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JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED.

The Fourth Department reversed defendant's assault and manslaughter convictions and ordered a new trial, finding the jury should have been charged on the “deadly force” justification defense. There was evidence defendant acted to defend her brother who was struck with a champagne bottle. The assault with the bottle could constitute deadly force, justifying the use of deadly force in defense:

… [T]he court erred in denying her request to charge the jury on justification using deadly physical force in defense of a third party for the assault count. There was a reasonable view of the evidence, viewed in the light most favorable to defendant, that the first victim was using deadly physical force by striking defendant's brother in the head with a champagne bottle when defendant assaulted her … . We further agree with defendant that the error in failing to give the justification charge on the assault count requires reversal of the manslaughter count as well. Although the court instructed the jury on justification for that count, there was a “significant factual relationship” between the two counts … , particularly on the issue whether defendant was the initial aggressor (see Penal Law § 35.15 [1] [b]). We therefore reverse the judgment and grant a new trial on both … . People v James, 2016 NY Slip Op 01946, 4th Dept 3-18-16

CRIMINAL LAW (JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/EVIDENCE (ASSAULT WITH A CHAMPAGNE BOTTLE CONSTITUTED USE OF DEADLY FORCE, JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE)/JUSTIFICATION DEFENSE (CRIMINAL LAW, JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)

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GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE OF STOLEN PROPERTY INSUFFICIENT.

The Fourth Department, in the interest of justice, reduced defendant's grand larceny to petit larceny because of insufficient proof of the value of the stolen property:

The value of stolen property is “the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime” (Penal Law § 155.20 [1]). It is well settled that “a victim must provide a basis of knowledge for his [or her] statement of value before it can be accepted as legally sufficient evidence of such value” … . Furthermore, “[c]onclusory statements and rough estimates of value are not sufficient” to establish the value of the property … . “Although a victim is competent to supply evidence of original cost' . . . , evidence of the original purchase price, without more, will not satisfy the People's burden' ” … .

Here, the victim testified that several specific items were taken, but the only evidence of the value of those items was the victim's testimony regarding the purchase price of some of them, and her hearsay testimony regarding a purported expert's appraisal of some of the property, which was based solely on her description of certain jewelry to the purported expert. Based on the evidence of value in the record, we cannot conclude “that the jury ha[d] a reasonable basis for inferring, rather than speculating, that the value of the property exceeded the statutory threshold” of $3,000 … . People v Slack, 2016 NY Slip Op 01930, 4th Dept 3-18-16

CRIMINAL LAW (GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE INSUFFICIENT)/EVIDENCE (GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE INSUFFICIENT)/GRAND LARCENY (GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE INSUFFICIENT)

PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE AD DAMNUM CLAUSE OF THE COMPLAINT.

The Fourth Department determined plaintiff in a breach of contract action should have been allowed to amend its ad damnum clause:

… Supreme Court abused its discretion in denying its motion to amend the ad damnum clause from $77,585.50 to $111,331.13, and we therefore modify the order by granting the motion. It is axiomatic that ” [l]eave 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' ” … . * * *

… “[I]n the absence of prejudice . . . , a motion to amend the ad damnum clause, whether made before or after the trial, should generally be granted” … . Putrelo Constr. Co. v Town of Marcy, 2016 NY Slip Op 01949, 4th Dept 3-18-16

CIVIL PROCEDURE (AMENDMENT OF AD DAMNUM CLAUSE OF THE COMPLAINT SHOULD HAVE BEEN ALLOWED)/AD DAMNUM CLAUSE (AMENDMENT OF AD DAMNUM CLAUSE OF THE COMPLAINT SHOULD HAVE BEEN ALLOWED)

QUESTION OF FACT WHETHER SKIER ASSUMED THE RISK OF STRIKING A SNOWMAKING MACHINE.

The Fourth Department determined plaintiff had raised a question of fact whether he assumed the risk of a skiing injury. Plaintiff fell and slid headfirst into an unpadded portion of a pole on a snowmaking machine. The court rejected defendant’ argument that the General Obligations Law, not the common law controlled:

 

Although there was padding on the upper portion of the pole, plaintiff collided with the lower, unpadded portion of the pole. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff assumed the risks associated with the sport of skiing. We agree with plaintiff that Supreme Court properly denied the motion. We note at the outset that General Obligations Law § 18-107 provides that, “[u]nless otherwise specifically provided in this article, the duties of skiers, passengers, and ski operators shall be governed by common law” and, contrary to defendant’s contention, the precise circumstances of plaintiff’s accident are not covered by article 18 of the General Obligations Law. Thus, the common law applies where, as here, plaintiff is alleging the negligent placement and inadequate padding of defendant’s snowmaking machines, a condition not “specifically addressed by the statute” … .

It is well settled under the common law that “[v]oluntary participants in the sport of downhill skiing assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and man-made objects that are incidental to the provision or maintenance of a ski facility” … . Here, although defendant met its initial burden by establishing that the accident was caused by the inherent risks in the sport of downhill skiing, plaintiff raised a triable issue of fact by submitting the affidavit of his expert … . Plaintiff’s expert asserted therein that the snowmaking machine was on the ski trail and was insufficiently padded, thus raising an issue of fact whether defendant “failed to maintain its property in a reasonably safe condition” … . Dailey v Labrador Dev. Corp., 2016 NY Slip Op 01072, 4th Dept 2-11-16

 

INSURANCE LAW (QUESTION OF FACT WHETHER A SPECIAL RELATIONSHIP SUPPORTED AN INSURANCE MALPRACTICE ACTION)/MALPRACTICE, INSURANCE (QUESTION OF FACT WHETHER A SPECIAL RELATIONSHIP SUPPORTING AN INSURANCE MALPRACTICE ACTION EXISTED)

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TRUST WHICH ALLOWED PETITIONER’S CHILDREN TO DISTRIBUTE PRINCIPAL TO PETITIONER RENDERED PETITIONER INELIGIBLE FOR MEDICAID, DESPITE CHILDREN’S REFUSAL TO MAKE A DISTRIBUTION.

The Fourth Department confirmed the Department of Health’s finding that a trust which allowed petitioner’s children to distribute the principal to her rendered petitioner ineligible for Medicaid benefits, despite the children’s refusal to make a distribution:

 

… [W]e conclude that the agency’s determination, which is based on its conclusion that the principal of a trust of which petitioner is a beneficiary is an “available resource,” is supported by substantial evidence and is not affected by an error of law. The trust at issue grants petitioner’s children, as cotrustees, “the authority to distribute so much of the principal to [petitioner that they,] in their sole discretion, deem advisable to provide for [petitioner’s] health, maintenance and welfare.” Because the principal of the trust may, in the discretion of petitioner’s children, be paid for petitioner’s benefit, the agency did not err in concluding that the principal of the trust is an available resource for purposes of petitioner’s Medicaid eligibility determination (see 18 NYCRR 360-4.5 [b] [1] [ii]…), despite the fact that her children refuse to exercise their discretion to make such payments of principal. Matter of Flannery v Zucker, 2016 NY Slip Op 01075, 4th Dept 2-11-16

 

MEDICAID (TRUST WHICH ALLOWED CHILDREN TO MAKE DISTRIBUTIONS TO PETITIONER RENDERED HER INELIGIBLE FOR MEDICAID, DESPITE CHILDREN’S REFUSAL TO MAKE SUCH A DISTRIBUTION)/TRUSTS AND ESTATES (MEDICAID, TRUST WHICH ALLOWED CHILDREN TO MAKE DISTRIBUTIONS TO PETITIONER RENDERED HER INELIGIBLE FOR MEDICAID, DESPITE CHILDREN’S REFUSAL TO MAKE SUCH A DISTRIBUTION)

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FAMILY COURT DID NOT HAVE AUTHORITY TO REVOKE FIREARMS PERMIT AS PART OF AN ORDER OF PROTECTION.

The Fourth Department determined Family Court did not have the authority to revoke respondent’s firearm permit as part of an order of protection:

Under Family Court Act § 846-a, the court may revoke a license to carry and possess a firearm “[i]f the court determines that the willful failure to obey [a protective] order involves violent behavior constituting the crimes of menacing, reckless endangerment, assault or attempted assault.” Where, as here, no such determination is made, the court is not authorized to revoke a respondent’s firearms permit … . Moreover, restriction of respondent’s right to use or possess firearms was not warranted under Family Court Act § 842-a, inasmuch as the court did not find, and could not find based on the evidence at the hearing, “that the conduct which resulted in the issuance of the order of protection involved (i) the infliction of physical injury . . . , (ii) the use or threatened use of a deadly weapon or dangerous instrument . . . , or (iii) behavior constituting any violent felony offense” (§ 842-a [2] [a]), or that there is a “substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person or persons for whose protection the order of protection is issued” (§ 842-a [2] [b]). We thus modify the order by vacating the provision directing that respondent is not to use or possess firearms nor hold or apply for a pistol permit during the pendency of the order. Matter of Schoenl v Schoenl, 2016 NY Slip Op 01060, 4th Dept 2-11-16

FAMILY LAW (FAMILY COURT DID NOT HAVE AUTHORITY TO REVOKE FIREARMS PERMIT AS PART OF ORDER OF PROTECTION)/ORDER OF PROTECTION (FAMILY COURT DID NOT HAVE AUTHORITY TO REVOKE FIREARMS PERMIT AS PART OF ORDER OF PROTECTION)/FIREARMS PERMIT (FAMILY COURT DID NOT HAVE AUTHORITY TO REVOKE FIREARMS PERMIT AS PART OF ORDER OF PROTECTION)

MOTHER DEMONSTRATED CHANGE IN CIRCUMSTANCES RELATED TO EXCESSIVE PUNISHMENT BY HUSBAND; FAMILY COURT REVERSED, CUSTODY AWARDED TO MOTHER.

The Fourth Department reversed Family Court finding changes in circumstances sufficient to modify the custody arrangement and award sole physical custody to mother. The evidence demonstrated father imposed excessive corporal punishment. The Fourth Department noted the Family Court judge placed too much emphasis on mother’s sexual conduct:

 

Although the father testified that each of [the] types of physical discipline was a one-time occurrence, the records of the daughter’s medical examination documenting that the daughter had “multiple bruises all over her body in different stages of healing,” as well as the son’s statements with respect to the frequency of the father’s physical discipline, support the finding that the father repeatedly inflicted excessive corporal punishment on the daughter. We thus conclude that there was a sufficient change in circumstances to warrant an inquiry into the best interests of the children … . Furthermore, even crediting the father’s assertion that the daughter’s injuries resulted from tantrums, we conclude that there was a sufficient change in circumstances inasmuch as the father was admittedly unable to handle the daughter’s behavioral issues, resorted to inappropriate physical discipline to punish the daughter for her alleged misbehavior, and requested that the mother remove the daughter from his care … .

We further agree with the mother and the AFC that the court’s custody determination lacks a sound and substantial basis in the record … . Upon our review of the relevant factors … , “including an evaluation of the character and relative parental fitness of the parties” … , we conclude that it is in the best interests of the children to award the mother sole legal and primary physical custody. Matter of DeJesus v Gonzalez, 2016 NY Slip Op 01059, 4th Dept 2-11-16

 

FAMILY LAW (EXCESSIVE PUNISHMENT BY FATHER CONSTITUTED SUFFICIENT CHANGE IN CIRCUMSTANCES, CUSTODY AWARDED TO MOTHER)/CUSTODY (EXCESSIVE PUNISHMENT BY FATHER CONSTITUTED SUFFICIENT CHANGE IN CIRCUMSTANCES, CUSTODY AWARDED TO MOTHER)

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POLICE OFFICER’S CAUSES OF ACTION FOR DISABILITY DISCRIMINATION SHOULD HAVE SURVIVED THE MOTION TO DISMISS.

The Fourth Department determined plaintiff police officer had stated causes of action for unlawful discrimination based upon a disability under the Human Rights Law and the federal Rehabilitation Act. Plaintiff was arrested for DWI and entered a rehabilitation program where he was diagnosed as suffering from post-traumatic stress disorder stemming from his work in New York City after the 9-11 attack. Plaintiff was terminated upon completion of the rehabilitation program. The city argued his termination was based on the DWI, but plaintiff alleged other officers, who were not disabled, were not terminated after committing a criminal offense. The Fourth Department noted that when the plaintiff’s and defendant’s arguments are equally supported, plaintiff must prevail in a motion to dismiss:

 

Plaintiff sufficiently stated a cause of action for disability discrimination under the Human Rights Law by alleging that: he has a disability and is therefore a member of a protected class; he is qualified for his position; he suffered an adverse employment action, i.e., termination of his employment; and the termination occurred under circumstances giving rise to an inference of discrimination … . Similarly, plaintiff sufficiently stated a cause of action for discriminatory termination under the Rehabilitation Act by alleging that: “(1) he has a disability; (2) he is otherwise qualified to perform the job; (3) he was terminated solely because of his disability; and (4) the program or activity receives federal funds” … . …

In support of those causes of action, plaintiff alleged that the City did not terminate the employment of two nondisabled employees after they were arrested for criminal misconduct, thus raising an inference that his termination was based upon his disability. The court stated in its decision that plaintiff’s allegations “equally support” the conclusions that those two employees and plaintiff were similarly situated, and that they were not similarly situated. On the motion to dismiss pursuant to CPLR 3211 (a) (7), however, facts that equally support opposing inferences must be resolved in plaintiff’s favor … . Regan v City of Geneva, 2016 NY Slip Op 01101, 4th Dept 2-11-16

 

EMPLOYMENT LAW (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/HUMAN RIGHTS LAW (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/REHABILITATION ACT (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/CIVIL PROCEDURE (WHEN THE ALLEGATIONS OF BOTH SIDES ARE EQUALLY SUPPORTED, PLAINTIFF MUST PREVAIL IN A MOTION TO DISMISS)/MUNICIPAL LAW (POLICE OFFICERS CAUSES OF ACTION FOR DISABILITY [PTSD] DISCRIMINATION SHOULD HAVE SURVIVED MOTION TO DISMISS)POLICE OFFICERS (OFFICER’S CAUSES OF ACTION FOR DISABILITY [PTSD] DISCRIMINATION SHOULD HAVE SURVIVED MOTION TO DISMISS)

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DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE FOR PRESS RELEASE ABOUT TATOO-RELATED INFECTIONS, PLAINTIFF UNABLE TO DEMONSTRATE MALICE.

The Fourth Department determined the defendant county Department of Health was entitled to summary judgment on plaintiff’s defamation cause of action. The Department of Health had linked eight cases of infection to a particular tatoo artist. The tatoo artist told the Department he worked for plaintiff Tatoos by Design, Inc., doing business as Hardcore Tatoo. The Department issued a press release warning of the infections and noted that the tatoo artist in question reported to them he had worked for Hardcore. The Fourth Department held the Department of Health had a qualified privilege to issue the health warning and plaintiff was unable to demonstrate the press release was motivated solely by malice:

 

Generally, a statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned’ ” … . Defendants, as public health officials, had a public duty to inform the public about the hazards of potential exposure to the subject tattoo artist’s work (see Public Health Law § 2100…), and it was within the scope of that duty that the press release containing the allegedly defamatory statements was issued … .

Once defendants established that the statements in the press release were protected by a qualified privilege, the burden shifted to plaintiffs to raise a triable issue of fact “whether the statements were motivated solely by malice” … , meaning “spite or a knowing or reckless disregard of a statement’s falsity”… . Tattoos By Design, Inc. v Kowalski, 2016 NY Slip Op 01091, 4th Dept 2-11-16

 

DEFAMATION (QUALIFIED PRIVILEGE FOR PRESS RELEASE ISSUED BY DEPARTMENT OF HEALTH)/PRIVILEGE (DEFAMATION, DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE RE: PRESS RELEASE)/PUBLIC HEALTH LAW (DEFAMATION, DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE RE: PRESS RELEASE)/MUNICIPAL LAW (DEFAMATION, COUNTY DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE RE: PRESS RELEASE)

AIR FRESHENERS HANGING FROM REAR-VIEW MIRROR PROVIDED PROBABLE CAUSE JUSTIFYING VEHICLE STOP.

The Fourth Department, in the context of upholding the revocation of petitioner’s license for refusing to submit to a chemical blood alcohol test, determined the arresting officer had probable cause to believe petitioner had committed a traffic offense, and therefore the vehicle-stop was valid. The basis of the stop was the officer’s observation of air fresheners hanging three or four inches below the rear-view mirror:

 

… [P]olice stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime’ . . . [,] or where the police have probable cause to believe that the driver . . . has committed a traffic violation’ ” … . …[P]robable cause . . . does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed’ ” … . Here, the record establishes that the officer had probable cause to believe that petitioner was violating Vehicle and Traffic Law § 375 (30) inasmuch as the officer testified that he observed objects measuring approximately four inches wide—later identified as air fresheners—hanging three or four inches below the rearview mirror, and that those objects may have obstructed petitioner’s view through the windshield … . Matter of Deveines v New York State Dept. of Motor Vehs. Appeals Bd., 2016 NY Slip Op 01074, 4th Dept 2-11-16

 

CRIMINAL LAW (AIR FRESHENERS PROVIDED PROBABLE CAUSE FOR VEHICLE STOP)/DRIVING WHILE INTOXICATED (AIR FRESHENERS PROVIDED PROBABLE CAUSE FOR VEHICLE STOP)/VEHICLE STOP (AIR FRESHENERS PROVIDED PROBABLE CAUSE FOR STOP)/AIR FRESHENERS (PROVIDED PROBABLE CAUSE FOR VEHICLE STOP)

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