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PLAINTIFF BUS DRIVER WAS SPRAYED WITH DIESEL FUEL AS SHE ATTEMPTED TO FILL THE TANK OF THE BUS SHE WAS DRIVING; THE MANUFACTURER OF THE GAS PUMP NOZZLE AND THE GAS STATION DEMONSTRATED THE NOZZLE AND THE GAS PUMP WERE WORKING PROPERLY; THERE WAS EVIDENCE OF A RELEVANT DESIGN FLAW IN THE FUEL SYSTEM OF THE BUS; THE NOZZLE MANUFACTURER’S AND THE GAS STATION’S MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined that the products liability cause of action against the manufacturer of a gas pump fuel nozzle (Husky), and the premises liability cause of action against the gas station (Kwik Fill) should have been dismissed. The plaintiff was sprayed with diesel fuel as she attempted to fill the tank in the bus (manufactured by Coach) she was driving. There was evidence that the design of the fuel system of the bus may have been the cause:

In opposition to Husky’s motion, the Coach defendants submitted the affidavit of an expert and the deposition testimony of the vice president of engineering of defendant Motor Coach Industries, Ltd. The expert opined that the accident was caused by a nozzle malfunction. He did not, however, identify any particular defect in the nozzle, which he did not inspect. We thus conclude that the expert’s opinion is based on mere speculation and is insufficient to raise an issue of fact … . …

It is undisputed that the Kwik Fill defendants hired an outside vendor that regularly inspected and serviced their fuel pumps, and, in support of their motion, the Kwik Fill defendants submitted evidence establishing that the vendor determined that the fuel pumps were working properly before and after the accident, thus establishing that the Kwik Fill defendants maintained their property in a reasonably safe condition … . Menear v Kwik Fill, 2019 NY Slip Op 05845, Fourth Dept 7-31-19

 

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FOR CAUSE CHALLENGE TO A JUROR WHO FELT POLICE OFFICERS WOULD NOT LIE SHOULD HAVE BEEN GRANTED; STATEMENTS MADE UNDER CUSTODIAL INTERROGATION IN DEFENDANT’S HOME SHOULD HAVE BEEN SUPPRESSED; STATEMENTS MADE AFTER DEFENDANT INVOKED HIS RIGHT TO COUNSEL SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and granting a new trial, determined that a defense for-cause challenge to a juror should have been granted, unwarned statements made by the defendant in his home were in response to custodial interrogation, and the statements made at the police station were made after defendant had invoked his right to counsel:

… [B]y repeatedly insisting that police officers were unlikely to lie under oath because doing so would endanger their pensions, the prospective juror “cast serious doubt on [her] ability to render a fair verdict under the proper legal standards” and to follow the court’s instructions concerning, at a minimum, issues of witness credibility … . The court was therefore “required to elicit some unequivocal assurance from the . . . prospective juror[] that [she was] able to reach a verdict based entirely upon the court’s instructions on the law” … . No such assurances were obtained from the prospective juror, …

… [I]t is undisputed that defendant was ordered out of his bedroom by police officers in the middle of the night, directed to remain in a vestibule outside his apartment, and thereafter subjected to pointed, accusatory questions for about an hour. Under those circumstances, we agree with defendant that a reasonable person, innocent of any crime, would not have felt free to leave, and that he was thus in custody during the questioning … . …

… [D]efendant unequivocally invoked his right to counsel by stating “I think I will take the lawyer” or “I think I need a lawyer” … . Thus, we agree with defendant that his statements following his unequivocal invocation of his right to counsel at the police station should have been suppressed as well … . People v Hernandez, 2019 NY Slip Op 05844, Fourth Dept 7-31-19

 

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QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION; THE ATTORNEY HAD ATTEMPTED TO REMEDY THE FAILURE TO FILE OBJECTIONS IN AN ESTATE MATTER AFTER THE STATUTE HAD RUN; ABSENCE OF AN EXPERT’S REPORT FROM THE RECORD ON APPEAL PRECLUDED A RULING ON THE RELATED ISSUE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff had raised a question of fact whether the continuous representation doctrine tolled the statute of limitations in this legal malpractice action. The attorney had attempted to remedy the failure to file objections in an estate matter after the statute had run. The Fourth Department noted that plaintiff’s expert’s report was missing from the record on appeal and therefore plaintiff was unable to argue on appeal that he had raised a related question of fact (concerning damages) before Supreme Court. Defendant had argued the damages were speculative (requiring dismissal) and Supreme Court did not rule on the issue (because the case was dismissed as untimely). The matter was remitted for a ruling on the damages issue:

We are unable to review plaintiff’s contention that he raised a triable issue of fact with respect to … damages by submitting an expert report inasmuch as plaintiff failed to include that document in the record on appeal. Thus plaintiff, as the party raising this issue on his appeal, “submitted this appeal on an incomplete record and must suffer the consequences” … . …

Defendant met his burden … by establishing that the statute of limitations for legal malpractice is three years (see CPLR 214 [6]), that the estate cause of action accrued on November 1, 2010, the last date on which to file objections to the accounting …, and that the estate cause of action was therefore untimely when this malpractice action was commenced on November 15, 2013. “The burden then shifted to plaintiff[] to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine” … .

We agree with plaintiff that the court erred in determining that plaintiff failed to do so. It is well settled that, in order for the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” … . Here, plaintiff submitted evidence that defendant made several unsuccessful attempts to file the objections within the weeks after the deadline and that he made preparations to appear at a scheduled conference on the objections on November 23, 2010. Those efforts could be viewed as “attempt[s] by the attorney to rectify an alleged act of malpractice” … , and thus plaintiff raised a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine. Leeder v Antonucci, 2019 NY Slip Op 05898, Fourth Dept 7-31-19

 

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DEFENDANT WHO KIDNAPPED HER BIOLOGICAL CHILD WAS NOT EXEMPT FROM SORA REGISTRATION (FOURTH DEPT).

The Fourth Department determined defendant’s waiver of appeal was invalid but rejected her argument that she was exempt for SORA registration because she is the parent of the kidnapping victim, who had been adopted by a family:

The victim of the kidnapping was defendant’s biological child, who had been removed from defendant’s care more than eight years earlier following allegations of abuse concerning the victim’s sibling. Defendant surrendered her parental rights to both the victim and the victim’s sibling, and the children were adopted by a family.

“SORA defines sex offender’ to include any person who is convicted of’ any of a number of crimes listed in the statute . . . SORA requires all people included in this definition to register as sex offenders” … . The list of offenses provided in the statute includes “section 135.05, 135.10, 135.20 or 135.25 of [the Penal Law] relating to kidnapping offenses, provided the victim of such kidnapping . . . is less than seventeen years old and the offender is not the parent of the victim” … . Although we have not yet had the occasion to address whether a biological parent who has surrendered his or her parental rights and whose child has been adopted is entitled to the benefit of the parent exemption set forth in the SORA statute, in People v Brown (264 AD2d 12 [4th Dept 2000]), this Court determined that, in a prosecution for kidnapping, such a person could not assert as an affirmative defense that he or she was a relative of the victim … inasmuch as a biological parent’s status as a “parent” with respect to an adopted child was terminated ” in all respects’ ” by an order of adoption … . Applying that same reasoning here, we conclude that defendant, the biological mother of an adopted child who she kidnapped, is not a parent of the victim for the purposes of SORA, and thus defendant is not exempt from SORA registration. People v Weir, 2019 NY Slip Op 05896, Fourth Dept 7-31-19

 

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DEFENDANT RAISED A QUESTION OF FACT WHETHER THE TERMS OF THE NOTE REFLECTED THE ACTUAL AGREEMENT BETWEEN THE PARTIES (MUTUAL MISTAKE) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendant had raised a question of fact whether the note set forth the actual agreement between the parties:

“Because the thrust of a reformation claim is that a writing does not set forth the actual agreement of the parties, generally . . . the parol evidence rule . . . [does not] appl[y] to bar proof, in the form of parol or extrinsic evidence, of the claimed agreement” … . Nevertheless, “there is a heavy presumption that a deliberately prepared and executed written instrument manifest[s] the true intention of the parties’ . . . and a correspondingly high order of evidence is required to overcome that presumption” … . “The proponent of reformation must show in no uncertain terms, not only that mistake . . . exists, but exactly what was really agreed upon between the parties’ ” … . …

… [D]efendant here set forth, in detail, the basis for his contention that both parties reached an agreement different from that set forth in the note. The affidavits of the CIO [plaintiff’s chief investment officer] and defendant contain the identical assertion that both parties—plaintiff via the CIO and defendant—agreed that plaintiff’s right to secure repayment of the loan would be limited to defendant’s stock interest … . The affidavits of the CIO and defendant are based upon personal knowledge and state in detail their understanding of the negotiations and the resulting agreement. Moreover, the CIO averred that he negotiated the loan on behalf of plaintiff at the time he was its chief investment officer, and he concluded that the terms of the note did not reflect what the parties had intended. Thus, in opposition to plaintiff’s motion, we conclude that defendant submitted the requisite “high level” of proof required to raise a triable issue of fact regarding mutual mistake. Stache Invs. Corp. v Ciolek, 2019 NY Slip Op 05856, Fourth Dept 7-31-19

 

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ALTHOUGH THE ARTICLE 78 PETITION WAS VERIFIED BY AN ATTORNEY, THE VERIFICATION WAS VALID BECAUSE THE ATTORNEY HAD FIRST-HAND KNOWLEDGE OF THE FACTS; IN ADDITION, ANY DEFECTS IN THE VERIFICATION WERE WAIVED BY RESPONDENTS; PRIOR ARBITRATION PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT WAS NOT AN OBSTACLE TO THE PETITION ALLEGING A VIOLATION OF THE EDUCATION LAW CONCERNING THE SUSPENSION OF A SCHOOL PRINCIPAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the verification of an Article 78 petition by petitioner’s attorney was valid because the attorney had first hand knowledge of the contents and, even if the verification was invalid, the respondent had waived any objection to it. The matter concerns the suspension of a school principal which had been the subject of arbitration pursuant to the collective bargaining agreement. The arbitration was not an obstacle to these proceedings brought pursuant to the Education Law because the issues are not the same.  The issue involved in the Article 78 petition, an interpretation of Education Law 2566 (6), was not the kind of issue which must first be brought before the Commissioner of Education:

Although the verification requirement of CPLR 7804 (d) must ordinarily be completed by a party, a verification “may be made by [a party’s] attorney [where, as here,] all the material allegations of the pleading are within the personal knowledge of . . . [that] attorney’ ” …  Moreover, a party challenging the sufficiency of a verification is required “to give notice with due diligence to the attorney of the adverse party that he [or she] elect[ed]’ to treat the petition as a nullity” … . Thus, even assuming, arguendo, that the verification by petitioner’s attorney was insufficient, we conclude that respondents waived any challenge to the petition on that ground by failing to make the requisite diligent efforts and instead waiting a month before seeking dismissal of the petition on that basis … . …

… .[A]lthough Education Law § 310 provides … that any party aggrieved by an official act or decision of school authorities “may appeal by petition to the [C]ommissioner of [E]ducation,” the Commissioner exercises primary jurisdiction only where the matter involves an issue requiring his or her specialized knowledge and expertise … . Petitioner’s contention regarding section 2566, however, requires no more than the interpretation and application of the plain language of that statute for which no deference to the Department of Education is required … . Matter of Buffalo Council of Supervisors & Adm’rs, Local #10 v Cash, 2019 NY Slip Op 05895, Fourth Dept 7-31-19

 

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DEFENDANT DOG OWNER’S ACKNOWLEDGMENT SHE HAD HEARD THAT ONE OF HER DOGS NIPPED A BOY IN A PRIOR INCIDENT WAS NOT ADMISSIBLE EVIDENCE OF THE FACTS OF THE INCIDENT; THEREFORE PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this dog bite case should not have been granted. The plaintiffs relied on deposition testimony in which defendant acknowledged she had heard about a prior incident in which a boy was nipped by one of her dogs. Defendant’s statement was inadmissible hearsay:

Plaintiffs failed, however, to submit evidence in admissible form regarding the purported prior incident allegedly establishing the existence of the dogs’ vicious propensities. Instead, plaintiffs relied on defendant’s inadmissible hearsay testimony during her deposition about what she had heard from others regarding the purported prior incident, for which she was not present and about which she had no firsthand knowledge … . Such evidence is insufficient to meet plaintiffs’ burden on their motion for summary judgment … .

It is true that, “[i]f a party makes an admission, it is receivable even though knowledge of the fact was derived wholly from hearsay” … . If, however, the party merely admits that he or she heard that an event occurred in the manner stated, the party’s statement is “inadmissible as then it would only . . . amount[ ] to an admission that he [or she] had heard the statement which he [or she] repeated and not to an admission of the facts included in it”… . Here, defendant merely admitted that she had heard that the purported prior incident occurred in the manner stated by others, which is “in no sense an admission of any fact pertinent to the issue, but a mere admission of what [she] had heard without adoption or indorsement. Such evidence is clearly inadmissible” … . Christopher P. v Kathleen M.B., 2019 NY Slip Op 05894, Fourth Dept 7-31-19

 

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EVIDENCE WAS SEIZED DURING A WARRANTLESS PAROLE SEARCH AT A TIME WHEN DEFENDANT’S POST RELEASE SUPERVISION (PRS) HAD BEEN IMPOSED ADMINISTRATIVELY, WHICH HAS SINCE BEEN FOUND UNCONSTITUTIONAL; BECAUSE THE LAW CONCERNING THE REQUIREMENT OF JUDICIAL IMPOSITION OF PRS IS NOW CLEAR, SUPPRESSING THE EVIDENCE WOULD HAVE NO DETERRENT EFFECT AND IS NOT THEREFORE NECESSARY (FOURTH DEPT).

The Fourth Department determined the ammunition seized during a warrantless parole search of defendant’s residence, and which was connected to a shooting, was not subject to suppression. At the time of the search, defendant’s post release supervision (PRS) had been imposed administratively and not by a judge–a procedure which has since been rendered invalid by statute. The Fourth Department held that, under these facts, the exclusionary rule, which usually requires suppression of the fruits of a warrantless search, would have no deterrent effect and need not be applied:

… [T]he improper conduct sought to be deterred by application of the exclusionary rule in this case is the unauthorized administrative imposition of PRS by a state entity rather than a sentencing judge. In that regard, defendant contends that the state criminal justice system disregarded the Second Circuit’s decision in Earley v Murray (451 F3d 71 [2d Cir 2006]), which held that the administrative imposition of PRS is unconstitutional … , and he contends that application of the exclusionary rule here is necessary to deter similar “misconduct” in the future. We reject that contention.

First, when the parole search took place, in 2007, the issue whether it is proper for the state to administratively impose PRS had not yet been settled … . Second, and more importantly, it is now settled as a matter of state statutory law that only a court may lawfully pronounce a term of PRS as a component of a sentence … and, consequently, all the relevant government actors are now well aware of the law. Under the circumstances, the deterrent effect of applying the exclusionary rule is marginal or nonexistent … . People v Lloyd, 2019 NY Slip Op 05855, Fourth Dept 7-31-19

 

SUPREME COURT PROPERLY DISMISSED THE CLAIM THAT DEFENDANT VIOLATED THE RESTRICTIVE COVENANT CONCERNING THE HEIGHT OF HOUSES BECAUSE THE TERM ‘ONE AND A HALF STORIES’ WAS AMBIGUOUS AS TO HEIGHT; HOWEVER THE CLAIMS ALLEGING VIOLATION OF SETBACK RESTRICTIONS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court and ordering a new trial, determined defendant’s motion for a directed verdict dismissing claims that defendant had violated certain restrictive covenants when defendant’s house was constructed should not have been granted. The court noted that plaintiff did not prove defendant violated the covenant restricting the height of a house to one and a half stories. The use of the term “stories” was deemed ambiguous as a measure of height. However the proof demonstrated violations of the required setbacks and Supreme Court should not have dismissed those claims because other properties in the subdivision were in violation or because the house was already built:

… “[T]he words not more than one and one-half stories in height’ are ambiguous in scope,” and because the defendants, who were seeking to enforce the covenant, “failed to present . . . clear and convincing proof with respect to what number of feet constitutes a story in height,’ the scope of the covenant is uncertain, doubtful, or debatable,’ thus rendering it unenforceable as applied to plaintiff’s residence” … . …

Although the court determined that there was a violation of at least one of the covenants and restrictions here, it granted the motion on the ground that plaintiff could not seek equitable relief because she did not seek such relief against other property owners within the subdivision regarding their alleged violations of the same covenants and restrictions. That was error. Plaintiff is “entitled to ignore inoffensive violations of the restriction[s] without forfeiting [her] right to restrain others which [she] find[s] offensive” … . Moreover, the court’s reluctance to grant equitable relief where, as here, the house has already been built was not a valid basis for granting defendant’s motion. Defendant “proceeded with construction of the [house] with knowledge of the restrictive covenants and of plaintiff[‘s] intention to enforce them” … . Kleist v Stern, 2019 NY Slip Op 05888, Fourth Dept 7-31-19

 

DEFENDANT’S SENTENCE REDUCED FROM 12 TO FIVE YEARS BASED UPON THE PLEA OFFERS, THE LACK OF PRIOR FELONY CONVICTIONS, DEFENDANT’S MENTAL HEALTH ISSUES, AND THE VICTIMS’ OPPOSITION TO INCARCERATION (FOURTH DEPT). ​

The Fourth Department reduced defendant’s sentence from 12 to five years, taking into account the plea offers of probation only and five years, the lack of any prior felony convictions, her mental health problems, and the victims’ opposition to incarceration:

… [T]he 12-year term of incarceration imposed on the count of burglary in the first degree is unduly harsh and severe. Before indictment, defendant was offered the opportunity to plead to a charge for which probation was a sentencing option. After indictment, she was offered the opportunity to plead guilty to the charges with a sentence promise of five years. At the time of the latter offer, all of the relevant facts were known to the court, including those related to defendant’s history of mental illness. The victims of the offenses were defendant’s parents, and they opposed a lengthy prison sentence, contending that she needed treatment not incarceration. Indeed, defendant’s mother stated at sentencing that her daughter needed mental health treatment and that “jail [was] not the answer.”

Moreover, all of defendant’s prior convictions, none of which were felonies, were committed within three years of these offenses and only after defendant began to suffer from significant mental health issues. Under the circumstances of this case, where no new facts were set forth during the nonjury trial and the victims were opposed to incarceration, we conclude that the sentence on the burglary count should be reduced to a determinate term of incarceration of five years … . People v Mccoy, 2019 NY Slip Op 05851, Fourth Dept 7-31-19

 

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