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Supreme Court Should Not Have Deemed a Verified Claim to Be a Summons and Complaint Under the Authority of CPLR 2001 (Allowing Correction of Mistakes in the Method of Filing)

Reversing Supreme Court, the Fourth Department determined that a verified claim filed by the plaintiff should not have been deemed a summons and complaint pursuant to CPLR 2001 (which allows correction or clarification of a mistake in the method of filing):

Plaintiff filed a verified claim in this action and, before answering, defendant filed a CPLR 3211 motion to dismiss, contending that plaintiff had “yet to file a Summons or a Complaint” and that “a complete failure to file is a jurisdictional defect.” Relying upon CPLR 2001, Supreme Court deemed the claim to be a complaint and excused the failure to file a summons as “an irregularity that shall be disregarded in this case.” That was error. We agree with defendant that CPLR 2001 does not permit a court to disregard the complete failure to file a summons, i.e., an initial paper necessary to commence an action … . As recognized by the Court of Appeals in quoting from the Senate Introducer’s Memorandum in support of the bill that amended CPLR 2001, the statute may be invoked as a basis to correct or clarify ” a mistake in the method of filing, AS OPPOSED TO A MISTAKE IN WHAT IS FILED’ “… . Fox v City of Utica, 2015 NY Slip Op 08267, 4th Dept 11-13-15

 

State’s Violation of Inmate Disciplinary-Hearing Due Process Rules Did Not Entitle Inmate to Summary Judgment In His Unlawful Confinement Action

The Fourth Department determined the 3rd Department’s finding that the state violated inmate disciplinary-hearing (due process) rules did not entitle the inmate to summary judgment in his unlawful confinement action. The 3rd Department annulled the inmate’s disciplinary determination based upon the state’s (due process) rule violations. The inmate then sued the state for unlawful confinement (apparently based upon the discipline imposed by the annulled determination). The Fourth Department found that the state’s rule violation merely removed the state’s absolute immunity, allowing the unlawful confinement action to go forward. However, the inmate must prove all the elements of unlawful confinement to prevail. A question of fact remained on the “privilege” element:

It is well settled that, where, as here, the actions of correction personnel have violated the due process safeguards contained in 7 NYCRR parts 252 through 254, those actions “[will] not receive immunity” … . Contrary to claimant’s contention, however, the absence of an immunity defense does not entitle claimant to partial summary judgment on liability on his unlawful confinement cause of action. As defendant correctly contends, the “removal of immunity . . . does not result in absolute liability to defendant because claimant is still required to prove the merits of his claim” … . “Where, as here, a prison inmate contends that he was wrongfully confined as a result of the flawed prison disciplinary proceeding, once the absolute immunity is removed by showing that the governing rules and regulations were not followed, he [or she] may recover damages if he [or she] is able to prove the traditional elements of the tort of [unlawful confinement]: (1) that the confinement was intentional; (2) that Claimant was conscious of the confinement; (3) that Claimant did not consent to the confinement; and (4) that the confinement was not otherwise privileged” … . “In other words, not every violation of the rules and regulations governing the imposition of prison discipline will result in liability on the part of the State; the rule violations merely remove the cloak of absolute immunity and make the State potentially liable, if liability would be imposed under common law tort principles” … .

Here, there is no dispute concerning the first three elements of the unlawful confinement cause of action, and the dispositive issue is whether claimant established as a matter of law that the confinement was not otherwise privileged. He did not. Moustakos v State of New York, 2015 NY Slip Op 08318, 4th Dept 11-13-15

 

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Possession of Modest Amount of Drugs Is Not Sufficient to Make Out a Prima Facie Case of an Intent to Sell

The Fourth Department determined the defendant’s possession of less than an ounce of drugs was not sufficient to make out a prima facie case of defendant’s intent to sell:

We reject the People’s contention that the evidence was sufficient to make out a prima facie case that defendant possessed the cocaine with the intent to sell it. Although “defendant’s possession of a substantial’ quantity of drugs can be cited as circumstantial proof of an intent to sell . . . , it cannot be said as a matter of law that the quantity of uncut and unpackaged drugs possessed in this case permitted an inference that defendant intended to sell them. More than mere possession of a modest quantity of drugs, not packaged for sale and unaccompanied by any other saleslike conduct, must be present for such an inference to arise” … .Consequently, the court properly concluded that the evidence was insufficient to establish that defendant possessed a controlled substance with intent to sell it … . People v Nellons, 2015 NY Slip Op 08305, 4th Dept 11-13-15

 

Probationers Do Not Lose All Privacy and Fourth Amendment Rights; Condition that Probationer Waive His Fourth Amendment Rights and Consent to the Search of His Home Struck

The Fourth Department determined the condition of probation requiring the probationer to consent to the search of his home, which was not part of the plea agreement, was not enforceable. A probationer does not lose all Fourth Amendment protections:

We agree with defendant … that the waiver of the right to appeal does not encompass his challenge to the condition of probation that required him to sign a consent to waive his Fourth Amendment rights against a search of his home on the ground that it is related to defendant’s “drug/alcohol abuse,” inasmuch as that condition was not part of the plea agreement … . We also agree with defendant that the condition does not relate to “the probationary goal of rehabilitation” and thus is not enforceable on that ground … . Indeed, the presentence report indicated that the 51-year-old defendant, a first-time offender, does not have a history of drug or alcohol abuse and that he was not under the influence of drugs or alcohol at the time of the offense. It is well established that “a probationer’s home is protected by the constitutional requirement that searches be reasonable . . . [A] probationer loses some privacy expectations and some part of the protections of the Fourth Amendment, but not all of both” … . We therefore modify the judgment by striking as a condition of probation the requirement that defendant consent to the waiver of his Fourth Amendment rights against a search of his home. People v Mead, 2015 NY Slip Op 08304, 4th Dept 11-13-15

 

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Pedigree Question “Where Do You Reside,” Under the Circumstances, Was Designed to Elicit an Incriminating Response, the Answer, Therefore, Should Have Been Suppressed; New Trial on Possessory Counts Ordered

The Fourth Department ordered a new trial on the drug possession and drug paraphernalia counts. Defendant was convicted based upon a “constructive possession” theory (i.e., possession of contraband based upon defendant’s dominion and control over the premises where the contraband is found). As police officers were conducting a search, and as defendant was handcuffed and lying on the floor, an officer asked defendant where he resided. Defendant answered “here.” The People relied heavily on defendant’s answer to prove constructive possession of contraband found on the premises. Under these circumstances, the pedigree question (where do you reside) was designed to elicit an incriminating response and, because the statement was “unwarned,” the answer should have been suppressed:

Generally, a defendant’s answer concerning his address, when “elicited through routine administrative questioning that [is] not designed to elicit an incriminating response” … , will be considered pedigree information not subject to CPL 710.30 notice requirements even if the statement later proves to be inculpatory … . That is “[b]ecause responses to routine booking questions—pedigree questions . . . —are not suppressible even when obtained in violation of Miranda [and, therefore, a] defendant lacks a constitutional basis upon which to challenge the voluntariness of his [or her] statement” … . “[W]here there is no question of voluntariness, the People are not required to serve defendant with notice” … .

As the Court of Appeals recognized, however, “the People may not rely on the pedigree exception if the questions, though facially appropriate, are likely to elicit incriminating admissions because of the circumstances of the particular case” (id.). Although the question concerning defendant’s address appears to have been a facially appropriate question, we conclude that, under the circumstances of this case and, more specifically, under the circumstances in which the question was asked, the question was likely to elicit an incriminating admission and had a “necessary connection to an essential element of [the possessory] crimes charged” under Penal Law §§ 220.16 and 220.50 (2) … . We agree with defendant that the error in admitting that statement cannot be considered harmless insofar as it relates to the possessory counts of the indictment inasmuch as the People relied heavily on that statement to establish defendant’s constructive possession of the drugs and drug paraphernalia … . People v Slade, 2015 NY Slip Op 08252, 4th Dept 11-13-15

 

Criteria for Class Certification Explained (Not Met Here)

The Fourth Department determined that an action by about 1900 patients who received insulin injections at defendant hospital was properly denied class certification. The patients were notified they may have been administered insulin by insulin pens shared by more than one patient and all were offered free testing for possible blood borne disease. No one tested positive for disease. The court concluded that whether a particular patient was actually exposed and whether exposure resulted in damages would have to be determined on a case by case basis. Therefore issues common to the class did not predominate:

“[A] class action may be maintained in New York only after the five prerequisites set forth in CPLR 901 (a) have been met, i.e., the class is so numerous that joinder of all members is impracticable, common questions of law or fact predominate over questions affecting only individual members, the claims or defenses of the representative parties are typical of the class as a whole, the representative parties will fairly and adequately protect the interests of the class, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy” … . The class representative “bears the burden of establishing compliance with [*2]the requirements of both CPLR 901 and 902” … .

Where, as here, no plaintiff has tested positive for the blood-borne disease to which he or she allegedly was exposed as a result of defendant’s negligence, a prerequisite to recovery is proof of actual exposure to the blood-borne disease … . The issue of actual exposure will require individualized determinations with respect to each plaintiff. Further, even if members of the proposed class could establish such actual exposure, “the extent of the damages resulting therefrom [is a] question[] requiring individual investigation and separate proof as to each individual claim” … . Thus, we conclude that, “even if there are common issues in this case, those issues do not predominate” …, and “[t]he predominance of individualized factual questions . . . renders this case unsuitable for class treatment” … . Westfall v Olean Gen. Hosp., 2015 NY Slip Op 07396, 4th Dept 10-9-15

 

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The Absence of Plaintiff’s (Buyer’s) Attorney’s Explicit Unconditional Approval of the Purchase Contract Invalidated the Contract, Despite Plaintiff’s Desire to Go Through with the Purchase

The Fourth Department, reversing Supreme Court, determined that an explicit (not implied) unconditional attorney approval of a real estate contract is a necessary pre-requisite for a valid contract. Here plaintiff’s attorney had approved the contract on the condition that an environmental warranty be provided by the sellers, a condition which was never met or explicitly waived. Despite plaintiff’s desire to go through with the purchase, defendant-sellers’ attorney correctly determined there was no valid contract of sale because plaintiff’s attorney never explicitly unconditionally approved it:

As the Court of Appeals has stated, “[c]larity and predictability are particularly important” in the area of law dealing with attorney approval of real estate contracts … . Here, we conclude that, although plaintiff could have unilaterally waived the environmental conditions that [his attorney] placed on his approval of the contract inasmuch as those conditions benefitted only him …, neither [of plaintiff’s attorneys] clearly and unequivocally did so. Thus, the contract was never unconditionally approved by plaintiff’s attorneys. * * *

“[C]onsiderations of clarity, predictability, and professional responsibility weigh against reading an implied limitation into the attorney approval contingency” … . If [plaintiff’s attorney] intended to waive the conditions placed … on … approval of the contract, he should have done so expressly and not left anything for inference, or he should have stated that he, as plaintiff’s counsel, unconditionally approved the contract as proposed by defendants. Because he failed to do so, we conclude that there was not a valid contract between the parties and that the court erred in directing defendants to sell the property to plaintiffs. Pohlman v Madia, 2015 NY Slip Op 07379, 4th Dept 10-9-15

 

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Failure to Advise Non-Citizen Defendant of Deportation Consequences of Plea Required Remittal

The Fourth Department noted that the court’s failure to advise the non-citizen defendant of the deportation consequences of his guilty plea required that the case be remitted to afford the defendant the opportunity to move to vacate his plea:

We agree with defendant, a noncitizen, that County Court failed to advise him of the deportation consequences of his felony plea, as required by People v Peque (22 NY3d 168). We therefore hold the case, reserve decision and remit the matter to County Court to afford defendant the opportunity to move to vacate his plea based upon a showing that there is a “reasonable probability” that he would not have pleaded guilty had he known that he faced the risk of being deported as a result of the plea (id. at 176…). People v Traverso, 2015 NY Slip Op 07376, 4th Dept 10-9-15

 

Question of Fact Whether Plaintiff’s Conduct, Placing Ladder on Ice, Was Sole Proximate Cause of Injury

The Fourth Department determined there was a question of fact whether the plaintiff’s conduct constituted the sole proximate cause of his injury (re: the Labor Law 240 (1) cause of action).  Plaintiff placed his ladder on ice and was injured when the ladder slipped on the ice. The court explained the analytical criteria:

Liability under section 240 (1) “is contingent on a statutory violation and proximate cause” … . If both elements are established, “contributory negligence cannot defeat the plaintiff’s claim” … . There can be no liability under Labor Law § 240 (1), however, “when there is no violation and the worker’s actions . . . are the sole proximate cause’ of the accident” … . It is therefore “conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation” … .

While we agree with plaintiffs that evidence that a ladder is “structurally sound and not defective is not relevant on the issue of whether it was properly placed” …, we conclude that there are triable issues of fact whether plaintiff’s actions were the sole proximate cause of his injuries … . * * *

In this case, we conclude that plaintiffs failed to meet their initial burden of establishing entitlement to partial summary judgment on the issue of liability on the Labor Law § 240 (1) cause of action inasmuch as they submitted evidence raising a triable issue of fact whether plaintiff’s conduct in “refusing to use available, safe and appropriate equipment” was the sole proximate cause of the accident … . Specifically, plaintiffs submitted deposition testimony from defendant’s customer, who purportedly owned the building on which plaintiff was working. The owner testified that, on the day of the accident, he advised plaintiff that the ladder was not placed in a safe position. The owner offered to retrieve safety equipment from his own truck that would help to remove ice from underneath the ladder and thereby stabilize the ladder. Plaintiff, however, rejected that offer. The owner also attempted to hold the ladder for plaintiff, but plaintiff again rejected the owner’s assistance. Fazekas v Time Warner Cable, Inc., 2015 NY Slip Op 07403, 4th Dept 10-9-15

 

Question of Fact Whether Plaintiff Assumed the Risk of Injury from Colliding With a Window Near the Basketball Court

The Fourth Department determined plaintiff raised a question of fact whether he assumed the risk of injury from colliding with an breaking a window near the basketball court on which he was playing. Plaintiff submitted an expert affidavit alleging that the window should have been covered with a screen or otherwise made safe. Therefore, there was a question of fact whether the window represented a risk over and above the dangers inherent in the sport:

It is well settled that, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “A plaintiff, however, will not be deemed to have consented to concealed or unreasonably increased risks’ ” … . Here, even assuming, arguendo, that defendant met its initial burden on the motion, we conclude that plaintiff raised a triable issue of fact by submitting the affidavit of a licensed architect who opined that the window involved in the accident did not meet industry standards for use in a gymnasium because the glass was not covered by a protective screen, nor was it laminated or tempered to withstand impact by a person … . Thus, there is a triable issue of fact whether defendant ” created a dangerous condition over and above the usual dangers that are inherent in the sport’ ” of basketball… . Barends v Town of Cheektowaga, 2015 NY Slip Op 0737, 4th Dept 10-9-15

 

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