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TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, refusing to follow the 1st Department, determined the tenant, who was a defendant in a failed eviction action, had the right to bring a plenary action to recover attorney’s fees without violating the prohibition against claim splitting. It is significant that the tenant did not counterclaim for attorney’s fees in the answer to the eviction action. The fact that the answer included a boilerplate request for attorney’s fees in the wherefore clause did not amount to a counterclaim (which is authorized by Real Property Law § 234:

Applying the traditional understanding of the claim splitting rule discussed above and embodied in the landlord-tenant case law, the landlord’s bid for dismissal on claim splitting grounds must fail. It was the landlord, not the tenant, who instituted the two prior proceedings in Village Court. The tenant successfully defended herself against the landlord’s claims, but she did not assert an affirmative claim until the instant plenary action. Indeed, the landlord’s appellate brief explicitly concedes that the tenant did not interpose a Real Property Law § 234 counterclaim for attorneys’ fees in either of the two prior proceedings. Thus, because the instant action is the tenant’s first assertion of an affirmative claim for relief under section 234, the claim splitting rule poses no bar to her recovery. Put simply, the tenant cannot be guilty of claim splitting because, until the instant action, there was no claim to split. Caracaus v Conifer Cent. Sq. Assoc., 2017 NY Slip Op 08946, Fourth Dept 12-22-17

 

CIVIL PROCEDURE (CLAIM SPLITTING, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/LANDLORD-TENANT (EVICTION, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/REAL PROPERTY LAW (LANDLORD-TENANT, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/CLAIM SPLITTING  (LANDLORD-TENANT, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))

AN ATTEMPT TO SERVE WALTER WITKOWSKI JR AT THE ADDRESS OF WALTER WITKOWSKI SR DID NOT CHANGE THE FACT THAT PLAINTIFF INTENDED TO SERVE JUNIOR, SERVICE UPON JUNIOR WITHIN THE 120 DAY SERVICE PERIOD, BUT AFTER THE STATUTE OF LIMITATIONS HAD RUN, WAS VALID (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, reversing Supreme Court, determined Walter Witkowski, Jr., not Walter Witkowski, Sr., was the party plaintiff intended to serve in this traffic accident case. An attempt to serve was made at senior’s house within the statute of limitations. Before the expiration of the 120 day service period, but after the expiration of the statute of limitations, junior was served at the correct address:

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CPLR 306-b requires service of the summons and complaint upon the defendant—i.e., Junior and only Junior—”within [120] days after the commencement of the action.” And that is precisely what occurred here. Junior freely concedes that he was served with the summons and complaint in November 2013, well within the statutory deadline for effecting service (which would have expired in February 2014). Moreover, there is no dispute that the November 2013 service constituted good and valid service under CPLR 308 (2). Junior—the only defendant in the case—was thus properly served … .

True, it took plaintiff two separate tries to properly serve Junior. As noted above, plaintiff’s first attempt at serving Junior in October 2013 was admittedly defective under CPLR 308 (2) because the commencement papers were delivered to an address where Junior did not reside (i.e., Senior’s house). But this is inconsequential. Plaintiff cured his defective service by effecting unquestionably proper service within 120 days of commencement, and it is black letter law that “plaintiff had the absolute statutory right to effect valid service at any point within the 120-day period [afforded by CPLR 306-b]” … .Service, after all, is not a “one strike and you’re out” game. Martin v Witkowski, 2017 NY Slip Op 09014, Fourth Dept 12-22-17

CIVIL PROCEDURE (AN ATTEMPT TO SERVE WALTER WITKOWSKI JR AT THE ADDRESS OF WALTER WITKOWSKI SR DID NOT CHANGE THE FACT THAT PLAINTIFF INTENDED TO SERVE JUNIOR, SERVICE UPON JUNIOR WITHIN THE 120 DAY SERVICE PERIOD, BUT AFTER THE STATUTE OF LIMITATIONS HAD RUN, WAS VALID (FOURTH DEPT))/SERVICE OF PROCESS (AN ATTEMPT TO SERVE WALTER WITKOWSKI JR AT THE ADDRESS OF WALTER WITKOWSKI SR DID NOT CHANGE THE FACT THAT PLAINTIFF INTENDED TO SERVE JUNIOR, SERVICE UPON JUNIOR WITHIN THE 120 DAY SERVICE PERIOD, BUT AFTER THE STATUTE OF LIMITATIONS HAD RUN, WAS VALID (FOURTH DEPT))/NAMES (SERVICE OF PROCESS, FATHER SON WITH SAME NAME, AN ATTEMPT TO SERVE WALTER WITKOWSKI JR AT THE ADDRESS OF WALTER WITKOWSKI SR DID NOT CHANGE THE FACT THAT PLAINTIFF INTENDED TO SERVE JUNIOR, SERVICE UPON JUNIOR WITHIN THE 120 DAY SERVICE PERIOD, BUT AFTER THE STATUTE OF LIMITATIONS HAD RUN, WAS VALID (FOURTH DEPT))/CPLR 306-b  (AN ATTEMPT TO SERVE WALTER WITKOWSKI JR AT THE ADDRESS OF WALTER WITKOWSKI SR DID NOT CHANGE THE FACT THAT PLAINTIFF INTENDED TO SERVE JUNIOR, SERVICE UPON JUNIOR WITHIN THE 120 DAY SERVICE PERIOD, BUT AFTER THE STATUTE OF LIMITATIONS HAD RUN, WAS VALID (FOURTH DEPT))

MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, CIVIL CONSPIRACY CLAIM PROPERLY ALLEGED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion to amend the complaint should have been granted. The underlying claim is the defendant’s alleged violation of a non-export agreement in which defendant agreed not to resell a car (purchased from plaintiff) for export to another country. Upon discovery it was learned that defendant was essentially buying cars on behalf of an outfit (Superior) which exported them. Plaintiff sought to amend the complaint to add Superior as a defendant and to add causes of action for civil conspiracy, breach of contract and tortious interference with contract. The Fourth Department explained the analytical criteria for motions to amend a complaint, as well as the necessary allegations for civil conspiracy (which, standing alone, is not a recognized tort in New York):

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“Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit” …  Although defendant contends that plaintiff was required to ” make an evidentiary showing that the claim[s] [could] be supported’ “… , or to submit an affidavit of merit … , plaintiff correctly relies on the more recent cases from this Court, which provide that “[a] court should not examine the merits or legal sufficiency of the proposed amendment unless the proposed pleading is clearly and patently insufficient on its face” … . …

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 In denying that part of the motion seeking leave to amend the complaint, the court concluded that plaintiff could not demonstrate any actual damages as a result of the breach of the Nonexport Agreement. We agree with plaintiff that the court improperly decided the merits of a disputed issue of fact in the context of a motion seeking leave to amend the complaint … . …

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Contrary to defendant’s further contention, the proposed causes of action for civil conspiracy and tortious interference with a contract are not patently lacking in merit. Although “New York does not recognize civil conspiracy to commit a tort as an independent cause of action” … , such a “claim” or “cause of action” may be asserted where, as here, there are allegations of a ” primary tort, plus the following four elements: (1) an agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or injury’ ” …  Here, plaintiff alleged a primary tort of tortious interference with a contract … , and the allegations supporting that tort as well as the cause of action for civil conspiracy are not “palpably insufficient or patently devoid of merit” … . Great Lakes Motor Corp. v Johnson, 2017 NY Slip Op 08970, Fourth Dept 12-22-17

 

CIVIL PROCEDURE (MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, CIVIL CONSPIRACY CLAIM PROPERLY ALLEGED (FOURTH DEPT))/COMPLAINT, MOTION TO AMEND (MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, CIVIL CONSPIRACY CLAIM PROPERLY ALLEGED (FOURTH DEPT))/CIVIL CONSPIRACY  (MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, CIVIL CONSPIRACY CLAIM PROPERLY ALLEGED (FOURTH DEPT))

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SUPREME COURT DOES NOT HAVE THE POWER TO CONSIDER THE MERITS OF AN ARBITRATION AWARD, AWARD CONFIRMED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the arbitrator had not exceeded her authority in interpreting the collective bargaining agreement (CBA) to require full medical coverage for retiring firefighters. The Fourth Department explained the limited review powers of a court with respect to arbitration awards:

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“It is well settled that judicial review of arbitration awards is extremely limited”… . The court must vacate an arbitration award where the arbitrator exceeds a limitation on his or her power as set forth in the CBA … . The court, however, lacks the authority to “examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one”… .

Here, the arbitrator merely interpreted and applied the provisions of the CBA, as she had the authority to do. The court is powerless to set aside that interpretation merely because the court disagrees with it, and we may not countenance such an action. In any event, we conclude that the plain language of the CBA supports the arbitrator’s reasoning. Matter of Lackawanna Professional Fire Fighters Assn., Local 3166, IAFF, AFL-CIO (City of Lackawanna), 2017 NY Slip Op 08994, Fourth Dept 12-22-17

 

ARBITRATION (SUPREME COURT DOES NOT HAVE THE POWER TO CONSIDER THE MERITS OF AN ARBITRATION AWARD, AWARD CONFIRMED (FOURTH DEPT))/EMPLOYMENT LAW (COLLECTIVE BARGAINING AGREEMENT, (SUPREME COURT DOES NOT HAVE THE POWER TO CONSIDER THE MERITS OF AN ARBITRATION AWARD, AWARD CONFIRMED (FOURTH DEPT))/MUNICIPAL LAW (COLLECTIVE BARGAINING AGREEMENT, (SUPREME COURT DOES NOT HAVE THE POWER TO CONSIDER THE MERITS OF AN ARBITRATION AWARD, AWARD CONFIRMED (FOURTH DEPT))/CONTRACT LAW (COLLECTIVE BARGAINING AGREEMENT, SUPREME COURT DOES NOT HAVE THE POWER TO CONSIDER THE MERITS OF AN ARBITRATION AWARD, AWARD CONFIRMED (FOURTH DEPT))

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GRAND JURY EVIDENCE OF SERIOUS PHYSICAL INJURY PRESENTED THROUGH THE VICTIM’S TESTIMONY WAS SUFFICIENT, PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department determined the evidence of serious physical injury, an element of the gang assault charge, was supported by sufficient evidence presented to the grand jury. However, prosecutorial misconduct during the grand jury proceedings warranted dismissal of the indictment (the People may represent however):

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We agree with the People that the evidence before the grand jury was legally sufficient to establish that the victim sustained a serious physical injury. While the medical records introduced in evidence were uncertified and were thus hearsay, the victim himself was competent to testify to “readily apparent external physical injuries of which he obviously [had] personal knowledge” … .

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We agree with the court, however, that the prosecutor engaged in a pervasive pattern of improper conduct at the grand jury proceeding that warranted dismissal of the indictment on the ground that the integrity of the proceeding was impaired … .. The prosecutor acted improperly in repeatedly asking leading questions of his witnesses … , and in introducing hearsay evidence … . During his cross-examination of defendants, the prosecutor improperly asked them whether other witnesses were lying … ., and he asked Blauvelt, without any evident good faith basis, whether defendants used illegal drugs on the night of the altercation and whether they used steroids in general … .. “Most egregiously,” as described by the court, the prosecutor acted as an unsworn witness by stating personal opinions relevant to material issues during his instructions to the grand jury, i.e., that younger people are more likely than older people to start fights, and that the victim’s injuries must have resulted from “a substantial beating” … . We remind the People that a prosecutor owes “a duty of fair dealing to the accused” at a grand jury proceeding and, more generally, that a prosecutor “serves a dual role as advocate and public officer,” and must “not only . . . seek convictions but [must] also . . . see that justice is done” … . People v Blauvelt, 2017 NY Slip Op 08948, Fourth Dept 12-21-17

 

CRIMINAL LAW (GRAND JURY EVIDENCE OF SERIOUS PHYSICAL INJURY PRESENTED THROUGH THE VICTIM’S TESTIMONY WAS SUFFICIENT, PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, GRAND JURY, PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/PROSECUTORIAL MISCONDUCT (MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, GRAND JURY, SERIOUS PHYSICAL INJURY, GRAND JURY EVIDENCE OF SERIOUS PHYSICAL INJURY PRESENTED THROUGH THE TESTIMONY OF THE VICTIM WAS SUFFICIENT (FOURTH DEPT))

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PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the decision vacating an order concerning a counterclaim in a prior appeal was the law of the case, despite the “otherwise affirmed” phrase in the decision, and Supreme Court should not have adhered to a prior ruling on the counterclaim in Supreme Court. The Fourth Department further held that Supreme Court properly found a report prepared by an accountant was prepared in anticipation of litigation and was not discoverable as a “mixed file:”

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“An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on . . . Supreme Court, as well as on the appellate court . . . [T]he “law of the case” operates to foreclose re-examination of [the] question absent a showing of subsequent evidence or change of law’ “… . Nevertheless, “where a court has vacated an earlier order, the doctrine of . . . law of the case no longer applies . . . Indeed, a vacated judgment has no preclusive force either as a matter of collateral or direct estoppel or as a matter of the law of the case’ “… . While this Court may have “otherwise affirmed” the order insofar as it concerned the issues unrelated to the counterclaim, we dismissed the appeal from that part of the order concerning the counterclaim and vacated the judgment. That necessarily means that any determinations related to the counterclaim were not encompassed by the “otherwise affirmed” language related to the order … . Micro-Link, LLC v Town of Amherst, 2017 NY Slip Op 08120, Fourth Dept 11-17-17

CIVIL PROCEDURE (LAW OF THE CASE, DISCOVERY, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/APPEALS (CIVIL PROCEDURE, LAW OF THE CASE, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/PRIVILEGE (MATERIAL PREPARED FOR LITIGATION, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/ACCOUNTANTS (PRIVILEGE, REPORT PREPARED FOR LITIGATION, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/LAW OF THE CASE (CIVIL PROCEDURE, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))

WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, determined that CPLR 3404, which deems an action abandoned if not restored within a year of being marked off or struck from the calendar, does not apply to cases where a note of issue was filed but subsequently was vacated. The 1st and 2nd Department adhere to this view, the 3rd Department does not:

In accordance with the tenor and spirit of our existing case law, we now explicitly adopt the 1st and 2nd Departments’ rule, and reject the 3rd Department’s. It is axiomatic that CPLR 3404 has no applicability in the absence of an extant and valid note of issue … , and we agree with the Second Department that “[t]he vacatur of a note of issue . . . returns the case to pre-note of issue status [and] does not constitute a marking off’ or striking the case from the court’s calendar within the meaning of CPLR 3404” … . To state the obvious, a note of issue does not survive its own vacatur, and it makes no sense to apply CPLR 3404 when the statute’s operative premise—i.e., the continuing vitality of the note of issue—no longer exists. Bradley v Konakanchi, 2017 NY Slip Op 08125, Fourth Dept 11-17-17

CIVIL PROCEDURE (WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY IS VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT))/CPLR 3403 (WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY IS VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT))/NOTE OF ISSUE  (WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY IS VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT))/ABANDONMENT (CPLR 3404, WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY IS VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT))

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ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendant’s motion for summary judgment in this fatal car accident case should not have been granted. Plaintiffs’ decedent was killed when the car in which he was a passenger entered a park at night and crashed after failing to negotiate a curve in the road. The driver, Benedict, was intoxicated and there was evidence the car was driven at high speed. Although a sign at the park indicated it was closed at dusk, the gate was open, there were no signs indicating an upcoming  curve in the road, and there were no speed limit signs. The driver had never been on the road before:

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A municipality has a duty to maintain its roads in a reasonably safe condition “in order to guard against contemplated and foreseeable risks to motorists,” including risks related to a driver’s negligence or misconduct… . In other words, a municipality is not relieved of liability for failure to keep its roadways in a reasonably safe condition “whenever [an accident] involves driver error” … . Defendant’s duty to maintain the road was therefore not negated by Benedict’s intoxication or the fact that the park was closed when the accident occurred … , and we conclude that defendant did not establish as a matter of law that Benedict’s presence under those circumstances was unforeseeable … . Inasmuch as defendant presented no evidence that the road was reasonably safe at night in the absence of the safety measures proposed by plaintiffs, we conclude that defendant failed to establish as a matter of law that it was not negligent … .

We further agree with plaintiffs that the court erred in determining as a matter of law that Benedict’s actions were the sole proximate cause of the accident. Although defendant presented evidence that Benedict was intoxicated and driving “at high speed,” we conclude that its submissions did not establish as a matter of law that Benedict’s manner of driving “would have been the same” if the safety measures proposed by plaintiffs had been in place … . Stiggins v Town of N. Dansville, 2017 NY Slip Op 08108, Fourth Dept 11-17-17

 

NEGLIGENCE (MUNICIPAL LAW, ROAD SAFETY, ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/MUNICIPAL LAW (NEGLIGENCE, ROAD SAFETY, ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/HIGHWAYS AND ROADS (NEGLIGENCE, MUNICIPAL LAW, ROAD SAFETY, ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, ROAD SAFETY, ALTHOUGH THE DRIVER WAS INTOXICATED AND WAS DRIVING AT HIGH SPEED, DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE THE FAILURE TO CLOSE THE PARK GATE AND THE FAILURE TO PROVIDE SPEED LIMIT AND ROAD-CURVE SIGNS DID NOT CONSTITUTE NEGLIGENCE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this traffic accident case should not have been granted. There was evidence plaintiff’s son, who was riding in a pickup truck with defendant’s son, may have voluntarily participated in a drag race which led to the accident and the death of plaintiff’s son:

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Defendants cross-moved for summary judgment dismissing the complaint on the ground that the accident occurred during an “illegal street race” in which plaintiff’s son participated, that his death was the direct result of his own serious violation of the law, and that recovery on his behalf was therefore precluded as a matter of public policy under the rule of Barker v Kallash (63 NY2d 19 [1984]) and Manning v Brown (91 NY2d 116 [1997]). In the alternative, defendants sought summary judgment on the issue whether plaintiff’s son had been comparatively negligent. Supreme Court granted plaintiff’s motion and denied defendants’ cross motion, and defendants appeal.

We agree with defendants that the Barker/Manning rule may apply to a high-speed street race between motor vehicles, i.e., “a drag race as that term is commonly understood” … , even if the participants did not plan a particular race course and the incident thus did not qualify as a “speed contest” within the meaning of Vehicle and Traffic Law § 1182 (a) (1)… . The record here, however, supports conflicting inferences with respect to whether defendants’ son was engaged in a race with other pickup truck drivers … and, if so, whether plaintiff’s son was a “willing participant” in the race … . Thus, the applicability of the Barker/Manning rule is an issue of fact … . In addition, there are issues of fact with respect to the alleged comparative negligence of plaintiff’s son in choosing to ride with defendants’ son, in view of evidence that defendants’ son was under the influence of alcohol and had said that he intended to “chase . . . down” the other trucks … . We therefore conclude that the court properly denied defendants’ cross motion but erred in granting that part of plaintiff’s motion with respect to the culpable conduct defense, and we modify the order accordingly. Kovach v McCollum, 2017 NY Slip Op 08121, Fourth Dept 11-17-17

 

NEGLIGENCE (QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT))/DRAG RACE (NEGLIGENCE, QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT))/TRAFFIC ACCIDENTS (QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT))/BARKER-MANNING RULE (NEGLIGENCE, DRAG RACE, QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT))/COMPARATIVE NEGLIGENCE (DRAG RACE, QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT))

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DEPUTY SHERIFF WAS COERCED INTO RESIGNING WITHOUT A HEARING, SHERIFF SHOULD HAVE ALLOWED DEPUTY TO WITHDRAW HIS RESIGNATION (FOURTH DEPT).

The Fourth Department determined Supreme Court properly found that the sheriff abused his discretion when he refused to allow petitioner, a deputy sheriff, to withdraw his resignation. The deputy resigned after the sheriff told him he would be fired if he didn’t resign:

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It is well settled that ” [a] resignation under coercion or duress is not a voluntary act and may be nullified’ ” … . Although a threat to terminate an employee does not constitute duress if the person making the threat has the legal right to terminate the employee … , such a threat does constitute duress if it is wrongful and precludes the exercise of free will … . It follows that a resignation obtained under the threat of wrongful termination is involuntary and may be withdrawn upon request, and that it is an abuse of discretion for an officer to deny such a request … .

Here, petitioner tendered his resignation under the threat of wrongful termination, and we therefore conclude that the Sheriff abused his discretion in refusing to allow petitioner to withdraw the resignation. Civil Service Law § 75 provides that a public employer may not terminate or otherwise discipline certain public employees “except for incompetency or misconduct shown after a hearing upon stated charges” … . A covered employee “against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing” … . Thereafter, a hearing must be held … . There is no dispute that petitioner was covered by the statute and that he was not provided with the requisite predisciplinary hearing. Thus, the Sheriff had no legal right to terminate him.  Matter of Ortlieb v Lewis County Sheriff’s Dept., 2017 NY Slip Op 08115, Fourth Dept 11-17-17

 

MUNICIPAL LAW (EMPLOYMENT LAW, CIVIL SERVICE LAW, DEPUTY SHERIFF WAS COERCED INTO RESIGNING WITHOUT A HEARING, SHERIFF SHOULD HAVE ALLOWED DEPUTY TO WITHDRAW HIS RESIGNATION (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, CIVIL SERVICE LAW,  DEPUTY SHERIFF WAS COERCED INTO RESIGNING WITHOUT A HEARING, SHERIFF SHOULD HAVE ALLOWED DEPUTY TO WITHDRAW HIS RESIGNATION (FOURTH DEPT))/CIVIL SERVICE LAW (EMPLOYMENT LAW,  DEPUTY SHERIFF WAS COERCED INTO RESIGNING WITHOUT A HEARING, SHERIFF SHOULD HAVE ALLOWED DEPUTY TO WITHDRAW HIS RESIGNATION (FOURTH DEPT))

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