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Assault Counts Should Have Been Dismissed As Inclusory Concurrent Counts of the Counts Charging Assault in the First Degree as a Sexually Motivated Felony

The Fourth Department determined that counts of an indictment should have been dismissed as inclusory concurrent counts:

We agree with defendant … that the fourth and sixth counts of the indictment, each charging him with assault in the first degree, must be reversed and dismissed pursuant to CPL 300.30 (4) as inclusory concurrent counts of counts five and seven, each charging him with assault in the first degree as a sexually motivated felony. We therefore modify the judgment accordingly. CPL 300.30 (4) provides in pertinent part that “[c]oncurrent counts are inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater.” A crime is a lesser included offense of another where “it is theoretically impossible to commit the greater crime without at the same time committing the lesser . . . [, as] determined by a comparative examination of the statutes defining the two crimes, in the abstract” … . Here, “defendant could only commit the sexually motivated felon[ies] if it was proven that he had committed the underlying [assaults] and that the [assaults were] committed for his own sexual gratification” … . Thus, the underlying assault counts charging assault in the first degree should have been dismissed as inclusory concurrent counts of the counts charging assault in the first degree as a sexually motivated felony upon defendant’s conviction of the latter crime… .  People v Dallas, 2014 NY Slip Op 05083, 4th Dept 7-3-14

 

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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Possible Error of Law Committed by Judge Did Not Warrant a Prohibition Action

The Fourth Department determined the prosecutor’s prohibition action against a judge should have been dismissed.  The judge had ordered a competency hearing to determine if the complainant in a criminal case was competent to testify in light of her intoxication:

Here, petitioner argued — and Supreme Court agreed — that respondent acted in excess of her authority in ordering a competency hearing because a witness’ level of intoxication at the time of the incident in question and its effect on his or her ability to recall the events has no bearing on whether such witness is competent to testify at trial. It is manifest, however, that a trial court has the authority to make a preliminary inquiry as to a witness’ competency to testify at trial (see CPL 60.20 [1]…). As such, any error in respondent’s decision to hold a competency hearing would, at most, amount to a mere substantive error of law that does not justify the invocation of this extraordinary remedy. “[P]rohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power” … . Matter of Getman, 2014 NY Slip Op 05012, 3rd Dept 7-3-14

 

Plaintiff’s Labor Law 240 and 200 Actions Against the Town Should Have Been Dismissed—Although the Town Hired Plaintiff to Do Work on the Town’s Right of Way, the Accident Occurred on Adjacent Private Property—Labor Law 200 Action Against the Property Owners Should Not Have Been Dismissed

The Fourth Department, over a dissent, determined the Labor Law 240 and 200 actions against the town should have been dismissed because the injury occurred on private land, not town land.  The court further determined that the Labor Law 200 action against the landowners (the Hersheys) should not have been dismissed because the owners did not demonstrate as a matter of law their lack of notice of the dangerous condition.  The plaintiff had been hired by the town to do sidewalk and driveway work on the town’s right of way next to the Hersheys’ property. The plaintiff was parking a backhoe on the Hersheys’ property, with the Hersheys’ permission, when it tipped over into a ravine:

…[W]e agree with the Town that the court erred in denying the Town’s motion for summary judgment dismissing the Labor Law §§ 240 (1) and 241 (6) causes of action against it, inasmuch as the Town is not an “owner” for purposes of those statutes … . It is well settled that “the term owner’ is not limited to the titleholder of the property where the accident occurred and encompasses a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit’ ” … . Here, the accident occurred well outside of the Town’s right-of-way, and the Town had no other interest in or legal authority over the landing area, which was located entirely on the Hersheys’ private property … . The Town established that it was Kenneth Hershey, not the Town, who gave plaintiff permission to park in the landing area; that the Town had no authority to grant such permission to plaintiff; and that Kenneth Hershey directed plaintiff where to park. Further, the Town established that the landing area was not part of the construction site … . No work was being performed in the landing area, and the landing area was not contiguous or in proximity to the construction site … . Moreover, the Town established that it was not necessary for plaintiff to park the backhoe in the landing area. The Town provided plaintiff with parking in a municipal garage, which was located a few miles from the work site. Plaintiff, however, testified at his deposition that he chose to use the landing area because it was closer to the work site and more “convenient” to do so … . Farruggia v Town of Penfield, 2014 NY Slip Op 4th Dept 7-3-14

 

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Motion to Quash Subpoena for Billing Records Re: the Insurance Company’s Examining Physician Properly Denied

The Fourth Department determined a motion to quash a subpoena duces tecum was properly denied, even though the billing documents for the insurance company’s (State Farm’s) examining physician were sought for cross-examination and impeachment purposes:

State Farm moved to quash the subpoena pursuant to CPLR 2304 on the ground that it was plaintiff’s intent to use the subpoenaed materials to impeach the examining physician’s general credibility. Plaintiff opposed the motion on the ground that she intended to use the subpoenaed documents to cross-examine the examining physician at trial with respect to his bias or interest. Supreme Court denied the motion, and we affirm.

“It is . . . well settled that a motion to quash a subpoena duces tecum should be granted only where the materials sought are utterly irrelevant to any proper inquiry” … . “Moreover, the burden of establishing that the requested documents and records are utterly irrelevant is on the person being subpoenaed” … . It is “proper to allow cross-examination of a physician regarding the fact that the defendant’s insurance company retained him to examine the plaintiff in order to show bias or interest on the part of the witness” … . Questions concerning the bias, motive or interest of a witness are relevant and should be “freely permitted and answered” …  and, thus, plaintiff is entitled to discovery materials that will assist her in preparing such questions. In light of the foregoing, we conclude that the court did not abuse its discretion in denying the motion. Dominici v Ford, 2014 NY Slip Op 05081, 4th Dept 7-3-14

 

In a Partition Action, Tenant in Common Not Liable to Other Tenants in Common for Use and Occupancy of the Property/Tenant in Common Entitled to Reimbursement from Other Tenants in Common for Taxes and Repairs

In the context of a partition action, the Fourth Department explained that a tenant in common is not liable to other tenants in common for the use and occupancy of the property and is entitled to reimbursement of any payments made for taxes and repairs:

Contrary to plaintiffs’ contention, the court properly determined that defendant was not liable to them for the value of defendant’s use and occupancy. “[P]artition is an equitable remedy in nature and [the court] has the authority to adjust the rights of the parties so [that] each receives his or her proper share of the property and its benefits” (Hunt v Hunt, 13 AD3d 1041, 1042). A tenant in common “has the right to take and occupy the whole of the premises and preserve them from waste or injury, so long as he or she does not interfere with the right of [the other tenants] to also occupy the premises” … . “Mere occupancy alone by one of the tenants does not make that tenant liable to the other tenant[s] for use and occupancy absent an agreement to that effect or an ouster” … , both of which are absent here.

Contrary to plaintiffs’ further contention, the court properly determined that defendant was entitled to be reimbursed for payments that he made for property taxes and repairs. It is well settled that a tenant in common is entitled to be reimbursed for the share of the taxes paid by him for the benefit of other tenants in common … . Additionally, a tenant in common is entitled to be reimbursed for money expended in maintaining, repairing and improving the property, if such maintenance, repairs, and improvements were undertaken in good faith and were necessary to protect or preserve the property … . Cooney v Shepard, 2014 NY Slip Op 04589, 4th Dept 6-20-14

 

Petition for Modification of Custody Should Not Have Been Dismissed Without a Hearing

The Fourth Department determined Family Court should not have dismissed mother’s petition for a modification of custody without holding a hearing:

It is well settled that a party seeking a change in an established custody arrangement must show “a change in circumstances [that] reflects a real need for change to ensure the best interest[s] of the child[ren]” … . Although a “hearing is not automatically required whenever a parent seeks modification of a custody order”… , we conclude that the mother made a sufficient evidentiary showing of a change in circumstances to warrant a hearing … . “[T]he mother’s allegations that [the father] imposed excessive and inappropriate discipline on the subject children, including corporal punishment, [were] sufficient to warrant a hearing” … , as were the mother’s allegations that the father had refused to permit her to exercise visitation with the subject children for four weeks … . Consequently, we agree with the mother that the court erred in dismissing the petition without conducting a hearing.  Matter of Isler v Johnson, 2014 NY Slip Op 04678, 4th Dept 6-20-14

 

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