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ALTHOUGH PLAINTIFF POSITIONED THE SCAFFOLD SUCH THAT IT TIPPED WHEN A WHEEL WENT THROUGH A HOLE IN A DRAIN GRATE, HE WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined that plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff had positioned the scaffold on a drain grate and the scaffold tipped when a wheel went through a hole in the grate:

“[T]he relevant and proper inquiry is whether the hazard plaintiff encountered . . . was a separate hazard wholly unrelated to the hazard which brought about [the] need [for a safety device] in the first instance” … . Here, it is undisputed that the scaffold on which plaintiff was standing tipped over because one of its wheels was placed over an open floor drain hole. The fact that the scaffold tipped and plaintiff fell to the ground “demonstrates that it was not so placed . . . as to give proper protection to [him]” … . We therefore conclude that plaintiff’s accident was caused by an elevation-related risk as contemplated in section 240 (1) … .

We reject defendant’s contentions that the sole proximate cause of the accident was plaintiff’s failure to observe the drain hole and position the scaffold in such a manner to avoid it. “[T]here can be no liability under [Labor Law § ] 240 (1) when there is no violation and the worker’s actions . . . are the sole proximate cause’ of the accident” … , and “[a] defendant is entitled to summary judgment dismissing a Labor Law § 240 (1) cause of action or claim by establishing that . . . the plaintiff’s conduct was the sole proximate cause of the accident” … . Plaintiff submitted the testimony of four witnesses, including the project superintendent of the subcontractor that installed the drain and the project manager and superintendent of the subcontractor that installed the concrete floor and curing blanket. Each testified that a temporary cover should be placed over an open drain during the installation of the concrete floor, and therefore plaintiff established that a statutory violation, i.e., the placement of the scaffold over the improperly covered drain hole, was a proximate cause of the accident … . Thus, even assuming, arguendo, that plaintiff was negligent in failing to observe the drain hole and positioning the scaffold over it, we conclude that his “actions . . . render him [merely] contributorily negligent, a defense unavailable under [Labor Law § 240 (1)]”  … . “Because plaintiff established that a statutory violation was a proximate cause of [his] injury, [he] cannot be solely to blame for it’ ” … . Wolf v Ledcor Constr. Inc., 2019 NY Slip Op 06263, Fourth Dept 8-22-19

 

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IN A TRIAL SUBJECT TO INSURANCE LAW 5102 THE TERM “SERIOUS INJURY” NOT “INJURY” SHOULD BE USED ON THE VERDICT SHEET (FOURTH DEPT).

The Fourth Department noted that the term “serious injury” not “injury” should be used on a verdict sheet in a case involving Insurance Law 5102:

… [W]e … note that the first question on the verdict sheet — i.e., “[w]as the accident . . . a substantial factor in causing an injury to [plaintiff]?” — invites the very problem we addressed in Brown v Ng (163 AD3d 1464, 1465 [4th Dept 2018]), where we noted that an interrogatory asking whether the plaintiff sustained an “injury” fails to address the appropriate legal issue, which is whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). The first question on the verdict sheet was unnecessary here inasmuch as the second and third questions asked the jury to determine whether plaintiff sustained a serious injury under the relevant categories that was causally related to the accident. McCulloch v New York Cent. Mut. Ins. Co., 2019 NY Slip Op 06254, Fourth Dept 8-22-19

 

THE WORDING OF THE NOTICE OF APPEAL DID NOT RESTRICT THE APPEAL TO THE DENIAL OF PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT, BUT RATHER INCLUDED THE GRANT OF SUMMARY JUDGMENT TO DEFENDANT; THE DISSENTER DISAGREED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s grant of summary judgment to defendant, over an extensive dissent, determined the notice of appeal did not restrict the appeal to the denial of plaintiff;s cross motion for summary judgment, but rather encompassed the appeal of the grant of summary judgment dismissing the complaint:

… [W]e reject the assertion of defendant and our dissenting colleague that plaintiff’s notice of appeal limits our review to that part of the order and judgment that denied plaintiff’s cross motion for partial summary judgment. The notice of appeal provides, in relevant part, that plaintiff “hereby appeals . . . from the . . . [o]rder and [j]udgment . . . denying [p]laintiff’s [c]ross[ m]otion for [s]ummary [j]udgment. Plaintiff appeals from each and every part of said [o]rder denying [p]laintiff’s [c]ross[ m]otion.” Contrary to our dissenting colleague’s position, inasmuch as the notice of appeal states that plaintiff sought to appeal from “each and every part” of the order and judgment and does not contain language restricting the appeal to only a specific part thereof, we conclude that the appeal is not limited to review of the denial of plaintiff’s cross motion and that the reference thereto simply constitutes language describing the order and judgment … .

Our determination that the reference to the cross motion in the notice of appeal is descriptive and does not constitute evidence that plaintiff excluded from her appeal that part of the order and judgment granting defendant’s motion is further supported by the fact that, in her cross motion, plaintiff expressly sought as part of the requested relief “[a]n [o]rder denying defendant’s [m]otion for [s]ummary [j]udgment in its entirety.” Cline v Code 2019 NY Slip Op 06251, Fourth Dept 8-22-19

 

SENTENCE AFTER TRIAL, WHICH WAS SIX TIMES LONGER THAN THE SENTENCE OFFERED FOR A PLEA, DEEMED UNDULY HARSH AND SEVERE (FOURTH DEPT).

The Fourth Department reduced defendant’s sentence after trial, in part because it was so much greater than the sentence offered in exchange for a plea:

… [T]he aggregate sentence of 60 years, which is statutorily reduced to 50 years (see Penal Law § 70.30 [1] [c], [e] [vi]), is unduly harsh and severe. Defendant has no prior felony convictions. In addition, the People offered, and the court committed to, a plea deal pursuant to which defendant would plead guilty to one count of criminal sexual act in the first degree and be sentenced to a determinate term of 10 years’ incarceration with 20 years’ postrelease supervision, which was thereafter reduced to a determinate term of nine years’ incarceration with 20 years’ postrelease supervision. The court nevertheless sentenced defendant upon his conviction to determinate terms of 15 years of incarceration with 20 years’ postrelease supervision for the three counts of criminal sexual act in the first degree and the count of rape in the first degree, all to run consecutively. That aggregates to a sentence that is more than six times longer than that of the most recent plea offer, and we conclude that it is unduly harsh and severe … . People v Boyd, 2019 NY Slip Op 06311, Fourth Dept 8-22-19

 

TOWN COURT PROPERLY ORDERED THE EUTHANASIA OF RESPONDENT’S DOG AFTER THE DOG ATTACKED AND REPEATEDLY BIT A THREE-YEAR-OLD CHILD; THE DISSENTER ARGUED PETITIONERS DID NOT ESTABLISH THAT THEIR CHILD SUFFERED SERIOUS INJURY WITHIN THE MEANING OF THE AGRICULTURE AND MARKETS LAW (FOURTH DEPT).

The Fourth Department determined Town Court properly ordered the euthanasia of respondent’s dog, Wally, after the dog broke free, ran into petitioner’s yard, and repeatedly bit a three-year-old girl. The dissenter argued the proof did not demonstrate the child suffered serious injury within the meaning of the Agriculture and Markets Law:

Respondent does not dispute that petitioners established by clear and convincing evidence that her dog is a “dangerous dog” (Agriculture and Markets Law §§ 108 [24] [a] [i]; 123 [2]). A justice may direct humane euthanasia of a dangerous dog if, inter alia, the dog, without justification, attacks a person, “causing serious physical injury” (§ 123 [3] [a] …). The Agriculture and Markets Law defines “serious physical injury” as “physical injury which creates a substantial risk of death, or which causes death or serious or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (§ 108 [29]). The only issue here is whether the child sustained a “serious or protracted disfigurement” … . Inasmuch as those terms are used in the Penal Law definition of serious physical injury (see Penal Law § 10.00 [10]), reliance upon criminal cases involving what constitutes a serious or protracted disfigurement is appropriate. As petitioners correctly note, however, the Penal Law definition of a serious injury as, inter alia, a serious and protracted disfigurement … does not apply here.

Contrary to respondent’s contention, the evidence establishes that the child sustained a serious injury inasmuch as the dog attack caused serious or protracted disfigurement … . A “disfigurement” is “that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect or deforms in some manner” … . “A person is seriously’ disfigured when a reasonable observer would find her altered appearance distressing or objectionable” … . The standard is an objective one and depends on various factors, including the nature and the location of the injury … . We conclude that the injuries sustained by the child here, particularly the bite wound to the buttocks that required surgery and approximately 30 stitches, constitute serious disfigurement … . Although the analysis could end there, we conclude that those injuries also constitute a protracted disfigurement … . Matter of Workman v Dumouchel, 2019 NY Slip Op 06248, Fourth Dept 8-22-19

 

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AN ADULT GUEST’S ACT OF POURING KEROSENE ONTO AN ACTIVE FIRE IN A FIRE PIT AT DEFENDANTS’ HOME WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S BURN INJURIES; THE DISSENTER ARGUED THERE WAS A QUESTION OF FACT WHETHER A DUTY TO CONTROL THE GUEST’S BEHAVIOR WAS BREACHED (FOURTH DEPT).

The Fourth Department, over a dissent, determined the sole proximate cause of plaintiff’s burn injuries was a guest’s (Gray’s) pouring kerosene onto an active fire in a fire pit at defendants’ home. All parties were adults. The mere presence of kerosene at the home did not constitute a dangerous condition. The dissenter argued defendant-parent did not demonstrate his daughter did not breach a duty to control the conduct of Gray:

Although plaintiff correctly contends that defendants owed him a duty of care as a guest on their property … , defendants’ submissions establish that they did not breach their duty to “act as . . . reasonable [persons] in maintaining [the] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . All attendees of the gathering at defendants’ property on the night of the incident were adults, and it was not unreasonable for defendants to allow the small group of adults to use the premises for an unsupervised gathering around a fire pit. Bavisotto v Doldan, 2019 NY Slip Op 06247, Fourth Dept 8-22-19

 

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NO QUESTION OF FACT WHETHER ICY CONDITION EXISTED BEFORE THE STORM, STORM IN PROGRESS RULE WARRANTED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined defendants demonstrated they were entitled to summary judgment under the storm in progress rule. The dissenters argued there was a question of fact whether the icy condition was there before the storm:

… [W]e conclude that defendants established as a matter of law “that a storm was in progress at the time of the accident and, thus, that [they] had no duty to remove the snow [or] ice until a reasonable time ha[d] elapsed after cessation of the storm’ ” … .

Where, as here, a defendant’s own submissions do not raise an issue of fact whether the icy condition existed before the storm, the burden shifts to the plaintiff “to raise a triable issue of fact whether the accident was caused by a slippery condition at the location where the plaintiff fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant had actual or constructive notice of the preexisting condition’ ” …

Contrary to plaintiff’s contentions, nothing in her deposition testimony, which was submitted by defendants in support of their respective motions, raised a triable issue of fact whether the ice she allegedly observed existed before the storm … , and the evidence that plaintiff submitted in opposition to the motions also did not raise a triable issue of fact. Battaglia v MDC Concourse Ctr., LLC, 2019 NY Slip Op 06310, Fourth Dept 8-22-19

 

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COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS, DEFENDANT PRESENTED EVIDENCE AN ALIBI WITNESS WAS NOT INTERVIEWED; A WITNESS’S RECANTATION WAS PROPERLY FOUND UNBELIEVABLE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined a hearing was required on defendant’s motion to vacate his conviction on ineffective assistance grounds. The motion alleged that defense counsel did not adequately investigate alibi witnesses. The Fourth Department also held that County Court properly found a witness’s recantation of trial testimony unbelievable:

In recognition of the fact that “[t]here is no form of proof so unreliable as recanting testimony” … , courts have set forth a list of factors to be considered where, as here, the newly discovered evidence is recantation evidence, i.e., “(1) the inherent believability of the substance of the recanting testimony; (2) the witness’s demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship between the witness and defendant as related to a motive to lie” … .  Another relevant factor is “whether the recantation refutes the eyewitness testimony of another witness” … . …

… [D]defendant’s CPL 440.10 motion was supported by notarized but unsworn statements of two previously unknown individuals who claimed that they would have corroborated the trial testimony of defendant and his mother that defendant was at a party at his mother’s home for the entire evening of the shooting. One of those witnesses specifically stated that she was at all times willing to “make [a] statement” but was never contacted by defense counsel. Two additional witnesses stated that they observed defendant at that party some time after the shooting. While those witnesses do not provide a technical alibi for defendant because they did not discuss defendant’s location at the time of the shooting … , they tend to support the alibi evidence that defendant could not have been the shooter because he was at a party at his mother’s house for the entire evening … . People v Howard, 2019 NY Slip Op 06309, Fourth Dept 8-22-19

 

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WRONGFUL CONVICTION ACTION PROPERLY DISMISSED, CONVICTION WAS NOT VACATED ON A GROUND ENUMERATED IN THE COURT OF CLAIMS ACT (FOURTH DEPT).

The Fourth Department determined claimant’s wrongful conviction action was properly dismissed because claimant’s judgment of conviction was not vacated on a ground enumerated in the Court of Claims Act:

… [T]he County Court Judge averred that he vacated claimant’s judgment pursuant to CPL 440.10 (1) (f) “and/or” CPL 440.10 (1) (h). More specifically, the County Court Judge determined that the People had committed a Rosario violation, which falls under CPL 440.10 (1) (f) (see People v Jackson, 78 NY2d 638, 645 [1991]), “and/or” a Brady violation, which falls under CPL 440.10 (1) (h) … . The transcript of the hearing at which the County Court Judge vacated the judgment fully corroborates his sworn account of his rationale for overturning claimant’s conviction, and the transcript likewise supports the County Court Judge’s averment that he effectively denied claimant’s CPL article 440 motion to the extent predicated on any provision of CPL 440.10 (1) other than paragraphs (f) or (h). Thus, because paragraphs (f) and (h) of CPL 440.10 (1) “are not enumerated in Court of Claims Act § 8-b (3) (b) (ii), the [court] properly dismissed the claim” … . …

It is possible, as claimant notes, that the facts underlying a successful Brady claim under CPL 440.10 (1) (h) could also give rise to a viable claim of newly discovered evidence under CPL 440.10 (1) (g). That, however, is irrelevant for purposes of Court of Claims Act § 8-b, which allows recovery only where the criminal court actually vacated the judgment on an enumerated ground, and not where the criminal court might have vacated the judgment on an enumerated ground, but did not do so … . Jeanty v State of New York,2019 NY Slip Op 06333, Fourth Dept 8-22-19

 

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DEFENDANTS’ ATTORNEYS SHOULD NOT HAVE BEEN DISQUALIFIED BECAUSE THEY HAD REPRESENTED PLAINTIFFS’ TRUSTEE, A NONPARTY, IN AN UNRELATED MATTER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a concurrence, determined that defendants’ attorneys, Rupp Baase, should not have been disqualified because the firm had represented a nonparty trustee of plaintiffs on an unrelated matter. The concurrence argued the matter was not justiciable because the court was asked to decide whether there was a conflict of interest between Rupp Baase and a nonparty. The lawsuit stemmed from a fire at plaintiffs’ Elks Lodge allegedly caused by a boiler installed by defendants:

… [P]laintiffs “had to establish that the issues in the present litigation are identical to or essentially the same as those in the prior representation or that [Rupp Baase] received specific, confidential information substantially related to the present litigation” … . Even assuming, arguendo, that a prior attorney-client relationship existed between Rupp Baase and the Trustee, we conclude that plaintiffs failed to establish that the interests of defendants in this action are materially adverse to the interests of the Trustee individually, who is not a named party and is merely a trustee of the Lodge. Plaintiffs likewise failed to establish that any alleged prior representation involved issues that were “identical to or essentially the same” as those in the instant lawsuit (id.). Although the Trustee asserts that he told Rupp Baase during their alleged representation of him that a fire had occurred on plaintiffs’ property due to defendants’ boiler installation, a claim that Rupp Baase disputes, we conclude that, even if the Trustee provided that information, it was not “specific [and] confidential” and thus does not warrant disqualification … . Because plaintiffs failed to establish that the Trustee’s interests are materially adverse to defendants’ in this lawsuit and that this lawsuit is substantially related to the alleged prior representation, the court abused its discretion in granting that part of plaintiffs’ motion seeking disqualification of Rupp Baase … . Benevolent & Protective Order of Elks of United States of Am. v Creative Comfort Sys., Inc., 2019 NY Slip Op 06246, Fourth Dept 8-22-19

 

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