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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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NO DEMONSTRATION A PARTICULAR INTERPRETATION OF AN AMBIGUOUS CONTRACT WAS THE ONLY FAIR INTERPRETATION; THEREFORE MOTIONS FOR SUMMARY JUDGMENT WERE PROPERLY DENIED.

The Fourth Department, over a two-justice dissent, determined motions for summary judgment in this contract-interpretation case were properly denied. The contract at issue was an operating agreement for plaintiff limited liability company. Both the majority and the dissent found the contract language ambiguous. The majority concluded reference to extrinsic evidence was necessary, precluding summary judgment. The dissent argued plaintiffs had shown their interpretation was the only fair interpretation:

“It is well settled that a contract must be read as a whole to give effect and meaning to every term . . . Indeed, [a] contract should be interpreted in a way [that] reconciles all [of] its provisions, if possible’ ” … . Therefore, “[e]ffect and meaning must be given to every term of the contract . . . , and reasonable effort must be made to harmonize all of its terms” … . It is equally well settled that “[t]he interpretation of an unambiguous contractual provision is a function for the court . . . , and [t]he proper inquiry in determining whether a contract is ambiguous is whether the agreement on its face is reasonably susceptible of more than one interpretation . . . To be entitled to summary judgment, the moving party has the burden of establishing that its construction of the [contract] is the only construction [that] can fairly be placed thereon” … .

Here, neither party established that its interpretation of the Agreement is the only reasonable interpretation thereof … . Consequently, summary judgment is inappropriate at this juncture because a “determination of the intent of the parties depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence” … . Maven Tech., LLC v Vasile, 2017 NY Slip Op 00840, 4th Dept 2-3-17

 

CONTRACT LAW (NO DEMONSTRATION A PARTICULAR INTERPRETATION OF AN AMBIGUOUS CONTRACT WAS THE ONLY FAIR INTERPRETATION; THEREFORE MOTIONS FOR SUMMARY JUDGMENT WERE PROPERLY DENIED)/AMBIGUOUS CONTRACT TERMS (NO DEMONSTRATION A PARTICULAR INTERPRETATION OF AN AMBIGUOUS CONTRACT WAS THE ONLY FAIR INTERPRETATION; THEREFORE MOTIONS FOR SUMMARY JUDGMENT WERE PROPERLY DENIED)

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TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY; MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR.

The Fourth Department determined a citizen taxpayer’s declaratory judgment action against the state, claiming that the transfer of land to a trust pursuant to the Oneida Settlement Agreement ceded the state’s taxation authority, was properly rejected. The court noted that when a motion to dismiss a declaratory judgment action is made, the court will treat it as a motion for a declaration in the defendant’s favor:

Plaintiff alleges that Section VI B (1-5) of the Agreement violates article XVI of the State Constitution, which prohibits the State from surrendering, suspending or contracting away its power of taxation. Section VI B (1-5) provides that the State will not oppose a future application by the Oneida Indian Nation (Nation) to transfer to the United States up to 12,366 acres of land to be held in trust pursuant to 25 USC § 5108 (formerly § 465). The land at issue was formerly part of the 300,000-acre reservation, which was established in the 1788 Treaty of Fort Schuyler (see City of Sherrill, N.Y. v Oneida Indian Nation of N.Y., 544 US 197, 203), and which the Nation has reacquired through open-market transactions (see id. at 211). In 2008, the United States Secretary of the Interior accepted the transfer into trust of 13,004 acres of reacquired land owned by the Nation, over defendant’s objection. We conclude that the court properly declared that Section VI B (1-5) does not violate the State constitutional provision prohibiting defendant from surrendering or contracting away its power of taxation. * * *

To the extent that plaintiff contends that Executive Law § 11 and Indian Law § 16 violate article XVI of the State Constitution, we reject that contention. Kaplan v State of New York. 2017 NY Slip Op 00766, 4th Dept 2-3-17

 

CONSTITUTIONAL LAW (STATE) (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)/INDIAN LAW (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)/CIVIL PROCEDURE (DECLARATORY JUDGMENT, (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)/DECLARATORY JUDGMENT (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)

SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES AND COSTS TO PREVAILING DEFENDANTS, CRITERIA EXPLAINED.

The Fourth Department determined there was no basis for the award of attorney’s fees and costs to the defendants in this deed/adverse possession action. After two appeals and a trial, the defendants prevailed:

We agree with plaintiff that Supreme Court improperly awarded counsel fees and litigation costs to defendants, and we therefore reverse. The general rule in New York is that litigants are required to absorb their own counsel fees and litigation costs unless there is a contractual or statutory basis for imposing them … , and “[t]here is neither a contractual nor a statutory basis for the award of [counsel] fees to [defendants] in this case” … . Furthermore, although a court may award counsel fees as a sanction for frivolous conduct pursuant to 22 NYCRR 130-1.1, it may do so “only upon a written decision setting forth the conduct on which the award . . . is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded . . . to be appropriate” (22 NYCRR 130-1.2…). Here, defendants did not seek sanctions for frivolous conduct, and the court did not issue a written decision or make any finding that plaintiff or decedents engaged in such conduct. Furthermore, we conclude that the counterclaim seeking to recover counsel fees failed to state a cause of action inasmuch as defendants did not allege any proper basis upon which such fees would be recoverable. We therefore dismiss the counterclaims … . Perry v Edwards, 2017 NY Slip Op 00862, 4th Dept 2-3-17

ATTORNEYS (FEES, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES AND COSTS TO PREVAILING DEFENDANTS)/ATTORNEYS FEES (SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES AND COSTS TO PREVAILING DEFENDANTS)

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COUNTY’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED; NO EVIDENCE SHELTER PERSONNEL WERE AWARE OF VICIOUS PROPENSITIES; HEALTH DEPARTMENT’S KNOWLEDGE THE DOG HAD BITTEN SOMEONE ELSE NOT IMPUTED TO SHELTER PERSONNEL; NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED.

The Fourth Department, reversing Supreme Court, determined the county’s motion for summary judgment in this dog bite case should have been granted. Plaintiff was a volunteer who walked dogs held at the county animal shelter. She was bitten by one of the dogs. There was no showing the shelter personnel were aware of the dog’s vicious propensities. The fact that the health department was aware the dog had bitten someone else in a prior incident was not imputed to the shelter personnel. The Fourth Department also held Supreme Court should not have denied the county’s motion to dismiss the negligence cause of action. Negligence does not lie in dog bite cases:

Contrary to plaintiff’s contention, the fact that shelter personnel may have been informed at the time of the dog’s surrender that the dog had previously knocked over a child is insufficient to raise an issue of fact as to the dog’s vicious propensities to bite. Although a tendency to knock a person over may reflect “a proclivity to act in a way that puts others at risk of harm” (Collier, 1 NY3d at 447), plaintiff’s injuries were not caused by the dog’s knocking her over, and the dog’s proclivity to do so, even if established, did not “result[] in the injury giving rise to the lawsuit”… .

We conclude that, under the circumstances of this case, any knowledge of that incident obtained by … [the] Health Department should not be imputed to the County or the shelter … . “A municipality often will have numerous employees assigned to separate and diverse agencies or departments” … , and the record demonstrates that there is no overlap in the respective scopes of authority of the Health Department and the shelter.

We further conclude that the court erred in denying the County’s motion with respect to plaintiff’s negligence cause of action. “[C]ases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner’s knowledge of the animal’s vicious propensities, not on theories of common-law negligence” … . Blake v County of Wyo., 2017 NY Slip Op 00826, 4th Dept 2-3-17

 

ANIMAL LAW (COUNTY’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED, NO EVIDENCE SHELTER PERSONNEL WERE AWARE OF VICIOUS PROPENSITIES, HEALTH DEPARTMENT’S KNOWLEDGE THE DOG HAD BITTEN SOMEONE ELSE NOT IMPUTED TO SHELTER PERSONNEL, NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)/MUNICIPAL LAW (COUNTY’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED, NO EVIDENCE SHELTER PERSONNEL WERE AWARE OF VICIOUS PROPENSITIES, HEALTH DEPARTMENT’S KNOWLEDGE THE DOG HAD BITTEN SOMEONE ELSE NOT IMPUTED TO SHELTER PERSONNEL, NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)/DOG BITES (COUNTY’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED, NO EVIDENCE SHELTER PERSONNEL WERE AWARE OF VICIOUS PROPENSITIES, HEALTH DEPARTMENT’S KNOWLEDGE THE DOG HAD BITTEN SOMEONE ELSE NOT IMPUTED TO SHELTER PERSONNEL, NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)

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ALTHOUGH THE HOSPITAL WAS NOT LIABLE IN ORDINARY NEGLIGENCE FOR RELEASING PLAINTIFF AND NOT ENSURING A SAFE RETURN HOME, THE COMPLAINT STATED A CAUSE OF ACTION IN MEDICAL MALPRACTICE.

The Fourth Department, over a dissent, determined the motion to dismiss the medical malpractice cause of action was properly denied. The negligence cause of action against the hospital stemming from the same facts had previously been dismissed. Plaintiff was released from the hospital and found two hours later, disoriented and frost-bitten. The hospital, in the negligence cause of action, was found to have no duty to prevent plaintiff from leaving the hospital against medical advice and no duty to ensure plaintiff’s safe return home. However, allegations that the assessment plaintiff’s medical and mental status and the discharge of plaintiff from the hospital were not in accordance with good and accepted medical practice stated a cause of action in medical malpractice:

Although “no rigid analytical line separates the two” … , we have long recognized the distinction between an ordinary negligence cause of action against a hospital and/or a physician … and a medical malpractice cause of action against a hospital and/or a physician … . We note that there is no prohibition against simultaneously pleading both an ordinary negligence cause of action and one sounding in medical malpractice … . It is simply beyond cavil “that an action for personal injuries may be maintained, in the proper case, on the dual theories of medical malpractice or simple negligence where a person is under the care and control of a medical practitioner or a medical facility” … . Moreover, in a proper case, both theories may be presented to the jury … .

Here, the medical malpractice cause of action alleges, inter alia, that defendant did not properly assess plaintiff’s medical and mental status and rendered medical care that was not in accordance with good and accepted medical practice, and that the discharge of plaintiff was not in accordance with good and accepted medical practices. Ingutti v Rochester Gen. Hosp., 2016 NY Slip Op 08615, 4th Dept 12-23-16

NEGLIGENCE (MEDICAL MALPRACTICE, ALTHOUGH THE HOSPITAL WAS NOT LIABLE IN ORDINARY NEGLIGENCE FOR RELEASING PLAINTIFF AND NOT ENSURING A SAFE RETURN HOME, THE COMPLAINT STATED A CAUSE OF ACTION IN MEDICAL MALPRACTICE)/MEDICAL MALPRACTICE (ALTHOUGH THE HOSPITAL WAS NOT LIABLE IN ORDINARY NEGLIGENCE FOR RELEASING PLAINTIFF AND NOT ENSURING A SAFE RETURN HOME, THE COMPLAINT STATED A CAUSE OF ACTION IN MEDICAL MALPRACTICE)

GOLFER ASSUMED THE RISK OF LOSING CONTROL OF HER GOLF CART ON A WET SLOPE.

The Fourth Department determined plaintiff had assumed the risk of losing control of her golf cart on a steep slope:

… [D]efendants established on the motion that plaintiff was an experienced golfer who had played that hole and driven that cart path several times previously. Apart from her familiarity with the steep topography of the hole, plaintiff was aware that it had rained the night before and that the course was still wet that morning. She had driven her golf cart on that cart path just moments before her accident, and further had observed the leaves and berries on the cart path as she began down the cart path. It is common knowledge that leaves and other natural litter may be present on a golf course and that such litter may become slick when it is wet … . For those reasons, we conclude that plaintiff was aware of the risk posed by the cart path and assumed it … . Kirby v Drumlins, Inc., 2016 NY Slip Op 08709, 4th Dept 12-23-16

NEGLIGENCE (GOLFER ASSUMED THE RISK OF LOSING CONTROL OF HER GOLF CART ON A WET SLOPE)/GOLF CARTS (GOLFER ASSUMED THE RISK OF LOSING CONTROL OF HER GOLF CART ON A WET SLOPE)/ASSUMPTION OF THE RISK (GOLFER ASSUMED THE RISK OF LOSING CONTROL OF HER GOLF CART ON A WET SLOPE)

INJURY FROM DIVING INTO THE SHALLOW END OF A POOL NOT ACTIONABLE.

The Fourth Department determined plaintiff’s injury from diving into the shallow end of a pool was not actionable:

It is well established that “[s]ummary judgment is an appropriate remedy in swimming pool injury cases when from his general knowledge of pools, his observations prior to the accident, and plain common sense’ . . . , the plaintiff should have known that, if he dove into the pool, the area into which he dove contained shallow water and, thus, posed a danger of injury” … . In light of that standard, we conclude that defendant met her burden on the motion, and that plaintiff failed to raise an issue of fact … . The record establishes that plaintiff lived on the same street as defendant, swam in the subject pool multiple times prior to the accident, was aware that striking the bottom of a pool was a risk when diving into the shallow end of the pool, and acknowledged that he knew the depth dimensions of defendant’s pool, i.e., where the shallow end started and ended. Under those circumstances, we conclude that plaintiff’s reckless conduct was the sole proximate cause of his injuries … . Furthermore, even assuming, arguendo, that defendant was negligent in failing to provide a “safety float line separating the shallow and deep end of [her] pool, [we conclude that] even the most liberal interpretation of the record eliminates any cause of this accident other than the reckless conduct of plaintiff” … . Brady v Domino, 2016 NY Slip Op 08687, 4th Dept 12-23-16

NEGLIGENCE (INJURY FROM DIVING INTO THE SHALLOW END OF A POOL NOT ACTIONABLE)/SWIMMING POOLS (INJURY FROM DIVING INTO THE SHALLOW END OF A POOL NOT ACTIONABLE)/DIVING (INJURY FROM DIVING INTO THE SHALLOW END OF A POOL NOT ACTIONABLE)/SOLE PROXIMATE CAUSE (INJURY FROM DIVING INTO THE SHALLOW END OF A POOL NOT ACTIONABLE)

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