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PLAINTIFF-STUDENT WAS INJURED BY AN OUTWARD-SWINGING BATHROOM DOOR WHICH OPENED INTO THE HALLWAY, THE SCHOOL DISTRICT’S MOTION TO SET ASIDE THE PLAINTIFF’S NEGLIGENCE VERDICT PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined the motion to set aside the negligence verdict against the school district was properly denied. Plaintiff student was injured by a bathroom door which opened outward into the hallway on the side of the hallway the students were instructed to use:

[The] evidence, which we have evaluated in light of the unchallenged jury instructions given by the court … , included testimony from the school’s principal that it would have been safer for students walking in the hallway to have the door open inward and that the likelihood of the door opening into someone’s path was increased because the students were instructed to walk on the right side of the hallway next to the door. In addition, the director of facilities for defendant Williamsville Central School District at the time of the incident testified that it was very possible that the outward-swinging door could strike someone walking down the hallway, that he did not know of any reason why the door opened outward, and that the door could have been modified by his staff in a short time at minimal expense. The jury was also able to consider trial exhibits including oversized photographs and architectural schemata to help it determine whether, in light of all the circumstances … , the bathroom door was, as charged by the court, “reasonably safe.” Thus, even apart from the testimony of the expert, there is legally sufficient evidence from which the jury could conclude, based on common sense and the ordinary experience and knowledge possessed by laypersons … , that the outward-opening door was not reasonably safe. Douglas F. v Williamsville Cent. Sch. Dist., 2019 NY Slip Op 04536, Fourth Dept 6-7-19

 

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THE COMPLAINT ALLEGING THE COUNTY WAS VICARIOUSLY LIABLE (RESPONDEAT SUPERIOR) FOR THE NEGLIGENT ACTIONS OF A CORONER SHOULD NOT HAVE BEEN DISMISSED, THE CORONER ALLEGEDLY TRANSFERRED A PORTION OF THE REMAINS OF PLAINTIFF’S SON TO A VOLUNTEER FIRE DEPARTMENT FOR THE TRAINING OF CADAVER DOGS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint against the county, based upon the alleged negligence of a county employee, should not have been dismissed. It was alleged that a coroner (Jackman) employed by the county transferred human remains (plaintiff’s son) to a volunteer fire company for the purpose of train cadaver dogs:

Although it is generally a question for the jury whether an employee is acting within the scope of employment … , an employer is not liable as a matter of law “if the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business’ “… .

Here, there is evidence that Jackman’s decision to transfer a portion of the remains of plaintiffs’ son (decedent) to defendant Vincent Salerno, the Fire Chief of Cambria, was driven by a work-related purpose, rather than Jackman’s own personal interests … . Furthermore, there are issues of fact whether it was foreseeable that Jackman, in performing his obligations as a county coroner, might negligently remove, transport, or even transfer decedent’s remains. “[F]or an employee to be regarded as acting within the scope of his [or her] employment, the employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected” … . An employee’s “[m]ere . . . deviation from the line of . . . duty does not relieve [the] employer of responsibility” … . …

… [W]e reject plaintiffs’ contention that the court erred in granting Cambria’s motion. The unrefuted evidence showed that Cambria’s employee, Salerno, had only personal motives for requesting decedent’s remains from Jackman, i.e., to further his own interest in training dogs to locate cadavers … . Salerno had no official duties that required him to train cadaver dogs or obtain human remains to train such dogs. Dunn v County of Niagara, 2019 NY Slip Op 04530, Fourth Dept 6-7-19

 

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THE JUDGE SHOULD HAVE ALLOWED DEFENDANT TO EXPLAIN HIS CLAIM THAT HE WAS RECEIVING INEFFECTIVE ASSISTANCE OF COUNSEL AND HIS REQUEST FOR NEW COUNSEL, PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant should have been given the opportunity to explain his reasons for requesting a new attorney:

… [D]uring the plea colloquy, defendant attempted to inform the court that he was pleading guilty only because he was not receiving effective assistance of counsel. Although vague and conclusory complaints about counsel generally are insufficient to trigger the court’s duty to make an inquiry … , the court here “failed to provide defendant with an opportunity to explain his complaints” … . The court refused to accept defendant’s pro se letter regarding the matter and did not otherwise allow defendant to expand upon his claim of ineffective assistance of counsel. Defendant’s “request may well have been a frivolous delaying tactic” … . Nevertheless, we conclude that the court had “no basis to completely cut off the discussion without hearing any explanation” … . A “defendant must at least be given an opportunity to state the basis for his [or her] application” … . People v Jones, 2019 NY Slip Op 04543, Fourth Dept 6-7-19

 

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NOTE OF ISSUE AND CERTIFICATE OF READINESS CONTAINING INCORRECT INFORMATION (I.E., DISCOVERY WAS COMPLETE) SHOULD HAVE BEEN VACATED; STIPULATION OF CONFIDENTIALITY WAS SUFFICIENT TO PROTECT TRADE SECRETS (FOURTH DEPT).

The Fourth Department determined the motion to vacate the note of issue and a certificate of readiness because the information therein was not correct (discovery was not complete). The court further determined that the confidentiality stipulation was sufficient to protect trade secrets during discovery:

… [C]ontrary to the statements on the certificate of readiness, discovery was incomplete when the note of issue and certificate of readiness were filed. Thus, “a material fact in the certificate of readiness [was] incorrect,” and the note of issue and certificate of readiness must be vacated … . …

… [D]efendants requested that the court issue a protective order that included the designation of a third-party neutral expert and an “attorney and expert eyes only” designation for disclosure. The court denied defendants’ request, and directed the parties to execute a confidentiality stipulation and order and to proceed with discovery pursuant to Rule 11-g of the Rules of the Commercial Division of the Supreme Court (see 22 NYCRR 202.70). The confidentiality stipulation and order provides, inter alia, that “Confidential Information shall be utilized by the Receiving Party and its Counsel only for purposes of this litigation and for no other purposes. Any violation of this Stipulation and Order may be enforced as a contempt of Court.” We conclude that the court provided defendants with adequate protection of their intellectual property and trade secrets. Backer & Assoc., LLC v PPB Eng’g & Sys. Design, Inc., 2019 NY Slip Op 04541, Fourth Dept 6-7-19

 

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IF A DEFENDANT IS NOT SENTENCED AS A PREDICATE FELON THE MINIMUM SENTENCE MUST BE ONE-THIRD OF THE MAXIMUM, NOT ONE-HALF AS IT WAS HERE, AN APPELLATE COURT CAN NOT LET AN ILLEGAL SENTENCE STAND (FOURTH DEPT).

The Fourth Department noted that, where a defendant is not sentenced as a predicate felon, the minimum sentence is one-third of the maximum, not one-half of the maximum:

We note, however, that the court imposed an illegal sentence of 3½ to 7 years’ imprisonment on defendant’s conviction for CPW in the third degree. Because defendant was not sentenced as a predicate felon, the minimum period of her indeterminate sentence on this conviction must be one-third of the maximum period, not one-half as fixed by the court (see Penal Law § 70.00 [3] [b]). “Although the issue is not raised by either party, we cannot allow an illegal sentence to stand” … . We therefore modify the judgment by reducing defendant’s sentence on that count to an indeterminate term of 2⅓ to 7 years’ imprisonment. People v Simpson, 2019 NY Slip Op 04538, Fourth Dept 6-7-19

 

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WHEN A PARTY’S ATTORNEY APPEARS THE PARTY IS NOT IN DEFAULT AND MAY THEREFORE APPEAL, FAMILY COURT SHOULD NOT HAVE AWARDED CUSTODY TO NONPARENTS ABSENT A HEARING DEMONSTRATING EXTRAORDINARY CIRCUMSTANCES AND THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department determined mother was not in default, because her attorney had appeared, and therefore mother can appeal the award of custody to the nonparent petitioners. The Fourth Department further determined Family Court should have held a hearing to determine whether extraordinary circumstances justified awarding custody to nonparents. The prior consent order of custody in favor of the nonparents does not demonstrate extraordinary circumstances:

“A parent’s right to be heard on a matter of child custody is fundamental and not to be disregarded absent a convincing showing of waiver’ ” … . Moreover, “[i]t is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” … and further establishes that an award of custody to the nonparent is in the best interests of the child … . “The burden of proving extraordinary circumstances rests on the nonparent, and the mere existence of a prior consent order of custody in favor of the nonparent is not sufficient to demonstrate extraordinary circumstances”… . Inasmuch as the court erred in depriving the mother of custody without conducting the requisite evidentiary hearing … , we reverse and remit the matter to Family Court for a hearing on the custody petition. Matter of Hilton v Hilton, 2019 NY Slip Op 04572, Fourth Dept 6-7-19

 

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MATTER SENT BACK FOR A DETERMINATION WHETHER THE PEOPLE PRESENTED NEW EVIDENCE TO THE SECOND GRAND JURY AFTER A ‘NO BILL,’ THE PEOPLE WERE GRANTED PERMISSION TO RE-PRESENT ON THE GROUND THAT NEW EVIDENCE WAS AVAILABLE (FOURTH DEPT).

The Fourth Department sent the case back for a ruling on a portion of defendant’s omnibus motions. The grand jury had returned a “no bill” on the leaving the scene of a serious injury accident. The People sought to re-present the charges to a new grand jury alleging that a witness who had given false testimony had agreed to testify truthfully. Defendant, in her omnibus motion, asked to court to compare the testimony given to both grand juries to see if new evidence was actually presented at the second grand jury:

CPL 190.75 (3) provides that where, as here, charges have been dismissed by the grand jury, they “may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the [P]eople to resubmit such charge[s] to the same or another grand jury.” “Leave may be granted only once, and the [People are] required to justify resubmission” … . “[T]here should not be a resubmission unless it appears, for example, that new evidence has been discovered since the former submission; that the [g]rand [j]ury failed to give the case a complete and impartial investigation; or that there is a basis for believing that the [g]rand [j]ury otherwise acted in an irregular manner” … . …

 … “[W]e cannot deem the court’s failure to rule on [that part of] the . . . motion as a denial thereof”… . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a determination whether the People, in fact, presented new evidence to the second grand jury and, if not, whether dismissal of the indictment is warranted on that ground … . People v Ballowe, 2019 NY Slip Op 04566, Fourth Dept 6-7-19

 

CONSECUTIVE SENTENCES FOR THE SALE OF SMALL AMOUNTS OF COCAINE UNDULY HARSH, CONCURRENT SENTENCES IMPOSED (FOURTH DEPT).

The Fourth Department determined the consecutive sentences for the sale of small amounts of cocaine was unduly harsh and imposed concurrent sentences. The defendant had been promised concurrent sentences of four years prior to trial. After trial consecutive seven-year sentences were imposed:

Here, the record establishes that defendant was 35 years old at the time of these events, and that his only prior record consisted of misdemeanor offenses. He was convicted in Oneida County Court of a similar offense to these crimes, arising from an incident that occurred contemporaneously with these crimes, and he was sentenced to a determinate term of two years’ incarceration plus two years’ postrelease supervision on that conviction. The crimes at issue involved sales of small amounts of cocaine, and the record contains no indication that defendant is a large-scale drug dealer. Although prior to trial the court had agreed that, if defendant pleaded guilty, it would impose a sentence of four years’ incarceration on each count to run concurrent with each other and the Oneida County sentence, after the trial the court imposed determinate terms of seven years’ incarceration plus two years’ postrelease supervision on each count, to run consecutively to each other. People v Reid, 2019 NY Slip Op 04565, Fourth Dept 6-7-19

 

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DEFENDANTS DID NOT DEMONSTRATE WHEN THE CAUSE OF ACTION FOR LEAD-PAINT EXPOSURE ACCRUED, THEREFORE THE SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED ON THE GROUND THAT THE STATUTE OF LIMITATIONS HAD EXPIRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendant’s failed to demonstrate when the lead-paint-exposure cause of action accrued. Therefore the motion for summary judgment on the ground that the statute of limitations had passed should not have been granted:

In moving to dismiss the complaint on statute of limitations grounds, each defendant had “the initial burden of establishing prima facie that the time in which to sue ha[d] expired . . . and thus was required to establish, inter alia, when the plaintiff[s’] cause of action accrued” …  Here, neither defendant established the relevant accrual date of plaintiffs’ claims for injury caused by the latent effects of lead paint exposure and, in the absence of such evidence, neither defendant made a prima facie showing that the applicable limitations period had expired on those claims … . Supreme Court thus erred in granting defendants’ respective motions to that extent. We note that, at oral argument in these appeals, plaintiffs conceded that their claims for patent injuries arising from such exposure were properly dismissed as time-barred. Chaplin v Tompkins, 2019 NY Slip Op 04562, Fourth Dept 6-7-19

 

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PETITIONER DID NOT LIVE IN THE TOWN WHERE THE CHALLENGED CANDIDATE WAS RUNNING FOR OFFICE AND THEREFORE DID NOT HAVE STANDING TO CHALLENGE THE DESIGNATING PETITIONS, SUPREME COURT SHOULD NOT HAVE STRUCK THE RESPONDENT CANDIDATES’ ANSWER BASED UPON ALLEGED DEFECTS IN THE VERIFICATION AND DENIALS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the respondent candidates’ answer should not have been stricken based upon alleged defects in the verification and denials and petitioner did not have standing to contest the designating petition because she did not reside in the town where the single challenged candidate was running for office:

CPLR 3026 provides that “[p]leadings shall be liberally construed” and that “[d]efects shall be ignored if a substantial right of a party is not prejudiced.” Here, we conclude that petitioner did not establish substantial prejudice from any alleged defect in the verification, and thus candidate respondents’ answer should not have been stricken on that ground … . Moreover, “the CPLR does not provide for the striking of improper denials” … .

Furthermore, we note that candidate respondents properly raised standing as an affirmative defense in their April 24 answer, and we agree with candidate respondents that petitioner lacked standing to commence this proceeding pursuant to Election Law article 16. A condition precedent to commencing a proceeding as an objector pursuant to section 16-102 is compliance with the requirements of section 6-154, including that the objector be a “voter registered to vote for such public office” (§ 6-154 [2]).

Here, petitioner served her specifications of objections upon Vickman and upon the chairwoman and the secretary of the Party only, and not on any of the other candidate respondents listed on the authorization. Petitioner, however, lacked standing to challenge the designating petition of Vickman or to challenge the authorization as it pertained to Vickman, who was running for public office in the Town of Farmersville, because petitioner was not a resident of that town … . Matter of Augostini v Bernstein, 2019 NY Slip Op 04312, Fourth Dept 5-30-19

 

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