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PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department, reversing County Court, determined the search of defendant’s person after traffic stop was not supported by proof of a valid warrant for defendant’s arrest. Defendant was a passenger in a car stopped by a sheriff’s deputy. The driver was arrested for driving without a license. The deputy then checked the defendant’s “data” and found defendant did not have a license and  there was a warrant for defendant. The defendant was then taken into custody on the warrant and cocaine was found in a pat-down search. The People did not demonstrate that the warrant was valid at the time of the arrest. County Court ruled the search was a valid “safety pat-down” before placing defendant in the police car:

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We agree with defendant that the court erred in upholding the search on the ground that it was a lawful “safety pat-down.” There was no evidence in the record of the hearing to support a conclusion that “defendant had a weapon or was a threat to [the deputy’s] safety” … . Moreover, “[a]lthough a police officer may reasonably pat down a person before he [or she] places [that person] in the back of a police vehicle, the legitimacy of that procedure depends on the legitimacy of placing [the person] in the police car in the first place” … . Here, the People failed to establish the legitimacy of placing defendant in the patrol vehicle. First, the People failed to establish “the existence of a validly-issued and outstanding warrant” … . Once defendant challenged the validity of the warrant by questioning the deputy concerning the status of the warrant and whether it was still valid, the People were “required to make a further evidentiary showing by producing the . . . warrant” (id.). The People did not do so. Thus, without establishing the existence of a valid and outstanding warrant, the People failed to establish the legitimacy of placing defendant in the patrol vehicle … . Although defendant, who did not have a valid driver’s license, could not have driven the stopped vehicle from the scene after the arrest of the driver, the deputy testified that, in the absence of a warrant, defendant could have called for someone to pick him up and therefore could have lawfully refused to be transported away from the scene in the patrol vehicle. People v Richards, 2017 NY Slip Op 04668, 4th Dept 6-9-17

CRIMINAL LAW (PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, PAT-DOWN SEARCH, PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED)

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PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY NEED TO EVALUATE THE EFFECT OF THE ERRORS ON THE CONVICTION.

The Fourth Department reversed defendant’s conviction because of the prosecutor’s misconduct:

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During jury selection, the prosecutor improperly inquired if defendant “look[ed] like an arsonist” because she was dressed in red-colored clothing. During cross-examination, the prosecutor improperly questioned defendant on her inability to make bail, thus indicating that defendant was incarcerated … , and improperly questioned defendant about the conviction of her codefendant husband of the same crime … . The prosecutor also improperly questioned defendant concerning the criminal history of her husband … During summation, the prosecutor commented on the failure of defendant’s husband to testify regarding her financial condition, again implying that her husband had been convicted of the same crime and was incarcerated … . Although County Court sustained many of defense counsel’s objections and gave curative instructions, we cannot conclude on this record that any resulting prejudice was alleviated… .Moreover, even when a trial court repeatedly sustains a defendant’s objections and instructs the jury to disregard certain remarks by the prosecutor, “[a]fter a certain point, . . . the cumulative effect of a prosecutor’s improper comments . . . may overwhelm a defendant’s right to a fair trial”… , and that is the case here. We therefore “must reverse the conviction and grant a new trial, . . . without regard to any evaluation as to whether the errors contributed to . . . defendant’s conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right”  … . People v Hayward-Crawford, 2017 NY Slip Op 04581, 4th Dept 6-9-17

CRIMINAL LAW (ATTORNEYS, PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)/ATTORNEYS (CRIMINAL LAW. PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)

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ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT.

The Fourth Department determined defendants should be sanctioned for spoliation of evidence, but that striking the answer is too severe a sanction. Plaintiff allegedly slipped and fell on stairs which were replaced by defendants at a time when plaintiff’s expert had yet to examine them. Plaintiff, however, had photographs of the stairs and was therefore able to proceed with the suit:

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… [W]e conclude that the court abused its discretion in striking defendants’ answer and granting plaintiff partial summary judgment on liability based on defendants’ destruction of the stairway … . In deciding whether to impose sanctions, and what particular sanction to impose, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness … . The burden is on the party requesting sanctions to make the requisite showing … . “It is well established that a less drastic sanction than dismissal of the responsible party’s pleading may be imposed where[, as here,] the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense’ ” … . Here, the record does not demonstrate that plaintiff has been left ” prejudicially bereft’ ” of the means of prosecuting her action … , given that plaintiff has in her possession, among other evidence of the condition of the stairs, photographs of the stairs taken after the commencement of this action. Thus, we conclude that an appropriate sanction is that an adverse inference charge be given at trial with respect to any now unavailable evidence of the condition of the stairs … . Burke v Queen of Heaven R.C. Elementary Sch., 2017 NY Slip Op 04593, 4th Dept 6-9-17

CIVIL PROCEDURE (NEGLIGENCE, SPOLIATION OF EVIDENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/NEGLIGENCE (CIVIL PROCEDURE, SPOLIATION OF EVIDENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/EVIDENCE (CIVIL PROCEDURE, NEGLIGENCE, SPOLIATION,  ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/SPOLIATION OF EVIDENCE (CIVIL PROCEDURE, NEGLIGENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)

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THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS.

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined the exclusion of plaintiff’s representative (a nurse) from the examination of plaintiff by defendant’s physician in this personal injury (traffic accident) action warranted sanctions:

… [A] plaintiff “is entitled to be examined in the presence of [his or] her attorney or other . . . representative . . . so long as [that person does] not interfere with the conduct of the examinations’ . . . , unless [the] defendant makes a positive showing of necessity for the exclusion of’ such an individual” … . Nonetheless … there is no requirement that a representative of plaintiff be present during the examination, and plaintiff may waive the right to have a representative present. Two examples of waiver are set forth by the dissent, the first of which involves the plaintiff’s merely appearing for the examination without a representative. Clearly, that is not the factual situation here. Second, a waiver can occur by the examined party’s unreasonable delay in making a motion to enforce the right … . Here, it was less than two months from the November 16, 2015 examination until the January 5, 2016 motion to preclude, not the 2½ years at issue in Pendergast, the decision relied upon the dissent. Marriott v Cappello, 2017 NY Slip Op 04580, 4th Dept 6-9-17

CIVIL PROCEDURE (EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/NEGLIGENCE (CIVIL PROCEDURE, EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/PRECLUDE, MOTION TO (CIVIL PROCEDURE, EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/PHYSICAL EXAMINATION (CIVIL PROCEDURE, EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/DISCOVERY (EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)

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HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED.

The Fourth Department, reversing Supreme Court, determined the asbestos-related causes of action against Honeywell as the manufacturer of coke ovens used in a steel plant did not sound in products liability. The huge coke ovens were deemed to be part of the realty, not products in the stream of commerce. Therefore the products liability causes of action should have been dismissed:

We begin our analysis by noting that, in Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N.Y . (16 NY2d 222, 226-227), the Court of Appeals concluded, when discussing the nature of these coke oven batteries, that “[t]here is no doubt that, by common-law standards, these structures would be deemed real property. Their magnitude, their mode of physical annexation to the land and the obvious intention of the owner that such annexation be permanent would, indeed, compel that conclusion.”

Using the construction of Battery No. 9 as an example, Honeywell’s submissions established that the construction of a coke oven battery was a multistage process that took place over approximately 18 months. The overall construction of the battery would have taken approximately 1,460,000 hours of labor to complete over six phases. * * *

.. .[W]e conclude that service predominated the transaction herein and that it was a contract for the rendition of services, i.e., a work, labor and materials contract, rather than a contract for the sale of a product … . We further conclude that a coke oven, installed as part of the construction of the “great complex of masonry structures” at Bethlehem … , permanently affixed to the real property within a coke oven battery, does not constitute a “product” for purposes of plaintiff’s products liability causes of action … . Terwilliger v Beazer E., Inc., 2017 NY Slip Op 03629, 4th Dept 5-5-17

PRODUCTS LIABILITY (HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED)/TOXIC TORTS (ASBESTOS, PRODUCTS LIABILITY, HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED)/ASBESTOS (PRODUCTS LIABILITY, HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED)/COKE OVENS (PRODUCTS LIABILITY, HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED)

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT POISONING CASE SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department determined the landlord’s motion for summary judgment in this lead paint poisoning case should not have been granted:

“In order [t]o establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition’ ” … . Where, as here, there is no evidence that the landlord had actual notice, plaintiffs may establish that the landlord had constructive notice of such condition by demonstrating that the landlord “(1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” … .  Here, it is undisputed that decedent retained a right of entry and assumed a duty to make repairs, but the remaining … factors are in dispute.

By submitting the deposition testimony of plaintiffs’ mother, wherein she testified that she told [defendant] that she would be living at the residence with her young children, [defendants] raised a triable issue of fact on the fifth … factor. Similarly, [defendant’s] own deposition testimony raised a triable issue of fact on the second … factor inasmuch as he testified that the subject residence was old, that lead was taken out of gasoline in 1970, and he “must have known” that laws regarding lead started to come out in the 1970s ,,, . Even assuming, arguendo, that [defendants] met their initial burden on the third and fourth … factors, we conclude that plaintiffs raised triable issues of fact by submitting ” evidence from which it may be inferred that [defendant] knew that paint was peeling on the premises’ . . . , and evidence from which a jury could infer that [defendant] knew or should have known of the dangers of lead paint to children’ ” … . Rodrigues v Lesser, 2017 NY Slip Op 03669, 4th Dept 5-5-17

 

NEGLIGENCE (DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT POISONING CASE SHOULD NOT HAVE BEEN GRANTED)/TOXIC TORTS (LEAD PAINT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT POISONING CASE SHOULD NOT HAVE BEEN GRANTED)/LEAD PAINT (DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT POISONING CASE SHOULD NOT HAVE BEEN GRANTED)

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DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION.

The Fourth Department held the case in reserve to allow County Court to rule on other issues raised in opposition to defendant’s suppression motion, but specifically found County Court’s ruling the statement was admissible as “spontaneous” was error:

“Volunteered statements are admissible provided the defendant spoke with genuine spontaneity and [the statements were] not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed’ ” … . Such statements must be proven to be “spontaneous in the literal sense of that word as having been made without apparent external cause, . . . [and] it must at least be shown that they were in no way the product of an interrogation environment’ ” … . “Rather, [the statement] must satisfy the test for a blurted out admission, a statement which is in effect forced upon the officer” … .

Here, defendant’s statement was provoked or encouraged by the presentation or discussion of evidence suggestive of his criminal conduct, and we thus conclude that it cannot be deemed “spontaneous in the literal sense of that word as having been made without apparent external cause” … . “Although there may be other reasons to justify the denial of defendant’s motion, the only issues that we may consider on this appeal are those that may have adversely affected the appellant’ ” … . We therefore hold this case, reserve decision, and remit the matter to County Court to rule upon any other issues raised by the People in opposition to the motion. People v Ibarrondo, 2017 NY Slip Op 03643, 4th Dept 5-5-17

 

CRIMINAL LAW (DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/APPEALS (CRIMINAL LAW, DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/EVIDENCE (CRIMINAL LAW, DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/SUPPRESSION (STATEMENTS, DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/SPONTANEOUS STATEMENTS (CRIMINAL LAW, DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)

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PLAINTIFF’S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Fourth Department determined defendant orthopedic surgeon’s (McGrath’s) motion for summary judgment in this medical malpractice/wrongful death case should have been granted. Defendant’s detailed affidavit established he did not deviate from the applicable standard of care and plaintiff’s expert, an anesthesiologist, did not raise a question of fact:

McGrath met his burden by submitting a detailed affirmation establishing that his care and treatment of decedent in recommending and performing surgery was consistent with the accepted standard of care … . The burden then shifted to plaintiff to raise an issue of fact by submitting a physician’s affidavit establishing both a departure from the accepted standard of care and proximate cause … . Plaintiff failed to meet that burden inasmuch as he submitted the affirmation of an anesthesiologist who failed to establish how he was familiar with the accepted standard of care for an orthopedic surgeon. Although a medical expert need not be a specialist in a field to offer an opinion concerning the accepted standards of care in that field, a physician offering an opinion outside his or her particular field must lay a foundation to support the reliability of that opinion … . Chillis v Brundin, 2017 NY Slip Op 03646, 4th Dept 5-5-17

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (PLAINTIFF’S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/EXPERT OPINION  (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT OPINION, PLAINTIFF’S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF, WHO WAS USING STILTS, FELL WHEN A STILT CONTACTED AN OBJECT ON THE FLOOR.

The Fourth Department determined defendant’s motion for summary judgment in this Labor law 240 (1) action should not have been granted. Plaintiff was using stilts to work on a ceiling when a stilt contacted a conduit on the floor, causing him to fall:

Even assuming, arguendo, that defendant established its entitlement to judgment on the theory that plaintiff’s fall was caused solely by stepping on the conduit, i.e., a “separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first place” … , we nevertheless conclude that plaintiff raised an issue of fact sufficient to defeat the motion … In his affidavit submitted in opposition to defendant’s motion, plaintiff clarified his deposition testimony with respect to why and how he fell … . Plaintiff was installing the last of eight ceiling tiles in a room. He explained in his deposition and in his affidavit that his work was obstructed by electrical wiring and conduit in the ceiling that had not been properly secured, thereby leaving limited space in which to install the tile, which measured two feet by four feet. With his arms fully extended overhead while attempting to move and secure the electrical wiring and conduit, he lost his balance and was forced to step backwards, at which point his right stilt came into contact with the conduit and he fell. Thus, plaintiff raised an issue of fact whether his “injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant height differential” while he was attempting to secure the electrical wiring and conduit in the ceiling in order to install the ceiling tile … , and were not solely caused by the presence of the conduit on the floor … . Piche v Synergy Tooling Sys., Inc., 2017 NY Slip Op 03673, 4th Dept 5-5-17

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF, WHO WAS USING STILTS, FELL WHEN A STILT CONTACTED AN OBJECT ON THE FLOOR)/STILTS (LABOR LAW-CONSTRUCTION LAW, ABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF, WHO WAS USING STILTS, FELL WHEN A STILT CONTACTED AN OBJECT ON THE FLOOR)

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PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING.

The Fourth Department, reversing Supreme Court, determined that the negative declaration by the City of Rochester Director of Planning and Zoning under the State Environmental Quality Review Act [SEQRA] should have been annulled. The Fourth Department first held that the parties had standing to contest the negative declaration because of their proximity to the subject construction site. In the face of the acknowledged contamination of the soil at the site, the negative declaration did not set forth or document the underlying reasoning:

We … agree with petitioners that the negative declaration did not contain a ” reasoned elaboration’ of the basis for [the] determination” … . “It is well settled that SEQRA’s procedural mechanisms mandate strict compliance, and anything less will result in annulment of the lead agency’s determination of significance” … . The lead agency must “set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any supporting documentation” … . The purpose of that regulation “is to focus and facilitate judicial review and . . . to provide affected landowners and residents with a clear, written explanation of the lead agency’s reasoning at the time the negative declaration is made” … . Here, despite the undisputed presence of preexisting soil contamination on the project site, the negative declaration set forth no findings whatsoever with respect to that contamination. The document containing the purported reasoning for the lead agency’s determination of significance, which was prepared subsequent to the issuance of the negative declaration, does not fulfill the statutory mandate … . Contrary to respondents’ contention, the developer’s promise to remediate the contamination before proceeding with construction did not absolve the lead agency from its obligations under SEQRA … . Matter of Rochester Eastside Residents for Appropriate Dev., Inc. v City of Rochester, 2017 NY Slip Op 03665, 4th Dept 5-5-17

ENVIRONMENTAL LAW (PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)/ZONING (STATE ENVIRONMENTAL QUALITY REVIEW ACT, PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)/NEGATIVE DECLARATION (STATE ENVIRONMENTAL QUALITY REVIEW ACT, PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)

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