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ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT.

The Fourth Department determined only the failure to warn causes of action in this lawsuit against a pesticide manufacturer were preempted by federal law. Supreme Court should not have dismissed the negligence, defective design/manufacture and breach of warranty causes of action. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempted only those causes of action that could result in state labelling requirements:

The preemption provision of FIFRA provides that, “[i]n general[,] . . . a State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter” (7 USC § 136v [a]). On the other hand, FIFRA provides that, in the interest of “[u]niformity[,] . . . [s]uch State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter” … . * * *

… [W]e conclude that the court erred in dismissing the third, fifth, and sixth causes of action of plaintiff’s amended complaint, as well as those parts of the fourth cause of action that do not allege a failure to warn. Plaintiff’s causes of action and claims alleging defendant’s breach of warranty, ordinary negligence, and defective design and manufacture of its product, i.e., theories unrelated to labeling or packaging, are not preempted by FIFRA … . Esposito v Contec, Inc., 2017 NY Slip Op 00842, 4th Dept 2-3-17

 

PRODUCTS LIABILITY (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/TOXIC TORTS (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/NEGLIGENCE (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/PREEMPTION (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT (FIFRA) (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/PESTICIDES (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)/TOXIC TORTS (ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT)

SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE, INSPECTION THREE HOURS BEFORE THE FALL DID NOT WARRANT DISMISSAL OF THE CAUSE OF ACTION ALLEGING CONSTRUCTIVE NOTICE.

The Fourth Department determined the complaint against the snow removal contractor (JB Landscaping) in this slip and fall case should have been dismissed. The fact that the property was inspected three hours before the incident did not warrant dismissal of the constructive notice cause of action against the property manager (Ciminelli) and the property owner (205 Park):

We conclude that the contract between JB Landscaping and Ciminelli was not so comprehensive and exclusive that it entirely displaced Ciminelli’s and 205 Park’s duty to maintain the premises safely, such that JB Landscaping assumed a duty to plaintiff. Although the contract in the case at bar delegated all of the snow and ice removal to JB Landscaping, along with responsibility for monitoring the property 24 hours per day, seven days per week, the contract also provided that 205 Park and the tenant of the property could request additional services from JB Landscaping, including snow and ice removal. In addition, the contract reserved Ciminelli’s rights “to determine the depth of snow at locations where JB Landscaping performs snowplowing” and to direct JB Landscaping to reposition or remove accumulated snow piles. The contract also required weekly submission of maintenance logs to Ciminelli and preapproval from Ciminelli to engage a subcontractor to assist with snow and ice removal. * * *

The weather records … recited … that from 3:01 a.m. until 6:24 a.m. the short term forecasts called for falling temperatures, and that any wet or untreated pavement could result in patchy black ice. Plaintiff testified that she fell at 7:45 a.m. In our view, the inspection of the area approximately three hours before the plaintiff fell does not establish ” that the ice formed so close in time to the accident that [defendant(s)] could not reasonably have been expected to notice and remedy the condition’ ” … . Waters v Ciminelli Dev. Co., Inc., 2017 NY Slip Op 00854, 4th Dept 2-3-17

 

NEGLIGENCE (SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE, INSPECTION THREE HOURS BEFORE THE FALL DID NOT WARRANT DISMISSAL OF THE CAUSE OF ACTION ALLEGING CONSTRUCTIVE NOTICE)/SLIP AND FALL (SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE, INSPECTION THREE HOURS BEFORE THE FALL DID NOT WARRANT DISMISSAL OF THE CAUSE OF ACTION ALLEGING CONSTRUCTIVE NOTICE)/SNOW REMOVAL CONTRACTOR (SLIP AND FALL, (SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE)

DEFENDANT CAR RENTAL COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT ENTRUSTMENT CASE WAS PROPERLY DENIED; QUESTION OF FACT WHETHER COMPANY KNEW AN UNLICENSED DRIVER WOULD USE THE CAR.

The Fourth Department, over a two-justice dissent, determined defendant’s motion for summary judgment in this negligent entrustment case was properly denied. Plaintiff alleged the defendant car rental company (BAR) knew or should have known that an unlicensed driver (Kirksey) would drive the car (which was rented to defendant Jones). The dissent argued that knowledge an unlicensed driver would use the car does not amount to knowledge the car would be driven by an incompetent driver:

The fact that Kirksey did not possess a driver’s license is a factor to consider in determining whether BAR knew that Kirksey was incompetent to operate the vehicle … . While we agree with the dissent that “the absence or possession of a driver’s license is not relevant to the issue of negligence” in the operation of a motor vehicle … , this is a negligent entrustment cause of action, where the issue does not concern the manner in which the accident occurred. Rather, the issue is whether BAR should have entrusted the vehicle to Kirksey in the first instance. Graham v Jones, 2017 NY Slip Op 00835, 4th Dept 2-3-17

NEGLIGENCE (NEGLIGENT ENTRUSTMENT, DEFENDANT CAR RENTAL COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT ENTRUSTMENT CASE WAS PROPERLY DENIED; QUESTION OF FACT WHETHER COMPANY KNEW AN UNLICENSED DRIVER WOULD USE THE CAR)/NEGLIGENT ENTRUSTMENT (NEGLIGENT ENTRUSTMENT, DEFENDANT CAR RENTAL COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT ENTRUSTMENT CASE WAS PROPERLY DENIED; QUESTION OF FACT WHETHER COMPANY KNEW AN UNLICENSED DRIVER WOULD USE THE CAR)/TRAFFIC ACCIDENTS (NEGLIGENT ENTRUSTMENT, DEFENDANT CAR RENTAL COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT ENTRUSTMENT CASE WAS PROPERLY DENIED; QUESTION OF FACT WHETHER COMPANY KNEW AN UNLICENSED DRIVER WOULD USE THE CAR)

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LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY.

The Fourth Department determined Supreme Court properly granted claimants leave to file a late notice of claim against the water authority which allegedly created a depression in the roadway (the cause of the injury). Claimants had filed a timely notice of claim against the city and only later learned the water authority was the general contractor:

An “[e]rror concerning the identity of the governmental entity to be served” can constitute a reasonable excuse for the delay “provided that a prompt application for relief is made after discovery of the error” … . …

Here, claimants demonstrated a reasonable excuse for the delay inasmuch as they served a timely notice of claim upon the City, and then promptly applied for leave to serve a late notice of claim upon respondents after discovering respondents’ alleged involvement in causing claimant’s injuries … . Furthermore, although respondents lacked actual knowledge of claimant’s injuries, respondents have ” made no particularized or persuasive showing that the delay caused [them] substantial prejudice’ ” … . Indeed, we note that the Water Board was the general contractor for the construction project that allegedly created the defect in the roadway, and thus respondents’ ability to investigate the facts underlying the claim is furthered by their possession of documents and other information related to the construction project. King v Niagara Falls Water Auth., 2017 NY Slip Op 00855, 4th Dept 2-3-17

 

MUNICIPAL LAW (LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)/NOTICE OF CLAIM (LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)/NEGLIGENCE (MUNICIPAL LAW, LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)/TRAFFIC ACCIDENTS (MUNICIPAL LAW, LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY GRANTED, NOTICE FILED PROMPTLY AFTER CLAIMANTS LEARNED THE WATER AUTHORITY CREATED THE DEFECT IN THE ROADWAY)

QUESTION OF FACT WHETHER LADDER WAS DEFECTIVE AND WHETHER ADDITIONAL SAFETY DEVICES WERE REQUIRED, SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED.

The Fourth Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly denied. Plaintiff was standing on a closed A-frame ladder when he felt an electric shock and fell:

At the time of the accident, plaintiff was using a 10-foot A-frame ladder to install flashing around a duct. The ladder was folded shut and leaning against the wall while plaintiff was using it. Just before the accident, he was using both hands to take a measurement above his head, while standing on “the fourth or fifth rung” of the ladder, which was “at least four feet off the floor.” As he extended his tape measure, he felt a strong electric shock to his left arm and he fell off the ladder.

Contrary to plaintiff’s contention, we conclude that the court properly denied the motion. “[T]here are questions of fact . . . whether . . . the ladder, which was not shown to be defective in any way, failed to provide proper protection, and whether . . . plaintiff should have been provided with additional safety devices” … . Jones v Nazareth Coll. of Rochester, 2017 NY Slip Op 00825, 4th Dept 2-3-17

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER LADDER WAS DEFECTIVE AND WHETHER ADDITIONAL SAFETY DEVICES WERE REQUIRED, SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER LADDER WAS DEFECTIVE AND WHETHER ADDITIONAL SAFETY DEVICES WERE REQUIRED, SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED)

18% REDUCTION IN INCOME SUFFICIENT TO WARRANT RECALCULATION OF CHILD SUPPORT.

The Fourth Department, reversing Family Court, determined an 18% reduction in father’s income was sufficient to warrant a recalculation of his child support:

… [T]he father cites his significantly reduced income from 2012 to 2013 as the requisite change in circumstances. We agree with the father that such income reduction—approximately 18%—constitutes a sufficient change in circumstances to warrant a recalculation of his child support obligation … . Matter of Brink v Brink, 2017 NY Slip Op 00879, 4th Dept 2-3-17

FAMILY LAW (18% REDUCTION IN INCOME SUFFICIENT TO WARRANT RECALCULATION OF CHILD SUPPORT)/CHILD SUPPORT (18% REDUCTION IN INCOME SUFFICIENT TO WARRANT RECALCULATION OF CHILD SUPPORT)

UNDER CRITERIA RECENTLY ANNOUNCED BY THE COURT OF APPEALS, GRANDPARENTS HAD STANDING TO CONTEST MOTHER’S PETITION FOR CUSTODY.

The Fourth Department, reversing Family Court, determined, pursuant to the criteria recently announced by the Court of Appeals, the grandparents had standing to contest a custody petition by mother. The child, now six years old, had lived with the grandparents since birth and mother, who has a good relationship with the child, had never before sought custody:

Approximately six months after the court issued its order, the Court of Appeals reversed our decision in Suarez and clarified what constitutes extraordinary circumstances when the nonparent seeking custody is a grandparent of the child. In that context, extraordinary circumstances may be demonstrated by an “extended disruption of custody, specifically: (1) a 24-month separation of the parent and child, which is identified as prolonged, (2) the parent’s voluntary relinquishment of care and control of the child during such period, and (3) the residence of the child in the grandparents’ household” (Suarez, 26 NY3d at 448 … ).

Evaluating those three elements in light of the facts of this case, we agree with respondents and the Attorney for the Child that respondents met their burden of establishing extraordinary circumstances, thereby giving them standing to seek custody of the child. It is undisputed that the child has lived in respondents’ home since he was born, when petitioner consented to give respondents primary physical custody of him. Although the child has a good relationship with petitioner and has frequent visitation with her, petitioner has never made, in nearly six years, any serious attempts to regain custody or resume a parental role in the child’s life. Inasmuch as petitioner voluntarily relinquished custody to respondents and has been separated from the child for a prolonged period of well over 24 months, during which time the child has resided in respondents’ home, we conclude that respondents established the requisite extraordinary circumstances … . Matter of Orlowski v Zwack, 2017 NY Slip Op 00880, 4th Dept 2-3-17

 

FAMILY LAW (UNDER CRITERIA RECENTLY ANNOUNCED BY THE COURT OF APPEALS, GRANDPARENTS HAD STANDING TO CONTEST MOTHER’S PETITION FOR CUSTODY)/CUSTODY (UNDER CRITERIA RECENTLY ANNOUNCED BY THE COURT OF APPEALS, GRANDPARENTS HAD STANDING TO CONTEST MOTHER’S PETITION FOR CUSTODY)/STANDING (FAMILY, GRANDPARENTS, CUSTODY, UNDER CRITERIA RECENTLY ANNOUNCED BY THE COURT OF APPEALS, GRANDPARENTS HAD STANDING TO CONTEST MOTHER’S PETITION FOR CUSTODY)

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ATTEMPTED FIRST DEGREE MURDER CONVICTIONS PRECLUDED BY FAILURE TO PROVE THE 38-YEAR-OLD DEFENDANT WAS MORE THAN 18 YEARS OLD, RECKLESS ENDANGERMENT FIRST DEGREE CONVICTION NOT SUPPORTED BY PROOF OF A GRAVE RISK OF DEATH.

The Fourth Department determined the failure to offer any proof the 38-year-old defendant was more than 18 years old precluded conviction of attempted first degree murder (defendant shot at police officers). The convictions were reduced to attempted second degree murder. The Fourth Department further determined the reckless endangerment first degree was not supported by sufficient evidence that the passenger in defendant’s vehicle was exposed to a “grave risk of death” when defendant rammed a police vehicle. The conviction was reduced to recklessd endangerment second degree:

As the People correctly concede, however, the evidence is legally insufficient to establish that defendant was more than 18 years old at the time of the crimes. Although defendant failed to preserve that contention for our review … , we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Defendant was in fact 38 years old at the time of the crimes in September 2011, and the jury naturally had the opportunity to observe his appearance during his trial in 2012, but that opportunity “does not, by itself, satisfy the People’s obligation to prove defendant’s age” … , and there was no evidence at trial bearing on his age … . The evidence is sufficient to establish that defendant intended to kill each of the officers … , and we reject defendant’s further contention that the verdict is against the weight of the evidence with respect to his intent … . We therefore modify the judgment by reducing the conviction under counts one and two to attempted murder in the second degree (§§ 110.00, 125.25 [1]), and we remit the matter to County Court for sentencing on those counts. * * *

There was evidence that defendant “rammed” the side of the police vehicle with the part of his truck in which his girlfriend was sitting, but neither officer could estimate how fast defendant was going at impact, and the relatively short distance he traveled toward the police vehicle tended to show that he could not have been going very fast. Furthermore, both vehicles remained operable after the collision, and there was no evidence that anyone sustained any injury from it. Even viewing the evidence in the light most favorable to the People … , we conclude that it is legally insufficient to establish that the collision created a grave risk of death to defendant’s girlfriend … . People v VanGorden, 2017 NY Slip Op 00877, 4th Dept 2-3-17

 

CRIMINAL LAW (ATTEMPTED FIRST DEGREE MURDER CONVICTIONS PRECLUDED BY FAILURE TO PROVE THE 38-YEAR-OLD DEFENDANT WAS MORE THAN 18 YEARS OLD, RECKLESS ENDANGERMENT FIRST DEGREE CONVICTION NOT SUPPORTED BY PROOF OF A GRAVE RISK OF DEATH)/EVIDENCE (CRIMINAL LAW, ATTEMPTED FIRST DEGREE MURDER CONVICTIONS PRECLUDED BY FAILURE TO PROVE THE 38-YEAR-OLD DEFENDANT WAS MORE THAN 18 YEARS OLD, RECKLESS ENDANGERMENT FIRST DEGREE CONVICTION NOT SUPPORTED BY PROOF OF A GRAVE RISK OF DEATH)

AT THE SUPPRESSION HEARING THE PEOPLE PRESENTED NO EVIDENCE OF THE LEGALITY OF THE VEHICLE STOP, CONSENT TO SEARCH THE CAR WAS THEREFORE DEEMED INVOLUNTARY AND THE SEIZED COCAINE SUPPRESSED.

The Fourth Department, reversing Supreme Court, determined the People did not come forward with proof demonstrating the legality of a vehicle stop. Defendant and the driver were the only persons in the car. A large amount of cocaine was seized from the back seat area. The driver purportedly consented to the search. However, because, at the suppression hearing, no proof of the legality of the stop was presented, the consent was deemed involuntary and the evidence suppressed:

We conclude that, “[b]ecause the People failed to present evidence at the suppression hearing establishing the legality of the police conduct, [the driver’s] purported consent to the search of his vehicle was involuntary[,] and all evidence seized from the vehicle as a result of that consent should have been suppressed” … . We therefore reverse the judgment, vacate the plea, grant defendant’s omnibus motion insofar as it sought suppression of the cocaine found in the vehicle, and remit the matter to Supreme Court for further proceedings on the indictment. People v Kendrick, 2017 NY Slip Op 00870, 4th Dept 2-3-17

CRIMINAL LAW (AT THE SUPPRESSION HEARING THE PEOPLE PRESENTED NO EVIDENCE OF THE LEGALITY OF THE VEHICLE STOP, CONSENT TO SEARCH THE CAR WAS THEREFORE DEEMED INVOLUNTARY AND THE SEIZED COCAINE SUPPRESSED)/SEARCH AND SEIZURE (AT THE SUPPRESSION HEARING THE PEOPLE PRESENTED NO EVIDENCE OF THE LEGALITY OF THE VEHICLE STOP, CONSENT TO SEARCH THE CAR WAS THEREFORE DEEMED INVOLUNTARY AND THE SEIZED COCAINE SUPPRESSED)/SUPPRESSION (AT THE SUPPRESSION HEARING THE PEOPLE PRESENTED NO EVIDENCE OF THE LEGALITY OF THE VEHICLE STOP, CONSENT TO SEARCH THE CAR WAS THEREFORE DEEMED INVOLUNTARY AND THE SEIZED COCAINE SUPPRESSED)/STREET STOPS (AT THE SUPPRESSION HEARING THE PEOPLE PRESENTED NO EVIDENCE OF THE LEGALITY OF THE VEHICLE STOP, CONSENT TO SEARCH THE CAR WAS THEREFORE DEEMED INVOLUNTARY AND THE SEIZED COCAINE SUPPRESSED)

FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED.

The Fourth Department determined the denial of a for cause challenge to a juror required reversal:

Here, in response to the prosecutor’s question regarding whether any member of the panel thought that he or she could not be fair and impartial due to the allegations of driving while intoxicated, prospective juror No. 13 indicated that, due to situations in her past, she did not see any reason why anyone would need to drink and drive, and she could not be fair and impartial. Upon follow-up questioning by the court, she assured the court that she could set those feelings aside. Later, however, in response to defense counsel’s questions, prospective juror No. 13 indicated that she had wondered what defendant did wrong when she first walked into the courtroom, and that “obviously” she felt that “he must have done something wrong or he wouldn’t have” been in court. The court asked follow-up questions, but cut off the prospective juror before she could reply to one such question, and the court’s final substantive question failed to establish the prospective juror’s state of mind. Consequently, the court abused its discretion in denying defendant’s challenge for cause to prospective juror No. 13. People v Betances, 2017 NY Slip Op 00804, 4th Dept 2-3-17

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED)/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED)

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