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COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR PRIMA FACIE TORT, ELEMENTS EXPLAINED (FOURTH DEPT)

The Fourth Department, reversing Supreme Court, determined the complaint did not state a cause of action for prima facie tort:

“Prima facie tort affords a remedy for the infliction of intentional harm, resulting in damage, without excuse or justification, by an act or a series of acts which would otherwise be lawful” … . “The requisite elements of a cause of action for prima facie tort are (1) intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful” … .

Here, the prima facie tort cause of action cannot stand because, although the complaint alleged that defendant “acted maliciously” and “with disinterested malice,” it did not allege that defendant’s “sole motivation was disinterested malevolence’ ” … . In addition, the complaint failed to allege special damages as required … . Finally, the complaint is not “sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action” (CPLR 3013 …). “[A] cause of action cannot be predicated solely on mere conclusory statements . . . unsupported by factual allegations” … . Here, the complaint is devoid of relevant facts, including the time period at issue, the number of forms that defendant requested plaintiff to resubmit, and the number of claims involved. Greater Buffalo Acc. & Injury Chiropractic, P.C. v Geico Cas. Co., 2019 NY Slip Op 06349, Fourth Dept 8-22-19

 

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THE SOIL CONSERVATION AND WATERSHED BOARD’S MOTION FOR SUMMARY JUDGMENT IN THIS DROWNING CASE WAS PROPERLY DENIED, PLAINTIFF’S DECEDENT DIED AFTER GOING OVER A SUBMERGED DAM; ALTHOUGH THE BOARD WAS NOT LIABLE PURSUANT TO A CONTRACT TO MAINTAIN AND OPERATE THE DAM UNDER AN ESPINAL EXCEPTION, THERE WAS A QUESTION OF FACT WHETHER THE BOARD OWNED THE DAM (A DANGEROUS CONDITION); THE BOARD IS SEPARATE AND DISTINCT FROM THE CONSERVATION DISTRICTS; THE ASSUMPTION OF THE RISK DOCTRINE IS NOT APPLICABLE (FOURTH DEPT).

The Fourth Department determined soil the soil conservation and watershed board’s motion for summary judgment in this wrongful death case was properly denied. The board operated and maintained a dam pursuant to a contract with a federal agency, the Natural Resources Conservation Service (NRCS). The dam was submerged and plaintiff’s decedent sustained drowning injuries which led to his death after he waded into the water and went over the dam. Supreme Court should not have held that the board had entirely displaced the NRCS responsibilities for operation and maintenance of the dam (and therefore was liable under contract pursuant the third Espinal exception). However the board did not demonstrate it did not own the dam and summary judgment was properly denied on that ground. In addition the board was separate and distinct from the conservation districts. So granting summary judgment to the districts did not require the same relief for the board. Finally the court noted that the assumption of risk doctrine applies only to sporting events and had no applicability to these facts:

… “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal, 98 NY2d at 138) although, as relevant here, the third exception to that rule applies where the contracting party has “entirely displaced the other party’s duty to maintain the premises safely” … . * * * We … conclude that “the contract between [the Board] and the [NRCS] was not so comprehensive and exclusive that it entirely displaced the [NRCS’s] duty to maintain the premises safely, such that [the Board] owed a duty to [decedent]” … . …

While the Board established that it did not own the creek or the banks adjacent thereto … , its submissions are insufficient to establish as a matter of law that it did not own the subject dam, which allegedly constituted and created the dangerous condition … .

The Court of Appeals has made clear that, “[a]s a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues” … . Here, decedent was not engaging in a sporting event or recreative activity that was sponsored or otherwise supported by the Board, nor was he wading and swimming at a designated venue … . Suzanne P. v Joint Bd. of Directors of Erie-Wyoming County Soil Conservation Dist., 2019 NY Slip Op 06343, 8-22-19

 

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WHETHER MOTHER VALIDLY WAIVED HER RIGHT TO COUNSEL WAS APPEALABLE BECAUSE THE ISSUE WAS CONTESTED BEFORE MOTHER DEFAULTED BY FAILING TO APPEAR, DESPITE THE FACT THAT MOTHER’S REQUEST TO REPRESENT HERSELF WAS GRANTED; MOTHER WAS ADEQUATELY INFORMED OF THE RIGHTS SHE WAS GIVING UP (FOURTH DEPT). ​

The Fourth Department, over two separate dissents, determined: (1) whether mother was adequately informed of the rights she was giving up by representing herself was appealable because the matter was contested before mother defaulted by failing to appear; (2) the fact mother was granted the right she requested (representing herself) did not preclude her appeal of the adequacy of her waiver of her right to an attorney; (3) mother was adequately informed of the rights she was giving up:

The mother contends … that Family Court erred in failing to ensure, in response to her request to proceed pro se, that her waiver of the right to counsel was knowing, intelligent, and voluntary. Initially, we conclude that the mother’s contention is reviewable on appeal from the orders … despite her default. CPLR 5511 provides, in relevant part, that “[a]n aggrieved party . . . may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party.” Thus, in general, “[n]o appeal lies from an order [or judgment] entered upon an aggrieved party’s default”… . Nevertheless, “notwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from [such an] order [or judgment] brings up for review those matters which were the subject of contest’ before the [trial court]” … .

… [W]e conclude that “[t]he issue of the mother’s waiver of the right to counsel was the subject of contest before . . . [the c]ourt and, therefore, may be reviewed by this Court …”. * * *

… [M]other was repeatedly advised by the court of the right to counsel, including assigned counsel, and was represented by several attorneys throughout the proceedings. Yet she discharged or consented to the withdrawal of each of those attorneys for her own reasons and ultimately opted to represent herself, even after she was advised that proceeding without the assistance of trained and qualified counsel might be difficult or detrimental and that she would be required to follow the rules of evidence. The mother also demonstrated the ability and preparedness to proceed pro se by, among other things, issuing subpoenas to various witnesses and filing exhibits. The record thus establishes that the court’s inquiry was sufficient to ensure that the mother’s waiver of the right to counsel was knowing, intelligent, and voluntary … . Matter of DiNunzio v Zylinski, 2019 NY Slip Op 06337, Fourth Dept 8-22-19

 

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EMERGENCY PHYSICIAN ERRONEOUSLY PRONOUNCED PLAINTIFF’S DECEDENT DEAD AND ALLEGEDLY REFUSED TO REEXAMINE HIM FOR NEARLY THREE HOURS, DESPITE THE PLEAS OF HIS FAMILY MEMBERS WHO ALLEGEDLY SAW HIM BREATHING, MAKING EYE CONTACT AND MOVING; SUPREME COURT SHOULD NOT HAVE PROHIBITED THE PARTIES FROM MAKING STATEMENTS ABOUT THE FACTS OF THE CASE; THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined Supreme Court should not have prohibited the parties and their attorneys from making statements about the underlying facts in this medical malpractice action, and the negligent infliction of emotional distress (NIED) cause of action should have been dismissed. Plaintiff’s decedent suffered cardiac arrest and was pronounced dead by an emergency physician (Perry). However plaintiff’s decedent was not in fact dead and the emergency physician allegedly refused to examine plaintiff’s decedent for nearly three hours. Plaintiff’s decedent subsequently died after surgery at another hospital:

Perry notified plaintiff that decedent had died, and plaintiff, along with decedent’s son and several other family members, was brought into the code room. Plaintiff alleges that, for the next two hours and 40 minutes, decedent was breathing, making eye contact, and moving around, which prompted her and the coroner to urge Perry and the nursing staff to examine decedent, but they refused to do so. When Perry examined decedent at 11:10 p.m. at plaintiff’s insistence, he observed that decedent was, in fact, alive. Decedent was transferred to another hospital, where he underwent heart surgery and subsequently died. * * *

Supreme Court erred in granting defendants’ motions for an order enjoining and prohibiting the parties and their attorneys from making extrajudicial statements about the action or the underlying facts in a public forum or in front of the media. Although defendants met their burden of “demonstrat[ing] that such statements present a reasonable likelihood’ of a serious threat to [defendants’] right to a fair trial” … , there is no evidence in the record “that less restrictive alternatives would not be just as effective in assuring the defendant[s] a fair trial” … . Absent “the requisite showing of a necessity for such restraints,” a court may not impose prior restraints on First Amendment rights … . * * *

We agree with defendants … that the court erred in denying their motions insofar as they sought summary judgment dismissing the … causes of action … for NIED … . . “A breach of the duty of care resulting directly in emotional harm is compensable even though no physical injury occurred’ … when the mental injury is a direct, rather than a consequential, result of the breach’ … and when the claim possesses some guarantee of genuineness’ … .  Here, defendants met their respective burdens of establishing as a matter of law that plaintiff and decedent’s son did not suffer mental and emotional injuries causally related to Perry’s erroneous pronouncement of decedent’s death, and plaintiff failed to raise a triable issue of fact by demonstrating the requisite ” guarantee of genuineness’ ” with respect to her claims of mental or emotional injuries … . Cleveland v Gregory C. Perry, M.D., FDR Med. Servs., P.C., 2019 NY Slip Op 06306, Fourth Dept 8-22-19

 

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REFUSING SECTION 8 VOUCHERS AS RENT PAYMENT VIOLATES THE WEST SENECA FAIR HOUSING CODE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, reinstated a permanent injunction prohibiting the landlord from refusing “Section 8” vouchers for rent, The refusal violated the West Seneca Fair Housing Code (WSFHC) which prohibits discrimination based upon a person’s source of income:

WSFHC § 71-3 (A) provides that “[i]t shall be unlawful . . . [t]o refuse to sell or rent or refuse to negotiate for the sale or deny a dwelling to any person because of race, color, religion, sex, age, marital status, handicap, national origin, source of income or because the person has a child or children” (emphasis added). Remedial legislation such as WSFHC § 71-3 (A) ” should be liberally construed to carry out the reforms intended and to promote justice’ ” … . ” A liberal construction . . . is one [that] is in the interest of those whose rights are to be protected, and if a case is within the beneficial intention of a remedial act it is deemed within the statute [or ordinance], though actually it is not within the letter of the law’ ” … .

We conclude … that Section 8 vouchers constitute a “source of income” under WSFHC § 71-3 (A). Such vouchers are plainly a recurrent benefit, measured in terms of money, that constitute financial gain to the recipient. Although the term “source of income” is undefined in the WSFHC, similar ordinances enacted in other local codes have expressly included Section 8 vouchers as a source of income … , which suggests that such vouchers are a “source of income” under the broad language of the WSFHC. People v Ivybrooke Equity Enters., LLC, 2019 NY Slip Op 06299, Fourth Dept 8-22-19

 

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ARBITRATION AWARD TERMINATING SCHOOL PRINCIPAL FOR ALCOHOL ABUSE SHOULD NOT HAVE BEEN VACATED, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department reversed Supreme Court and reinstated the arbitration award which terminated petitioner’s employment as a school principal for alcohol abuse. The school district had entered a “last chance” agreement with petitioner, which, the Fourth Department held, was not rendered unenforceable by the district’s commencement of the disciplinary proceedings. The court explained the criteria applied to review of arbitration awards:

Education Law § 3020-a (5) permits judicial review of a hearing officer’s decision but expressly provides that “the court’s review shall be limited to grounds set forth in” CPLR 7511. “An arbitration award may not be vacated unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . Where, as here, the parties are “subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious’ ” … , and “it must be in accord with due process” … . Here, petitioner failed to meet his burden to show that the conduct findings were invalid … . Indeed, the record establishes that those findings were rational, had evidentiary support, and were not arbitrary and capricious, impermissibly based on uncharged conduct, or otherwise improper … . Matter of Bender (Lancaster Cent. Sch. Dist.), 2019 NY Slip Op 06297, Fourth Dept 8-22-19

 

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FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF PROPERTY JUSTIFICATION DEFENSE REQUIRED DISMISSAL OF THE MURDER/MANSLAUGHTER INDICTMENT, TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined County Court properly dismissed the murder/manslaughter indictment because the grand jury was not charged with the defense of property justification defense. After decedent had twice attacked defendant inside the home, the decedent reentered the home from the front yard and was shot by the defendant:

During a recess in the grand jury proceeding, defendant asked the People to deliver to the grand jury foreperson a letter requesting, among other things, that the grand jurors be charged with respect to the justifiable use of physical force in defense of a person pursuant to Penal Law § 35.15 and the justifiable use of physical force in defense of premises and in defense of a person in the course of a burglary pursuant to § 35.20 (3). The People did not deliver the letter to the foreperson.

The People instructed the grand jury on the law with respect to murder in the second degree (Penal Law § 125.25 [1]), manslaughter in the first degree (§ 125.20 [1]), and the justification defense pursuant to Penal Law § 35.15; however, the People did not instruct the grand jury with respect to the justification defense pursuant to § 35.20 (3).

… [W]e conclude that the court properly dismissed the indictment based on the People’s failure to instruct the grand jury on the justification defense pursuant to Penal Law § 35.20 (3) … . A court may dismiss an indictment on the ground that a grand jury proceeding is defective where, inter alia, the proceeding is so irregular “that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35 [5]; see CPL 210.20 [1] [c]). With respect to grand jury instructions, CPL 190.25 (6) provides, as relevant here, that, “[w]here necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it.” “If the prosecutor fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment” … . Under the circumstances of this case, we conclude that an instruction regarding the justification defense pursuant to Penal Law § 35.20 (3) was warranted, and the prosecutor’s failure to provide that instruction impaired the integrity of the grand jury proceeding (see CPL 210.35 [5]). Furthermore, we conclude that the error was not cured by the instruction regarding the justification defense under Penal Law § 35.15 … . People v Ball, 2019 NY Slip Op 06295, Fourth Dept 8-22-19

 

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DEFENDANT WAS NOT IN CUSTODY WHEN HE WAS ASKED POINTED QUESTIONS, NO MIRANDA WARNING REQUIRED; POLICE OFFICER’S SUBJECTIVE BELIEF DEFENDANT WAS NOT FREE TO LEAVE IS IRRELEVANT; RAPE FIRST IS AN INCLUSORY CONCURRENT COUNT OF PREDATORY SEXUAL ASSAULT (FOURTH DEPT).

The Fourth Department determined: (1) the defendant was not in custody when he was asked pointed questions so the Miranda warnings were not required; (2) a police officer’s subjective belief defendant was not free to leave is not relevant to a Miranda analysis; and (3) rape first degree is an inclusory current count of predatory sexual assault:

… [T]he evidence establishes, inter alia, that defendant was told at the start of the interview that he was not under arrest and would be going home that day … , and the recording of the interview belies defendant’s contention that he was in handcuffs when he was placed in the interview room. Defendant concedes that he indeed was not arrested at the time of the interview, and that he was given a ride home later that day. We reject defendant’s contention that, because a police officer testified that defendant was not free to leave during transport to the police station, the court erred in concluding that defendant was not in custody. A police officer’s subjective belief ” has no bearing on the question whether a suspect was in custody at a particular time . . . [and] the subjective intent of the officer . . . is irrelevant’ where, as here, there is no evidence that such subjective intent was communicated to the defendant” … . Contrary to defendant’s further contention, Miranda warnings were not required before the investigators asked pointed questions. It is well settled that “both the elements of police custody’ and police interrogation’ must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda” … , and the element of custody was absent here. People v Baez, 2019 NY Slip Op 06294, Fourth Dept 8-22-19

 

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EVIDENCE SUPPORTED THE FIRST DEGREE MURDER CONVICTION BASED UPON DEFENDANT’S HIRING THE KILLER (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the evidence supported the first degree murder charge, based upon defendant’s hiring the killer. The dissent argued the proof of the contract-killing was insufficient. The second degree murder count should have been dismissed:

We and our dissenting colleagues agree on many points. All of us agree that there was sufficient evidence that defendant was complicit in his wife’s murder. Further, all of us agree that there is evidence that the principal requested a payment of money from defendant only five days before the murder. Nevertheless, our dissenting colleagues characterize that request as “part of a string of otherwise innocent interactions” between defendant and the principal in the days leading up to the murder. The dissent even offers the possibility that the principal was “seeking a reward” from defendant—not for agreeing to murder defendant’s wife, but for unrelated virtuous conduct. We cannot agree. In our view, the jury could rationally have concluded that the principal’s request for a payment of money five days before the murder was not “innocent” at all, but in fact was part and parcel of the murder plot. People v Clayton, 2019 NY Slip Op 06284, Fourth Dept 8-22-19

 

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SORA RISK ASSESSMENT REDUCED TO LEVEL ONE, NO PROOF AGE OF CHILDREN DEPICTED IN PORNOGRAPHY WAS LESS THAN TEN (FOURTH DEPT

The Fourth Department reduced defendant’s risk level from two to one, finding there was no proof the children depicted in pornography were less than ten years old:

Defendant was convicted of possessing a sexual performance by a child (Penal Law § 263.16), which requires proof, inter alia, that defendant possessed a play, motion picture, or photograph depicting sexual conduct involving a child who is less than 16 years of age (see §§ 263.00 [1], [4]; 263.16). Consequently, defendant’s plea of guilty to that charge does not constitute clear and convincing evidence that 30 points should be assessed under risk factor 5 … . Additionally, the evidence submitted by the People, including the presentence report, did not constitute clear and convincing evidence that any of the victims was 10 years of age or less  … . The clear and convincing evidence, including the references to the children in the images possessed by defendant in the presentence report as preadolescent or prepubescent, coupled with the report’s definition of such children as being between 10 and 13 years of age, however, supports the imposition of 20 points under risk factor 5 … . People v Spratley, 2019 NY Slip Op 06283, Fourth Dept 8-22-19

 

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