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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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Conviction Overturned for the Second Time Because of Misconduct by the Same Prosecutor

In reversing defendant’s conviction for the second time (after the retrial) because of the same prosecutor’s misconduct, the Fourth Department also concluded there was insufficient evidence of the value of stolen items (cost of items when purchased not enough)) and there was insufficient evidence of possession of a controlled substance (statement that cocaine was smoked by the defendant on a particular day not enough). With respect to the prosecutorial misconduct, the court wrote:

Despite our prior admonition on defendant’s first appeal, the prosecutor on retrial repeated some of the improper comments from the first summation and made additional comments that we conclude are improper.  The prosecutor improperly denigrated the defense and defense counsel, repeatedly characterizing the defense as “noise,” “nonsense” and a “distraction[],” and arguing that defense counsel was fabricating facts and attempting to mislead the jury .. .  In one of the more troubling passages in her summation, the prosecutor stated, “You are here for the People of the State of New York versus [defendant] . . . It is not about who isn’t sitting at the defense table, it is about who is.  Are you buying it? Because that’s what they’re selling.  Theories disguised as arguments and posturing as evidence.  And I’m not suggesting the defendant has the burden of proving anything because the burden rests with the People, but by the same token, it doesn’t give counsel license to make stuff up and pretend that it’s evidence.  They all have something in common.  These theories, they’re noise, they’re nonsense.  They want you to be distracted.  Do not be distracted.”

In addition, the prosecutor misstated the evidence and the law…, made an inappropriate “guilt by association” argument …, and improperly characterized the case as “about finding the truth and it is as simple as that” … .  Perhaps the prosecutor’s most egregious misconduct occurred when she made herself an unsworn witness and injected the integrity of the District Attorney’s office into the case … .  With respect to a chief prosecution witness, who did not testify at the first trial and who turned herself in on a warrant the day prior to her testimony, the prosecutor stated:  “When she arrived at our offices, she was escorted over to Buffalo City Court because she had a warrant, because that’s what you have to do, and she was released on her own recognizance by the judge.  And let me be very clear here when we talk about promises to witnesses or benefits that they received.  Let me be very clear. Neither myself, nor [the other prosecuting attorney], nor anyone from our office, ever promised her anything in exchange for her testimony” … .  The Court of Appeals condemned similar comments by the prosecutor… . People v Morgan, 942, 4th Dept 11-8-13

 

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“Error In Judgment” Jury Instruction Properly Given/Defense Verdict Not Against the Weight of the Evidence

In reversing Supreme Court, the Fourth Department determined the “error in judgment” jury instruction was properly given and the defense verdict should not have been set aside as against the weight of the evidence:

We conclude that the court erred in granting that part of plaintiffs’ motion to set aside the verdict in favor of Dr. LaRussa and Associates on the ground that it should not have given an error in judgment charge to the jury with respect to Dr. LaRussa’s alleged malpractice in failing to order and administer dual antibiotic prophylaxis for the cesarean section, and on the alternative ground that the verdict in favor of Dr. LaRussa was against the weight of the evidence. We therefore modify the order accordingly. Based upon Dr. LaRussa’s testimony that he exercised [*2]his professional judgment in choosing between acceptable alternatives, along with expert testimony that there were such acceptable alternatives, we conclude that the court properly gave an error in judgment charge … . There was also evidence that Dr. LaRussa considered and chose between medically acceptable treatment alternatives at plaintiff’s postoperative office visit, and thus the charge was also appropriately given with respect to his postoperative care of plaintiff … . Furthermore, we conclude that “the preponderance of the evidence in favor of plaintiff[s] is not so great that the verdict [finding that Dr. LaRussa was not negligent] could not have been reached upon any fair interpretation of the evidence” … . Beebe v St Joseph’s Hosp Health Ctr, 2014 NY Slip Op 06711, 4th Dept 10-3-14

 

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Criteria for Setting Aside a Defense Verdict Not Met

The Fourth Department determined a verdict for the defense in a medical malpractice action should not have been set aside as against the weight of the evidence.  The court explained the criteria in the context of conflicting expert testimony:

“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” … . “Where 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” …, and the trial court “should not set aside [a] verdict unless it is palpably irrational or wrong” … . * * *

“Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert’s opinion and reject that of another expert” …, and, unlike the trial court, we perceive no reason to disregard the testimony of defendants’ expert … . Lesio v Attardi, 2014 NY Slip Op 06705, 4th Dept 10-3-14

 

Petitioner Did Not Have Standing to Contest Negative SEQRA Finding/”Alienation of Parkland” and “Public Trust” Arguments Rejected

The Fourth Department determined petitioner did not have standing to contest the negative finding pursuant to State Environmental Quality Review Act (SEQRA)  The finding concerned a storage facility to be built for the Maid of the Mist excursion boats on state-park land along the Niagara River.  The petitioner, Niagara Preservation Coalition, Inc., was formed to challenge the project.  In the course of the decision, the Fourth Department rejected the “alienation of parkland” and “public trust” arguments:

We conclude that petitioner failed to establish either an injury, or that it is the proper party to seek redress. Although petitioner submitted a supplemental affidavit of one of its members stating that he has a longtime personal and professional interest in the gorge trail and the ruins of the former hydroelectric plant, ” interest’ and injury’ are not synonymous . . . A general—or even special— interest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances of the case” … . “Appreciation for historical and architectural [artifacts] does not rise to the level of injury different from that of the public at large for standing purposes” … . Here, petitioner failed to establish an injury distinct from members of the public who use the gorge trail to access the ruins of the former hydroelectric plant … , and thus it lacks standing to contest the SEQRA determination. * * *

Even assuming, arguendo, that petitioner has standing to allege alienation of parkland …, as it alleges in its third cause of action, we conclude that the court properly refused to issue a declaration that respondents …were required to obtain legislative approval for the construction of the facility within the confines of Niagara Falls State Park. It is well established “that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes” … . It is undisputed, however, that there is no case law in New York applying the “public trust” principle to state parks. The cases apply only to municipal parks … . Even assuming, arguendo, that [state] parks …are governed by the ” public trust doctrine’ ” … , which respondents dispute …, “what [petitioner] show[s here] is a dispute with public authorities about what is desirable for the park[,] . . . not a demonstration of illegality” … . Matter of Niagara Preserv Coalition Inc v New York Power Auth, 2014 NY Slip Op 06694, 4th Dept 10-3-14

 

Sentence Greater than that Promised in a Plea Bargain Did Not Constitute Punishment for Exercising the Right to Go to Trial

The Fourth Department rejected defendant’s argument that his sentence was increased as punishment for going to trial:

” [T]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial . . . , and there is no indication in the record before us that the sentencing court acted in a vindictive manner based on defendant’s exercise of the right to a trial’ ” …, or that the court ” placed undue weight upon defendant’s ill-advised decision to reject [a] favorable plea bargain and proceed to trial’ ” … . People v Odums, 2014 NY Slip OP 06692, 4th Dept 10-3-14

 

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Parole Officer Was Not Acting “Merely as a Conduit” for the Police In Conducting a Search—The Search Was Related to the Parole Officer’s Duties

In rejecting the defendant’s argument that the search by his parole officer was illegal because the search was not related to the performance of the parole officer’s duties, the Fourth Department explained the relevant law:

A parolee’s right to be free from unreasonable searches and seizures is not violated if a parole officer’s search of the parolee’s person or property “is rationally and reasonably related to the performance of his duty as a parole officer” … . A parole officer’s search is unlawful, however, when the parole officer is “merely a conduit’ for doing what the police could not do otherwise” … . Stated differently, “a parolee’s status ought not to be exploited to allow a search which is designed solely to collect contraband or evidence in aid of the prosecution of an independent criminal investigation” … .

Here, defendant’s contention that the parole officer was acting as an agent of the DEA is undermined by the uncontroverted testimony of the parole officer that she was informed by a DEA agent prior to the search that the federal prosecutor “will most likely not want to get involved” in the case if an arrest were made, and by the fact that no federal charges were ever lodged against defendant. Rather, the parole officer testified that she conducted the search because she received credible information from law enforcement sources that defendant possessed a large quantity of cocaine in his apartment, which violated his parole conditions, and the court found her testimony in that regard to be credible. We thus conclude that the court properly determined that the search was rationally and reasonably related to the performance of the parole officer’s duties, and that suppression was therefore not warranted … . People v Escalera, 2014 NY Slip Op 06700, 4th Dept 10-3-14

 

Cleaning Clogged Drain Was Routine Maintenance, Not Covered by Labor Law 240(1)

The Fourth Department determined plaintiff was engaged in routine maintenance, not repair, and therefore his injury from a fall from a ladder was not covered under Labor Law 240(1):

Addressing … the Labor Law § 240 (1) cause of action, we conclude that plaintiff was not “repairing” the corrosion chamber at the time he was injured, and thus that he was not engaged in a protected activity under section 240 (1). Rather, defendants established as a matter of law that plaintiff was involved in “routine maintenance in a non-construction, non-renovation context” … . The court therefore properly granted that part of defendants’ motion with respect to that cause of action and denied plaintiffs’ cross motion. Neither the corrosion chamber nor the components of the “drainage system,” i.e., the floor drain and plastic piping, were in need of “repair.” Rather, the drain was clogged, at least in part as a result of the normal operation of the chamber. Plaintiff testified at his deposition that the clog consisted of “paper and what looked to be like pieces of wooden dowel from like Q-tips that they use,” i.e., parts of samples that had been placed in the chamber on prior occasions, as well as an unknown substance. Although plaintiff and his supervisor testified that dirty conditions in the chamber could potentially compromise test results, there is no evidence that the chamber was ” inoperable or malfunctioning prior to the commencement of the work’ ” … . Further, there is no evidence that plaintiff had to use specialized tools or any tools at all to take apart the plastic piping. Indeed, defendants’ expert averred that the PVC piping had no mechanical fasteners and was “merely a friction fit, therefore, it would be a routine task to remove.” Plaintiff then used an air hose, metal wire, and a water hose to remove the clog, all of which were readily accessible to and used by him in the course of his employment. Leathers v Zaepfel Dev Co Inc, 2014 NY Slip Op 06691, 4th Dept 10-3-14

 

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Hearing Ordered to Reconstruct Contents of Missing Recording of 911 Call

The Fourth Department would not reverse defendant’s conviction due to the post-trial loss of the recording of a 911 call, the contents of which were important on appeal.  Instead, the court ordered a reconstruction hearing to create a record of the contents of the call.  People v Thomas, 2014 NY Slip Op 06710, 10-3-14

 

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