAIM, LATE NOTICE ALLOWE DESPITE ABSENCE OF REASONABLE EXCUSE AND NOTICE BY OTHER MEANS)/NOTICE OF CLAIM (LATE NOTICE ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND NOTICE BY OTHER MEANS)

PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE INJURY WAS CAUSED BY THE ACCIDENT, AS OPPOSED TO A DEGENERATIVE DISEASE; TWO-JUSTICE DISSENT.

The First Department, over a two-justice dissent, determined defendants’ motion for summary judgment in a personal injury (car accident) action was properly granted. The majority concluded the plaintiff’s expert did not raise a question of fact about whether the injury was caused by the accident. Defendants’ experts opined the injury was caused by a pre-existing degenerative condition. The dissent felt that plaintiff’s expert raised a question of fact about causation because tearing of the relevant tissue was detected, a condition not mentioned by the defendants’ experts:

 

The dissent, taking the position that an issue of fact exists as to whether the accident caused plaintiff’s shoulder injury, does not deal with the aforementioned opinions of Dr. Lang and Dr. Lyons in plaintiff’s own medical records. It appears to be the dissent’s view that the support in plaintiff’s medical records for the shoulder injury having a degenerative origin are of no moment because plaintiff’s medical expert, Dr. Louis C. Rose, in his affirmation prepared for this litigation, offered a “diagnosis [that] . . . contrasts significantly with the one proffered by defendants’ experts.” However, the dissent offers no support for its view that there is a “factual disagreement” between the defense experts and plaintiff’s expert (Dr. Rose) on the diagnosis of the shoulder injury, as opposed to its etiology. Specifically, the dissent simply assumes that the defense experts’ diagnosis of osteoarthritis of the AC joint and chronic impingement syndrome were inconsistent with the presence of tears to the labrum and rotator cuff, which was Dr. Rose’s diagnosis. Nothing in the record supports the assumption that the conditions diagnosed by the defense experts do not result in tears to the labrum and rotator cuff. Franklin v Gareyua, 2016 NY Slip Op 00886, 1st Dept 2-9-16

 

NEGLIGENCE (NO QUESTION OF FACT RAISED TO REFUTE DEFENSE EXPERTS’ OPINION PLAINTIFF’S INJURIES DUE TO DEGENERATIVE CONDITION, NOT CAR ACCIDENT)/PROXIMATE CAUSE (NO QUESTION OF FACT RAISED TO REFUTE DEFENSE EXPERTS’ OPINION PLAINTIFF’S INJURIES DUE TO DEGENERATIVE CONDITION, NOT CAR ACCIDENT)

SENTENCING YOUTHFUL OFFENDER TO CONSECUTIVE TERMS EXCEEDING FOUR YEARS WAS INCONSISTENT WITH THE CONCEPT OF YOUTHFUL OFFENDER TREATMENT.

The First Department determined that sentencing a youthful offender to consecutive sentences which exceeded four years was inconsistent with the underlying concept of youthful offender treatment:

 

By adjudicating defendant a youthful offender and sentencing him to a term of 1 to 4 years, to run consecutively to a sentence of one to three years on another YO adjudication, the court effectively imposed an aggregate term in excess of four years for two YO adjudications. The imposition of consecutive terms with an aggregate term of more than the normal YO maximum of four years “is inconsistent with the underlying concept of youthful offender treatment and it is unrealistic to conclude that one eligible for such treatment requires prolonged confinement to achieve the objectives of the legislation” … . People v Christopher P., 2016 NY Slip Op 00904, 1st Dept 2-9-11

 

CRIMINAL LAW (SENTENCING YOUTHFUL OFFENDER TO MORE THAN FOUR YEARS INCONSISTENT WITH PURPOSE OF YOUTHUL OFFENDER TREATMENT)/YOUTHFUL OFFENDER (SENTENCING YOUTHFUL OFFENDER TO MORE THAN FOUR YEARS INCONSISTENT WITH PURPOSE OF YOUTHUL OFFENDER TREATMENT)/SENTENCING (SENTENCING YOUTHFUL OFFENDER TO MORE THAN FOUR YEARS INCONSISTENT WITH PURPOSE OF YOUTHUL OFFENDER TREATMENT)

APPEAL OF ACTION SEEKING TO ENJOIN CONSTRUCTION OF A BUILDING DISMISSED; PLAINTIFFS DID NOT APPLY FOR AN INJUNCTION PENDING APPEAL AND CONSTRUCTION HAD CONTINUED TO THE POINT IT COULD NOT BE UNDONE WITHOUT CAUSING UNDUE HARM.

In an action seeking to enjoin the construction of a high-rise tower, the First Department dismissed the appeal because the plaintiffs did not apply for an injunction pending appeal and the construction had progressed to the point it could not be undone without undue hardship:

 

Plaintiffs failed to apply for an injunction pending appeal — on the contrary, they moved for an enlargement of time within which to perfect the appeal — and construction is now “so far advanced that it could not be undone without undue hardship” (Matter of Weeks Woodlands Assn., Inc. v Dormitory Auth. of the State of N.Y., 95 AD3d 747, 753 [1st Dept 2012], affd 20 NY3d 919 [2012]). Plaintiffs’ contention that Weeks Woodlands does not apply because the tower being built by defendants … is not substantially complete is without merit. Weeks Woodlands specifically says that “construction need not be virtually completed to render the dispute moot” (id. [internal quotation marks omitted]).

Contrary to plaintiffs’ claim that they are not seeking to enjoin the construction project, their amended complaint sought to enjoin defendant Art Students League of New York (ASL)’s conveyance of air rights or to set it aside. The practical effect of such an injunction or setting aside would be to force [defendant] Extell to demolish the construction it has accomplished to date and start over again from scratch, which would cost more than $200 million. Caraballo v Art Students League of N.Y., 2016 NY Slip Op 00883, 1st Dept 2-9-11

 

APPEALS (FAILURE TO APPLY FOR AN INJUNCTION PENDING APPEAL ALLOWED CONSTRUCTION TO CONTINUE TO THE POINT IT COULD NOT BE UNDONE, APPEAL DISMISSED)/INJUNCTION PENDING APPEAL (FAILURE TO APPLY ALLOWED CONSTRUCTION TO CONTINUE TO THE POINT IT COULD NOT BE UNDONE)

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