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ALTHOUGH THE PROSECUTOR WAS GUILTY OF SERIOUS MISCONDUCT, DEFENDANT DID NOT OBJECT TO THE PROSECUTOR’S REMARKS AND REVERSAL IN THE INTEREST OF JUSTICE WAS NOT WARRANTED, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department determined the prosecutor had exceeded the bounds of the propriety but the prosecutorial misconduct, which was not preserved for appeal by objection, did not warrant reversal. Two dissenting justices argued the misconduct warranted reversal:

We agree with defendant, however, that the prosecutor exceeded the bounds of propriety by cross-examining a defense witness regarding an uncharged crime that defendant allegedly committed and by placing his own credibility in issue while doing so. “A prosecutor may not refer to matters not in evidence or call upon the jury to draw conclusions that cannot fairly be inferred from the evidence” … and, in this case, the prosecutor strayed outside ” the four corners of the evidence’ ” when he implied that defendant committed different crimes … . Nevertheless, reversal is unwarranted where a prosecutor’s error has not substantially prejudiced a defendant’s trial … and, although the dissent is correct that we have previously admonished this prosecutor, the instant trial occurred before that admonition. Therefore, although we strongly condemn the prosecutor’s conduct during cross-examination, we conclude that it does not warrant reversal here … .

From the Dissent: We agree with defendant that the prosecutor caused him substantial prejudice during the cross-examination of a defense witness. ” It is fundamental that evidence concerning a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate that the defendant was predisposed to commit the crime charged’ ” … . …

We further agree with defendant that remarks in the prosecutor’s summation were inflammatory and prejudicial. The prosecutor referred to defendant’s witnesses as “liars,” compounding the prejudicial effect of his improper cross-examination … . More egregiously, the prosecutor referred to defendant as a “monster” four times. People v Fick, 2018 NY Slip Op 08788, Fourth Dept 12-21-18

 

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EXPERTS MAY NOT RELY ON DISPUTED FACTS IN RENDERING AN OPINION IN A MEDICAL MALPRACTICE CASE (FOURTH DEPT).

The Fourth Department, modifying Supreme Court in this medical malpractice action, noted that experts cannot rely on disputed facts when rendering an opinion:

Although defendants submitted affidavits from medical experts opining that the individual defendants did not deviate from the standard of care and that any alleged deviation was not a proximate cause of the postsurgery medical complications, those experts relied solely on the symptoms as documented in the medical records of [two of the defendants]. … [T]hose symptoms are vastly different from the symptoms allegedly reported to the remaining defendants and demonstrated by plaintiff before the surgery. It is well settled that experts may not rely upon disputed facts when rendering an opinion … . Moreover, we note that defendants’ experts failed to address plaintiff’s contention that, had he been timely diagnosed, he would not have been required to undergo the surgery in the first place. … “By ignoring the [allegation that the remaining defendants’ malpractice caused plaintiff to undergo the very surgery that caused the brain bleed], defendant[s’] expert[s] failed to tender[ ] sufficient evidence to demonstrate the absence of any material issues of fact’ . . . as to proximate causation and, as a result, [the remaining] defendant[s] [were] not entitled to summary judgment” with respect to those parts of their respective motions and cross motions … . Kubera v Bartholomew, 2018 NY Slip Op 08784, Fourth Dept 12-21-18

 

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ISSUE OF FACT WHETHER DRIVER WITH THE RIGHT OF WAY SHOULD HAVE SEEN THE CAR THAT WAS NOT SLOWING DOWN AS IT APPROACHED THE INTERSECTION, SUPREME COURT REVERSED, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined Supreme Court should not have granted the Sile defendants’ motion for summary judgment in this intersection traffic accident case. Matthew Sile had the right of way when his truck was broadsided by a car (driven by Buck) which failed to stop an the intersection. The majority held that the papers submitted by the Sile defendants raised an issue of fact whether Matthew Sile should have seen the Buck car which was not slowing down as it approached the intersection:

Although plaintiffs do not dispute that Buck was negligent in violating the Vehicle and Traffic Law or that Matthew had the right-of-way as he proceeded straight through the intersection, it is well settled that ” there may be more than one proximate cause of [a collision]’ “… . Thus, in their motions, the Sile defendants had the initial burden of establishing as a matter of law either that Matthew was not negligent or that any negligence on his part was not a proximate cause of the accident… . We conclude in both appeals that the Sile defendants failed to meet that burden … .

Although “a driver who has the right[-]of[-]way is entitled to anticipate that [the drivers of] other vehicles will obey the traffic laws that require them to yield” … , that driver nevertheless has a “duty to exercise reasonable care in proceeding through [an] intersection” … , and “cannot blindly and wantonly enter an intersection”… . Here, by their own submissions, the Sile defendants raised a triable issue of fact whether Matthew met his “duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . Gilkerson v Buck, 2018 NY Slip Op 08782, Fourth Dept 12-21-18

 

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SENTENCES FOR MURDER AND CRIMINAL POSSESSION OF A WEAPON MUST RUN CONCURRENTLY (FOURTH DEPT).

The Fourth Department determined consecutive sentences for murder and criminal possession of a weapon were illegal:

… [T]he sentence is illegal insofar as the court directed that the sentence imposed for criminal possession of a weapon in the second degree shall run consecutively to the sentence imposed for murder in the second degree… . As the People correctly concede, “the sentence on the murder conviction should run concurrently with the sentence on the weapon possession conviction that requires unlawful intent … , because the latter offense was not complete until defendant shot the victim[]” … . People v Maull, 2018 NY Slip Op 08780, Fourth Dept 12-21-18

 

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SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, SEARCHED THE RECORD AND ISSUED A DECLARATORY JUDGMENT ALLOWING PLANTIFFS TO PAVE AN EASEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined Supreme Court should not have, sua sponte, searched the record and issued a declaratory judgment allowing plaintiffs to pave an easement and further should not have granted defendant’s motion for summary judgment. Plaintiffs have an easement which allows access to their driveway. Plaintiffs alleged the easement needed to be paved because their vehicle would hit bottom crossing it:

A party’s right of passage over an easement carries with it the ” right to maintain it in a reasonable condition for such use’ “… . The right to repair and maintain an easement includes “the right to carry out work as necessary to reasonably permit the passage of vehicles and, in so doing, to not only remove impediments but supply deficiencies in order to construct [or repair] a suitable road’ “… . The right to repair and maintain, however, is “limited to those actions necessary to effectuate the express purpose of [the] easement’ ” … , and thus the work performed must not “materially increase the burden of the servient estate[] or impose new and additional burdens on the servient estate[]” … . Relatedly, the servient landowner has a “corresponding right[] to have the natural condition of the terrain preserved, as nearly as possible’ . . . and to insist that the easement enjoyed shall remain substantially as it was at the time it accrued, regardless of whether benefit or damage will result from a proposed change’ ” … . …

Defendant contends on his appeal that the court erred in searching the record and entering a declaratory judgment in plaintiffs’ favor. We agree. As an initial matter, although plaintiffs did not seek declaratory relief, the court has the authority to “grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just” (CPLR 3017 [a]…). We conclude, however, that the declaration was not appropriate given the evidence presented here. Tarsel v Trombino, 2018 NY Slip Op 08779, Fourth Dept 12-21-18

 

PURELY CONCLUSORY ALLEGATIONS IN A COMPLAINT WILL NOT SURVIVE A PRE-ANSWER MOTION TO DISMISS (FOURTH DEPT).

The Fourth Department, in determining a negligent training and supervision cause of action was properly dismissed, noted that purely conclusory allegations in a complaint will not survive a pre-answer motion to dismiss:

We reject plaintiffs’ contention that the court erred in dismissing the third cause of action, alleging negligent training and supervision. We are cognizant of our duty on a motion to dismiss to “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” .. , and that the issue ” [w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss’ ” … . Nevertheless, although “it is axiomatic that a court must assume the truth of the complaint’s allegations, such an assumption must fail where there are conclusory allegations lacking factual support . . . Indeed, a cause of action cannot be predicated solely on mere conclusory statements . . . unsupported by factual allegations”… . Here, the only factual allegations in the third cause of action concern the actions of other defendants not involved in this appeal; therefore, plaintiffs’ conclusory allegations with respect to defendants fail to state a valid cause of action for negligent training and supervision against them … . Bratge v Simons, 2018 NY Slip Op 08778, Fourth Dept 12-21-18

 

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INFANT PLAINTIFF WAS ALLEGEDLY SEXUALLY ABUSED BY ANOTHER STUDENT ON A PRIVATE BUS TAKING THE CHILD HOME FROM SCHOOL, CERTAIN NEGLIGENCE CAUSES OF ACTION AGAINST THE SCHOOL SURVIVED A PRE-ANSWER MOTION TO DISMISS, NEGLIGENT SUPERVISION, HIRING AND TRAINING CAUSES OF ACTION DISMISSED BECAUSE THE EMPLOYEES WERE ALLEGED TO HAVE BEEN ACTING WITHIN THE SCOPE OF EMPLOYMENT, TWO DISSENTING JUSTICES ARGUED THE STUDENT WAS NO LONGER IN THE CUSTODY AND CONTROL OF THE SCHOOL WHEN THE ABUSE OCCURRED ON THE BUS (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined certain negligence causes of action against the school properly survived a pre-answer motion to dismiss. Infant plaintiff, a special needs student, was allegedly sexually abused by another student on a private bus which provided transportation from the school under a contract with the city. All the justices agreed that the negligent hiring, supervision and training causes of action were properly dismissed because the relevant employees were alleged to have been acting within the scope of their employment, rendering the employer liable under the doctrine of respondeat superior. The dissenters argued that the child was no longer in the custody of the school when the child was on the private bus:

From the Dissent: “[A] school has a duty of care while children are in its physical custody or orbit of authority” (Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 378 [1995]), which generally “does not extend beyond school premises”… . A school continues to have a duty of care to a child released from its physical custody or orbit of authority only under certain narrow circumstances, specifically, where the school “releases a child without further supervision into a foreseeably hazardous setting it had a hand in creating” (Ernest v Red Cr. Cent. Sch. Dist., 93 NY2d 664, 672 [1999], rearg denied 93 NY2d 1042 [1999]… ).

In determining that the sixth, ninth, twelfth, thirteenth, and fourteenth causes of action adequately set forth a cognizable theory of negligence, the majority effectively ignores the language in Ernest limiting a school’s duty of care to instances where “it releases a child without further supervision”… . Those circumstances do not exist here inasmuch as the child was released to the care of the bus company, which was then responsible for the “further supervision” of the child (id.). The majority also ignores the precedent set by Chainani, which states that a school that has “contracted-out responsibility for transportation” to a private bus company “cannot be held liable on a theory that the children were in [the school’s] physical custody at the time of injury” … . Therefore, defendants’ duty of care ended when the child was released to the physical custody of the bus company, especially where, as here, the bus company was hired by the City and had no contractual relationship with the School. Brown v First Student, Inc., 2018 NY Slip Op 08776, Fourth Dept 12-21-18

 

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ARBITRATOR DID NOT EXCEED HIS AUTHORITY IN FINDING THAT THE COLLECTIVE BARGAINING AGREEMENT REQUIRED DUE PROCESS PROTECTIONS, INCLUDING NOTICE, BEFORE AN EMPLOYEE COULD BE TERMINATED FOR ALLEGED MISCONDUCT, ARBITRATOR’S AWARD SHOULD HAVE BEEN CONFIRMED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the arbitration award in this employment matter should have been confirmed. The grievant was employed by the respondent town as a school crossing guard. Without notice, the town’s chief of police called the grievant to his office and fired her for alleged misconduct. The arbitrator determined the collective bargaining agreement (CBA) required limited due process protections, including notice, and found termination of the grievant was without just cause:

“[A]n arbitrator exceed[s] his [or her] power’ under the meaning of the statute where his [or her] award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power’ “… .

“Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact’ ” … . “An arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be” … . The court lacks the power to review the legal merits of the award, or to substitute its own judgment for that of the arbitrator, “simply because it believes its interpretation would be the better one” … . …

The “for cause” language contained in the management rights provision expressly circumscribed respondent’s right to discipline or discharge the grievant. The arbitrator interpreted that language, consistent with arbitral precedent, as incorporating a just cause standard that encompasses a right to due process. We thus conclude that “the arbitrator merely interpreted and applied the provisions of the CBA, as [he] had the authority to do” … . Matter of Town of Greece Guardians’ Club, Local 1170 (Town of Greece), 2018 NY Slip Op 08775, Fourth Dept 12-21-18

 

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CITY EMPLOYEE’S CONTRACTUAL RIGHT TO MEDICAL BENEFITS VESTED BEFORE THE COLLECTIVE BARGAINING AGREEMENT WAS TERMINATED (FOURTH DEPT).

The Fourth Department determined that plaintiff city employee’s medical benefits vested before the collective bargaining agreement (CBA) was terminated:

“As a general rule, contractual rights and obligations do not survive beyond the termination of a collective bargaining agreement . . . However, [r]ights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement’ . . . , and we must look to well established principles of contract interpretation to determine whether the parties intended that the contract give rise to a vested right. [A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms’ ”  … . …

… [W]e conclude that the court properly determined that the plain meaning of the provisions at issue in the … CBA establishes that plaintiff has a vested right to medical benefits, those rights vested when he completed his 20th year of service, and plaintiff became eligible to receive said benefits when he reached retirement age… . Plaintiff’s right to medical benefits vested when he satisfied the criteria in the … CBA, and there is no language in the … CBA indicating that employees would forfeit or surrender their vested rights if they transferred jobs or unions prior to reaching retirement age. We thus conclude that the court’s interpretation of the … CBA ” give[s] fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized . . . [and does] not . . . leave one of its provisions substantially without force or effect’ ” … . Timkey v City of Lockport, 2018 NY Slip Op 08792, Fourth Dept 12-21-18

 

INCARCERATION AFTER A PROBATION VIOLATION IN THIS VEHICULAR MANSLAUGHTER CASE DEEMED HARSH AND SEVERE, PROBATION REINSTATED WITH 100 HOURS COMMUNITY SERVICE (FOURTH DEPT).

The Fourth Department exercised its discretion to find a legal sentence was unduly harsh and severe. Defendant had been sentenced to incarceration after a probation violation in this vehicular manslaughter case. The Fourth Department reinstated probation with 100 hours of community service:

We agree with defendant … that the sentence is unduly harsh and severe. “The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime[s] charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … . Although we conclude that the court did not abuse its discretion in revoking defendant’s probation and sentencing her to an indeterminate term of incarceration, “we can [nevertheless] substitute our own discretion for that of a trial court [that] has not abused its discretion in the imposition of a sentence” … . …

Here, defendant, who was 18 years old and had no criminal history at the time of the underlying crimes, completed substance abuse counseling and was fully compliant with the reporting requirement during the nearly 2½ years between her release to probation from an initial period of incarceration and the death of her grandfather … . A clinical psychologist who treated defendant in the years following the underlying crimes and during the probation period noted that, despite the effects that her grandfather’s death had on defendant, she did not revert to previous unhealthy coping mechanisms, i.e., using alcohol and drugs, and she thereafter re-engaged in her treatment program. The psychologist also opined that incarceration would impede defendant’s progress and create a setback in her recovery, and that continuation of probation and her treatment program would best facilitate defendant’s commitment to a sober, productive lifestyle. Significantly, in consideration of all the circumstances, including a single “low positive reading” for marihuana approximately one year prior to her grandfather’s death that did not result in a violation petition against defendant, the probation officer recommended against incarceration given that defendant was otherwise compliant with the terms of probation until her failure to report on four occasions. Further, the record establishes that defendant was employed on a full-time basis, intended to re-enroll in college classes, and committed no crimes after the underlying conviction. … People v Clause, 2018 NY Slip Op 08815, Fourth Dept 12-21-18

SENTENCING

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