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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

 

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

 

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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Grievance Did Not Relate to Provisions of Collective Bargaining Agreement

In finding that one of two grievances was not arbitrable because the grievance (overtime pay for police officers privately employed as security officers at the airport) did not relate to the provisions of the collective bargaining agreement (CBA), the Fourth Department explained the operative criteria:

It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, we do not determine the merits of the grievance and instead determine only whether the subject matter of the grievance is arbitrable (see CPLR 7501…). “Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance’ . . . If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement. If there is a prohibition, our inquiry ends and an arbitrator cannot act” … .

“Where, as here, the [CBA] contains a broad arbitration clause, our determination of arbitrability is limited to whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA’ ” … . If such a “reasonable relationship” exists, it is the role of the arbitrator, and not the court, to “make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them” … .

Matter of City of Syracuse v Syracuse Police Benevolent Assn Inc, 2014 NY Slip Op 05251, 4th Dept 7-11-14

 

Questions of Fact Raised About Labor Law 240(1), 240(6) and 200 Causes of Action—Labor Law 200 Actions Are Not Limited to Construction Work (Question of Fact About Unsafe Work Site Will Support Labor Law 200 Cause of Action)

The Fourth Department noted that Labor Law 200 causes of action are not limited to construction work and, with respect to one of the defendants,  a question of fact had been raised about the safety of the work site.  Plaintiff was injured when he drove a forklift over plywood covering a pit used to store linens in an industrial laundry operation. Questions of fact had also been raised about whether work being done by the plaintiff was covered by Labor Law 240(1) and Labor Law 240 (6). With respect to the Labor Law 240(1) cause of action against two of the defendants, the court wrote:

…[T]he court properly denied [defendants’] respective motions for summary judgment with respect to the Labor Law § 240 (1) claim because there are issues of fact whether plaintiff was engaged in an activity covered by that section. To fall under the protection of Labor Law § 240 (1), “the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, [or] altering . . . of a building or structure’ ” or must have “involve[d] . . . such activities” … . Here, the parties’ submissions raise an issue of fact whether plaintiff himself was “altering” or making a “significant physical change to the configuration or composition of the building or structure” at the time of his injury … . Specifically, the record is unclear whether plaintiff was in the process of simply moving a “towel folder,” which would not afford him the protection of section 240 (1) …, unless that activity “was . . . ancillary” to the ongoing renovation work … ; or, whether he was removing an old machine weighing approximately 1,000 pounds and then installing and securing to the cement floor a new machine as a replacement, which would afford him the protection of section 240 (1) … . Foots v Consolidated Bldg Contrs Inc, 2014 NY Slip Op 05058, 4th Dept 7-3-14

 

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Resident Who Assisted Supervising Physician But Who Exercised No Independent Medical Judgment Entitled to Summary Judgment

The Fourth Department determined defendant should have been granted summary judgment in a medical malpractice action. Defendant was a resident who assisted the supervising physician (Dr. Hall).  The court determined defendant had demonstrated he exercised no independent medical judgment during the treatment of the plaintiff (David Green):

It is well settled that a “resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the doctor’s directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene” .. . Here, in support of his motion, defendant submitted evidence establishing that defendant Walter Hall, M.D., the supervising physician, conducted the initial meeting with plaintiff David Green, the patient. Defendant also submitted evidence establishing that Dr. Hall supervised defendant throughout all of the surgeries involved, reviewed all notes that defendant wrote, determined which surgical method would be used, decided to discontinue the first operation to obtain further information about the cyst or tumor that was to be excised, and decided to perform the subsequent operations. Furthermore, “[a]lthough the evidence demonstrated that [defendant] played an active role in [Dr. Hall’s] procedure, it did not demonstrate the exercise of independent medical judgment” by defendant … . Green v Hall, 2014 NY Slip Op 05084, 4th Dept 7-3-14

 

Cleaning Cement Truck After Cement-Delivery Not Covered by Labor Law 240

The Fourth Department, over a dissent, determined plaintiff was not engaged in an activity protected by Labor Law 240 at the time of the injury.  Plaintiff had just delivered concrete to the defendant farm and was cleaning his truck when he fell from a ladder attached to the truck:

…[W]e agree with defendant that the activity in which plaintiff was engaged at the time of his injury, i.e., the routine cleaning of his employer’s cement truck after making a delivery, “was not the kind of undertaking for which the Legislature sought to impose liability under Labor Law § 240′ ” … . Specifically, plaintiff “was not engaged in the erection, demolition, repairing, altering, painting, cleaning or pointing’ of a building or structure’ within the intended meaning of Labor Law § 240 (1)” … . Rather, he was “engaged in routine maintenance” of the cement truck, “which is not a protected activity under Labor Law § 240 (1)” … .

We reject the dissent’s view that this case is distinguishable from Koch because the plaintiff in that case was “merely a delivery driver” while “there is evidence here that plaintiff operated the machinery of the cement truck to assist in the pouring of the concrete as part of the construction of the silo.” Any such distinction, even if supported by the record, is irrelevant to the applicability of Labor Law § 240 (1).  Bish v Odell Farms Partnership, 2014 NY Slip Op 05063, 4th Dept 7-3-14

 

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Police Officer Involved In Accident Acted Appropriately In an Emergency Operation—Defendants Not Liable As a Matter of Law

The Fourth Department determined the city’s motion for summary judgment should have granted in an action resulting from a collision with a police vehicle responding to an emergency.  The court determined the defendants demonstrated as a matter of law that the officer did not act with conscious indifference to the consequences of his actions:

At the time of the collision, defendant officer was responding to a police call and was therefore operating an authorized emergency vehicle while involved in an emergency operation … . We further conclude that, by failing to yield the right of way while attempting to execute a left turn at a green light, defendant officer was “engage[d] in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b)” … , i.e., he was “exercis[ing one of] the privileges set forth in” the statute at the time of the accident (§ 1104 [a]…).

We further conclude that defendants established as a matter of law that defendant officer’s conduct did not rise to the level of reckless disregard for the safety of others …, and that plaintiff failed to raise a triable issue of fact in opposition to the cross motion … . Defendant officer testified that, as he was approaching the intersection in a southbound direction, the only traffic he observed was a line of northbound vehicles waiting to turn left. When he reached the intersection, he stopped for a “few seconds” to ensure that the intersection was clear. Defendant officer testified that he could see a distance of approximately three car lengths in the right northbound lane and that he did not see any traffic in that lane when he started his turn. He then “cre[pt] into the intersection, making sure . . . nobody was passing on the right of the vehicles stopped to make a left.” Plaintiff similarly testified that there was a line of cars in the northbound lane preparing to turn left, that she “veered to the right” around the line of cars in order to proceed straight through the intersection, and that the accident occurred in the intersection. We thus conclude that, “[g]iven the evidence of precautions taken by [defendant officer] before he attempted his [left] turn, . . . he did not act with conscious indifference’ to the consequences of his actions” … . Williams v Fassinger, 2014 NY Slip Op 05085, 4th Dept 7-3-14

 

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