You are here: / Fourth Department

Tag Archive for: Fourth Department

Fall from Flatbed Truck Was Covered by Labor Law 240 (1)—Fall Caused by Gravity Acting On Plywood Being Hoisted from the Truck

The Fourth Department determined plaintiff was entitled to partial summary judgment on his Labor Law 240 (1) claim.  Plaintiff fell from a flatbed truck while trying to steady plywood which became unsteady while being hoisted:

Although flatbed trucks “d[o] not present the kind of elevation-related risk that the statute contemplates” (Toefer v Long Is. R.R., 4 NY3d 399, 408), the accident in this case was caused by a falling object, which distinguishes this case from Toefer … . The accident that caused plaintiff’s injuries “flow[ed] directly from the application of the force of gravity to the object” … . In other words, the injuries were the result of “the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential” … . Inasmuch as plaintiff established that the plywood fell while being hoisted because of the absence or inadequacy of a safety device of the kind enumerated in the statute, we conclude that he is entitled to summary judgment on the section 240 (1) claim … . Hyatt v Young, 2014 NY Slip Op 03056, 4th Dept 5-2-14

 

Superior Court Information Jurisdictionally Defective—It Did Not Include Any Offense Which Was In the Indictment, or Any Lesser Included Offense

The Fourth Department determined the failure of the superior court information (SCI) to include the offenses in the indictment, or any lesser included offenses, required reversal of the defendant’s conviction:

The two counts charged in the SCI were not offenses for which defendant was held for action of a grand jury (see CPL 195.20), i.e., those two counts were not included in the felony complaint, and they were not lesser included offenses of an offense charged in the felony complaint … . “[T]he primary purpose of the proceedings upon such felony complaint is to determine whether the defendant is to be held for the action of a grand jury with respect to the charges contained therein” (CPL 180.10 [1]). Thus, ” the waiver procedure is triggered by the defendant being held for [g]rand [j]ury action on charges contained in a felony complaint . . . and it is in reference to those charges that its availability must be measured’ ” … . Inasmuch as the SCI to which defendant pleaded guilty did not “include at least one offense that was contained in the felony complaint,” it was jurisdictionally defective … . That defect does not require preservation, and it survives defendant’s waiver of the right to appeal and his guilty plea … . People v Tun Aung, 2014 NY Slip Op 03135, 4th Dept 5-2-14

 

,

Competency of Evidence Before Grand Jury Not Reviewable On Appeal Where Defendant Convicted Upon Legally Sufficient Trial Evidence

In response the defendant’s claim that a child witness was allowed to testify before the grand jury without determining her testimonial capacity, the Fourth Department noted that the competency of evidence before the grand jury is not reviewable on appeal where defendant was convicted upon legally sufficient trial evidence. People v Riley, 2014 NY Slip Op 03140, 4th Dept 5-2-14

 

,

Professional Reliability Exception to the Hearsay Rule (Re: Experts) Explained/Appropriate Date to Commence Prejudgment Interest in Breach of Contract Action Explained

The Fourth Department explained when an expert can rely on hearsay and when prejudgment interest should commence in a breach of contract action:

We reject defendant’s further contention that there was no evidentiary foundation for the testimony of plaintiffs’ damages expert, a construction cost estimator. It is well settled that” [o]pinion evidence must be based on facts in the record or personally known to the witness’ ” … . It is also well settled, however, that an expert is permitted to offer opinion testimony based on facts not in evidence where the material is ” of a kind accepted in the profession as reliable in forming a professional opinion’ ” … . “The professional reliability exception to the hearsay rule enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession’ ” … . Here, the expert’s damages testimony was based, in part, on measurements contained in a report that was not admitted in evidence, but those measurements were not otherwise disputed or challenged by defendant. Moreover, the expert testified that the information on which he relied was of the type relied on in his profession.

We agree with defendant, however, that the court erred in awarding prejudgment interest from April 18, 1990. The jury did not specify a date on which plaintiffs’ cause of action for breach of contract accrued and where, as here, “the precise date from which to fix interest is ambiguous, the date of commencement of the . . . action’ is an appropriate date to choose” … . We therefore modify the judgment by vacating the amount of prejudgment interest awarded from April 18, 1990 and providing that prejudgment interest is to commence from April 18, 1996, the date on which the action was commenced, to May 2, 2012, the date of the judgment. Caleb v Stevenson Envtl Servs Inc, 2014 NY Slip Op 03057, 4th Dept 5-2-14

 

,

Double Jeopardy Does Not Bar Prosecution of a Lesser Included Offense Never Considered by the Trier of Fact in the First Trial

The Fourth Department noted that an Article 78/prohibition action is a proper vehicle for raising double jeopardy as a bar to a prosecution. Defendant was charged with two counts of Driving While Intoxicated (DWI) and one count of Driving While Ability Impaired (DWAI).  In a bench trial, defendant was acquitted of one count of DWI and the second count of DWI, of which defendant was initially convicted, was subsequently dismissed pursuant to a post-trial motion because of the legal insufficiency of the evidence.  Under these circumstances, because the DWAI count was never considered in the bench trial, a second trial on that charge alone does not violate the double jeopardy prohibition:

“[I]n a bench trial, it is presumed that the Judge sitting as the trier of fact made his [or her] decision based upon appropriate legal criteria” … . Here, the court, upon acquitting defendant of common-law DWI, would have applied the “acquit-first” rule …, and next considered DWI, per se, before reaching DWAI as a lesser included offense under either count of DWI … . Inasmuch as the court convicted defendant of the count charging DWI, per se, it could not have reached the lesser included offense of DWAI. Consequently, we conclude that “double jeopardy concerns . . . are not present in the case at hand . . . [because] the People here d[o] not seek to retry defendant on the count[, i.e., DWI, per se, or common-law DWI] of which he was acquitted at the first trial. Rather, the only count at issue in the retrial [will be] the lesser [DWAI] charge for which the [court did not] reach a verdict. At no point during the retrial [will] defendant [be] in jeopardy of conviction of the greater offense. Thus, there [i]s no constitutional double jeopardy bar to [a] second trial” on the lesser included offense of DWAI … . Matter of Case v Sedita, 2015 NY Slip Op 03630, 4th Dept 5-1-15

 

, ,

Manufacturers Responsible for Packaging a Product Owed a Duty to Plaintiff Injured When the Packaging Failed Under Negligence, Strict Products Liability and Contractual Theories

Plaintiff was injured when the packaging of a product failed. The product was manufactured pursuant to a contract between plaintiff’s employer and one manufacturer, ABS. ABS contracted with a second manufacturer, Keystone, to nickel-plate the product.  Both manufacturers were responsible for aspects of the product’s packaging.  The Fourth Department determined that the manufacturers’ motions for summary judgment were properly denied. Both owed a duty to plaintiff under negligence and strict products liability theories. In addition, ABS owed a duty to the plaintiff as a third-party beneficiary of the contract with plaintiff’s employer. And Keystone owed a contractual duty to the plaintiff as well because, although there was no third-party beneficiary relationship, Keystone had launched an instrument of harm.  Filer v Keystone Corp., 2015 NY Slip Op 03628, 4th Dept 5-1-15

 

,

Defendant’s Indelible Right to Counsel Did Not Attach When the Attorney for Defendant’s Husband’s Estate Communicated with the Police—The Attorney Was Unaware that Defendant Was a Suspect In Her Husband’s Death at the Time of the Communication

The Fourth Department determined a communication with the police by the attorney who represented the estate of defendant’s husband did not trigger the attachment of her indelible right to counsel (rendering a subsequent statement inadmissible).  The defendant was convicted of murdering her husband.  At the time the probate attorney communicated with the police, he identified himself as the estate’s attorney and was not aware defendant was a suspect in her husband’s death:

The evidence established that defendant was the personal representative of the estate …, and that the attorney’s representation of her was only with respect to her role as personal representative of the estate. The attorney testified that at no time did he know that defendant was a suspect in decedent’s death, which he believed to have been a suicide; that he identified himself as the attorney for decedent’s estate in his communications with the police; and that he would not have given defendant advice related to a criminal investigation because to do so would be a conflict of interest with his role as the attorney for the estate. It is well established that, although “an attorney-client relationship formed in one criminal matter may sometimes bar questioning in another matter in the absence of counsel . . . , a relationship formed in a civil matter is not entitled to the same deference” … . People v Castor, 2015 NY Slip Op 03648, 4th Dept 5-1-15

 

, ,

Attorney’s Charging Lien Based Upon a Judgment for Child Support Arrears Was Proper—Relevant Law Explained

The Fourth Department, in the context of plaintiff’s attempt to collect a judgment reflecting child support arrears, determined an attorney’s charging lien was appropriately attached to the proceeds of the sale of defendant’s property.  The court rejected the argument that child support payments are exempt from an attorney’s charging lien, at least under the facts of this case.  Here the children were already emancipated and the nonpayment was not enforced for 16 years.  The Fourth Department explained the law surrounding attorney’s charging liens, and noted the exemptions for proceedings before “a department of labor” and an award of alimony or maintenance:

Under the common law, “the attorney’s lien was a device invented by the courts for the protection of attorneys against the knavery of their clients, by disabling clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained’ “… . Judiciary Law § 475 “codifies and extends the common-law charging lien” …, by providing an attorney with “a lien upon his or her client’s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds thereof in whatever hands they may come” (§ 475 …). The statute is remedial in nature and therefore must “be construed liberally in aid of the object sought by the [L]egislature, which was to furnish security to attorneys by giving them a lien upon the subject of the action” … . “The lien comes into existence, without notice or filing, upon commencement of the action or proceeding,” and “gives the attorney an equitable ownership interest in the client’s cause of action” … .

The only exception contained in the statute is for proceedings before “a department of labor” (Judiciary Law § 475). In addition to that statutory exception, the Court of Appeals has held that, as a matter of public policy, a charging lien may not attach to an award of alimony or maintenance … . Mura v Mura, 2015 NY Slip Op 03639, 4th Dept 5-1-15

 

Spectator Watching People Sledding Assumed the Risk of Being Struck

The Fourth Department determined plaintiff assumed the risk of injury when she stood at the bottom of a hill to watch people sledding down the hill.  The court noted that in a suit against participants in a sport, a spectator is held to have assumed the risks inherent in the activity, including the risk of being struck:

To establish the defense, “a defendant must show that [the] plaintiff was aware of the defective or dangerous condition and the resultant risk, although it is not necessary to demonstrate that [the] plaintiff foresaw the exact manner in which his [or her] injury occurred” … . … [I]n a suit against participants in [an applicable activity], a spectator generally will be held to have assumed the risks inherent in the [activity], including the specific risk of being struck’ ” … . For instance, it has been held that a spectator at a baseball game assumes the risk of being struck by a foul ball … .

Here, we similarly conclude that, by standing on the side of the hill while watching other people sledding, plaintiff assumed the risk of being struck by a sled. Savage v Brown, 2015 NY Slip Op 03638, 4th Dept, 5-1-15

 

,

Defendant Should Have Been Allowed to Present Expert Opinion-Evidence About the Reliability of Eyewitness Identification

The Fourth Department, over a two-justice dissent, determined defendant should have been allowed to present expert evidence about the reliability of eyewitness identifications.  The court explained the analytical criteria:

“Because mistaken eyewitness identifications play a significant role in many wrongful convictions, and expert testimony on the subject of eyewitness recognition memory can educate a jury concerning the circumstances in which an eyewitness is more likely to make such mistakes, courts are encouraged . . . in appropriate cases’ to grant defendants’ motions to admit expert testimony on this subject” … , the Court of Appeals established a two-stage inquiry for considering a motion to admit expert testimony on eyewitness identification … . “The first stage is deciding whether the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime’ … . If the trial court finds itself with such a case, then it must proceed to the second stage, which involves the application of four factors. The court must decide whether the proposed testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror’ … . If, on the other hand, sufficient evidence corroborates an eyewitness’s identification of the defendant, then there is no obligation on the part of the trial court to proceed to the second stage of analysis, because testimony concerning eyewitness identifications is unnecessary” … .

Here, the People concede that this case hinges upon the accuracy of the eyewitness’s identification of defendant, and we agree with defendant that there was little or no corroborating evidence connecting him to the crime … . People v McCullough, 2015 NY Slip Op 02589, 4th Dept 3-27-15

 

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