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Placing Defendant in the Back of a Patrol Car Did Not Constitute De Facto Arrest

In affirming the conviction, the Fourth Department noted that placing the defendant in the back seat of a patrol car did not, under the circumstances, amount to a de facto arrest. Rather “the temporary detention of defendant was proper as ‘part of a continuum of permissible police intrusions in response to escalating evidence of criminal activity’ ;”

We conclude that “the police action fell short of the level of intrusion upon defendant’s liberty and privacy that constitutes an arrest” … . Here, the brief investigative detention of defendant by the police was “justified by reasonable suspicion that a crime [had] been, [was] being or [was] about to be committed” …, i.e., “that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” … . Indeed, after the man with defendant displayed the contents of the duffel bag, the officer had reasonable suspicion that defendant and the other man had committed a crime. The established circumstances at that point were that the officer had received a report that suspicious individuals carrying bags had gone behind a residence in an area where burglaries targeting copper pipe had previously occurred; the officer observed two men matching the description coming down a driveway carrying bags; the two men admitted that they were walking around looking for copper plumbing; and the contents of the duffel bag revealed their actual possession of numerous copper pipes of various sizes with no indication of other scrap metals. Under these circumstances, we conclude that the temporary detention of defendant was proper as “part of a continuum of permissible police intrusions in response to escalating evidence of criminal activity” … . Here, “the police diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant” … , and “a less intrusive means of fulfilling the police investigation was not readily apparent” … . People v Howard, 2015 NY Slip Op 05350, 4th Dept 6-19-15

 

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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

 

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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

 

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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

 

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

 

Child’s Unemancipated Status Was Revived Entitling Father to Child Support

The Fourth Department determined the child’s moving in with father after becoming emancipated by leaving mother’s residence revived his unemancipated status, thereby entitling father to child support.  The child left mother to avoid her rules, including rules prohibiting the use of drugs. After living with friends for a while, the child sought treatment for drug addiction.  It was thereafter the child moved in with father:

“[T]he case law makes clear that a child’s unemancipated status may be revived provided there has been a sufficient change in circumstances to warrant the corresponding change in status” … . “Permitting reversion to unemancipated status is consistent with the statutory principle that parents are responsible for the support of their dependent children until the children attain the age of 21” … . Generally, a return to the parents’ custody and control has been deemed sufficient to revive a child’s unemancipated status … . Although most of the cases concerning a revival of a child’s unemancipated status involve a child’s return to the home that he or she abandoned versus the home of the noncustodial parent …, we conclude that the return to the noncustodial parent’s supervision and control does not preclude a revival of unemancipated status inasmuch as it has generally been held that “the move from one parent’s home to the other parent’s home does not constitute emancipation as th[e] child is neither self-supporting nor free from parental control” … . In this case, the child did not immediately move in with the father after flouting the mother’s rules … . Rather, he engaged in treatment for his addiction and then resumed living under the supervision and control of a parent while attending school. Baker v Baker, 2015 NY Slip Op 05045, 4th Dept 6-12-15

 

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The One-Year-and-Ninety-Day Time Limit for Bringing Suit Under the Public Authorities Law Is a Statute of Limitations, Not a Condition Precedent to Suit, and Is Therefore Subject to the Six-Month Extension for Recommencing a Suit Which Was Dismissed Without Prejudice Provided by CPLR 205(a)

The underlying medical malpractice action is against Erie County Medical Center Corporation, a public benefit corporation.  Pursuant to Public Authorities Law 3641, a notice of claim must be filed prior to the commencement of the lawsuit. Plaintiff had not filed a notice of claim. The action was dismissed without prejudice, subject to the terms of CPLR 205(a), which allows six months to recommence an action that has not been dismissed on the merits.  When the suit was recommenced, the defendant argued that the one-year-and-ninety-day time limit for bringing suit under the Public Authorities Law was not a statute of limitations subject to the CPLR 205(a) six-month extension, rather it was a condition precedent to suit and the (second) complaint must therefore be dismissed as untimely.  The Fourth Department determined the one-year-and-ninety-day time limit for suit under the Public Authorities Law was a statute of limitations, not a condition precedent, and the six-month extension provided by CPLR 205(a) applied:

It is well settled that CPLR 205 (a) does not apply when an act has to be performed within a statutory time requirement and is a condition precedent to suit (see Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 378-379…). We recognize, by way of example, that the one-year statutory period for commencement of suit against the Port Authority Trans-Hudson Corporation set forth in McKinney’s Unconsolidated Laws of NY § 7107 has been held to be a condition precedent to suit not entitled to the tolling benefit of CPLR 205 (a) (see Yonkers Contr. Co., 93 NY2d at 378-379). As emphasized by the Court of Appeals in Yonkers, “Unconsolidated Laws § 7107 unambiguously allows an action against the Port Authority only upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year’ ” (id., 93 NY2d at 379). Here, Public Authorities Law § 3641 (1) (c) contains no similar express conditional language.

We note that CPLR 205 (a) has been held to apply to proceedings commenced under General Municipal Law § 50-i …, the language of which is identical to that of Public Authorities Law § 3641 (1) (c) at issue herein. We thus conclude that the express language of section 3641 (1) (c) does not support defendant’s contention that the one-year and 90-day period is a condition precedent and not a statute of limitations … . Benedetti v Erie County Med. Ctr. Corp., 2015 NY Slip Op 04964, 4th Dept 6-12-15

 

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CPLR 214-c, Which Starts the Statute of Limitations Upon Discovery of the Injury, Applies Only to Toxic Torts—The Statute Does Not Apply to an Action Seeking Damages for the Allegedly Negligent Approval (by the Town) of a Defective Septic System

Plaintiffs sought replacement-cost damages for a defective septic system, alleging the town negligently approved the system prior to plaintiffs’ purchase of the property. Although the three-year statute of limitations for negligence had passed, the plaintiffs argued that CPLR 214-c applied. CPLR 214-c applies to latent defects and the statute starts running upon discovery of the injury.  The Fourth Department determined CPLR 214-c did not apply, noting that the Court of Appeals has held the statute applies only to injury from “toxic torts:”

CPLR 214-c (1) provides that “the three-year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” … .

Here, plaintiffs do not seek “damages for personal injury or injury to property” (CPLR 214-c [1]); rather, they seek to be compensated for the cost of replacing an allegedly defective septic system. Thus, section 214-c is inapplicable to this action … . Moreover, the Court of Appeals, in interpreting section 214-c, has made clear that it applies only to toxic torts …, and plaintiffs’ claims have nothing do to with toxic substances. Instead, plaintiffs merely allege that the septic system was defective and that defendants failed to identify the defects during their inspections. We thus conclude that the court properly determined that the causes of action against the moving defendants are time-barred. Clendenin v Town of Milo, 2015 NY Slip Op 04976, 4th Dept 6-12-15

 

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Court’s Equitable Power to Set Aside a Foreclosure Sale as “An Instrument of Injustice” Explained and Applied

The Fourth Department, over a dissent, exercised its equitable power to set aside a foreclosure sale which, it determined, had been made an “instrument of injustice.” The facts of the case, which include an extensive appellate history, defy adequate summarization here.  The court explained its equitable power to set aside the foreclosure sale:

It is well settled that, even after a judicial sale to a good faith purchaser, “[a] court may exercise its inherent equitable power over a sale made pursuant to its judgment or decree to ensure that it is not made the instrument of injustice . . . Although this power should be exercised sparingly and with great caution, a court of equity may set aside its own judicial sale upon grounds otherwise insufficient to confer an absolute legal right to a resale in order to relieve [a party] of oppressive or unfair conduct” … . Generally, such discretion, “which is separate and distinct from any statutory authority” …, is exercised where fraud, mistake, exploitive overreaching, misconduct, irregularity or collusion “casts suspicion on the fairness of the sale” … . It may also be exercised where “the price is so inadequate as to shock the court’s conscience” … or where the judicial sale has been “made the instrument of injustice” … .

While we agree with defendants that there has been no showing of fraud, mistake, exploitive overreaching, misconduct, irregularity or collusion, and the price is not so inadequate as to shock the conscience, we agree with plaintiff that, under the circumstances of this case, the judicial sale has been made the instrument of injustice. Altshuler Shaham Provident Funds, Ltd. v GML Tower LLC, 2015 NY Slip Op 04952, 4th Dept 6-12-15

 

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