You are here: / Fourth Department

Tag Archive for: Fourth Department

,

NYS Department of Environmental Protection (DEC) Has Authority to Address the Pollution of New York Waters by Oil and Gas Producer Operating Across the Border in Pennsylvania/DEC’s Authority Not Demonstrated to Be Preempted by Federal Clean Water Act

The Fourth Department affirmed Supreme Court’s dismissal of a petition brought by an oil and gas producer seeking to prohibit the New York State Department of Environmental Protection (DEC) from enforcing consent orders which concern the pollution of Yeager Brook in the Allegany State Park.  The oil and gas producer is operating across the border in Pennsylvania on land owned by the US Forest Service.  The court held that the DEC has the authority to address the pollution of New York waters and rejected the argument that the DEC’s authority to act was preempted by the Federal Clean Water Act (CWA):

Beginning in 2010, personnel of the New York State Office of Parks, Recreation, and Historic Preservation reported pollution, including turbidity, color change, and suspended sediment, in New York’s Yeager Brook, downstream from and caused by petitioner’s operations in Pennsylvania, in contravention of New York’s water quality standards. Subsequently, the New York State Department of Environmental Conservation (DEC) entered into two consent orders with petitioner concerning the aforementioned pollution. Because of alleged continued and ongoing violations, the DEC commenced an administrative proceeding in New York seeking to enforce the consent orders and the penalties for the violations thereof. Petitioner commenced the instant proceeding contending, inter alia, that the DEC is acting in excess of its jurisdiction because the federal Clean Water Act ([CWA] 33 USC § 1251 et seq.) preempts the application of an affected state’s laws and regulations to an out-of-state point source … .

As the party seeking a writ of prohibition, petitioner bears a “heavy burden” of establishing a “clear legal right to relief or that prohibition would provide a more complete and efficacious remedy than the administrative proceeding and resulting judicial review” … . We conclude that respondents in support of their motion to dismiss established as a matter of law that petitioner could not meet that burden, and Supreme Court therefore properly granted the motion. The DEC had the statutory authority and jurisdiction to enter into the consent orders at issue and to commence the administrative proceeding to enforce those orders (see ECL 17-0303 [2], [4] [a], [b]; [5] [a]; see also ECL 17-0105 [1]; ECL 17-0501). Petitioner has failed to establish in this proceeding that the DEC’s exercise of such authority and jurisdiction is clearly preempted by the CWA, inasmuch as it has not shown that enforcement of the consent orders would “stand[] as an obstacle to the full implementation of the CWA” … . Moreover, the preemptive effect of the CWA “should be determined, in the first instance, through the administrative process”… . “[E]ven as to a clearly ultra vires act, prohibition does not lie against an administrative agency if another avenue of judicial review is available, absent a demonstration of irreparable injury to the applicant if [it] is relegated to such other course” … . No such irreparable injury has been demonstrated here.  Matter of US Energy Dev Corp v NYS Department of Environmental Protection, 2014 NY Slip Op 04591, 4th Dept 6-20-14

 

, ,

Termination Shocks One’s Sense of Fairness

The Fourth Department determined the termination of a city employee shocked one’s sense of fairness.  The court explained the relevant criteria:

“[A] result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally” … . “Where, as here, there is no grave moral turpitude’ and no grave injury to the agency involved or to the public weal,’ courts may ameliorate harsh impositions of sanctions by administrative agencies . . . in order to accomplish what a sense of justice would dictate’ ” … . Matter of Harwood v Addison, 2014 NY Slip Op 04660, 4th Dept 6-20=14

 

,

Statement Identifying Shooter Made by a Witness Who Did Not See the Shooting Should Not Have Been Admitted Under the Present Sense Impression Exception to the Hearsay Rule

In a decision which affirmed the conviction and addressed several other important evidentiary issues, the Fourth Department noted that a statement identifying the defendant as the shooter made by a witness who did not see the shooting should not have been admitted under the present sense impression exception to the hearsay rule:

It is well settled that, in order “[t]o qualify as a present sense impression, the out-of-court statement must be (1) made by a person perceiving the event as it is unfolding or immediately afterward . . . , and (2) corroborated by independent evidence establishing the reliability of the contents of the statement” (id. at 382). Here, the witness did not see the shooting, and he confirmed defendant’s identity as the shooter only after questioning the victim (see People v Vasquez, 88 NY2d 561, 580; see also People v Brown, 104 AD3d 1203, 1204, lv denied 21 NY3d 1014). Therefore, the witness’s statement was not admissible as a present sense impression, and we conclude that the admission of that statement in evidence improperly bolstered the victim’s identification of defendant as the shooter … . People v Mulligan, 2014 NY Slip Op 04588, 4th Dept 6-20-14

 

Count Rendered Duplicitous by Trial Evidence Dismissed

The Fourth Department determined one count of an indictment had been rendered duplicitous by the trial evidence.  The indictment charged the theft of a bicycle.  However the trial evidence alleged the theft of two bicycles.  Therefore it is possible the jury was not unanimous in determining a specific bicycle had been stolen:

Because defendant’s right to be tried and convicted of only those crimes charged in the indictment is fundamental and nonwaivable” …, we review defendant’s contention despite his failure to preserve it. CPL 200.30 (1) provides that “[e]ach count of an indictment may charge one offense only.” Count five of the indictment charged defendant with stealing a bicycle and thus was not facially defective. At trial, however, the evidence established that two bicycles were stolen. Consequently, ” [r]eversal is required because the jury may have convicted defendant of an unindicted [petit larceny], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges’ . . . , as well as the danger that . . . different jurors convicted defendant based on different acts’ “… . People v Wade, 2014 NY Slip Op 04587, 4th Dept 6-20-14

 

Rebuttal Witness Properly Called by the People to Show Possible Bias of Defense Witness

The Fourth Department, over a strong two-justice dissent, determined that a rebuttal witness called by the People was properly allowed to testify to demonstrate the bias of a defense witness.  The explanation about the relevance of the rebuttal testimony is fact-specific.  The dissenters did not see the rebuttal testimony as relevant to the defense witness’ bias and did not agree that the “bias” rationale for the rebuttal was actually raised in the trial court:

…[T]he rebuttal witness was properly called to give testimony that was relevant to the defense witness’s bias or motive to fabricate, which is not collateral … . The defense witness was defendant’s former girlfriend, and the rebuttal witness was defendant’s ex-wife, who married defendant after he and the defense witness ended their romantic relationship. In her cross-examination of the defense witness, the prosecutor attempted to show that defendant and the defense witness were romantically involved at the time of the trial, but the defense witness would admit only that she and defendant were friends, and claimed that she and defendant had been friends “all along,” i.e., they were friends even when defendant and the rebuttal witness were married. The prosecutor informed the court that she wanted to call the rebuttal witness to rebut the defense witness’s testimony that she and defendant were “friends this entire time.” We disagree with our dissenting colleagues that the rebuttal witness should not have been allowed to testify. Reading the prosecutor’s colloquy with the court on this issue, together with her cross-examination of the defense witness, we conclude that the purpose of calling the rebuttal witness was to show that defendant and the defense witness were romantically involved at the time of the trial, which the prosecutor believed could be inferred if the defense witness and defendant had not been friends when he was married to the rebuttal witness.

We also disagree with our dissenting colleagues that our affirmance of the trial court’s ruling violates People v Concepcion (17 NY3d 192). The Court of Appeals has ” construed CPL 470.15 (1) as a legislative restriction on the Appellate Division’s power to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court’ ” (id. at 195). Contrary to the position of the dissent, we are not affirming on a ground that is different from that determined by the court. The court allowed the rebuttal witness to testify for the “limited purpose” of whether the defense witness and defendant were friends, and we conclude that the court’s determination was proper. We simply differ from the dissent in our interpretation of the meaning of the rebuttal witness’s testimony tending to show that the defense witness and defendant were not friends after defendant married the rebuttal witness.  People v Nicholson, 2014 NY Slip Op 04611, 4th Dept 6-20-14

 

Defendant’s Temporary Possession of a Weapon Was “Innocent”

The Fourth Department determined defendant’s conviction for possession of a weapon was against the weight of the evidence. Defendant’s half-brother handed her the weapon just before he became involved in an altercation.  The court determined defendant’s possession of the weapon was “innocent:”

“Under our law, in certain circumstances, the possession of a weapon may be innocent and not criminal. Innocent possession of a weapon is possession that is temporary and not for an unlawful purpose” … . “This defense of temporary and lawful’ possession applies because as a matter of policy the conduct is not deemed criminal” … . Furthermore, a “defendant is not required to prove that h[er] possession of the weapon was innocent. Rather, the People are required to prove beyond a reasonable doubt both that the defendant knowingly possessed the weapon and that such possession was not innocent” … . For this defense to be considered by the trier of fact, “there must be proof in the record showing a legal excuse for having the weapon in [one’s] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was] not used in a dangerous manner” … . People v Holes, 2014 NY Slip Op 04643, 4th Dept 6-20-14

 

In Absence of a “Special Relationship” Insurer Not Liable for Agent’s Negligent Misrepresentation

The Fourth Department determined the insurance carrier was entitled to summary judgment because it did not have a “special relationship” with the insured.  Plaintiff’s insurance had been cancelled for lack of payment.  After a loss, the plaintiff sued the insurer alleged that he had relied on the agent’s representation that his insurance premium had been paid.  Absent a “special relationship” suit can not be premised on such reliance:

We agree with defendant that the court erred in denying its motion for summary judgment dismissing the complaint, the gravamen of which is a claim for negligent misrepresentation. An essential element of such a claim is the “duty to use reasonable care to impart correct information due to a special relationship between the parties” … . A special relationship may arise from “a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on” … . According to plaintiff, he had a special relationship with defendant based on a course of dealing. We conclude that defendant met its burden on the motion, and plaintiff failed to raise an issue of fact concerning the existence of a special relationship … . The interactions between plaintiff and defendant on which plaintiff relies ” would [not] have put [an] objectively reasonable insurance agent[] on notice that [his or her advice] was being sought and specially relied on’ ” … , such that a special relationship was formed based on a course of conduct. Defendant therefore cannot be held liable for negligent misrepresentation based on its agent’s response to an inquiry from plaintiff concerning whether his policy premium had been paid. In view of our determination, we do not consider defendant’s remaining contentions. Majtan v Urbanke Assoc Inc, 2014 NY Slip Op 04631, 4th Dept 6-20-14

 

,

State’s Placement of a Stop Sign and the Resulting Difficulty in Seeing Oncoming Traffic was a Concurrent Cause of the Accident which Was Not Superseded by the Negligence of the Drivers

The Fourth Department determined the state was properly held partially liable for an accident at an intersection.  Plaintiff was a passenger in a car (driven by Kiczewski) which, after stopping, entered an intersection where it was struck by a truck (driven by Martin) with the right of way.  Plaintiff alleged the placement of the stop sign (by the state) made it difficult to see oncoming traffic:

We reject the State’s contention that claimants failed to meet their burden of establishing that its negligence was a proximate cause of claimant’s injuries. “In order to prevail at trial in a negligence case, a [claimant] . . . is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred” …. . Here, based on our review of the record, we conclude that a fair interpretation of the evidence supports the court’s determination that the State’s failure to remedy a known dangerous condition at the intersection was a substantial factor in bringing about the accident … .

Although it is true, as the State contends, that the accident was caused primarily by the negligence of Kiczewski, who failed to yield the right-of-way to the truck, it is well settled that there may be more than one proximate cause of the accident …, and it cannot be said on this record that Kiczewski’s negligence, or that of Martin, was a superseding cause of the accident that severed any causal connection between claimant’s injuries and the State’s negligence … . Because claimants proved that the State’s negligence “increased the likelihood of an accident,” we conclude that the court properly determined that the State’s negligence was a “concurring cause” of the accident … . Przesiek v State of New York, 2014 NY Slip Op 04327, 4th Dept 6-13-14

 

,

Land Owned by Power Company Which Does Not Now Produce Sewage and Garbage Properly Subject to Ad Valorem Taxes for Sewage and Garbage

The Fourth Department determined land owned by a power company was properly subject to ad valorem taxes for sewer and garbage because it was possible the land, at some point, could be used in a way that would generate sewage and garbage:

The test for determining whether real properties are benefitted, thus warranting special district assessment, is whether the properties are capable of receiving the service funded by the special ad valorem levy’ ” … . “An ad valorem tax will not be deemed invalid unless the taxpayer’s benefit received from the imposition of the tax is reduced to the point where it is, in effect, nonexistent” … .

Here, ” there is a sufficient theoretical potential of the properties to be developed in a manner that will result in the generation of garbage [and sewage]’ ” … . Unlike the plaintiff in Long Is. Water Corp. v Supervisor of Town of Hempstead (77 AD3d 795, lv denied 16 NY3d 711), plaintiff herein owns the land on which its “mass” properties sit, and we conclude that it is theoretically possible that such land, if put to a different use, could generate garbage and sewage. Matter of Niagara Mohawk Power Corp v Town of Marcy Assessor, 2014 NY Slip Op 04312, 4th Dept 6-13-14

 

,

Internally Inconsistent Verdict Properly Set Aside

The Fourth Department determined Supreme Court properly set aside the verdict and ordered a new trial.  The jury had found that plaintiff’s negligence was not a substantial factor in causing her injuries but attributed 30% of the fault to the plaintiff:

…[W]e conclude that the verdict was internally inconsistent inasmuch as the jury found that plaintiff’s negligence was not a substantial factor in causing her injuries, but also attributed 30% of the fault to plaintiff … . Such an internal inconsistency in a verdict can be remedied “only . . . upon further consideration by the jury . . . or by a new trial” … . Here, of course, the jury had been discharged by the time of plaintiff’s motion, and thus it was too late to require the jury to reconsider its answers to the interrogatories on the verdict sheet.

Although plaintiff failed to object to the inconsistency in the verdict before the jury was discharged …, we conclude that, under the circumstances of this case, the court did not abuse its discretion in setting aside the verdict and ordering a new trial … . Allen v Lowczus, 2014 NY Slip Op 04288, 4th Dept 6-13-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy