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Allegations that Town Was Negligent in Maintaining a Sewer System Involve a Proprietary Function Subject to Ordinary Rules of Negligence

The Fourth Department determined plaintiff’s causes of  action against a town alleging negligent maintenance, as opposed to design, of a sewer system properly survived summary judgment.  Maintenance is a proprietary function of the town and is subject to ordinary negligence principles:

If the municipality acted in a proprietary role, i.e., “when its activities essentially substitute for or supplement traditionally private enterprises” …, ordinary rules of negligence apply. If, however, the municipality acted in a governmental capacity, i.e., “when its acts are undertaken for the protection and safety of the public pursuant to general police powers” (id. at 425 [internal quotation marks omitted]), the court must undertake a separate inquiry to determine whether the municipality owes a special duty to the injured party … . In the event that the plaintiff fails to prove such a duty, the municipality is insulated from liability. Even in the event that the plaintiff proves such a duty, however, the municipality will not be liable if it proves that the alleged negligent act or omission involved the exercise of discretionary authority … .

With respect to municipal sewer malfunctions, it is well settled that a municipality’s design of a sewer system constitutes a governmental function …, while a municipality’s “operation, maintenance and repair of th[at] sewer system is a proprietary function, and thus the Town’s liability in that respect is not contingent upon the existence of a special relationship”… . Gilberti v Town of Spafford, 2014 NY Slip Op 03382, 4th Dept 5-9-14

 

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City’s Annexation of Town Land Was in the Overall Public Interest

The Fourth Department determined the annexation of vacant town land by the city was demonstrated to be in the overall public interest, despite the loss of tax revenue to the town:

The municipality seeking an article 17 annexation has the burden of proving that the annexation is in the overall public interest” (…see General Municipal Law § 712…). “A reviewing court must weigh[ ] the benefit or detriment to the annexing municipality, the territory proposed to be annexed, and the remaining governmental unit from which the territory would be taken” … . “Benefit and detriment are customarily defined in terms of municipal services such as police and fire protection, health regulations, sewer and water service, public utilities and public education” … . “Another factor to consider is whether the municipality seeking the annexation and the territory proposed to be annexed have the requisite unity of purpose and facilities to constitute a community’ ” … .  Matter of City of Fulton v Town of Grandby, 2014 NY Slip Op 03371, 4th Dept 5-9-14

 

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Incorrect Information About Sentencing Provided to the Defendant by the Court and Counsel Warranted Vacating the Plea In the Absence of Preservation

The Fourth Department concluded that wrong information provided to the defendant about sentencing required vacation of the plea, in the absence of preservation by a motion to withdraw the plea.  The defendant was wrongly told by the court and counsel that his sentences on the instant offense and an unrelated offense would necessarily run consecutively. Because there was no way to expect defendant to know the information was incorrect, the error need not be preserved by a motion to withdraw the plea.  Because the plea was based upon complete confusion by all concerned, the plea was vacated:

We agree with defendant, however, that his plea should be vacated on the ground that it was not voluntarily, knowingly or intelligently entered based on the mistaken understanding of the legally required sentence shared by County Court and counsel. Although defendant failed to preserve his contention for our review …, we conclude that the narrow exception to the preservation requirement applies … . Here, it is clear from the face of the record that the prosecutor incorrectly stated that the sentence on the instant conviction must run consecutively to the sentence imposed on an unrelated conviction, when in fact that was not the case because the instant offense occurred prior to the unrelated conviction (see generally Penal Law § 70.25). It is equally clear that this error was not corrected by defense counsel or the trial court. Thus, preservation was not required “[i]nasmuch as defendant—due to the inaccurate advice of his counsel and the trial court—did not know during the plea . . . proceedings” that consecutive sentences were not required by law … . ” [D]efendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge’ ” … . Even assuming, arguendo, that the narrow exception to the preservation requirement is inapplicable, we would nevertheless exercise our power to address defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).

On the merits, we conclude that defendant’s plea should be vacated because “[i]t is impossible to have confidence, on a record like this, that defendant had a clear understanding of what he was doing when he entered his plea,” based on the prosecutor’s erroneous statement that [*2]consecutive sentences were required and the failure of the court or defense counsel to correct that error. We “cannot countenance a conviction that seems to be based on complete confusion by all concerned” … . People v Brooks, 2015 NY Slip Op 03969, 4th Dept 5-8-15

 

Violation of an Industrial Code Provision Does Not Conclusively Establish Negligence in a Labor Law 241 (6) Action

The Fourth Department noted that the fact that an Industrial Code provision was violated does not establish negligence sufficient to support partial summary judgment: “Despite our conclusion that defendants violated 12 NYCRR 23-9.5 (c), we reject plaintiff’s contention that he is entitled to partial summary judgment on the issue of defendants’ liability with respect to the Labor Law § 241 (6) claim. A violation of an Industrial Code provision ‘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’…”.   Whether there was a violation of 12 NYCRR 23-9.5 (c) turned on whether plaintiff was a member of an “excavation crew.” If he was not, then his proximity to the equipment which injured him violated the provision. If he was a member of an “excavation crew,” the provision was not violated.  The majority determined plaintiff was not a member of a “crew” because he was the only person there.  The two dissenting judges disagreed and argued plaintiff was a member of an “excavation crew” within the meaning of the provision. Vanderwall v 1255 Portland Ave. LLC, 2015 NY Slip Op 03959, 4th Dept 5-8-15

 

23-Week-old Child Who Was Born Alive and Lived for 2 1/2 Hours After Removal from Life-Support Was a “Person” Within the Meaning of the Manslaughter Statute

The Fourth Department determined the 23-week-old child delivered by cesarean section was a “person” within the meaning of the manslaughter statute.  The child’s mother was severely injured in a head-on collision with defendant’s vehicle and the child was delivered to save the mother’s life. The child was taken off life-support because of the high risk of cognitive and neurological deficits and died 21/2 hours later. The court, in essence, determined the child was a “person” because she was born alive.

The Penal Law provides that a defendant “is guilty of manslaughter in the second degree when . . . [he or she] recklessly causes the death of another person” (§ 125.15 [1]). Furthermore, ” [p]erson,’ when referring to the victim of a homicide, means a human being who has been born and is alive” (§ 125.05 [1]), and the Penal Law defines homicide as “conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks” (§ 125.00).

Defendant first contends that the evidence is not legally sufficient because, pursuant to the above statutory scheme, a child who is less than 24 weeks of gestational age is not a person. That contention is without merit. Penal Law § 125.00 uses the disjunctive “or” in defining who may be the victim of a homicide, and it is a well-settled rule of statutory interpretation that “[u]se of the conjunction or’ in a statute usually indicates that the language is to be construed in an alternative sense”… . Therefore, a victim who is born alive may be a person for the purposes of a homicide pursuant to section 125.00, regardless of whether he or she is less than 24 weeks of gestational age. People v Hardy, 2015 NY Slip Op 03961, 4th Dept 5-8-15

 

Question of Fact Whether It Was Foreseeable Children Would “Ride” an Unsecured Gate Resulting in Injury

The Fourth Department determined there was a question of fact whether it was foreseeable that children would swing on an unsecured gate to a cemetery (open to the public). The seven-year-old plaintiff was injured while “riding the gate.” Although there is nothing inherently dangerous about an unsecured gate, knowledge that children played in the cemetery raised a question of fact whether injury to a child was foreseeable:

“It is beyond dispute that landowners . . . have a duty to maintain their properties in [a] reasonably safe condition” … . “Consistent with that duty, the degree of care to be exercised must take into account the known propensity’ of children to roam and climb and play’ ” … . Indeed, “New York State courts have recognized the special propensities of children and the prevailing social policy of protecting them from harm’ . . . and have not deprived them of a right to compensation for injuries caused by the negligence of third parties . . . solely on account of their misuse of an instrument found on the defendant’s premises” … . “What accidents are reasonably foreseeable, and what preventive measures should reasonably be taken, are ordinarily questions of fact” … .

* * * “[A]t least once it is known that children commonly play around . . . an artificial structure [such as the gate], their well-known propensities . . . to climb about and play’ . . . create a duty of care on the part of a landowner to prevent foreseeable risks of harm that might arise out of those activities” … .

Given that, “as a matter of law, [ riding’ a gate] is not such an extraordinary’ form of play as to break the causal connection between the dangerous condition . . . and plaintiff’s injuries,” we conclude that there is a triable issue of fact whether “[i]t was a natural and foreseeable consequence of defendant’s failure to effectively secure the [gate] against access that young children would play [on it],” thereby resulting in injury … . Charles v Village of Mohawk, 2015 NY Slip Op 03975, 4th Dept 5-8-15

 

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Re: False Arrest and False Imprisonment—Allegations Sufficient to Survive Motion to Dismiss for Failure to State a Cause Action

The Fourth Department determined plaintiff’s causes of action for false arrest and false imprisonment properly survived a motion to dismiss for failure to state a cause of action: “

Although liability for false arrest and false imprisonment generally will not be imposed where a civilian complainant merely furnishes information to law enforcement authorities rather than taking ” an active role in the [arrest] of the plaintiff, such as giving advice and encouragement or importuning the authorities to act’ . . . with the intent that [the] plaintiff be confined” …, we conclude that the complaint and plaintiff’s submissions in opposition to defendant’s motion here sufficiently allege that defendant’s employees made false statements to investigators with the intent of having plaintiff be arrested and confined … . Harrison v Samaritan Med. Ctr., 2015 NY Slip Op 03971, 4th Dept 5-8-15

 

1/2 to 3/4 Inch Defect in Sidewalk Not Trivial As a Matter of Law

In denying defendant’s motion for summary judgment on the ground that the 1/2 to 3/4 defect in the sidewalk (which extended across two adjoining slabs) where plaintiff tripped and fell was trivial, the Fourth Department explained the relevant criteria: “[W]hether a dangerous or defective exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” … . “[T]here is no minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” … . Although “in some instances . . . the trivial nature of the defect may loom larger than another element[,] . . . [a] mechanistic disposition of a case based exclusively on the dimension of the [pavement] defect” is inappropriate … . Thus, a determination whether a particular defect is actionable requires examination of “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . Greco v City of Buffalo, 2015 NY Slip Op 03966, 4th Dept 5-8-15

 

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Attorney-in-Fact Used His Power to Create a Gift (by Deed) to Himself and/or Third Parties—Deed Declared Null and Void

The Fourth Department determined the deed purporting to transfer a life estate to the attorney-in-fact was null and void. Essentially, the attorney-in-fact used his power to make a gift to himself and/or third parties, which created an unrebutted presumption of impropriety:

It is well settled that “[a] power of attorney . . . is clearly given with the intent that the attorney-in-fact will utilize that power for the benefit of the principal” … . “The relationship of an attorney-in-fact to his principal is that of agent and principal . . . and, thus, the attorney-in-fact must act in the utmost good faith and undivided loyalty toward the principal, and must act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing’ . . . Consistent with this duty, an agent may not make a gift to himself or a third party of the money or property which is the subject of the agency relationship” … . “In the event such a gift is made, there is created a presumption of impropriety [that can] be rebutted [only] with a clear showing that the principal intended to make the gift” …, or that the gift was in the principal’s best interest … . Borders v Borders, 2015 NY Slip Op 04022, 4th Dept 5-8-15

 

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Injury While Trying to Pick Up a Fallen 3000 Pound Roll of Paper Was a Foreseeable Consequence of an Alleged Equipment Defect Which Caused the Roll to Fall

The Fourth Department determined the summary judgment motion of the defendants—manufacturers and modifiers of a pallet truck—was properly denied.  The complaint alleged the pallet truck and the roll cradle with which the pallet truck was modified were defective, causing a 3000 pound roll of paper to fall off the truck.  Plaintiff was severely injured while trying to lift the fallen roll.  The defendants’ arguments that any defects in the pallet truck and roll cradle were not the proximate cause of the injury, and the attempt to pick up the fallen roll was the superseding cause of the injuries, were rejected. The court determined the cause of the injury was within the class of foreseeable hazards associated with a fallen roll and the risk of the intervening act (lifting the fallen roll) was the same risk that renders the actor negligent:

“As a general rule, the question of proximate cause is to be decided by the finder of fact, aided by appropriate instructions” … . Where the cause of an accident is “within the class of foreseeable hazards that [a] duty exists to prevent, the [defendant] may be held liable, even though the harm may have been brought about in an unexpected way” … . We conclude that the hazard that caused plaintiff’s injury, i.e., the movement of the roll while it was being placed back in an upright position, was “within the class of foreseeable hazards” associated with a roll falling off the allegedly defective pallet truck …, and thus a jury “could rationally [find] that . . . there was a causal connection between [defendants’ alleged] negligence and plaintiff’s injuries” … . We thus reject the contention of defendants that the falling roll merely “furnished the occasion” for plaintiff’s accident.

We also reject the contention of defendants that the actions of plaintiff and his coworkers in attempting to upright the roll were a superseding cause of plaintiff’s injuries. “An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act is the very same risk which renders the actor negligent” … . As noted above, the risk of the roll falling while being uprighted is the same risk underlying plaintiffs’ allegations of negligence, and we conclude that the actions of plaintiff and his coworkers were not “of such an extraordinary nature” as to relieve defendants of liability … . Ard v Thompson & Johnson Equip. Co., Inc., 2015 NY Slip Op 03985, 4th Dept 5-8-15

 

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