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Release Which Specifically Refers to a Particular Incident Relates Solely to that Incident—Where Terms of the Release Are Unambiguous, Extrinsic Evidence Will Not Be Considered

The Fourth Department determined that a release unambiguously related solely to a particular slip and fall on a particular day and did not bar an action based upon a subsequent slip and fall:

…[T]he release stated that defendant, in exchange for providing plaintiff with the agreed-upon settlement amount, was “released and forever discharged . . . from all manner of actions, causes of action, suits, . . . claims and demands whatsoever” that plaintiff “ever had, now has or which [her] successors and assigns, heirs, executors or administrators, hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of those present . . . More specifically, for injuries sustained in a slip and fall incident which occurred on June 3, 2009, in the City of Lackawanna, County of Erie and State of New York.” Defendant made payment on the settlement and filed a copy of the stipulation of discontinuance in November 2012.

“It is well settled that a general release is governed by principles of contract law’ … and that, where a release is unambiguous, the intent of the parties must be ascertained from the plain language of the agreement’ … . Moreover, “[i]t has long been the law that where a release contains a recital of a particular claim, obligation or controversy and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby’ … . Thus, “[w]here, as here, [a] release . . . contain[s] specific recitals as to the claims being released, and yet [contains] . . . an omnibus clause to the effect that the releasor releases and discharges all claims and demands whatsoever which he [or she] . . . may have against the releasee . . . , the courts have often applied the rule of ejusdem generis[, i.e., “of the same kind or class” (Black’s Law Dictionary 594 [9th ed 2009])], and held that the general words of a release are limited by the recital of a particular claim” … .

Here, we conclude that the language of the release is unambiguous in specifying that the only claims discharged thereby are those arising from the injuries plaintiff allegedly sustained in the first slip and fall accident … . Contrary to defendant’s further contention that we should consider extrinsic evidence purportedly demonstrating that the parties intended the settlement to cover both matters, “[i]t is well settled that, where the language of a release is clear and unambiguous, effect will be given to the intention of the parties as indicated by the language employed and the fact that one of the parties may have intended something else is irrelevant” … . Abdulla v Gross, 2015 NY Slip Op 00036, 4th Dept 1-2-15

 

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Tenant In “Adjacent Property” May Be Responsible for Maintenance of a Sidewalk Where the Sidewalk is Subject to Special Use by the Tenant as Part of a Driveway

In perhaps the most thorough treatment of the theories of liability for a dangerous condition on a city sidewalk ever written, the Fourth Department explained the potential liability of the various abutting and “adjacent” property owners/tenants of the area where plaintiff slipped and fell.  Only the discussion of the “special use” by tenants (Bison) of “adjacent property” is excerpted here:

“Where a sidewalk is adjacent to but not part of the area used as a driveway, the plaintiff bears the burden of proof on a motion for summary judgment of showing that the special use of the sidewalk contributed to the defect . . . However, if the defect is in the portion of the sidewalk used as a driveway, the abutting landowner, on a motion for summary judgment, bears the burden of establishing that he or she did nothing to either create the defective condition or cause the condition through the special use of the property as a driveway” … . The same principle applies to a commercial tenant of property where the driveway constitutes a special use by the tenant … .

While the area of the dangerous condition is in a City right-of-way that falls within the extended lot line boundaries of the property owned by Seneca One, we conclude that the Bison defendants, as lessors of the “adjacent property,” may nevertheless still be liable if there is evidence that they had “access to and ability to exercise control over the special use [driveway]” … . We conclude that the Bison defendants failed to establish as a matter of law that they lacked access to and the ability to control that special use driveway … and, further, failed to establish as a matter of law “that they did not affirmatively create the defect by any alleged special use of the sidewalk as a driveway” … . Indeed, based on the evidence submitted by the Bison defendants in support of their motion, it is reasonable to conclude that the “driveway apron was constructed and exclusively used for the benefit of [the Bison defendants’ leased] property” … . The only places that could be accessed by the driveway were the stadium and the surface parking lot, both of which were located on the property leased by Bison Baseball. We thus conclude that the court properly denied their motion seeking to dismiss the negligence claims asserted against the Bison defendants insofar as those claims were based on their special use of the driveway … . Capretto v City of Buffalo, 2015 NY Slip Op 00055, 4th Dept 1-2-15

 

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Seizure of Claimant’s Computers Pursuant to a Warrant Did Not Give Rise to Conversion, Negligent Misrepresentation and Constitutional Tort Causes of Action—Elements of Those Causes of Action Explained

The Fourth Department reversed the Court of Claims and dismissed causes of action for conversion and negligent misrepresentation stemming from the seizure of claimant’s computers pursuant to a judicial warrant.  The court noted that the seizure pursuant to the authority of the warrant precluded the conversion cause of action and the absence of privity between the claimant and the investigators who said the computers would be promptly returned precluded the negligent representation cause of action. Alternate ways to seek return of the computers (an application to County Court and an Article 78 proceeding if the application were denied) precluded the constitutional tort cause of action:

An actionable “conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession” … . Here, a search warrant specifically authorized law enforcement to “search for and seize” six categories of items, including “[a]ll computers and computer storage media and related peripherals, electronic or computer data.” Claimants have never challenged the validity of the search warrant. Moreover, the unchallenged warrant placed no time limit on the retention of the items seized, and the authorization to “seize” the computers was not terminated until County Court ordered the property returned following Boerman’s guilty plea. We therefore conclude that defendant’s exercise of control over the computers did not constitute conversion inasmuch as it had the proper authority to exercise such control … .

The tort of “negligent misrepresentation requires [a claimant] to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information’ ” … . We agree with defendant that, as a matter of law, there can be no “privity-like relationship” between an investigator and the target of his or her investigation … . Indeed, the relationship between investigator and target is the opposite of a “special position of confidence and trust” in which one party might justifiably rely upon the ” unique or specialized expertise’ ” of the other party … . Thus, as defendant correctly contends, the negligent misrepresentation claim fails as a matter of law … .

Even assuming, arguendo, that the initial seizure or continued detention of claimants’ computers violated the Search and Seizure Clause of the State Constitution (art I, § 12), we conclude that “no . . . claim [for constitutional tort] will lie where the claimant has an adequate remedy in an alternate forum” … . Here, claimants could have raised their constitutional arguments in an application to County Court seeking the return of their computers … or, if such motion were denied, in a CPLR article 78 proceeding seeking relief in the nature of mandamus or prohibition … . LM Bis Assoc Inc v State of New York, 2015 NY Slip Op 00007, 4th Dept 1-2-15

 

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Jury Verdict Finding Defendant’s Negligence Was Not the Proximate Cause of the Accident Should Not Have Been Set Aside—Criteria for Setting Aside a Verdict As Against the Weight of the Evidence Explained

The Fourth Department determined the trial court should not have set aside a verdict on the ground that it was against the weight of the evidence.  Plaintiff, a pedestrian, had been struck by a car driven by defendant.  The jury concluded the driver was negligent but the driver’s negligence was not the proximate cause of the accident:

“A verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence” … . “A jury finding that a party was negligent but that such negligence was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause’ ” … . Where, however, “a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … .

Here, the jury could have reasonably found from the evidence that plaintiff was not crossing the street in the crosswalk; that it was a dark, rainy evening; and that plaintiff emerged in defendant’s lane of travel from between stopped vehicles. The jury could also reasonably have found that, although defendant was negligent in, for example, the manner in which she approached the intersection before turning left, such negligence was not a proximate cause of the collision with plaintiff after she made the turn. Thus, “the finding of proximate cause did not inevitably flow from the finding of culpable conduct,” and the verdict therefore is not against the weight of the evidence … . Amorosi v Hubbard, 2015 NY Slip Op 00110, 4th Dept 1-2-15

 

Supreme Court Should Have Considered the Alleged Incapacitated Person’s (AIP’s) Available Resources Before Finding the AIP Incapacitated and In Need of a Guardian

The Fourth Department reversed Supreme Court’s determination the alleged incapacitated person (AIP) was incapacitated and needed a guardian.  Supreme Court did not consider the sufficiency of the AIP’s available resources:

We agree with the AIP that Supreme Court erred in making that determination without considering “the sufficiency and reliability of available resources’ (Mental Hygiene Law § 81.02 [a] [2]) to satisfy the AIP’s personal needs and property management without the need for a guardian” … . It is undisputed that the AIP had “available resources,” i.e., a power of attorney and healthcare proxy (see Mental Hygiene Law § 81.03 [e]), and the court should therefore have inquired whether those advance directives were adequate to protect the AIP’s personal and property interests before determining that she is incapacitated and in need of a guardian … . Matter of Mitchell, 2015 NY Slip Op 00165, 4th Dept 1-2-15

 

Collapse of Makeshift Scaffold Entitled Plaintiff to Summary Judgment in Labor Law 240(1) Action—Plaintiff’s Comparative Negligence Is Not a Defense

The Fourth Department determined summary judgment should have been granted to the plaintiff in the Labor Law 240 (1) action. Plaintiff was not provided with a scaffold or safety equipment.  Plaintiff fashioned a makeshift scaffold which collapsed.  The court noted plaintiff’s comparative negligence (in the construction of the scaffold) is not a defense under Labor Law 240 (1):

We conclude that “[t]he fact that the scaffold collapsed is sufficient to establish as a matter of law that the [scaffold] was not so placed . . . as to give proper protection to plaintiff pursuant to the statute” … . Contrary to defendant’s contention, there is no issue of fact whether the safety equipment provided to plaintiff was sufficient to afford him proper protection under Labor Law § 240 (1). The only safety device provided to plaintiff at the work site was a 14-foot-long pick [an aluminum plank]. “There were no harnesses, lanyards, safety lines, or similar safety devices available for use to prevent [plaintiff’s] fall” … . To perform the work of installing siding on the building, plaintiff therefore had to create what the court accurately referred to as a “makeshift” scaffold by placing one end of the pick in the shovel of a backhoe and the other end between two pieces of wood he or a coworker nailed into the side of the building. “[T]he onus [was not] on plaintiff to construct an adequate safety device, using assorted materials on site [that were] not themselves adequate safety devices but which may [have been] used to construct a safety device” … . Bernard v Town of Lysander, 2015 NY Slip Op 00050, 4th Dept 1-2-15

 

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Defendant’s Motion to Vacate a Default Judgment of Divorce Should Have Been Granted Even Though Defendant First Appeared and Then Withdrew

The Fourth Department defendant’s motion to vacate a default judgment of divorce should have been granted, even though the defendant had appeared in the action and then withdrew.  The court noted that a default judgment cannot be appealed and the only remedy is therefore a motion to vacate:

We reject plaintiff’s contention that defendant could not move to vacate the judgment based on excusable default pursuant to CPLR 5015 (a) (1) because he appeared and then withdrew his appearance on the record. Regardless of the fact that defendant appeared initially, the judgment was entered upon defendant’s default. Defendant therefore could not appeal from the judgment of divorce (see CPLR 5511) and, indeed, his only remedy was to move to vacate the judgment of divorce pursuant to CPLR 5015 (a) (1) … .

We conclude that defendant demonstrated both a reasonable excuse for the default and a meritorious defense …, and that he is entitled to vacatur of those parts of the judgment of divorce distributing the parties’ assets …, the only parts of the judgment challenged by defendant on appeal … . Defendant averred that he informed his attorney that he disagreed with the proposed resolution of the parties’ retirement accounts and did not want to finalize the judgment on those terms, but that he was subsequently unable to contact his attorney, and a default judgment of divorce was entered without his knowledge. Furthermore, the judgment of divorce failed to resolve the outstanding issues regarding distribution of the retirement accounts, the home equity loan, and defendant’s enhanced earning capacity, which issues the parties expressly acknowledged remained to be resolved and were dependent upon, at least in part, the forthcoming report. Marshall v Marshall, 2015 NY Slip Op 00059, 4th Dept 1-2-15

 

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(Harmless) Error to Admit Voice Identification Testimony—The People Did Not Provide Notice of the Testimony and the Identification Was Not Merely Confirmatory

The Fourth Department noted that voice identification testimony should not have been allowed because the people did not provide notice of it and it was not merely confirmatory.  The error was deemed harmless however:

We agree with defendant that the court erred in allowing one of the victims to offer voice identification testimony at trial. Prior to trial, the prosecutor had the victim listen to recordings of telephone calls allegedly made by defendant from jail, and the victim identified the voice of the person making the calls as belonging to defendant. The victim offered similar testimony at trial over defendant’s objection. Because the People failed to provide defendant with notice of the pretrial voice identification procedure as required by CPL 710.30 (1) …, the voice identification testimony was admissible at trial only if the identification was merely confirmatory as a matter of law … . Contrary to the People’s contention, the victim’s identification of defendant’s voice was not merely confirmatory inasmuch as the victim acknowledged that, although he had heard defendant speak a number of times in the neighborhood, he and defendant had never actually spoken to each other. We thus conclude that the People did not establish as a matter of law that the victim was so familiar with defendant’s voice that “the identification at issue could not be the product of undue suggestiveness” … . People v Ramos, 2015 NY Slip OOp 00049, 4th Dept 1-2-15

 

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Larceny Jury Instruction Shifted Burden of Proof to Defendant—Reversal Required In Absence of Preservation of the Error

The Fourth Department reversed defendant’s conviction because the jury instruction shifted the burden of proof to the defendant:

Penal Law § 155.15 (1) provides that, “[i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith.” …[H]owever, the Court of Appeals in People v Chesler (50 NY2d 203, 209-210) “held that section 155.15 was unconstitutional insofar as it made a good-faith claim of right an affirmative defense because to do so impermissibly shifted the burden onto the defendant to disprove the element of intent.” Rather, “a good faith claim of right is properly a defense–—not an affirmative defense—–and thus, the [P]eople have the burden of disproving such defense beyond a reasonable doubt’ ” … . Here, however, the court instructed the jury that “defendant has the burden of proving that she took, withheld or obtained the property under a claim of right made in good faith by a preponderance of the evidence.” We conclude that the court committed a mode of proceedings error when it shifted the burden onto defendant to disprove the element of intent …, thereby requiring reversal of the judgment and a new trial even in the absence of preservation … . People v Forbes-Haas, 2015 NY Slip Op 00092, 4th Dept 1-2-15

 

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Where Proof Is Directed Exclusively to a Theory Not Charged in the Indictment, the Proof Is Insufficient to Support the Conviction—Such a Variance Need Not Be Preserved by Objection to Be Raised on Appeal/Conduct of Spectators (Mouthing Words When Victim Testified) Did Not Require that the Spectators Be Removed and Did Not Mandate the Declaration of a Mistrial

The Fourth Department determined that variance between the charges described in the indictment and the proof at trial required the dismissal of several counts.  Such a variance does not need to be preserved for appeal by objection.  The court noted that the trial judge’s failure to exclude spectators who were mouthing word’s during the victim’s testimony was not an abuse of discretion:

“Where the charge against a defendant is limited either by a bill of particulars or the indictment itself, the defendant has a fundamental and nonwaivable’ right to be tried only on the crimes charged” … . We have thus held that, where, as here, a defendant contends that he or she has been convicted upon an uncharged theory of the crime, such a contention does not require preservation… . * * *

“Where there is a variance between the proof and the indictment, and where the proof is directed exclusively to a new theory rather than the theory charged in the indictment, the proof is deemed insufficient to support the conviction” … . Counts two and three of the indictment alleged hand-to-vagina contact, but the victim testified that the only part of defendant’s body that came into contact with her vagina was defendant’s penis. Indeed, when asked specifically if any other part of defendant’s body came into contact with her vagina during the incident encompassed by counts two and three, the victim responded, “No.” Count nine of the indictment alleged penis-to-vagina contact, but the victim testified that defendant touched her vagina with his hand during that incident. Again, when asked specifically if any other part of defendant’s body came into contact with her vagina during the incident encompassed by count nine, the victim responded, “No.” We thus conclude that the evidence is legally insufficient to support the conviction with respect to counts two, three and nine and that defendant was denied his fundamental and nonwaivable right to be tried on only those crimes charged in the indictment. We therefore modify the judgment accordingly.  People v Duell, 2015 NY Slip Op 00014, 4th Dept 1-2-15

 

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