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COUNTY COURT PROPERLY FOUND THAT DEFENDANT USED HIS RELATIONSHIP WITH A WITNESS TO PRESSURE HER NOT TO TESTIFY, THE WITNESS’S GRAND JURY TESTIMONY WAS PROPERLY ADMITTED IN EVIDENCE (FOURTH DEPT).

The Fourth Department determined County Court properly determined the defendant pressured a witness to refuse to testify at trial. Therefore the witness’s grand jury testimony was properly admitted in evidence:

Defendant contends that County Court erred in determining, following a Sirois hearing, that the People presented clear and convincing evidence that defendant “wrongfully made use of his relationship with the victim in order to pressure her to violate her duty to testify” … . …

The People presented evidence that the missing witness was ready and willing to testify while defendant was in jail during the grand jury proceedings but became reluctant after defendant was released and the trial date drew closer. Days prior to the trial, the witness’s mother observed the witness leave with defendant and their child for several hours. When the witness returned to the mother’s home, the witness “started talking about the subpoena that she had received. Started saying things like they can’t do anything to me if I don’t show up. The subpoena wasn’t served properly. There’s nothing that they can do if I don’t show up to court. Things of that nature.” The mother reported to the prosecutor that she had never heard the witness use legal terminology like that before. …

Defendant’s relative also observed the witness in defendant’s home during the time in which law enforcement officers were attempting to locate her on a material witness warrant. Further, although the prosecution never informed the witness of the updated trial schedule following the witness’s failure to appear, the witness appeared at court two days after the Sirois hearing “at the perfect moment to save defendant from the impending admission of her damning grand jury testimony” … . People v Haile, 2019 NY Slip Op 04547, Fourth Dept 6-7-19

 

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ALTHOUGH THE DEFENDANT WAS HANDCUFFED AND SITTING ON THE BACKSEAT OF A POLICE CAR WHEN HE WAS ASKED QUESTIONS, INCLUDING WHETHER HE HAD BEEN DRINKING, BY THE OFFICER WHO MADE THE TRAFFIC STOP, THE DEFENDANT WAS NOT IN CUSTODY WHEN THE QUESTIONS WERE ASKED (FOURTH DEPT).

The Fourth Department determined defendant, although handcuffed and seated on the backseat of a police car, was not in custody such that his answers to questions, including whether he had anything to drink, should be suppressed. The officer observed defendant commit several traffic infractions, then the defendant got out of the car, staggering. The defendant would not stop and go back to his car when the officer told him to. When the officer caught up to him he smelled alcohol. The officer then handcuffed the defendant and had him sit on the backseat of the police car with his feet outside the car on the ground:

Contrary to defendant’s contention, we conclude that his answers to the sergeant’s questions were not the product of a custodial interrogation requiring Miranda warnings. ” It is well established that not every forcible detention constitutes an arrest’ ” … and, under the circumstances noted above, we agree with the court that the sergeant’s use of handcuffs did not transform the detention into a de facto arrest. Rather, the sergeant’s use of the handcuffs to effect the detention was warranted in light of the threat that defendant might take additional evasive action … .

We further conclude that seating defendant on the back seat of the police vehicle did not transform the sergeant’s questioning into a custodial interrogation. The sergeant lawfully, although forcibly, detained defendant for investigatory purposes based on his observation of defendant committing several traffic infractions … . Given defendant’s visible intoxication, staggering gait, and prior evasive actions, a ” less intrusive means of fulfilling the police investigation’ ” than seating defendant partially in the police vehicle ” was not readily apparent’ ” … . Here, the sergeant’s “action fell short of the level of intrusion upon defendant’s liberty and privacy that constitutes an arrest” … . In addition, the sergeant’s questions were investigatory rather than custodial in nature … . People v Mcdonald, 2019 NY Slip Op 04546, Fourth Dept 6-7-19

SUPPRESS SUPPRESSION

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THE TOWN RESOLUTION ALLOWING THE CONSTRUCTION OF A SEWER LINE ALONG A NATURE TRAIL WAS ANNULLED BY THE 4TH DEPARTMENT, THE TOWN BOARD DID NOT TAKE THE REQUIRED ‘HARD LOOK’ AT THE EFFECTS OF THE SEWER-LINE CONSTRUCTION ON CERTAIN RARE ANIMAL AND PLANT SPECIES, AS WELL AS THE EFFECTS UPON SURFACE WATERS (FOURTH DEPT).

The Fourth Department annulled the determination allowing an easement to install a sewer line along a nature trail. The Fourth Department held that the Town Board did not take the required “hard look” (required by the State Environmental Quality Review Act [SEQRA]) at the effect of the sewer line on certain endangered and rare animal and plant species, as well as the effects on surface water:

… [T]he New York State Department of Environmental Conservation (DEC) made respondent aware that its database indicated the presence of certain endangered, threatened, or rare animal and plant species on the project site. Those species included the northern long-eared bat, the imperial moth, and the northern bog violet. In addition, the database indicated the presence of inland salt marsh. The DEC recommended that respondent conduct a survey of the professional literature and determine whether the project site contains habitats favorable to such species and, if so, that respondent conduct a field survey to determine whether the species are present. The DEC instructed that, if respondent determined that such species are present, modifications should be considered to minimize impact. There is no indication that respondent conducted such a survey. [With the exception of the Indiana bat. the species’] presence was merely noted…, along with the bare conclusion that there would be no significant impact on those species. …

[R]espondent merely set forth general practices for avoiding significant adverse impacts on surface water and stream corridors without providing a reasoned elaboration that, by implementing such practices in this particular project, respondent would successfully avoid any significant adverse impacts on surface water. Matter of Frank J. Ludovico Sculpture Trail Corp. v Town of Seneca Falls, 2019 NY Slip Op 04621, Fourth Dept 6-7-19

 

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BLOCKING THE CAR IN WHICH DEFENDANT WAS A PASSENGER WAS A JUSTIFIABLE LEVEL TWO INTRUSION, THE SUBSEQUENT LEVEL THREE INTRUSION WAS JUSTIFIED BY THE INFORMATION KNOWN TO THE POLICE AT THE TIME THE DEFENDANT STARTED TO GET OUT OF THE CAR AS THE POLICE APPROACHED (FOURTH DEPT).

The Fourth Department determined the blocking of the car in which defendant was a passenger by parking at the entrance to the driveway was only a permissible level two intrusion:

The charges against defendant arose after the police, who were investigating a recent stabbing, encountered defendant in a vehicle matching the description and anticipated location of the stabbing suspect’s vehicle given in a police dispatch.

We conclude that the police conduct was justified in its inception and at every subsequent stage of the encounter leading to defendant’s arrest … . Contrary to defendant’s contention, the police action in pulling up behind the subject vehicle, which had parked in defendant’s driveway after passing the officers’ patrol car, constituted only a level two intrusion … despite the fact that a police vehicle blocked the subject vehicle’s egress from the driveway … . The police at that point had the requisite founded suspicion to justify the level two intrusion.

The police escalated the encounter to a level three intrusion when they approached defendant, who had begun to exit the vehicle, and ordered him to remain in the vehicle … . Evaluating the totality of the circumstances … , we conclude that the police conduct was justified by the officers’ reasonable suspicion that defendant was the suspect described in the dispatch … . The officers found defendant less than two miles away from the scene of the stabbing, which had occurred approximately 20 minutes earlier. Defendant’s gender, race, height, and weight matched the description of the stabbing suspect. Furthermore, witnesses at the scene of the stabbing informed the police that the suspect left the scene in a small silver vehicle driven by a black female and that the vehicle may have been headed toward a residence on Mark Avenue. Defendant was a passenger in a silver vehicle driven by a black female, and the driveway in which the driver parked the vehicle was 50 to 75 yards from Mark Avenue. People v Pettiford, 2019 NY Slip Op 04620, Fourth Dept 6-7-19

SUPPRESSION, SUPPRESS, DE BOUR

DEFENDANT INSURANCE AGENT WAS NOT UNDER A DUTY TO NOTIFY THE INSURER OF THE INSURED’S DEATH OR TO MAKE SURE ADDITIONAL INSUREDS WERE NAMED ON THE POLICY AFTER THE INSURED’S DEATH; THE DECEDENT’S DAUGHTER CONTINUED TO PAY THE HOUSE INSURANCE PREMIUMS AFTER HER MOTHER’S DEATH, WHEN THE HOUSE WAS DESTROYED BY FIRE THE INSURER DISCLAIMED COVERAGE BECAUSE ONLY THE DECEDENT WAS NAMED ON THE POLICY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendant insurance agent did not owe a duty to decedent’s daughter, Tomaino, or the estate, with respect to the insurance on decedent’s home. Decedent was the only person named on the house insurance policy. Decedent died in 2010. Tomaino continued to pay the premium to defendant after her mother’s death. When the place was destroyed by fire in 2014 decedent was the only named insured. Allstate disclaimed coverage. Tomaino alleged defendant owed her and the estate a duty to notify the insurer of decedent’s death and to make sure additional insured were named in the policy. The Fourth Department that no such duty was owed, even if defendant was aware of the death of Tomaino’s mother.

Defendant met his initial burden of establishing as a matter of law that he owed no duty to plaintiff, Tomaino, or decedent’s estate inasmuch as he demonstrated that none was a client. Indeed, defendant’s submissions established that decedent, alone, was his client and that, after her death, no one represented the estate until September 2014, approximately eight months after the fire and four years after her death. …

,,, [E]ven assuming, arguendo, that Tomaino was a client of defendant, we conclude that defendant established his entitlement to summary judgment as a matter of law. Defendant established that he had no common-law duty to advise, guide, or direct her to obtain insurance coverage for additional insureds in light of decedent’s death … , and he further established that he did not ” assume or acquire duties in addition to those fixed at common law’ ” … . Here, defendant demonstrated that there were no payments made to him beyond the alleged premium payments, that there was no interaction with Tomaino regarding questions of coverage, and that no special relationship was formed between himself and Tomaino …. Indeed, defendant submitted the deposition testimony of Tomaino, in which she testified that there was no discussion with defendant about any need for changes to the policy and that she was not asked for a copy of any death certificate, thus establishing the absence of any interaction regarding questions of coverage. Additionally, even assuming, arguendo, that Tomaino was a client of defendant and that she informed him of decedent’s death and made premium payments to him in 2012 and 2013, we conclude that such events are insufficient to raise a triable issue of fact whether defendant owed a duty to her to notify Allstate of decedent’s death and to ensure that the property was properly insured … . Gatto v Allstate Indem. Co., 2019 NY Slip Op 04618, Fourth Dept 6-7-19

 

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THE POND INTO WHICH THE 96-YEAR-OLD PLAINTIFF’S DECEDENT APPARENTLY SLID WAS OPEN AND OBVIOUS AND THE FACT THAT THE BANK OF THE POND IS SLIPPERY IS INCIDENTAL TO ITS NATURE AND LOCATION, PLAINTIFF’S EXPERT DID NOT SUPPORT THE ASSERTION THAT THE POND WAS DEFECTIVE AND UNSAFE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined defendant property owners’ motion for summary judgment in this wrongful death case was properly granted. Plaintiff’s decedent was 96 years old and resided in defendants’ senior citizen facility. Plaintiff’s decedent was found  dead in a pond on the property. The medical examiner concluded plaintiff’s decedent may has slipped on the sloping bank of the pond and slid into the water where he died of drowning:

… [A] landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it” … .

Here, defendants met their initial burden on the motion by establishing that the pond, including its sloping bank, was an open and obvious condition inherent or incidental to the nature of the property and that it was known to decedent prior to the accident …. “A slippery condition on a [pond’s bank] is necessarily incidental to its nature and location near a body of water” … . …

… [T]he engineering expert’s affidavit that plaintiff submitted fails to indicate that it was based on any studies, regulations, codes, or statutes, “nor is the expert’s conclusion that the [retention pond] was defective and unsafe . . . supported by foundational facts, such as a deviation from industry standards or statistics showing the frequency of injuries caused by” the lack of safety measures proposed by the expert … . Preston v Castle Pointe, LLC, 2019 NY Slip Op 04617, Fourth Dept 6-7-19

 

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THE RECKLESS DISREGARD STANDARD APPLIED TO DEFENDANT POLICE OFFICER WHO WAS RESPONDING TO AN EMERGENCY WHEN THE TRAFFIC ACCIDENT OCCURRED, THE OFFICER TOOK PRECAUTIONARY MEASURES AND THEREFORE HIS CONDUCT DID NOT RISE TO THE LEVEL OF RECKLESS DISREGARD OF THE SAFETY OF OTHERS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined “reckless disregard” standard for the operation of a police car in an emergency situation applied to the facts, and further found that the officer’s conduct did not rise to the level of “reckless disregard:”

We agree with defendants that the court erred in determining that the defendant officer’s conduct was not measured by the “reckless disregard” standard of care under Vehicle and Traffic Law § 1104 (e) … . That standard of care “applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b)” …  and, if applicable, the driver is “shielded from liability unless [he or she] is shown to have acted with reckless disregard’ of the safety of others” … . Here, there is no dispute that the defendant officer was operating an “authorized emergency vehicle” and was “involved in an emergency operation” at the time of the accident (§ 1104 [a]). Furthermore, defendants’ submissions in support of their motion established as a matter of law that the defendant officer was performing exempted conduct when he “proceed[ed] past a steady red signal . . . , but only after slowing down as may be necessary for safe operation” … . …

Here, the defendant officer’s uncontroverted testimony established that he was responding to a disturbance call that was “[p]riority 1,” i.e., the highest priority level, and that he took several precautions before proceeding into the intersection against the red light. Specifically, he slowed his vehicle to an almost complete stop, looked to his right and left, and then slowly proceeded into the intersection at a speed of about five miles per hour. When plaintiffs’ vehicle came into the defendant officer’s peripheral vision, he “slammed” his brake and attempted to avoid colliding with plaintiffs’ vehicle. Where, as here, a defendant officer takes precautionary measures before engaging in exempted conduct under Vehicle and Traffic Law § 1104 (b), the police officer does not act with reckless disregard for the safety of others … . Levere v City of Syracuse, 2019 NY Slip Op 04613, Fourth Dept 6-7-19

 

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PORTIONS OF THE RESPONDENTS’ APPRAISAL REPORT IN THIS CONDEMNATION PROCEEDING SHOULD NOT HAVE BEEN STRUCK BECAUSE THE PROPER VALUATION METHOD WAS USED; THE EVIDENTIARY RULING ON THE MOTION IN LIMINE IS APPEALABLE BECAUSE THE RULING AFFECTS THE SCOPE OF THE TRIAL ISSUES (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the portions of motion in limine seeking to strike parts of respondents’ appraisal report in this condemnation proceeding should not have been granted. The court noted that the evidentiary ruling was appealable because it limited the scope of the trial issues. The court further noted that the proof of valuation offered at trial must be limited to the valuation method(s) described in the appraisal report:

Where, as here, “the highest and best use is the one the property presently serves and that use is income-producing, then the capitalization of income is a proper method of valuation” … . In our view, the stricken portion of respondents’ appraisal report, although titled “investment valuation,” applied an income capitalization approach using the standard income capitalization formula, i.e., value equals net income divided by a capitalization rate … , and applied factors that, according to respondents’ appraiser, accurately reflect the property’s value and would make the property more appealing to prospective purchasers. To the extent that petitioner contends that certain factors considered by respondents’ appraiser in valuing the property do not accurately reflect market value, “[t]he fact that some aspects of the valuation methodology [of respondents’ appraiser] may be subject to question goes to the weight to be accorded the appraisal[],” not its admissibility … . … Matter of Rochester Genesee Regional Transp. Auth. v Stensrud, 2019 NY Slip Op 04612, Fourth Dept 6-7-19

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE A CAUSAL RELATIONSHIP BETWEEN THE ALLEGED DEVIATION FROM THE STANDARD OF CARE AND PLAINTIFF’S INJURY WITH RESPECT TO ONE OF THE DEFENDANT DOCTORS, THE DOCTOR’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined that the medical malpractice action against defendant Dr. Dietz and his employer should have been granted because plaintiff’s expert did not raise a question of fact about whether the alleged departure from the standard of care had a causal relationship with the plaintiff’s injury. The majority concluded the expert’s affidavit was sufficient to raise a question of fact with respect a second defendant, Dr. Pedersen, but the dissent argued the affidavit with respect to Dr. Pedersen was conclusory and did not demonstrate a causal relationship:

… [P]laintiff’s expert did not opine that Dr. Dietz caused the iliac vein injury and instead opined that Dr. Dietz deviated from the standard of care by insufficiently examining or testing the iliac vein following Dr. Pedersen’s repair. Inasmuch as plaintiff’s expert did not indicate the possible results of any such examination or testing, whether those results should have prompted a different course of treatment, or how Dr. Dietz’s alleged departure from the standard of care otherwise caused plaintiff’s injury, plaintiff failed to raise an issue of fact as to causation regarding Dr. Dietz … . Dickinson v Bassett Healthcare, 2019 NY Slip Op 04610, Fourth Dept 6-7-19

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING THAT FATHER ABANDONED THE CHILD, THE PERMANENT NEGLECT FINDING, HOWEVER, WAS SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court determined the evidence did not support the finding that father abandoned the child, but the evidence did support a finding of permanent neglect. The criteria for permanent neglect, not summarized here, are described in some depth in the decision. The matter was sent back for a dispositional hearing or a waiver of the hearing:

“An order terminating parental rights may be entered upon the ground that a child’s parent abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court’ ” … . A child is deemed abandoned “if the parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency’ ” … . “Parents are presumed able to visit and communicate with their children and, although incarcerated parents may be unable to visit, they are still presumed able to communicate with their children absent proof to the contrary” … .

Here, the record establishes that the father—following up on a prior attempt to establish paternity that he had initially failed to adequately pursue—definitively established his paternity, while incarcerated, less than two months into the six-month period preceding the filing of the petition … . Thereafter, throughout the relevant period, the father initiated communications with the child’s caseworker; sent the caseworker at least four letters inquiring about the child and included a card and drawing for the child in at least one of those letters; and participated in a service plan review. We conclude that the father’s contacts “were not minimal, sporadic, or insubstantial” … . Matter of Jarrett P. (Jeremy P.), 2019 NY Slip Op 04609. Second Dept 6-7-19

 

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