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Late Motion to Amend Answer Should Not Have Been Granted/Violation of Vehicle and Traffic Law Established Negligence as a Matter of Law/Striking of Affirmative Defense Based on Brake Failure Proper Because Brakes Were Replaced (Spoliation of Evidence)/Fact that Defendant-Driver’s Negligence Was Sole Proximate Cause of the Accident As a Matter of Law Did Not Preclude Comparative Negligence Affirmative Defense

The defendant driver of a payloader struck a school bus and a personal injury action was brought by plaintiff, a school aide who was on the bus.  The Fourth Department determined defendants’ late motion to amend the answer should not have been granted, the striking of an affirmative defense based upon brake failure was properly struck because the original brakes had been replaced (spoliation), defendant-driver’s violation of Vehicle and Traffic Law 1143 established negligence as a matter of law, and the affirmative defense alleging comparative negligence on plaintiff’s part should not have been dismissed:

We agree with plaintiff that Supreme Court abused its discretion in granting defendants’ cross motion [to amend the answer], and we therefore modify the order accordingly. The motion was made seven months after plaintiff had filed the note of issue and more than two years after she commenced the action, yet defendants offered no excuse for their delay in making the motion … . We further conclude that preclusion of the affirmative defenses based on brake failure is warranted as a sanction for spoliation … . After the accident, Cerrone replaced the payloader’s allegedly defective brake calipers and discarded the old calipers. * * *

Vehicle and Traffic Law § 1143 provides that “[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” Here, plaintiff met her initial burden on the motion by establishing as a matter of law that ” the sole proximate cause of the accident was [Freeman]’s failure to yield the right of way’ ” to the school bus in violation of section 1143 … . At the time of the accident, the school bus was lawfully stopped on a public roadway, and the payloader collided with the school bus after entering the roadway from a parking lot … . In opposition to the motion, defendants failed to provide a nonnegligent explanation for the accident … . * * *

…T]he court erred in dismissing their affirmative defense of plaintiff’s culpable conduct, and we therefore further modify the order by reinstating that affirmative defense. CPLR 1411 provides that, “[i]n any action to recover damages for personal injury . . . , the culpable conduct attributable to the [plaintiff] . . . , including contributory negligence . . . , shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the [plaintiff] . . . bears to the culpable conduct which caused the damages.” The statute encompasses any culpable conduct that had a “substantial factor in causing the harm for which recovery is sought” … . Here, as the court found, there is no question that the sole proximate cause of the accident was defendants’ negligence. Defendants contend, however, that the injuries plaintiff allegedly sustained in the accident were caused, in whole or in part, by her position on the bus, i.e., the fact that she was kneeling or standing on the bus rather than sitting in a seat, and they submitted an expert affirmation to that effect … . Simoneit v Mark Cerrone Inc, 2014 NY Slip Op 07783, 4th Dept 11-14-14

 

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Employer Not Required to Accommodate Employee with Epilepsy with Permanent Light-Duty Assignment

The Fourth Department determined petitioner’s employer, the Erie County Sheriff’s Office (ECSO), was not required to accommodate the petitioner, who has epilepsy, with permanent light duty employment:

“Pursuant to Executive Law § 296 (3) (b), employers are required to make reasonable accommodations to disabled employees, provided that the accommodations do not impose an undue hardship on the employer. A reasonable accommodation is defined in relevant part as an action that permits an employee with a disability to perform his or her job activities in a reasonable manner” (… see § 292 [21-e]). “In reviewing the determAdd Newination of SDHR’s Commissioner, this Court may not substitute its judgment for that of the Commissioner . . . , and we must confirm the determination so long as it is based on substantial evidence’ ” … .

Petitioner, a deputy sheriff assigned to the position of “inmate escort” at ECSO’s correctional facility, does not dispute that her epilepsy does not permit her to be assigned to duties involving direct inmate contact, i.e., duties that require uninterrupted vigilance and emergency response capability … . Thus, petitioner also does not dispute that she cannot perform the essential functions of an “inmate escort” without presenting a direct threat to her own safety and others in the workplace (see 42 USC § 12113 [b]…). In order to accommodate her disability, however, petitioner ultimately requested assignment to a light-duty position. It is well settled that an employer is neither required to create a new light-duty position to accommodate a disability (see 9 NYCRR 466.11 [f] [6]…), nor to assign an employee with more than a temporary disability to a position in a light-duty program designed to accommodate only temporary disabilities … . The fact that an employer has been lax in enforcing the temporary nature of its light-duty policy does not convert the policy into a permanent one … . Although ECSO maintained a “light-duty” program (Policy # 03-01-07, Light Duty Assignments), the purpose of that program is to assist employees with temporary disabilities by modifying work assignments and duties or arranging for a temporary transfer to a “Transitional Duty Assignment (TDA)” until the employee is medically released to resume regular duties. The express intent of ECSO’s “policy is not to create a permanent Transitional Duty Assignment, nor is [the policy] to be used in cases where an employee cannot perform the essential functions of a job with reasonable accommodation.” Petitioner’s epilepsy seizure disorder was described by her own treating physician as “long-term.” Thus, we conclude that there is no basis to disturb SDHR’s (State Division of Human Rights’) determination that petitioner’s disability was of a permanent nature and that ECSO had no permanent light-duty police assignments available. Matter of Coles v New York State Div of Human Rights, 2014 NY Slip Op 07788, 4th Dept 11-14-14

Similar issue and result in Matter of County of Erie v New York State Div of Human Rights, 2014 NY Slip Op 07829, 4th Dept 11-14-14

 

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Complaint Did Not State Causes of Action for Replevin or Conversion Because the Specific Funds Involved Were Not Sufficiently Identified/Fraud Cause of Action Stated—Inference of Fraud Sufficiently Raised from Circumstances Alleged

The Fourth Department determined the complaint did not state causes of action for replevin and conversion, but did state a cause of action for fraud.  The motions to dismiss the replevin and conversion causes of action pursuant to CPLR 3211(a)(7) should therefore have been granted.  The basis of the complaint was the allegation that defendants embezzled as much as $4 million from an incapacitated person (Aida Corey):

Addressing first the replevin cause of action, we note that replevin is a remedy employed to recover a specific, identifiable item of personal property …, and “[o]rdinary currency, as a rule, is not subject to replevin” … . Unless the currency can be specifically identified, i.e., it consists of specific, identifiable bills or coins, replevin does not lie … . Here, the amended complaint alleges that the individual defendants “have used some or all of Aida Corey’s $4 million in cas[h] to purchase real and personal property and other tangible assets” and that they “have taken approximately $4 million of Aida Corey’s cash and/or personal property.” The sole focus of the parties, both in Supreme Court and on appeal, however, has been on the money allegedly taken by the … defendants, and we therefore deem abandoned any allegations by plaintiffs concerning personal property … . We thus conclude that the amended complaint fails to state a cause of action for replevin, because there is no “specifically identified” money that plaintiffs seek to recover … .

With respect to the plaintiff guardians’ cause of action for conversion, the amended complaint likewise alleges that the individual defendants “have taken approximately $4 million of Aida Corey’s cash and/or personal property,” but as with the replevin cause of action we conclude that plaintiffs have abandoned any allegations concerning personal property … . Money may be the subject of a cause of action for conversion only if “it can be identified and segregated as a chattel can be” …, i.e., “where there is a specific, identifiable fund” … . Contrary to the contentions of plaintiff guardians, the sums allegedly converted here do not constitute the type of specific, identifiable fund that would support a conversion cause of action … .

…[T]he court properly refused to dismiss the fraud cause of action against them. A fraud cause of action must allege that the defendant: (1) made a representation to a material fact; (2) the representation was false; (3) the defendant intended to deceive the plaintiff; (4) the plaintiff believed and justifiably relied on the statement and in accordance with the statement engaged in a certain course of conduct; and (5) as a result of the reliance, the plaintiff sustained damages … . The allegations in the complaint must set forth the “basic facts constituting the fraud” …, to “inform a defendant of the complained-of incidents” … . The Court of Appeals has “cautioned that [CPLR] 3016 (b) should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting the fraud” (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491 [internal quotation marks omitted]). Here, much of the detail surrounding the alleged fraud is ” peculiarly within the knowledge’ ” of the … defendants …, and we agree with plaintiffs that an inference of fraud arises from the circumstances alleged in the amended complaint … . Heckl v Walsh, 2014 NY Slip Op 07787, 4th Dept 11-14-14

 

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Failure to Bring Timely Article 78 Proceedings to Contest Town Planning Board Decisions Approving Construction of a Condominium Cannot Be Circumvented by Bringing an Action for a Declaratory Judgment

The Fourth Department affirmed Supreme Court’s finding that the statute of limitations for an Article 78 proceeding contesting the determination(s) of a town planning board cannot be circumvented by bringing an action for a declaratory judgment.  The dispute concerned whether “substantial work” had been commenced on a condominium construction project such that the approval of the project did not terminate automatically due to the passage of time. The planning board had concluded that “substantial work” included efforts to finance the project and was not limited to physical construction:

We reject plaintiff’s contention that the action was timely and properly brought as a declaratory judgment action pursuant to CPLR 3001. Although a six-year limitations period governs declaratory judgment actions (see CPLR 213 [1]), it is well settled that if such claim could have been brought in another form, then the shorter limitations period applies … . Here, Town Law § 274-a (11) provides for a 30-day limitations period for challenging “a decision of the [planning] board or any officer, department, board or bureau of the town” under CPLR article 78. Thus, plaintiff’s challenge to the Town Code Enforcement Officer’s determination of the meaning of “significant work” under Code § 170-94 (J) could have been brought in a CPLR article 78 proceeding under Town Law § 274-a (11). Assuming arguendo, as plaintiff contends, that no administrative appeal from such determination was required or available, the action was not commenced within the 30-day limitations period set forth in section 274-a (11), and the court therefore properly granted defendants’ motions to dismiss on that ground … . Likewise, any challenge to the 2005, 2009 or 2012 Planning Board’s actions could have been brought in a CPLR article 78 proceeding, and thus the instant action, even though denominated as one for a declaratory judgment, also was not timely commenced within the 30-day limitations period applicable to each such action of the Planning Board (see Town Law § 274-a [11]; see also Town Law §§ 267-c [1]; 282).

We reject plaintiff’s further contention that, with respect to the Town Code Enforcement Officer’s determination, there was no administrative action and thus “nothing to appeal.” Contrary to plaintiff’s contention, Code § 170-92 (B) specifically provides for an appeal to the Zoning Board of Appeals where it is alleged that there is an error in any order or decision made by an administrative officer or body in the enforcement of the Code … . Thus, plaintiff failed to pursue the available administrative appeal …, and the 30-day period of limitations applicable to judicial review therefrom cannot be circumvented by “the simple expedient of denominating the action one for declaratory relief” … . Bristol Homeowners Envtl Preserv Assoc LLC v Town of Bristol, 2014 NY Slip Op 07790, 4th Dept 11-14-14

 

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Summary Judgment Properly Granted to Property Owner in Lead-Paint-Injury Case

The Fourth Department determined the property owner was entitled to summary judgment in a lead-paint-injury case.  There was no showing defendant had notice of the presence of lead paint hazard or that defendant was negligent in abating the lead paint hazard:

“In order for a landlord to be held liable for a lead paint condition, it must be established that the landlord had actual or constructive notice of the hazardous condition and a reasonable opportunity to remedy it, but failed to do so” … . We conclude that plaintiffs failed to meet their initial burden of establishing that defendants had actual or constructive notice … . Faison v Luong, 2014 NY Slip Op 07794, 4th Dept 11-14-14

 

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School Not Liable for Injury to Student Crossing Street to Enter School–Student Was Not In the Custody or Control of the School When He Was Injured

The Fourth Department determined that plaintiff’s son was not yet in the custody or control of the school when he was injured. Summary judgment dismissing the complaint was therefore required.  Plaintiff had dropped her son off across the street from the school, and told him to stay there while she directed cars to a parking area for an upcoming lacrosse game (in which plaintiff’s son was to participate). A teammate told the plaintiff’s son to go to the school to check in with the coach.  He was injured crossing the street:

…[I]t is well settled that “[t]he duty of a school district to its students is strictly limited by time and space and exists only so long as a student is in its care and custody” … . We reject plaintiff’s contention that defendants owed plaintiff’s son a duty of care under the circumstances here. When plaintiff dropped off her son and told him to “stay there,” she made a parental decision to keep her son across the street because she was concerned about him “crossing over” given that there was “lots of traffic” in the intersection where the accident occurred. Thus, plaintiff had not relinquished control of her son, and defendants had not yet gained the physical custody or control of him that is a prerequisite to imposing a legal duty on them … . The fact that plaintiff’s son disobeyed plaintiff’s directive and crossed the street does not change that legal result.

We reject plaintiff’s further contention that defendants owed plaintiff’s son a duty because the defendants placed plaintiff’s son in a “for[e]seeably dangerous setting that the [defendants] had a hand in creating.” Because the child was never in the physical custody or control of the defendants, however, the defendants were “never in a position to . . . release [plaintiff’s son] into a hazardous setting … . Ritchie v Churchville-Chili Cent School Dist, 2014 NY Slip Op 07792, 4th Dept 11-14-14

 

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Inadvertently Disseminated Investigative Report [Concerning a Doctor’s Conduct With Respect to Plaintiff’s Decedent] Generated by the Office of Professional Medical Conduct Is Not Discoverable—Matter Must Be Returned to the “Status Quo Prior to the [Inadvertent] Disclosure”

In a wrongful death action, the Fourth Department determined that a report generated by the Office of Professional Medical Conduct (OPMC) concerning an investigation into decedent’s death was not discoverable pursant to the Public Health Law and a protective order pursuant to CPLR 3103 should have been granted in its entirety. The report was inadvertently disclosed by the plaintiff to all the defendants.  Supreme Court ruled only that the report could not be further disseminated.  The Fourth Department noted that Supreme Court’s order was appealable pursuant to CPLR 5701(a)(20(v) even though the denial of the motion for a protective order was without prejudice to renew:

…[W]e conclude that Supreme Court erred in granting defendants’ motion only in part, and should have granted the motion in its entirety. “Pursuant to Public Health Law § 230 (10) (a) (v), the files of OPMC concerning possible instances of professional misconduct are confidential, subject to [certain] exceptions,” including Public Health Law § 230 (9), which are not applicable here … . Inasmuch as there is no evidence in the record that the OPMC proceeded past the interview phase of [the doctor’s] alleged misconduct with respect to decedent, the OPMC report is not discoverable as a matter of law (see § 230 [10] [a] [v]). Thus, we conclude that the court erred in failing to restore this matter to the “status quo prior to the[inadvertent] disclosure”… . Kirby v Kenmore Mercy Hosp, 2014 NY Slip Op 07804, 4th Dept 11-14-14

 

Under the Facts, the Failure to Call a Witness Requested by the Inmate Was a Regulatory, Not a Constitutional, Violation—New Hearing Ordered

The Fourth Department noted that where a good faith reason for not calling a witness requested by the inmate appears on the record, the error is regulatory, not constitutional, in nature and a new hearing, not expungement, is required:

…[T]he Hearing Officer violated petitioner’s right to call witnesses as provided in the regulations (see 7 NYCRR 254.5…). Although petitioner seeks expungement, he is not entitled to that relief at this juncture. Where, as here, “a good faith reason for the denial appears on the record, this amounts to a regulatory violation” rather than a violation of petitioner’s constitutional rights, “requiring that the matter be remitted for a new hearing” … . Matter of Johnson v Prack, 2014 NY Slip Op 07859, 4th Dept 11-14-14

 

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Exculpatory Evidence Provided by Co-Defendant Should Not Have Been Struck from the Record When Co-Defendant Asserted His Privilege Against Self-Incrimination

The Fourth Department reversed defendant’s conviction because the trial judge, sua sponte, struck all of his co-defendant’s testimony after the co-defendant invoked his privilege against self-incrimination.  The defendant was entitled to have the exculpatory evidence presented by the co-defendant considered by the jury:

County Court erred in sua sponte striking the entire testimony of his codefendant after the codefendant invoked his privilege against self-incrimination, and we therefore reverse the judgment and grant a new trial … . We conclude that the court erred in failing to “weigh the options” in a “threshold inquiry” to determine whether “less drastic alternatives” were available, other than striking the entire testimony of the codefendant … . Here, the codefendant provided testimony that, if allowed to remain in the record, would have supported defendant’s positions that defendant did not engage in any scheme to defraud, and that the codefendant had pleaded guilty with respect to similar charges brought against him in order to avoid harsher penalties, and not because the codefendant had engaged in any fraudulent conduct. We further conclude that defendant had the right to have such “relevant and exculpatory testimony considered by the jury” … . We also conclude that the court’s error in striking the codefendant’s testimony is not harmless inasmuch as “the proof against defendant [is] not overwhelming and there is a reasonable probability that defendant would have been acquitted but for the error” … . People v Chadick, 2014 NY Slip Op 07789, 4th Dept 11-14-14

 

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People Failed to Prove Low IQ Defendant Validly Waived His Miranda Rights and Gave Statements Voluntarily—Convictions Reversed, Some Charges Dismissed and New Trial Ordered

The Fourth Department, in a full-fledged opinion by Justice Peradotto, found that the defendant’s statements should have been suppressed because the People failed to prove the defendant intelligently waived his right to remain silent and because the People failed to prove his statements were made voluntarily.  The evidence indicated defendant has an IQ of 63 or 68.  There was a video of defendant’s interrogation. And the defense presented expert opinion evidence that the defendant was not capable of intelligently waiving his Miranda rights, and, because of the leading nature of the interrogation and defendant’s excessively compliant nature, the defendant did not make his statements voluntarily:

At the Huntley hearing, the People presented the expert testimony of a forensic psychiatrist who interviewed defendant in jail and reviewed the videotape of his confession. The People’s expert acknowledged that defendant was “intellectually handicapped,” with a full-scale IQ of 68, but concluded that defendant was “not that retarded” and could understand his Miranda rights. The defense expert testified that defendant’s IQ placed him in the “mentally retarded range of intellectual functioning.” Defendant’s verbal IQ was 63, which placed him in the first percentile, meaning that he performed worse than 99% of the test population. Based upon defendant’s “very poor” level of verbal functioning, the defense expert opined that, although defendant was “able to understand the words of the Miranda rights,” he was “not capable of intelligently waiving” those rights. He further opined that defendant was “a very suggestible and very compliant man as is not atypical of persons who are mentally retarded,” which placed him at risk of falsely confessing. * * *

Where a “person of subnormal intelligence” is involved, “close scrutiny must be made of the circumstances of the asserted waiver” … . “A defendant’s mental deficiency weighs against the admissibility of an elicited confession, so that any such confession must be measured by the degree of the defendant’s awareness of the nature of the rights being abandoned and the consequences of the decision to abandon them” … . A suspect of “subnormal intelligence” may effectively waive his or her Miranda rights “so long as it is established that he or she understood the immediate meaning of the warnings” …, i.e., “how the Miranda rights affected the custodial interrogation” (id. at 289). It must therefore be shown that the suspect “grasped that he or she did not have to speak to the interrogator; that any statement might be used to the subject’s disadvantage; and that an attorney’s assistance would be provided upon request, at any time, and before questioning is continued. What will suffice to meet this burden will vary from one case to the next” … . * * *

As the defense expert testified at trial, “[w]hat became very clear in the video . . . was that [defendant] changed his answers based on the kind of questioning that was done to him. In other words, he was asked the question, the same question over and over again. So it no doubt became clear to him that he was answering the wrong way. So he changed his answers to be what he believed the cop wanted to know.” Many, although not all, of defendant’s responses consisted of “mmm-hmm,” yes, and a parroting back of the detective’s statements. The detective also told defendant that he had spoken to the victim and her mother, that the victim was “not lying,” and that the medical examination was going to show that “something happened” between defendant and the victim. The defense expert testified that such tactics “would lead [defendant] to question his own memory of the situation which isn’t good to begin with. He’s got deficits in memory. So if presented with memory that would counteract what he believed to be true, he would change his answer.” People v Knapp, 2014 NY Slip Op 07801, 4th Dept 11-14-14

 

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