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TRAFFIC STOP WAS SUPPORTED BY REASONABLE SUSPICION DESPITE THE DMV COMPUTER IMPOUNDMENT RECORD’S CAUTIONARY STATEMENT THAT THE VEHICLE SHOULD NOT BE CONSIDERED STOLEN (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the traffic stop was supported by reasonable suspicion even though the DMV impoundment record indicated the vehicle was not stolen:

Here, a New York State Trooper properly stopped the vehicle defendant was driving based on his check of Department of Motor Vehicles (DMV) computer records for the vehicle’s license plate number, which revealed that the car had been impounded and thus should have been located in an impound lot … . …

Our dissenting colleagues conclude that the Trooper did not have reasonable suspicion to stop defendant’s vehicle because the Trooper disregarded cautionary language in the DMV impoundment record stating that it “should not be treated as a stolen vehicle hit[, and] [n]o further action should be taken based solely upon this impounded response.” We conclude, however, that the Trooper’s testimony that the cautionary language was “generic,” inasmuch as it even “comes up with stolen vehicles,” and that, based on his experience, he interpreted the impoundment record as requiring him to conduct a further investigation because the vehicle “should not be out on the road,” establishes that the stop was not unreasonable. Rather, we conclude that the impoundment record, coupled with the Trooper’s explanation of its import, provided reasonable suspicion to stop the vehicle. In disregarding the Trooper’s explanation that the cautionary language was “generic,” the dissent would obligate us to find unreasonable any stops where that same message appears, irrespective of the facts surrounding the stop. We reject such a categorical determination. People v Hinshaw, 2019 NY Slip Op 02252, Fourth Dept 3-22-19

 

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PERIOD OF POSTRELEASE SUPERVISION CAN NOT BE IMPOSED ON AN INDETERMINATE SENTENCE, ILLEGAL SENTENCE CONSIDERED ON APPEAL EVEN THOUGH THE ISSUE WAS NOT RAISED BY EITHER PARTY (FOURTH DEPT).

The Fourth Department determined the period of postrelease supervision was not authorized for the indeterminate sentence imposed on the tampering with physical evidence conviction:

Supreme Court imposed a period of postrelease supervision in connection with defendant’s conviction of tampering with physical evidence. That was error inasmuch as a period of postrelease supervision is not authorized in connection with an indeterminate sentence (see Penal Law § 70.45 [1] … ). Although the issue is not raised by either party, we cannot allow an illegal sentence to stand … . We therefore modify the judgment by vacating that period of postrelease supervision … . People v Harvey, 2019 NY Slip Op 02250, Fourth Dept 3-22-19

 

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SURCHARGE, DNA DATABANK FEE, CRIME VICTIM ASSISTANCE FEE SHOULD NOT HAVE BEEN ASSESSED AGAINST A JUVENILE OFFENDER (FOURTH DEPT).

The Fourth Department, over a two-justice concurrence, determined that defendant juvenile offender waived his right to appeal but found that the surcharge, DNA databank fee and crime victim assistance fee should not have been imposed on a juvenile offender. The concurrence argued that the waiver of appeal precluded the challenge to the imposed fees, but the People waived defendant’s appeal-waiver on that narrow issue:

As defendant contends and the People correctly concede, we conclude that the surcharge, DNA databank fee, and crime victim assistance fee imposed by County Court must be vacated because defendant is a juvenile offender … . People v Works, 2019 NY Slip Op 02247, Fourth Dept 3-22-19

 

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DEFENDANTS’ DECEDENT’S PHARMACY RECORDS IN THIS BICYCLE-VEHICLE COLLISION CASE ARE NOT PROTECTED BY PHYSICIAN-PATIENT PRIVILEGE AND MUST BE DISCLOSED SUBJECT TO TIME LIMITATIONS AND IN CAMERA REVIEW (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendants’ decedent’s pharmacy records were not protected by physician-patient privilege and must be disclosed to plaintiff, subject to certain limitations and an in camera review. Plaintiff was injured when her bicycle collided with a vehicle driven by decedent:

We agree with plaintiffs, however, that decedent’s pharmacy records are not protected by the physician-patient privilege (see CPLR 4504 [a] … ) and are “material and necessary” to the prosecution of the action (CPLR 3101 [a] …). Nevertheless, we conclude that plaintiffs’ request for records “before and after” the collision was overly broad, and we therefore limit disclosure of the pharmacy records to the six-month period immediately preceding the collision. Furthermore, those records “should not be released to [plaintiffs] until the court has conducted an in camera review thereof, so that irrelevant information is redacted”… . … [D]efendants are directed to submit to the court, for the six-month period  immediately preceding the accident, pharmacy records identifying the medications prescribed to decedent and the prescribed dosages of those medications, and we remit the matter to Supreme Court for an in camera review of those records. Carr-Hoagland v Patterson, 2019 NY Slip Op 02000, Fourth Dept 3-15-19

 

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS FARM EQUIPMENT PRODUCTS LIABILITY ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendants’ motion for summary judgment in this products liability action should have been granted. Plaintiff “was working inside of a piece of farm equipment known as a grain cart, she lost her footing and her right leg became caught in a rotating auger.” A steel safety guard covering the auger had apparently been removed:

… [T]he Killbros defendants submitted the affidavit of an expert, which was incorporated by reference into Bentley’s moving papers, who opined that plaintiff’s injuries would not have occurred if the steel safety guard had not been removed. …

Defendants established their entitlement to summary judgment dismissing the strict products liability causes of action insofar as they are predicated on a design defect theory by submitting evidence that the product was reasonably safe … . The Killbros defendants’ expert averred that the steel safety guard was manufactured in accordance with industry standards, was designed to last the life of the product, and was “state of the art” inasmuch as it was permanently welded to the interior of the grain cart and could not be removed except by using an acetylene torch or other such heavy-duty tool … . …

… [T]he Killbros defendants are entitled to summary judgment dismissing the cause of action against them alleging negligent design and manufacture. “[I]nasmuch as there is almost no difference between a prima facie case in negligence and one in strict liability,” we conclude that plaintiffs similarly failed to raise an issue of fact with respect to their cause of action for negligent design and manufacture … . Beechler v Kill Bros. Co., 2019 NY Slip Op 01993, Fourth Dept 3-15-19

 

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CAUSE OF THE SLIP AND FALL WAS NOT BASED UPON PURE SPECULATION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendants’ motion for summary judgment in this slip and fall case should not have been granted. The cause of the fall was not based upon pure speculation. Plaintiff fell stepping out of a bath tub at a hotel:

… [D]efendants submitted plaintiff’s deposition testimony, which, when viewed in the light most favorable to plaintiff and giving her the benefit of every reasonable inference … , establishes that plaintiff believed that the alleged dangerous or defective configuration or installation of the tub caused her to fall and sustain injuries. In addition, defendants failed to establish in support of their motion the absence of a dangerous or defective condition, and thus they were not entitled to summary judgment dismissing the complaint on that ground either … . We agree with defendants, however, that the court properly granted their motion to the extent that plaintiff alleged that they were negligent in failing to warn of dangerous and defective conditions. Defendants met their initial burden of establishing that any dangerous or defective condition was open and obvious, and plaintiff failed to raise a triable issue of fact … . DelRosario v Liverpool Lodging, LLC, 2019 NY Slip Op 01986, Fourth Dept 3-15-19

 

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PETITIONER DID NOT HAVE STANDING TO SEEK A STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) REVIEW OF A ONE-DAY SQUIRREL-HUNTING FUND-RAISING EVENT (FOURTH DEPT).

The Fourth Department determined petitioner did not have standing to seek a State Environmental Quality Review Act (SEQRA) review of one-day squirrel hunting event put on by a volunteer fire department:

Prior to 2017, the one-day hunting contests at issue had been held annually by respondent as fundraisers, with prizes having been awarded based on the weight of squirrels turned in at the end of each contest. Petitioner resides approximately 50 miles from the area where respondent has held the hunting contests. She alleges an environmental injury-in-fact based on her fondness for squirrels, the impact that the hunting contests may have on the “local ecology,” and the possibility that the contests may result in the killing of squirrels that she sees near her residence. Petitioner contends that she therefore has standing to bring this proceeding/action. We reject that contention.

Standing is “a threshold requirement for a [party] seeking to challenge governmental action” … . The burden of establishing standing to challenge an action pursuant to SEQRA is “on the party seeking review” … . “The existence of an injury in fact—an actual legal stake in the matter being adjudicated—ensures that the party seeking review has some concrete interest in prosecuting the action” … . In addition, to establish standing under SEQRA, a petitioner must establish, inter alia, “an environmental injury that is in some way different from that of the public at large”… .

Here, we conclude that petitioner has not met her burden of establishing an environmental [*2]injury-in-fact. Although petitioner may have alleged some environmental harm, she has alleged, at most, an injury that is “no different in either kind or degree from that suffered by the general public” . Petitioner also has not established that the hunting activities at issue have affected the wildlife where she resides, nor has she established that she has used, or even visited, the area where the hunting contests have been conducted … . Matter of Sheive v Holley Volunteer Fire Co., Inc., 2019 NY Slip Op 01982

 

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SENTENCING COURT DID NOT MAKE THE APPROPRIATE FINDINGS FOR THE IMPOSITION OF ELECTRONIC MONITORING, MATTER SENT BACK, BECAUSE THE LEGALITY OF THE SENTENCE IS IMPLICATED THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (FOURTH DEPT).

The Fourth Department determined Supreme Court did not make the appropriate findings in support of imposing electronic monitoring as a condition probation. The matter was sent back. The court noted that the issue involves the legality of the sentence and therefore need not be preserved for appeal:

A sentencing court imposing probation may require the defendant, pursuant to the statute, to submit to electronic monitoring (see § 65.10 [4]). “Such condition may be imposed only where the court, in its discretion, determines that requiring the defendant to comply with such condition will advance public safety, probationer control or probationer surveillance” (id.). Here, the court failed to make such a determination. To the contrary, it is evident from our review of the sentencing minutes that the court did not consider defendant or his actions to pose a threat to public safety. There may, however, be a legitimate purpose for the electronic monitoring based on probationer control or probationer surveillance. Therefore, we modify the judgment by striking the condition of probation requiring that defendant submit to surveillance via electronic monitoring and pay the fees associated therewith, and we remit the matter to Supreme Court to make a discretionary determination whether to impose electronic monitoring based on appropriate findings. People v Fitch, 2019 NY Slip Op 01973, Fourth Dept 3-15-19

 

IN THIS COMBINED ARTICLE 78 AND DECLARATORY JUDGMENT ACTION, THE FOUR-MONTH STATUTE OF LIMITATIONS APPLICABLE TO ARTICLE 78 DID NOT APPLY TO THE DECLARATORY JUDGMENT ACTION WHICH ONLY INVOLVED PRIVATE PARTIES, NOT A GOVERNMENT BODY OR OFFICER (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, determined that the declaratory judgment action was not subject to the four-month statute of limitations for Article 78 actions. The plaintiff and defendant are private parties who own land on opposite sides of Cady Road. A portion of the Cady Road was declared discontinued and defendant allegedly erected a barrier. Plaintiff’s action sought Article 78 relief against a town official as well as a declaratory judgment. Because no Article 78 relief was possible with respect to the private defendant who allegedly erected the barrier, the shorter statute of limitations did not apply to the declaratory judgment action concerning the rights of the private parties:

Relief under CPLR article 78 is available only against a limited subset of official and institutional parties. It follows that the four-month statute of limitations applicable to article 78 proceedings cannot be imported to bar a declaratory judgment action against a private individual not subject to article 78. * * *

… [D]efendant is not a “body or officer” within the meaning of CPLR 7802 (a), i.e., he is not a “court, tribunal, board, corporation, [or] officer,” and it is well established that article 78 relief is available only against a “body or officer” as defined by section 7802 (a) … . …

… [T]he true gravamen of its declaratory claims “requires a judicial determination as to the rights of the parties to use Cady Road [which] would [thereby] settle the rights of private [parties],” i.e., plaintiff and defendant. And it is well established that such a contest between the “rights of private [parties]” cannot be adjudicated in an article 78 proceeding … . …

… [B]ecause an article 78 proceeding was not a “proper vehicle” for plaintiff’s private claims for declaratory relief against defendant, the four-month “limitations period set forth in CPLR 217 [1] is not applicable to [such claims] and the six-year statute of limitations set forth in CPLR 213 (1) applies instead” … . Matter of Grocholski Cady Rd., LLC v Smith, 2019 NY Slip Op 01966, Fourth Dept 3-15-19

 

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DEMAND FOR A JURY TRIAL, MADE ONE DAY LATE, SHOULD HAVE BEEN GRANTED, THE DENIAL OF THE ORAL APPLICATION FOR A JURY TRIAL IS PROPERLY CONSIDERED ON APPEAL FROM THE FINAL JUDGMENT, EVEN THOUGH NO FORMAL MOTION ON NOTICE WAS MADE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over an extensive dissent, determined (1) defendants’ oral application requesting a jury trial, made one day late, should have been granted, and (2) the appeal from a final judgment allows an appeal of the denial of the late application for a jury trial, even though no formal motion on notice was made. The dissent argued the denial was not appealable because there was no formal motion on notice:

An appeal from a final judgment “brings up for review . . . any non-final judgment or order which necessarily affects the final judgment” (CPLR 5501 [a] [1]). The parties do not dispute that the order denying defendants’ application for leave to file a late demand for a jury trial necessarily affected the final judgment. …

… [T]he State Constitution provides for a right to a jury trial in civil cases (see NY Const, art I, § 2 … ). Although that right may be waived through the failure to demand it in a timely fashion (see CPLR 4102 [a]), the court “may relieve a party from the effect” of such waiver “if no undue prejudice to the rights of another party would result” (CPLR 4102 [e]). While “[t]he decision . . . to relieve a party from failing to timely comply with CPLR 4102 (a) lies within the sound discretion of the trial court” … , we conclude that the court’s denial of defendants’ application was an abuse of discretion. Braun v Cesareo, 2019 NY Slip Op 01962, Fourth Dept 3-15-19

 

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