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CLASS ACTION PROPERLY CERTIFIED IN CASE ALLEGING NEGLIGENT DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE.

In an action alleging defendants negligently discharged chemicals into the atmosphere, resulting in a reduction of property values and quality of life, the Fourth Department determined a class action was properly certified. The court explained the criteria:

“[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” … . A plaintiff seeking class certification has the “burden of establishing the prerequisites of CPLR 901 (a) and thus establish[ing] . . . entitlement to class certification” … .

Although the individual class members may have sustained differing amounts of damages, it is well settled that ” the amount of damages suffered by each class member typically varies from individual to individual, but that fact will not prevent the suit from going forward as a class action if the important legal or factual issues involving liability are common to the class’ ” … . * * *

… [B]ecause “the typicality requirement relates to the nature of the claims and the underlying transaction, not the amount or measure of damages, [the fact that the class representative’s] damages may differ from those of other members of the class is not a proper basis to deny class certification” … . DeLuca v Tonawanda Coke Corp., 2015 NY Slip Op 09739, 4th Dept 12-31-15

CIVIL PROCEDURE (CLASS ACTION PROPERLY CERTIFIED DESPITE DIFFERENCES IN DAMAGES)/CLASS ACTION (PROPERLY CERTIFIED DESPITE DIFFERENCES IN DAMAGES)/NEGLIGENCE (CLASS ACTION BASED ON DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE)/ENVIRONMENTAL LAW (CLASS ACTION BASED ON DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE)

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VIOLATION OF CIVIL CONTEMPT ORDER PROPERLY ADMITTED IN GRAND LARCENY TRIAL TO SHOW LARCENOUS INTENT.

The Fourth Department, over a two-justice dissent, determined defendant’s violation of a civil contempt order was properly admitted in defendant’s grand larceny trial to show larcenous intent:

The … order directed defendant’s businesses to turn over all monies they had received as a result of defendant diverting credit card proceeds from Webster Hospitality Development LLC (WHD), a company in which defendant held majority ownership and which was in receivership, to undisclosed bank accounts maintained for defendant’s businesses. Contrary to defendant’s contention, the contempt order does not constitute a finding that defendant stole the money; rather, it demonstrates that defendant’s businesses failed to abide by the earlier order to return money to WHD and to provide certain documentation to the receiver. We thus conclude that the contempt order was properly admitted as relevant evidence of defendant’s intent to deprive WHD of the money by “withhold[ing] it or caus[ing] it to be withheld from [WHD] permanently” (§ 155.00 [3]; see People v Molineux, 168 NY 264, 293). Moreover, we note that “[l]arcenous intent . . . is rarely susceptible of proof by direct evidence, and must usually be inferred from the circumstances surrounding the defendant’s actions’ ” … . Here, the contempt order had significant probative value inasmuch as it showed that defendant’s conduct did not merely constitute poor financial management but, rather, that defendant, through his businesses, intended to deprive WHD of the diverted money permanently. The court therefore properly concluded that “the probative value of the evidence outweighed its prejudicial effect” … . People v Frumusa, 2015 NY Slip Op 09718, 4th Dept 12-31-15

CRIMINAL LAW (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)/EVIDENCE (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)/PRIOR CRIMES AND BAD ACTS (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)/MOLINEUX EVIDENCE  (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)

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PROSECUTOR’S REMARKS IN SUMMATION REQUIRED REVERSAL.

The Fourth Department, in the interest of justice, reversed defendant’s conviction based upon prosecutorial misconduct in summation:

On summation, the prosecutor repeatedly invoked a “safe streets” argument … , even after Supreme Court sustained defense counsel’s objection to the prosecutor’s use of that argument; denigrated the defense by calling defense counsel’s arguments “garbage,” “smoke and mirrors,” and “nonsense” intended to distract the juror’s focus from the “atrocious acts” that defendant committed against the victim … ; improperly characterized the defense as being based on a “big conspiracy” against defendant by the prosecutor and the People’s witnesses … ; and denigrated the fact that defendant had elected to invoke his constitutional right to a trial … . Perhaps most egregiously, given that “the potential danger posed to defendant when DNA evidence is presented as dispositive of guilt is by now obvious,” the prosecutor engaged in misconduct when she mischaracterized and overstated the probative value of the DNA evidence in this case … .

We recognize, of course, that “[r]eversal is an ill-suited remedy for prosecutorial misconduct” … . It is nevertheless mandated when the conduct of the prosecutor “has caused such substantial prejudice to the defendant that he [or she] has been denied due process of law. In measuring whether substantial prejudice has occurred, one must look at the severity and frequency of the conduct, whether the court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached” … . In view of the substantial prejudice caused by the prosecutor’s misconduct in this case, including the fact that the evidence of guilt is less than overwhelming … , we agree with defendant that reversal is required. People v Jones, 2015 NY Slip Op 09773, 4th Dept 12-31-15

CRIMINAL LAW (PROSECUTOR’S REMARKS IN SUMMATION REQUIRED REVERSAL)/PROSECUTORIAL MISCONDUCT (REMARKS IN SUMMATION REQUIRED REVERSAL)

LABOR LAW 241 (6) CAUSE OF ACTION STEMMING FROM EYE INJURY ASSOCIATED WITH USE OF A NAIL GUN PROPERLY SURVIVED SUMMARY JUDGMENT.

Plaintiff was injured when using a nail gun. A nail ricocheted and struck his eye. The Fourth Department determined defendant was not entitled to summary judgment dismissing the Labor Law 241 (6) cause of action because eye protection was required by the Industrial Code, and plaintiff was not entitled to summary judgment because there were questions of fact whether eye protection was available to the plaintiff. The court noted that the risk of eye injury from use of a nail gun is more apparent than any such risk associated with manual hammering:

We reject defendant’s contention that it was entitled to summary judgment pursuant to this Court’s holding in Herman v Lancaster Homes (145 AD2d 926, 926, lv denied 74 NY2d 601). Unlike the circumstances in Herman, plaintiff herein was not manually hammering nails but, rather, was operating a pneumatic nail gun when a nail ricocheted and penetrated his right eye. In our view, “the dangers a nail gun present[s] to the eyes are more apparent tha[n] the dangers of manual hammering” … and the plaintiff’s use of the nail gun clearly falls within the regulatory definition of engaging “in any other operation which may endanger the eyes” (12 NYCRR 23-1.8 [a]). Contrary to defendant’s further contention, based upon the record before us, we conclude that plaintiff established as a matter of law that the regulation applies, and that defendant failed to raise a triable issue of fact on that point … .

We agree with defendant, however, that the court erred in granting plaintiff’s motion inasmuch as defendant raised triable issues of fact whether it had violated 12 NYCRR 23-1.8 (a) and whether plaintiff was comparatively negligent … . Specifically, there is a triable issue of fact whether defendant provided eye protection, or made such available, to plaintiff on the day of the accident and, if so, whether plaintiff was comparatively negligent in refusing to use the eye protection. Summary judgment to plaintiff is therefore inappropriate … . We note, in any event, that “[e]ven assuming, arguendo, that plaintiff[] established that defendant violated [12 NYCRR 23-1.8 (a)], any such violation does not establish negligence as a matter of law but is merely some evidence to be considered on the question of a defendant’s negligence’ ” … . Quiros v Five Star Improvements, Inc., 2015 NY Slip Op 09713, 4th Dept 12-31-15

LABOR LAW (241 (6) CAUSE OF ACTION STEMMING FROM USE OF NAIL GUN)/NAIL GUN (LABOR LAW 241 (6) CAUSE OF ACTION BASED UPON EYE INJURY)

QUESTION OF FACT WHETHER DRIVER WITH THE RIGHT OF WAY WAS COMPARATIVELY NEGLIGENT IN COLLISION WITH DRIVER WHO FAILED TO YIELD THE RIGHT OF WAY.

The Fourth Department determined there was question of fact whether the driver of a car with the right of way (defendant) was comparatively negligent in striking a car (driven by Deering) which failed to yield the right of way at an intersection:

There is no dispute that Deering was negligent in failing to yield the right-of-way or that defendant was entitled to anticipate that she would obey the traffic laws that required her to yield the right-of-way to him … . Nevertheless, in moving for summary judgment, defendant had the burden of establishing not only that Deering was negligent, but also that he was free of comparative fault … . Defendant failed to meet that burden, inasmuch as his own submissions raised triable issues of fact whether he was negligent … . At his deposition, defendant testified that he saw the Deering vehicle at the intersection after he traveled over an elevated overpass on Route 5 that is approximately 300 yards from the intersection, but he looked away and did not see the Deering vehicle before or at the moment of impact. “[I]t is well settled that drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident,’ ” and defendant’s admitted failure to see the Deering vehicle immediately prior to the accident raises an issue of fact whether he violated that duty … . Thus, even though defendant had the right-of-way as he approached Bayview Road, he “may nevertheless be found negligent if he . . . fail[ed] to use reasonable care when proceeding into the intersection’ . . . A driver cannot blindly and wantonly enter an intersection’ ” … . Deering v Deering, 2015 NY Slip Op 09715, 4th Dept 12-31-15

NEGLIGENCE (DRIVER WITH RIGHT OF WAY MAY BE COMPARATIVELY NEGLIGENT IN STRIKING CAR WHICH FAILED TO YIELD)/RIGHT OF WAY (DRIVER WITH RIGHT OF WAY MAY BE COMPARATIVELY NEGLIGENT IN STRIKING CAR WHICH FAILED TO YIELD)

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STATEMENT MADE AFTER UNEQUIVOCAL REQUEST FOR COUNSEL SHOULD HAVE BEEN SUPPRESSED, NEW TRIAL ORDERED.

The Fourth Department reversed defendant’s conviction and ordered a new trial after concluding defendant’s statements to police should have been suppressed. After defendant told police she needed to talk to a lawyer, the police questioned her further during a “smoke break:”

After answering questions for approximately an hour and ten minutes, defendant said, “I think I need to talk to an attorney.” In response, the first investigator stated, “Would you like to talk to one? If you think that, that’s fine. That’s up to you.” Defendant replied, “I need to,” before going on to state that she would never have bad feelings toward the boy and genuinely cared about him. The questioning then ceased, and the first investigator allowed defendant to go outside with the second investigator and a female Child Protective Services worker to smoke a cigarette.

While defendant was smoking in the parking garage, the second investigator engaged her in a lengthy conversation. Unbeknownst to defendant, the conversation was being digitally recorded by the second investigator. During the conversation, defendant made numerous admissions, all but confessing that she had engaged in sexual activity with the boy. * * *

… [W]e conclude that, although defendant’s statement “I think I need to talk to an attorney” may not, standing alone, constitute an unequivocal invocation of the right to counsel … , her subsequent statement “I need to”—made in reply to the first investigator stating “Would you like to talk to one? If you think that, that’s fine. That’s up to you”—removed any ambiguity and made clear that defendant was requesting the assistance of counsel … . People v Kennard, 2015 NY Slip Op 09729, 4th Dept 12-31-15

 

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PROSECUTOR ADMONISHED FOR IMPROPER REMARKS IN SUMMATION (CONVICTION NOT REVERSED HOWEVER); INSUFFICIENT EVIDENCE OF PHYSICAL INJURY TO SUPPORT ASSAULT 3RD CONVICTION.

The Fourth Department admonished the prosecutor for improper remarks in summation, but did not reverse the conviction. The court found the evidence of “physical injury” insufficient to support the Assault 3rd conviction and reversed that unpreserved error under a “weight of the evidence” analysis:

Despite this Court’s repeated admonitions to prosecutors not to engage in misconduct during summation, the prosecutor improperly referred to facts not in evidence when he insinuated that the victim regretted that she did not get out of defendant’s vehicle … . The prosecutor also improperly appealed to the jury’s sympathy and bolstered the victim’s credibility, and did so repeatedly, by commenting on how difficult it was for her to recount her ordeal, first to the police, then before the grand jury, and finally in her trial testimony … . In addition, the prosecutor improperly suggested that the jury experiment on themselves to see how quickly bite marks fade … . Nevertheless, “[a]lthough we do not condone the prosecutor’s conduct, it cannot be said here that it caused such substantial prejudice to the defendant that he has been denied due process of law’ ” … . We admonish the prosecutor, however, “and remind him that prosecutors have special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process’ ” … . * * *

We conclude, upon our independent review of the evidence, that the People failed to prove beyond a reasonable doubt that the victim sustained a physical injury … . The indictment alleged that defendant caused physical injury to the victim “by striking her in the face.” Although the victim testified that defendant struck her in the face, and photographs of the victim showed swelling and discoloration of the left side of her face, the victim did not testify that she suffered substantial pain from that injury or that she sought medical attention for it … . People v Gibson, 2015 NY Slip Op 09722, 4th Dept 12-31-15

CRIMINAL LAW (PROSECUTOR ADMONISHED FOR IMPROPER REMARKS IN SUMMATION)/CRIMINAL LAW (ASSAULT 3RD CONVICTION NOT SUPPORTED BY SUFFICIENT EVIDENCE OF PHYSICAL INJURY)/PROSECUTORIAL MISCONDUCT (IMPROPER REMARKS IN SUMMATION)/EVIDENCE (INSUFFICIENT EVIDENCE OF PHYSICAL INJURY RE: ASSAULT 3RD CONVICTION)/ASSAULT 3RD (INSUFFICIENT EVIDENCE OF PHYSICAL INJURY)

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DEFENDANT’S REQUEST TO PROCEED PRO SE, MADE ON THE EVE OF TRIAL, WAS NOT UNTIMELY AND SHOULD NOT HAVE BEEN SUMMARILY DENIED ON THAT GROUND, NEW TRIAL ORDERED.

The Fourth Department determined defendant’s request to proceed pro se, made prior to the prosecution’s opening statement, was not untimely and should not have been summarily denied on that ground. A new trial was ordered:

… [T]he judgment of conviction should be reversed and a new trial granted because the court erred in summarily denying, as untimely, his request to proceed pro se … . “Although requests [to proceed pro se] on the eve of trial are discouraged, the Court of Appeals has found that a request may be considered timely when it is interposed prior to the prosecution’s opening statement,’ as here”… . People v Smith. 2015 NY Slip Op 09757, 4th Dept 12-31-15

CRIMINAL LAW (REQUEST TO PROCEED PRO SE MADE ON EVE OF TRIAL NOT UNTIMELY, NEW TRIAL ORDERED)/PRO SE (CRIMINAL LAW, REQUEST TO PROCEED PRO SE MADE ON EVE OF TRIAL NOT UNTIMELY, NEW TRIAL ORDERED)

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PETITIONER’S MOTION FOR A DIRECTED VERDICT IN AN ARTICLE 10 TRIAL SHOULD NOT HAVE BEEN GRANTED; A TRIABLE ISSUE HAD BEEN RAISED CONCERNING PETITIONER’S ABILITY TO CONTROL HIS SEXUAL CONDUCT.

The Fourth Department, over a two-justice dissent, reversing Supreme Court, determined that petitioner-sex-offender’s motion for a directed verdict in an Article 10 trial should not have been granted. Petitioner had been deemed a dangerous sex offender and was committed to a secure facility. In the instant proceeding, petitioner sought release under a regimen of strict and intensive supervision and treatment. The state presented evidence petitioner had been diagnosed with antisocial personality disorder, paraphila otherwise specified, and cannabis dependence.  The majority concluded that the state’s expert, Dr. Prince, had presented sufficient additional evidence, including a history of defendant’s sexual behavior, his response to treatment, and the results of psychological tests, to raise a triable issue of fact whether defendant had serious difficulty in controlling difficulty controlling his sexual conduct:

When coupled with the evidence of petitioner’s clear, well-defined cycle of offending that begins with becoming frustrated, the deficits in his recent treatment plan on that specific area, and his stagnating course of treatment, we conclude that Dr. Prince’s opinion and the supporting evidence, ” when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, [establish that petitioner is a] . . . dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment[, rather than a] dangerous but typical recidivist convicted in an ordinary criminal case’ ” … . Thus, respondents submitted sufficient evidence that, if it is credited by the factfinder, would establish that petitioner has a condition, disease or disorder “that predisposes him . . . to the commission of conduct constituting a sex offense and that results in [petitioner] having serious difficulty in controlling such conduct” (§ 10.03 [i] …). Consequently, we conclude that, if the factfinder accepts that evidence, there is a “rational process by which the [factfinder] could find for [respondents] as against” petitioner … . Matter of Wright v State of New York, 2015 NY Slip Op 09711, 4th Dept 12-31-15

MENTAL HYGIENE LAW (TRIABLE QUESTION OF FACT WHETHER PETITIONER HAD SERIOUS DIFFICULTY CONTROLLING SEXUAL CONDUCT)/SEX OFFENDERS (MENTAL HYGIENE LAW, TRIABLE QUESTION OF FACT WHETHER PETITIONER HAD SERIOUS DIFFICULTY CONTROLLING SEXUAL CONDUCT)

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VILLAGE’S AGREEMENT TO SELL ONE MILLION GALLONS OF WATER PER DAY FOR TRANSPORT TO PENNSYLVANIA WAS A TYPE I ACTION REQUIRING SEQRA REVIEW.

Upon remittitur after reversal by the Court of Appeals, the Fourth Department affirmed Supreme Court’s rulings re: the Water Agreement and Lease Agreement entered into by the Village of Painted Post. The Lease Agreement concerned the construction of a railroad transloading facility and the Water Agreement concerned the sale of one million gallons of water per day (gpd) to be transported (by rail) to Pennsylvania. The Fourth Department determined the Water Agreement was a Type I, not Type II, action which required review under the State Environmental Quality Review Act (SEQRA). Because the Village of Painted Post did not conduct a SEQRA review of the Water Agreement, the relevant village resolutions were annulled and a consolidated SEQRA review of both the Water Agreement and Lease Agreement was ordered:

Although the Water Agreement does not call for the use of “ground or surface water in excess of [two million gpd]” (6 NYCRR 617.4 [b] [6] [ii]) and thus is not a Type I action under that subsection, Type I actions also include “any Unlisted action[] that exceeds 25 percent of any threshold in this section, occurring wholly or partially within or substantially contiguous to any publicly owned or operated parkland, recreation area or designated open space” (6 NYCRR 617.4 [b] [10]). Where, as here, the Department of Environmental Conservation (DEC) has set a threshold clarifying that the use of a certain amount of a natural resource, e.g., land or water, constitutes a Type I action, it is reasonable to assume that the DEC has “implicitly determined that an annexation of less than [that threshold] is an [U]nlisted action’ ” … . We thus conclude therefrom that the Water Agreement is implicitly an Unlisted action. Inasmuch as there is also evidence in the record that the transloading facility may be substantially contiguous to a publicly owned park and the Water Agreement calls for the use of surface water in the amount of one million gpd, i.e., 50% of the threshold in section 617.4 (b) (6) (ii), the Water Agreement could also be deemed a Type I action under 6 NYCRR 617.4 (b) (10).

Consequently, SEQRA review was required for the Water Agreement. Although the Village conducted a SEQRA review of the Lease Agreement, segmentation, i.e., the division of environmental review for different sections or stages of a project (see 6 NYCRR 617.2 [ag]), is generally disfavored … . We thus conclude that the court properly determined, on the merits of the first cause of action, that all of respondent Village’s resolutions should be annulled and that a consolidated SEQRA review of both agreements was required. Matter of Sierra Club v Village of Painted Post, 2015 NY Slip Op 09707, 4th Dept 12-31-15

ENVIRONMENTAL LAW (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)/STATE ENVIRONMENTAL QUALITY REVIEW ACT [SEQRA] (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)/WATER (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)/MUNICIPAL LAW (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)

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