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Driver with Right of Way Who Strikes a Vehicle Which Suddenly Enters the Right of Way Is Free from Negligence (No Need to Apply the Emergency Doctrine)/Emergency Doctrine Does Not Automatically Absolve a Driver of Liability

The Fourth Department noted that a driver with the right of way who strikes a vehicle which suddenly enters his or her path is free of negligence absent speeding or some other negligent conduct (no need to apply the emergency doctrine).  The court further noted that the emergency doctrine does not automatically absolve a person of liability.  Here there was a question whether the brakes on the vehicle confronted with the emergency were maintained properly and whether swerving was reasonable:

The existence of an emergency and the reasonableness of a driver’s response thereto generally constitute issues of fact” … . We conclude that there are issues of fact whether the Marriotts’ maintenance of their pickup truck was adequate and thus whether the brake failure was truly unexpected and without any fault on their part. Moreover, it cannot be concluded as a matter of law that swerving to the right in order to avoid rear-ending the garbage truck was a reasonable reaction to the emergency created by the loss of brakes on the pickup truck. Colangelo v Marriott, 2014 NY Slip Op 05746, 4th Dept 8-8-14

 

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Property Should Not Have Been Restored to Petitioner—Time for Redemption Had Passed—Default Judgment in Tax Foreclosure Action Extinguished Petitioner’s Rights in the Property

The Fourth Department determined Supreme Court should not have restored title to property to the petitioner after the a default judgment had been entered in a tax foreclosure action.  The time for redemption had passed and had not been extended:

The Treasurer’s posting of the tax enforcement notification at petitioner’s residence on April 25, 2012 extended the right of redemption until May 25, 2012 (see RPTL 1125 [1] [b] [iii]). Only a local law could extend the cut-off date for redemption (see RPTL 1111 [2]) and, thus, contrary to petitioner’s contention, the published notice of the tax auction could not extend that date of redemption. Where a valid tax lien exists, and the taxing authority followed all proper procedures in foreclosing the lien, the taxpayer’s property interests are “lawfully extinguished as of the expiration of the[ ] right to redemption and the entry of the judgment of foreclosure” … . Thus, all of petitioner’s right, title and interest in the parcels, in her individual and representative capacities, was extinguished when the default judgment was entered in the tax foreclosure action on June 18, 2012 (see RPTL 1123 [8]).  Matter of Johnstone v Treasurer of Wayne County, 2014 NY Slip Op 04590, 4th Dept 6-20-14

 

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Power Company Must Pay Town’s Ad Valorem Sewer Taxes Whether Or Not It Owns the Land On Which Its Transmission Facilities Are Located and Whether or Not It Produces Sewage

The Fourth Department determined that as long as the power company owns the land on which its mass properties (transmission facilities) are located, it must pay the “ad valorem” sewer taxes, even if no sewage is generated. The court further determined that even if the power company did not own the land, it would still be liable for the tax because the town’s storm water sewer system protects the facilities from flooding:

If petitioner owns the land, it must pay the sewer taxes regardless of whether the properties currently produce sewage inasmuch as it is theoretically possible that the properties could be ” developed in a manner that will result in the generation of [sewage]’ ” …, and it is immaterial that the Town taxes the land separately from the improvements thereon and that petitioner challenges only the tax on the improvements.

We further conclude that the court properly granted respondents’ application for summary judgment based on the fact that petitioner may still benefit from the sewer district even if it does not own the land on which its mass properties are located. Respondents established that a significant amount of storm water infiltrates the Town’s sewer system and that “the sewer district encompasses storm sewers that actually or might potentially safeguard [petitioner]’s transmission and distribution facilities from flooding” … . Matter of Niagara Mohawk Power Corp v Assessor, Town of Cheektowaga, 2014 NY Slip Op 04627, 4th Dept 6-20-14

 

Policy Language Interpreted to Support Plaintiff’s Allegation the Insurer Was Timely Notified of Injured Worker’s Claim

The Fourth Department, over a two-justice dissent, reversed Supreme Court finding that the documentary evidence did not demonstrate the insurer had not been timely notified of the claim (within the meaning of the policy language) as a matter of law.  In the course of the decision, the court interpreted the policy terms “occurrence,” “claim” and “suit” as well as the phrase “see to it that defendant was notified:”

Initially, we conclude that the December 2009 letter was a notice of an “occurrence . . . which may result in a claim” and not a “claim” under the policy. The terms “occurrence,” “claim,” and “suit” are separately used in the policy, and thus each term must be ” deemed to have some meaning’ ” … . The policy defines “[o]ccurrence” as “an accident.” The term “[c]laim” is not defined in the policy, but such term has been interpreted to mean ” an assertion of legally cognizable damage,’ ” i.e., ” a type of demand that can be defended, settled and paid by the insurer’ ” … . Here, the December 2009 letter “neither makes any demand for payment nor advises that legal action will be forthcoming” … . Rather, the letter advised plaintiff that [the injured worker] had retained an attorney in connection with personal injuries he had sustained during the course of his work on the construction project, requested that plaintiff forward the letter to its insurance carrier, and warned plaintiff that failure to notify its carrier could result in a denial of coverage and “personal responsibility for any obligations that may arise” from [the] accident.

We further conclude that the January 2010 letter and form … sent to defendant at plaintiff’s request satisfied the insured’s duty under the policy to “see to it” that defendant was notified of the occurrence “as soon as practicable” …. Contrary to the court’s conclusion, the policy did not require that written notice of an occurrence come directly from plaintiff; it simply required that plaintiff “see to it” that defendant was “notified” … . Moreover, to the extent that the phrase “see to it that we are notified” is ambiguous, that ambiguity must be construed in plaintiff’s favor … .   Inasmuch as the January 2010 letter constituted notice of an “occurrence,” we conclude that the May 2010 letter constituted notice of a “claim” or “suit” based upon [the injured worker’s] April 15, 2010 commencement of the underlying action. We therefore agree with plaintiff that the court erred in dismissing the complaint against defendant inasmuch as the documentary evidence does not conclusively establish a defense to plaintiff’s claim as a matter of law… . Spoleta Constr LLC v Aspen Ins UK Ltd, 2014 NY Slip Op 05250, 4th Dept 7-11-14

 

Petition to Vacate Hearing Officer’s Decision Terminating Petitioner (a School Administrator) Was Not Properly Served Upon a “School Officer”

The petitioner, an elementary school administrator, was terminated for misconduct after a hearing.  Petitioner then filed a petition to vacate the hearing officer’s (HO’s) decision.  Supreme Court dismissed the petition as untimely and improperly served.  The Fourth Department, over a two-justice dissent, determined the petition was timely, but it was not properly served. The dissenters argued that the petition was not timely filed as well:

…[W]e conclude that the phrase “receipt of the hearing officer’s decision” in Education Law § 3020-a (5) (a) refers to the receipt of such decision from the SED [State Education Department]. We thus reject respondents’ contention that section 3020-a provides that the 10-day period in which to appeal runs from the receipt of the HO’s decision by email, not the receipt of the HO’s decision through mail sent by the SED. Rather, we agree with petitioner that, by concluding that the 10-day period to appeal commenced upon petitioner’s receipt of the HO’s decision by email, the court rendered the notification process contained in Education Law § 3020-a (4) superfluous.  * * *

…[W]e agree with the court that petitioner’s service of the petition was defective. The decision of the Second Department in Matter of Franz v Board of Educ. of Elwood Union Free Sch. Dist. (112 AD2d 934 …) is instructive. There, “[t]he notice of petition was personally delivered to [the] respondent [Board of Education]’s secretary,” whom the 2nd Department concluded was “not a school officer’ as set forth in . . . Education Law [§ 2 (13)]” (id. at 935). In support of that conclusion, the 2nd Department noted that “[t]he courts of this State have consistently required strict compliance with the statutory procedures for the institution of claims against the State and its governmental subdivisions, and where the Legislature has designated a particular public officer for the receipt of service of process, we are without authority to substitute another” … . We likewise conclude here that the payroll clerk employed in the District’s business office was not a “school officer” under the Education Law. Matter of Puchalski v Depew Union Free School Dist…, 2014 NY Slip Op 05271, 4th Dept 7-11-14

 

Attributes of Equitable Mortgage Explained

In affirming the denial of plaintiff’s motion for summary judgment based upon allegations of the existence of an equitable mortgage, the Fourth Department explained the attributes of an equitable mortgage:

“Equity generally will keep an encumbrance alive, or consider it extinguished, as will best serve the purposes of justice’ ” … . “The whole doctrine of equitable mortgages is founded upon [the] cardinal maxim of equity which regards that as done which has been agreed to be done, and ought to have been done” … .

” [A]n equitable mortgage may be constituted by any writing from which the intention so to do may be gathered, and an attempt to make a legal mortgage, which fails for the want of some solemnity, is valid in equity’ ” … . “While [a] court will impose an equitable mortgage where the facts surrounding a transaction evidence that the parties intended that a specific piece of property is to be held or transferred to secure an obligation’ . . . , it is necessary that an intention to create such a charge clearly appear from the language and the attendant circumstances’ ” . .. . Canandaigua Natl Bank & Trust Co v Palmer, 2014 NY Slip Op 05263, 4th Dept 7-11-14

 

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New York’s Seatbelt Defense Applies to Action Stemming from Pennsylvania Accident (Where There Is No Seatbelt Defense)—Defense Is Not a Conduct-Regulating Law (Which Would Trigger the Application of Pennsylvania Law)—Rather the Defense Relates to the Allocation of Damages (Which Supports the Application of New York Law)

The Fourth Department determined New York’s “failure to wear a seatbelt” defense applied in an action stemming from an accident in Pennsylvania involving New York residents.  The court explained the operative criteria:

Plaintiff contends that the court erred in denying her motion because New York’s seat belt affirmative defense regulates conduct, and thus does not apply in a tort dispute arising from an accident that occurred in Pennsylvania. We reject that contention. “Conduct-regulating rules have the prophylactic effect of governing conduct to prevent injuries from occurring” … . ” If conflicting conduct-regulating laws are at issue, the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders’ ” … . Conversely, where the conflicting laws serve only to allocate losses between the parties, such as vicarious liability or comparative negligence rules, the jurisdiction where the tort occurred has only a minimal interest in applying its own law … .

Here, the conflicting laws relate to whether there is a valid affirmative defense of seat belt nonuse. Pennsylvania law prohibits the presentation of evidence of seat belt nonuse … , while New York law allows the trier of fact to consider a plaintiff’s failure to wear an available seat belt only in assessing damages and the plaintiff’s mitigation thereof … . We therefore conclude that the court properly determined that the seat belt defense “allocate[s] losses after the tort occurs” … . Lankenau v Patrick K Boles, M & S Leasing Co LLC, 2014 NY Slip Op 05255, 4th Dept 7-11-14

 

Dissenters Would Have Reduced the Defendant’s Sentence—Defendant Was 16 Years Old at the Time of the Offenses and Was Offered a Lower Sentence as Part of a Plea Bargain

Although the Fourth Department affirmed defendant’s conviction and sentence, two dissenting justices would have reduced the defendant’s sentence.  The dissenters noted that the defendant was 16 years old at the time of the offenses and there was a great disparity between the sentence after trial and the sentence offered as part of a plea bargain.  People v Angona, 2014 NY Slip Op 05257, 4th Dept 7-11-14

 

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Claimant’s Inculpatory Statement Demonstrated to Be Product of Police Misconduct

Fourth Department affirmed the judgment against the state for wrongfull conviction and imprisonment.  After nine years of imprisonment for attempted murder, another came forward and credibly confessed to the crime.  The claimant was released and sued the state.  The state argued on appeal that, because the claimant made an inculpatory statement, the proof that he did not bring about his own conviction was insufficient.  In rejecting that argument, the court explained:

Claimant consistently maintained his innocence and contended that his inculpatory statement was coerced. “[A] coerced false confession does not bar recovery under section 8-b because it is not the claimant’s own conduct’ within the meaning of the statute” … . It is well settled that “[t]he voluntariness of a confession can only be determined through an examination of the totality of the circumstances surrounding the confession” … . “Relevant criteria include the duration and conditions of detention, the manifest attitude of the police toward the detainee, the existence of threat or inducement, and the age, physical state and mental state of the detainee” … . The use or misuse of a polygraph examination is also a factor to be considered in determining whether there was impermissible coercion … .

Here, we conclude that the record fully supports the court’s determination that claimant’s inculpatory statement was the product of police misconduct … . Claimant was awake for 34 hours before making his only inculpatory statement, which was the second statement he made. He had been interrogated for 15 hours in a six- by eight-foot windowless room. He ate nothing and drank only one can of soda and, although he was a heavy smoker, he had no cigarettes in the prior four or five hours. He remained under the severe emotional trauma of having seen his wife in a horrible bloodied and battered condition. Claimant was advised that, if he took a polygraph exam and passed, he would be permitted to go home.

Notably, the polygraph operator expressed significant concern to fellow officers about the reliability of the polygraph exam because claimant was “somewhat physiologically unresponsive to the polygraph.” Gristwood v State of New York, 2014 NY Slip Op 05259, 4th Dept 7-11-14

 

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Insufficient Proof of Value of Stolen Property, Evidence of Prior Crimes Improperly Admitted, Identification Testimony Improperly Admitted, Prosecutor Improperly Vouched for Witnesses—New Trial Ordered

In reversing the defendant’s grand larceny conviction, the Fourth Department determined the evidence of the value of the property was “conclusory” consisting only of “rough estimates” and was therefore legally insufficient.  The court also determined evidence of uncharged crimes and identification testimony should not have been admitted, and noted the prosecutor improperly vouched for the credibility of prosecution witnesses. With respect to the uncharged crimes and identification evidence, the court wrote:

…[W]e agree with defendant that County Court erred in allowing the People to introduce evidence concerning an uncharged burglary to prove his identity as the perpetrator of the burglary and petit larceny charged in the indictment. The instant crime is “not so unique as to allow admission of evidence of the [uncharged burglary] on the theory of the similarity of the modus operandi” … . The court further erred in admitting the testimony of a witness who identified defendant in an out-of-court photo array procedure and thereafter identified him in court. The People failed to satisfy their obligation pursuant to CPL 710.30 inasmuch as no statutory notice was given by the People with respect to their intent to offer “testimony regarding an observation of the defendant at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such” (CPL 710.30 [1]…). The errors in admitting evidence of the uncharged burglary and the identification of defendant are not harmless, considered singularly or in combination, inasmuch as the proof of defendant’s guilt is not overwhelming, and there is a significant probability that the jury would have acquitted defendant had it not been for either of the errors… . People v Walker, 2014 NY Slip Op 05254, 4th Dept 7-11-14

 

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