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Cheerleader Assumed the Risk of Practicing with an Injured Teammate

The Fourth Department determined plaintiff’s daughter assumed the risk of practicing with a teammate who had a sprained ankle.  It was alleged that the injured teammate, because of the injury, held on to plaintiff’s daughter too long before throwing her into the air, which in turn caused plaintiff’s daughter to be injured:

It is well settled that, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation” … . We have previously held that cheerleading is the type of athletic endeavor to which the doctrine of assumption of the risk applies … . That doctrine does not, however, shield defendants from liability for exposing participants to unreasonably increased risks of injury … . * * *

We agree with defendant that the daughter’s practicing with the teammate while knowing that the teammate had an injured ankle is analogous to a cheerleader practicing without a mat …, or to an athlete playing on a field that is in less than perfect condition … . We therefore conclude that defendant established as a matter of law that this action is barred by the doctrine of assumption of risk, and plaintiff failed to raise an issue of fact … . Jurgensen v Webster Cent. Sch. Dist., 2015 NY Slip Op 02377, 4th Dept 3-20-15

 

Abuse of Discretion to Deny Defendant’s Request for New Defense Counsel—Request Was Supported by Specific Legitimate Concerns and Was Joined by Defense Counsel

The Fourth Department, over a dissent, determined Supreme Court should not have denied defendant’s request for new counsel, which was echoed by defense counsel and supported by specific, legitimate concerns.  The conviction was reversed and a new trial ordered. The Fourth Department outlined the analytical criteria:

The determination “[w]hether counsel is substituted is within the discretion and responsibility of the trial judge . . . , and a court’s duty to consider such a motion is invoked only where a defendant makes a seemingly serious request[]” … . Thus, where a defendant makes “specific factual allegations” against defense counsel … , the court must make at least “some minimal inquiry” to determine whether the defendant’s claims are meritorious … . Upon conducting that inquiry, “counsel may be substituted only where good cause’ is shown” … .

Here, the court erred in determining that a breakdown in communication between attorney and client cannot constitute good cause for substitution of counsel. Although the mere complaint by a defendant that communications have broken down between him and his lawyer is not, by itself, good cause for a change in counsel …, where a complete breakdown has been established, substitution is required … . Here, both defendant and defense counsel agreed that they were unable to communicate, and nothing said by either of them during the court’s lengthy inquiry indicated otherwise.

We conclude that the court also erred in suggesting that any breakdown in communication was “initiated or promoted by the defendant as opposed to defense counsel.” That conclusion is not supported by the record, which shows that the breakdown in communication resulted from legitimate concerns defendant had about defense counsel’s performance. People v Gibson, 2015 NY Slip Op 02236, 4th Dept 3-20-15

 

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Hockey Player Assumed Risk of Having His Bare Foot Stepped on in the Locker Room by a Player Wearing Skates

The Fourth Department determined plaintiff, a varsity hockey player, had assumed the risk of having his bare foot stepped on in the locker room by a player who was still wearing his hockey skates:

“The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks’ ” … . By engaging in such an activity, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “The question of whether the consent was an informed one includes consideration of the participant’s knowledge and experience in the activity generally” … .

Initially, we reject plaintiff’s contention that assumption of the risk does not apply because he was no longer playing hockey at the time of his injury. It is undisputed that the accident “occurred in a designated athletic or recreational venue” and that the activity at issue “was sponsored or otherwise supported by the [school district] defendant[s]” … “[T]he assumption [of risk] doctrine applies to any facet of the activity inherent in it” … . * * *

“As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” … . “[A]wareness of risk is not to be determined in a vacuum [but] . . . is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … . “[I]t is not necessary to the application of assumption of 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” … . Litz v Clinton Cent. Sch. Dist., 2015 NY Slip Op 02239, 4th Dept 3-20-15

 

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Motion to Vacate Conviction Based Upon Victim’s Recantation Should Not Have Been Denied Without a Hearing

The Fourth Department determined Supreme Court erred when it denied defendant’s motion to vacate his conviction without a hearing.  The motion was primarily based upon the victim’s, defendant’s daughter’s, recantation of her rape allegations:

In her affidavit, the victim, who was the sole witness to give testimony at trial with respect to the crimes, averred that she wanted to live with her maternal grandmother. In order to effectuate that move, her maternal grandmother advised her to accuse defendant of having sexually assaulted her. The victim averred that she did not care about defendant at the time and, therefore, she agreed to accuse defendant of sexually assaulting her. She further averred that, since the trial, she had reconnected with her paternal grandmother and had seen how the latter was suffering because defendant was in prison. Witnessing that suffering resolved her to tell the truth. Although the court found the victim’s recantation to be inherently unbelievable or unreliable, we conclude that, based on the totality of the circumstances, such a finding was unwarranted in the absence of a hearing … .

The victim’s trial testimony that defendant had sexually assaulted her was crucial to the prosecution’s case. Her subsequent averments that she was encouraged by her maternal grandmother to accuse defendant of crimes so that she could live with her maternal grandmother indicate that she had a motive to lie at trial. We therefore conclude that the victim’s trial testimony, if false, was extremely prejudicial to defendant inasmuch as, without that testimony, there would have been no basis for the jury to convict defendant … . Under those circumstances, the court’s denial without a hearing of that branch of defendant’s motion based on the victim’s recantation was an improvident exercise of discretion … . People v Martinez, 2015 NY Slip Op 02286, 4th Dept 3-20-15

 

Failure to Inform Defendant of the Period of Postrelease Supervision Required Reversal in the Absence of an Objection

The Fourth Department determined the defendant’s conviction must be reversed because he was not informed of the period of postrelease supervision (PRS) at the time of the plea, and he could not be expected to object because he was not informed of the PRS until the end of the sentencing hearing:

…[D]efendant was not required to preserve for our review his challenge to the imposition of PRS under these circumstances. “A defendant cannot be expected to object to a constitutional deprivation of which [he] is unaware . . . [W]here the defendant was only notified of the PRS term at the end of the sentencing hearing, the defendant can hardly be expected to move to withdraw [the] plea on a ground of which [he or she] has no knowledge’ . . . And, in that circumstance, the failure to seek to withdraw the plea or to vacate the judgment does not preclude appellate review of the due process claim” … . Furthermore, “[b]ecause a defendant pleading guilty to a determinate sentence must be aware of the [PRS] component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction” (People v Catu, 4 NY3d 242, 245). “[T]he record does not make clear, as required by Catu, that at the time defendant took his plea, he was aware that the terms of the court’s promised sentence included a period of PRS” because only the term of incarceration of 20 years was stated on the record … . While a term of PRS was mentioned earlier in the plea negotiations, it is undisputed that there was no mention of PRS at the plea proceeding and, based on our review of the record, we conclude that defendant was not “advised of what the sentence would be, including its PRS term, at the outset of the sentencing proceeding” … . People v Rives, 2015 NY Slip Op 02316, 4th Dept 3-20-15

 

Court’s Failure to Elicit Unequivocal Declarations Jurors Could Set Aside their Biases Required Reversal

The Fourth Department determined the court’s failure to elicit an unequivocal declaration jurors could set aside their bias and render an impartial verdict required reversal:

It is well established that “[p]rospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused” … . While no “particular expurgatory oath or talismanic’ words [are required,] . . . [prospective] jurors must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict” … . During voir dire, the statements of three prospective jurors with respect to the credibility of the testimony of police officers or bias in favor of the police cast serious doubt on their ability to render an impartial verdict …, and those prospective jurors failed to provide “unequivocal assurance that they [could] set aside any bias and render an impartial verdict based on the evidence” … . Contrary to the court’s conclusion, we conclude that the nodding by these three prospective jurors as part of a group of prospective jurors who were “all nodding affirmatively in regard to the statement [of another prospective juror]” was “insufficient to constitute such an unequivocal declaration”… . People v Strassner, 2015 NY Slip Op 02342, 4th Dept 3-20-15

 

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Application for Variance Properly Denied—Courts’ Review Powers Re: Actions of Zoning Board Explained

The Fourth Department determined the zoning board properly denied the petitioner’s application for a variance and explained the courts’ review powers in this context:

It is well settled that the determination whether to grant or deny an application for an area variance is committed to the broad discretion of the applicable local zoning board … . Consequently, when reviewing the denial of an application for an area variance, “[j]udicial review [of such a determination] is . . . limited to the issue whether the action taken by the [board] was illegal, arbitrary, or an abuse of discretion’ . . . [, and the b]oard’s determination should therefore be sustained so long as it has a rational basis and is supported by substantial evidence’ ” … . A reviewing court may not substitute its judgment for that of a local zoning board …, “even if there is substantial evidence supporting a contrary determination” … .

Here, the record establishes that respondent reviewed the appropriate statutory factors in making its determination (see General City Law § 81-b [4] [b]), and concluded that the application should be denied because, inter alia, the variances would cause an undesirable change to the character of the neighborhood, the variances are substantial, and petitioners’ hardship is self-created (see § 81-b [4] [b] [i], [iii], [v]). Matter of People, Inc. v City of Tonawanda Zoning Bd. of Appeals, 2015 NY Slip Op 02257, 4th Dept 3-20-15

 

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No “Extraordinary Circumstances” Existed to Justify Granting Primary Custody of Child to Grandparents

The Fourth Department, in a full-fledged opinion by Justice Centra, determined Family Court should not have granted primary custody of the child to the grandparents.  Although the grandparents had played a primary role in the child’s care for 10 years, with the mother’s permission and participation, the “extraordinary circumstances” described by the Court of Appeals as necessary to justify awarding custody to nonparents were not present:

As the Court of Appeals held in the seminal case of Matter of Bennett v Jeffreys (40 NY2d 543, 544), “[t]he State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances.” The Court thereafter held that, “[s]o long as the parental rights have not been forfeited by gross misconduct . . . or other behavior evincing utter indifference and irresponsibility . .. , the natural parent may not be supplanted” (Matter of Male Infant L., 61 NY2d 420, 427). “The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child” … .

…[T]he arrangement between petitioners [the grandparents] and the mother since shortly after the child’s birth and for 10 years thereafter was akin to a joint custody arrangement with petitioners having primary physical custody of the child and the mother visitation. Petitioners established that they took on the bulk of the responsibility for the child’s financial support and education. There was no showing by petitioners, however, that the mother was unfit or that she surrendered or abandoned her child … . The question then is whether they established “other equivalent but rare extraordinary circumstance[s] which would drastically affect the welfare of the child” … .

As we have held, “[w]hat proof is sufficient to establish such equivalent but rare extraordinary circumstances cannot be precisely measured” … . “[T]he fact that [a] parent agreed that a nonparent should have physical custody of the child or placed the child in the custody of a nonparent is not sufficient, by itself, to deprive the parent of custody” … . Here, while the mother allowed petitioners to have primary physical custody of the child for a prolonged period, there were no other factors to show the existence of extraordinary circumstances … . The record establishes that the child is psychologically attached to both petitioners and the mother, and there was no evidence that removing the child from petitioners’ primary custody would result in “psychological trauma . . . grave enough to threaten destruction of the child” … . The evidence at the hearing showed that the child exhibited some signs of stress after May 2012, but the record as a whole, including the Lincoln hearing, supports the conclusion that the child was stressed because of the family conflict, and would not suffer if the mother had custody of the child. Matter of Suarez v Williams, 2015 NY Slip Op 02293, 4th Dept 3-20-15

 

The Procedure for Holding an Executive Session Does Not Apply to Proceedings Which Are Exempt from the Open Meetings Law

The Fourth Department determined that the town board need not follow the procedure in the Public Officers Law (Open Meetings Law) for holding an executive session (where the public is excluded) for matters which are exempt from the open meetings requirement. In this case a consultation between the town board and town counsel was exempt from the open meetings requirement pursuant to a provision of the Public Officers Law.  Therefore, the town board could not be faulted for keeping that consultation private without following the formal procedure for holding an executive session:

It is well settled that “[e]very meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [section 105]” (Public Officers Law § 103 [a]…). While an executive session may be called to discuss, inter alia, “proposed, pending or current litigation” (§ 105 [1] [d]), the public body may do so only upon a majority vote of its membership and after “identifying the general area or areas of the subject or subjects to be considered” (§ 105 [1]). There is no dispute that section 105 (1) does not extend to communications between a town board and its counsel, but section 108 (3) provides in relevant part that “[n]othing contained in [the Open Meetings Law] shall be construed as extending the provisions hereof to . . . any matter made confidential by federal or state law.” “[S]ince communications made pursuant to an attorney-client relationship are considered confidential under the [CPLR] . . . , communications between a . . . board . . . and its counsel, in which counsel advises the board of the legal issues involved in the determination of a[n] . . . application, are exempt from the provisions of the Open Meetings Law” … . “When an exemption [under section 108] applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by § 105 (1) that relates to entry into an executive session” … . Matter of Brown v Feehan, 2015 NY Slip Op 01339, 4th Dept 2-13-15

 

Workers’ Compensation Carrier Has an Automatic Lien Re: Recovery by Injured Worker Against Third-Parties

The Fourth Department noted that a workers’ compensation carrier has a lien against any settlement the worker reaches with a third-party:

Where an individual receiving workers’ compensation benefits commences a civil action against a tortfeasor “not in the same employ who caused the injuries giving rise to such benefits . .. , an automatic lien attaches to the proceeds of any recovery, in favor of the [worker’s compensation carrier], for any amounts that the [carrier] has paid in compensation benefits, less litigation costs and amounts received in lieu of first[-]party benefits under the no-fault law” … . Klem v Special Response Corp, 2015 NY Slip Op 01368, 4th Dept 2-13-15

 

 

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