You are here: / Fourth Department

Tag Archive for: Fourth Department

,

Escaped Calf Furnished the Condition or Occasion for Plaintiff’s Decedent’s Presence in the Road When She Was Struck, But Was Not the Proximate Cause of Plaintiff’s Decedent’s Being in the Road

The Fourth Department, over a dissent, determined that defendant’s motion for summary judgment should have been granted. A calf escaped from defendant farm. Plaintiff’s decedent stopped her car and got out to aid the calf.  Both plaintiff’s decedent and the calf were struck by a car when they were in the road, although there was no evidence decedent stopped her car because the calf blocked the road. The Fourth Department held that the escape of the calf did not “cause” the decedent to be in the road. Rather the escape of the calf furnished the condition or occasion for decedent to be in the road:

Although “a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal . . . is negligently allowed to stray from the property on which the animal is kept” …, “liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes” … . Here, in support of its motion, Drumm Farm established that any negligence on its part in allowing the calf to escape merely “created the opportunity for plaintiff to be standing [in the roadway], [but] it did not cause [her] to stand” there … . “In short, the [alleged] negligence of [Drumm Farm] merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated” … . Importantly, plaintiff does not contend, and did not submit any evidence that would establish, that the calf’s presence in the road blocked decedent’s ability to travel in the southbound lane or otherwise forced decedent to stop her vehicle. Thus, Drumm Farm established as a matter of law that its “alleged negligent act, at most, caused the [calf to wander] out of the field, which was not the immediate cause of the accident” … , and plaintiff failed to raise a triable issue of fact in opposition … . Hain v Jamison, 2015 NY Slip Op 06074, 4th Dept 7-10-15

 

, ,

Parking Lot Not “Suitable” for Recreational Use Pursuant to General Obligations Law 9-103—Statutory Assumption of Risk Re: Riding a Bicycle in the Parking Lot Not Available

The Fourth Department determined Supreme Court properly denied defendant’s motion for leave to amend its answer to allege a “recreational use” affirmative defense. Plaintiff’s son was injured when his bicycle struck a depressed area in defendant’s parking lot. Defendant sought to allege plaintiff’s son assumed the risk of injury because the parking lot was covered by the recreational use statute, General Obligations Law 9-103. The Fourth Department, finding that the parking lot was not “suitable” for recreational use, explained the relevant analytical criteria:

We conclude that the court properly determined that defendant’s proposed amendment patently lacks merit inasmuch as the recreational use statute does not apply to the facts of this case as a matter of law. It is undisputed that plaintiff’s son was engaged in one of the recreational activities enumerated in section 9-103, i.e., bicycle riding, when he was injured. To establish applicability of the statute, however, defendant was also required to show that its property “was suitable for the recreational activity in which plaintiff[‘s son] was participating when the accident occurred” … . “Whether a parcel of land is suitable and the immunity [of the recreational use statute] available is a question of statutory interpretation, and is, therefore, a question of law for the Court” … . Suitability is established by showing that the subject property is ” (1) physically conducive to the activity at issue, and (2) of a type that is appropriate for public use in pursuing that activity as recreation’ ” … . “A substantial indicator that the property is physically conducive to the particular activity is whether recreationists have used the property for that activity in the past; such past use by participants in the [activity] manifests the fact that the property is physically conducive to it” … . Here, defendant failed to submit any evidence that the property had been used in the past by “recreationists” for bicycle riding. Moreover, under the circumstances of this case, we conclude that the subject property is not appropriate for public use in pursuing bicycle riding as a recreational activity … . Indeed, the Court of Appeals has made clear that recreational use immunity should apply only to property that “the Legislature would have envisioned as being opened up to the public for recreational activities” … . Here, defendant failed to establish that its employee parking lot comes within the purview of that standard. Sasso v WCA Hosp., 2015 NY Slip Op 06066, 4th Dept 7-10-15

 

,

Trial Judge’s Acceptance of Petitioner’s Expert’s Valuation of the Property Was Against the Weight of the Evidence—the Actual Purchase Price in a Recent Sale and the Actual Rent Should Have Been Part of the Analysis

The Fourth Department, over a dissent, determined that the trial judge’s findings re: the assessed value of a retail property (for property tax purposes) were against the weight of the evidence. Specifically, the trial judge accepted the petitioner’s (Rite Aid’s) expert’s valuation which failed to take into account the actual price paid in a recent arm’s-length sale of the property, comparable sales, the actual rent (negotiated at arm’s length) and comparable rentals:

… [A]n appellate court is empowered to make new findings of value where the trial court ” has failed to give to conflicting evidence the relative weight which it should have’ ” …, giving due deference to the trial court’s power to resolve credibility issues by choosing among conflicting expert opinions … .

It is well settled that real “[p]roperty is assessed for tax purposes according to its condition [and ownership] on the taxable status date, without regard to future potentialities or possibilities and may not be assessed on the basis of some use contemplated in the future” … . Although several methods of valuing real property are acceptable, “the market value method of valuation is preferred as the most reliable measure of a property’s full value for assessment purposes” …, because “[t]he best evidence of value, of course, is a recent sale of the subject property between a seller under no compulsion to sell and a buyer under no compulsion to buy” … . A recent sale has been characterized as evidence of the “highest rank” in determining market value … . The scope of a “market” need not be limited to the locale of the subject property and, depending on the nature of the use, it may encompass national and/or international buyers and sellers … . * * *

… [W]e conclude that the failure of petitioner’s expert to use the recent sale of the subject property as well as readily available comparable sales of national chain drugstore properties in the applicable submarket as evidence of value demonstrates the invalidity of the expert’s conclusion with respect to the sales comparison valuation … . We further conclude that the use of sales not comparable to the subject and outside of the applicable market should have been rejected by the court as unreliable … . Moreover, the failure of petitioner’s expert to use the actual rent, negotiated at arm’s length and without duress or collusion, as well as the failure to use similar rental comparables from the applicable market as evidence of value, demonstrates the invalidity of the expert’s conclusions using the income capitalization method … . Matter of Rite Aid Corp. v Haywood, 2015 NY Slip Op 06049, 4th Dept 7-10-15

Similar issues and result in Matter of Rite Aid Corp. v Huseby, 2015 NY Slip Op 06051, 4th Dept 7-10-15

 

Party Who Properly Withdrew a Mistaken Bid on a Public Works Project Should Have Been Allowed to Rebid

The Fourth Department determined a party (Kandey) who withdrew a mistaken bid on a public works project should have been allowed to rebid:

The court properly concluded that a rational basis supported the County’s determination that Kandey made the showing required by General Municipal Law § 103 (11) (a) when it sought permission to withdraw its mistaken bid. The court erred, however, in concluding that the County failed to comply with General Municipal Law § 103 (11) (b) when it permitted Kandey to participate in the rebid. That section provides that the “sole remedy for a bid mistake in accordance with this section shall be withdrawal of that bid and the return of the bid bond or other security, if any, to the bidder.” That is precisely what the County did here when it permitted Kandey to withdraw the mistaken bid. The statute further provides that, after the mistaken bid is withdrawn, the County “may, in its discretion, award the contract to the next lowest responsible bidder or rebid the contract,” and the County acted within the discretion extended to it under the statute when it elected to rebid the contract.

The statute is silent on the question whether a contractor that was permitted to withdraw its bid may participate in the rebid. We agree with Kandey and the County that, had the Legislature intended to forbid a contractor in Kandey’s position from participating in the rebid, it would have done so explicitly. Further, “[a] court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit” … . Thus, we do not interpret the statute to include an implicit prohibition against Kandey’s participation in the rebid following the withdrawal of its mistaken bid. Matter of Concrete Applied Tech. Corp. v County of Erie, 2015 NY Slip Op 06087, 4th Dept 7-10-15

 

,

Motion to Vacate Conviction Should Not Have Been Granted—Hearsay Statement Exonerating Defendant Did Not Meet the Criteria for a Statement Against Penal Interest and Should Not Have Been Admitted—The Underlying Evidence Was Not Newly Discovered Because Defendant Was Aware of It at the Time of Trial–Defendant Did Not Provide the Evidence at Trial Because He Feared Retaliation by Gang Members

The Fourth Department determined defendant’s motion to vacate his conviction should not have been granted.  The hearsay statement made by Jackson which exonerated defendant did not meet the criteria for a statement against penal interest and should not have been admitted in evidence.  The evidence involved was not newly discovered.  Defendant did not provide the evidence at trial out of fear of retaliation by gang members:

… [T]he court erred in admitting Jackson’s statement in evidence at the hearing, and, in any event, the statement would not be admissible at trial. This is vital because ” [i]mplicit in th[e] ground for vacating a judgment of conviction is that the newly discovered evidence be admissible’ ” … . Here, the court admitted the statement at the hearing as a declaration against penal interest, but it is well settled that “[f]or a statement against penal interest to be admissible the interest compromised must be such as to all but rule out’ motive to falsify, [and] the declarant must be conscious of the consequences of his statement at the time it is made . . . Those assurances of probative value, which might in a proper case substitute for cross-examination, were not present in this case” … . Although a less stringent standard applies where, as here, the declaration is offered by defendant to exonerate himself rather than by the People, to inculpate him… , none of the requirements was met here. To the contrary, the statement of the gang member was provided only after he was assured that he would not be prosecuted for any information that he provided, thus removing any indicia of reliability regarding that information… . …

Even assuming, arguendo, that Jackson’s statement was properly admitted at the hearing, and further assuming, arguendo, that the information he provided is material, noncumulative, and does not merely impeach or contradict the record evidence, we conclude that the information was known to defendant at the time of the trial … . We cannot agree with the court that it was in effect “newly discovered” based on defendant’s fear of physical harm to himself and his family. “A defendant who chooses to withhold evidence should not be given a new trial on the basis of the evidence thus withheld’ ” … . Therefore, the evidence does not satisfy the requirement that it was “discovered since the entry of a judgment based upon a verdict of guilty after trial” … . People v Backus, 2015 NY Slip Op 05330, 4th Dept 6-19-15

 

, ,

Court Properly Ordered Further Deposition of County Employee and the Deposition of the Commissioner of Public Works Based Upon Plaintiff’s Showing the Witness Previously Provided Did Not Have Sufficient Knowledge

The Fourth Department noted that the court did not abuse its discretion in ordering the further deposition of a county employee and the deposition of the Commissioner of Public Works concerning the maintenance of a section of the road where plaintiff’s-decedent’s car left the road and struck a pole.  The employee’s prior testimony was incomplete because he could not recall relevant information. And, although the county can determine who should be deposed on its behalf, the court can order the deposition of a specific witness where the plaintiff shows the witness previously produced did not have sufficient knowledge:

“A trial court has broad discretion in supervising the discovery process, and its determinations will not be disturbed absent an abuse of that discretion” … . We note with respect to the employee that he admitted at his initial deposition that he could not recall specific details relevant to plaintiffs’ theory of the County’s liability without reviewing the documents that subsequently were produced by the County. We thus conclude that the court did not abuse its discretion in directing the further deposition of the employee concerning those documents.

We likewise conclude that the court did not abuse its discretion in directing the County to produce the Commissioner for a deposition. “Although a municipality, in the first instance, has the right to determine which of its officers or employees with knowledge of the facts may appear for a deposition, a plaintiff may demand production of additional witnesses when (1) the officers or employees already deposed had insufficient knowledge or were otherwise inadequate, and (2) there is a substantial likelihood that the person sought for deposition possesses information which is material and necessary to the prosecution of the case” … . Here, the record establishes that the two employees previously produced by the County have at most a general understanding of the reconstruction project contemplated by the County with respect to the section of road where the accident occurred and the reasons that the reconstruction project was abandoned, while the Commissioner has peculiar and specific knowledge about that project and the decision-making process pursuant to which it was abandoned. We therefore conclude that plaintiffs met their burden of demonstrating that the employees previously produced by the County “did not possess sufficient knowledge of the relevant facts or [were] otherwise inadequate” … . Black v Athale, 2015 NY Slip Op 05355, 4th Dept 6-19-15

 

,

Insufficient Break Between “Unwarned” Statement and Statement Made Subsequently After the Miranda Warnings Were Given—Entire Statement Should Have Been Suppressed

The Fourth Department determined there was an insufficient break (10 minutes) between an “unwarned” inculpatory statement made by the defendant and a subsequent statement made after the Miranda warnings were given.  The entire statement should have been suppressed:

“When, as part of a continuous chain of events, a defendant is subjected to custodial interrogation without Miranda warnings, any statements made in response as well as any additional statements made after the warnings are administered and questioning resumes must be suppressed” … . Where, however, “there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning,” his or her statements in response to renewed questioning after he or she has received Miranda warnings and waived his or her constitutional rights may be admitted … . Here, the initial questioning by the second officer, although brief, produced an inculpatory statement directly related to the instant crime… , and the second interrogation, which produced another inculpatory statement, occurred less than 10 minutes later and in the same location … . Moreover, contrary to the People’s contention, the record does not establish that “a reasonable suspect in defendant’s position would have perceived a marked change in the tenor of his engagement with [the] police” … . We thus conclude that “it cannot be said that there was such a definite, pronounced break’ in the interrogation that defendant was returned to the position of one who was not under the influence of the initial improper questioning” … . People v Walker, 2015 NY Slip Op 05313, 4th Dept 6-19-15

 

Ordinance Imposing a Duty Upon Abutting Property Owners to Keep Sidewalks in Good Repair Raised a Question of Fact whether a Defect Caused by a Tree Root Should Have Been Repaired by the Defendant—The Defect Was Not So Significant As to Allow a Determination of Defendant’s Liability as a Matter of Law

The Fourth Department determined the existence of an ordinance imposing upon abutting property owners the duty to maintain the sidewalk created a question of fact whether defendant breached that duty. Apparently the defect was caused by a root from a tree on village property which defendant alleged he had no authority to disturb. The ordinance, however did not include any exceptions to the duty to repair.  The defect was not of such significance that summary judgment on liability as a matter of law was warranted:

… “[I]t is well established that, as an abutting landowner, [defendant] is not liable for injuries sustained as the result of a defect in the sidewalk unless[, inter alia,] . . . there is a local ordinance charging [defendant] with the duty to maintain and repair the sidewalk and imposing liability for injuries resulting from [defendant’s] failure to do so” … . Here, in opposition to the motion, plaintiff submitted relevant portions of the General Code of the Village of Hamburg (Village), which charges landowners such as defendant with the duty to “repair, keep safe and maintain any sidewalk abutting [the landowner’s] premises,” and imposes liability on the landowner “for any injury or damage by reason of omission or failure to repair, keep safe, and maintain such sidewalk” (Village of Hamburg General Code § 203-26 [B]; see § 203-28 [A] [2]).

We conclude that, by submitting that local ordinance, plaintiff raised an issue of fact whether defendant breached the duty imposed on it to maintain the sidewalk abutting its property. Although defendant contends that the alleged defect in the sidewalk was created by a tree root that it had no authority to disturb because it originated from a tree on property owned and maintained by the Village, we note that the local ordinance contains no exceptions to the duty imposed on abutting landowners to maintain the sidewalk, even if the allegedly dangerous condition was created by a root extending from Village property. In any event, it cannot be said as a matter of law that defendant could not have repaired the alleged defect in the sidewalk without cutting the tree root that purportedly created it … .

We agree with defendant, however, that the court erred in granting that part of plaintiff’s cross motion for partial summary judgment on the issue of negligence against defendant, and we therefore modify the order accordingly. “Generally, a sidewalk defect presents an issue of fact for a jury . . . , unless . . . the defect is so trivial as to warrant disposition [in defendant’s favor] on summary judgment” … . Here, we cannot conclude that the alleged defect, as depicted in photographs included in the record, is of such significance that defendant may be held liable as a matter of law … . Shatzel v 152 Buffalo St., Ltd., 2015 NY Slip Op 05333, 4th Dept 6-19-15

 

Pilot Assumed the Risk of a Take-Off from a Wet, Grass Field

The Fourth Department determined plaintiff-pilot’s complaint should have been dismissed because the pilot, injured attempting to take off from a grass field, assumed the risk associated with a take-off from a wet field.  The airport is a designated venue for the recreational activity of private aviation.  Therefore the recreational use of the airport was a qualifying activity under the doctrine of primary assumption of the risk. The pilot was aware of the wet conditions prior to his attempt to take off:

We agree with defendant that its airport is a designated venue for the recreational activity of private aviation and that plaintiff’s use thereof was in furtherance of his pursuit of that activity … . We thus conclude, as defendant contends, that plaintiff’s recreational use of defendant’s airport was a qualifying activity under the doctrine of primary assumption of the risk … . Primary assumption of the risk applies when a consenting participant in a qualified activity “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” …  . “[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … . The primary assumption of the risk doctrine also encompasses risks involving less than optimal conditions… . “It is not necessary to the application of assumption of [the] risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … .

Here, the undisputed facts establish that plaintiff, an experienced pilot, was well aware of the risk inherent in taking off from a soft, wet grass runway with the type of landing gear with which his aircraft was equipped. Plaintiff’s awareness of the risk was amply established by his admitted preflight concern about the condition of the grass runway, and by his personal inspection thereof generated in part by his encounter with wet and muddy conditions while towing his aircraft to the runway by motor vehicle. Bouck v Skaneateles Aerodrome, LLC, 2015 NY Slip Op 05300, 4th Dept 6-19-15

 

,

Failure to Strictly Comply With Notice Requirement in the Civil Service Law Rendered the Involuntary Leave Imposed Upon the Petitioner-Firefighter a Nullity—Petitioner Entitled to Back Pay for Leave Period—Petitioner Properly Deemed Unfit for Active Duty Due to His Inability to Manage Diabetic Symptoms

The Fourth Department determined a firefighter was properly deemed unfit for active duty as a firefighter because of his inability to manage diabetic symptoms. During the course of the decision, the Fourth Department held that the city’s failure to strictly comply with the notice requirements of the Civil Service Law rendered the involuntary leave imposed on petitioner a nullity (entitling him to back pay for the leave period):

We conclude that the procedural protections contained in Civil Service Law § 72 (1) apply to proceedings brought pursuant Civil Service Law § 72 (5) based on the language in subdivision (1) that the provisions of notice and hearing therein apply to employees “placed on leave of absence pursuant to this section” (emphasis added), “which includes Civil Service Law § 72 (5)” … . These procedures are necessary “to afford tenured civil servant employees . . . procedural protections prior to involuntary separation from service” … . “Because of the significant due process implications of the statute, strict compliance with its procedures is required” … . Here, it is undisputed that respondents did not strictly comply with the procedures pursuant to section 72 for placing petitioner on immediate involuntary leave inasmuch as it was not until April 2012 that petitioner was provided with “[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that [petitioner was] not fit to perform the duties of” his position (§ 72 [1]). Although the parties had engaged in negotiations during the period before respondents provided petitioner with written notice, respondents concede that at no time did petitioner waive his rights under section 72 … . Additionally, petitioner did not receive the final notice of determination within 75 days from the receipt of his request for review (see § 72 [1]). The absence of strict compliance with these procedural requirements renders petitioner’s alleged leave a nullity prior to September 30, 2013, when Linnertz issued his final determination after reviewing the Hearing Officer’s decision … , and petitioner is entitled to back pay and the restoration of benefits from August 26, 2011 until September 30, 2013. Matter of Williams v Troiano, 2015 NY Slip Op 05318, 4th Dept 6-19-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy