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Photograph of Accident Scene Properly Admitted Notwithstanding Flowers Remembering Victim

The Fourth Department, in affirming defendant’s conviction stemming from the death of a passenger after defendant’s vehicle struck a tree, determined that the photograph of the accident scene was properly admitted notwithstanding the flowers placed at the scene in remembrance of the victim.  The court also rejected arguments that (1) defendant’s post-arrest silence was revealed to the jury (not preserved) (2) turning off the overhead projector effectively closed the courtroom (not preserved) and (3) defense counsel was erroneously prohibited from questioning the medical examiner about alternative causes for the victim’s injuries (speculative,  insufficient foundation).  With respect to the photograph, the court wrote:

“The general rule is stated in People v Pobliner (32 NY2d 356, 369…) photographs are admissible if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered.’ They should be excluded only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant’ ” … . Here, we agree with the People that the sole purpose of the evidence was not to arouse the emotions of the jury. To the contrary, the photographs established the relative positions of the tree and the roadway, the visibility of the tree, and the straight nature of the roadway, all of which were relevant to the jury’s factual determinations, including whether defendant was driving while in an intoxicated condition. People v Boop, 2014 NY Slip Op 04296, 4th Dept 6-13-14

 

Defendant Failed to Meet Its Burden on Its Summary Judgment Motion—Not Enough to Point to Deficiencies in Plaintiff’s Proof

The Fourth Department determined Supreme Court erred in dismissing a lawsuit against a residential care facility based upon plaintiff’s decedent’s being fatally injured by another resident. The court noted that the motion for summary judgment was brought by the defendant and it was therefore not enough for the defendant to allege only deficiencies in  plaintiff’s proof:

We conclude that the court erred in granting defendant’s motion because defendant “failed to come forward with any proof to rebut plaintiff[‘s] allegations and merely focused on the claimed deficiency in plaintiff[‘s] proof” … . In support of its motion, defendant repeatedly argued that plaintiff “failed to satisfy [her] burden” of establishing a prima facie case of negligence because of the “absence of proof[]” with respect to duty, breach of duty, foreseeability, and proximate cause. Those arguments are misplaced, however, because “defendant, not plaintiff, moved for summary judgment and defendant cannot meet its burden by relying on claimed deficienc[ies] in plaintiff[‘s] proof’ ” … . Although plaintiff will bear the burden of establishing defendant’s negligence at trial, “on this motion for summary judgment, defendant has the burden of establishing its entitlement to judgment as a matter of law” … , and we conclude that defendant failed to meet that burden … .

Defendant concedes that there was an altercation between decedent and another resident, and that such altercation resulted in decedent’s injuries. With respect to the foreseeability of the resident’s alleged conduct, “defendant[], as the part[y] seeking summary judgment, bore the burden of establishing that the assault on [decedent] was not foreseeable” … . Defendant, however, “failed to submit any evidence to show that [it] lacked knowledge of any danger presented by the [resident],” and thus failed to establish its entitlement to judgment as a matter of law … . Schnorr v Emeritus Corp, 2014 NY Slip Op 04314, 4th Dept 6-13-14

 

“Rare Case” Where Facts Supported Both Depraved Indifference and Intentional Murder

The Fourth Department determined the facts of the case—defendant fired a pistol at three people he did not know, killing one—supported both intentional and depraved indifference murder.  Defendant had been “jumped” by a student from a particular housing project.  Three days later defendant went to the project and committed the shooting:

The relevant legal principles for evaluating the above trial evidence are well settled. Depraved indifference is a mental state

” best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not’ ” … . “Circumstantial evidence can be used to establish the necessary mens rea” … . Although shooting into a crowd of people is a ” [q]uintessential example[ ]’ ” of depraved indifference … , the mere presence of others does not transform an otherwise intentional shooting into a depraved indifference murder or assault … . Rather, the point of distinction between a criminal act committed with intent and a criminal act committed with depraved indifference is that the former is motivated by the “conscious objective” to cause death or serious physical injury, while the latter is “recklessly indifferent, depravedly so, to whether death [or serious physical injury] occurs” … .

We conclude that this case is one of those “rare” cases where the defendant properly could have been charged with both intentional and depraved indifference murder …. Stated otherwise, and contrary to defendant’s contention, he is not “guilty of an intentional shooting or no other” … . The evidence summarized above, when viewed in the light most favorable to the People, establishes a “valid line of reasoning and permissible inferences which could lead a rational person” to conclude that defendant, by shooting indiscriminately at a group of people that he did not know, acted with depraved indifference to human life rather than with intent to kill … . People v Archie, 2014 NY Slip Op 04307, 4th Dept 6-13-14

 

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Absentee Landlord Granted Summary Judgment in Lead-Paint Exposure Case—No Constructive Notice

The Fourth Department, over a dissent, determined summary judgment was properly granted to an absentee landlord in a lead-paint exposure case.  The landlord had never seen the property:

Defendant and his wife acquired the property by deed in January 1993, and they took title to the property as tenants by the entirety. Defendant’s wife died in 2004. Defendant testified at his deposition that his participation in the acquisition of the property was as an accommodation to the financial situation of his wife’s son and her nephew. Defendant denied that he had anything to do with the property and asserted that he was only an owner “on paper.” Defendant never saw the property, never went there, never received any rent, did not know that a child resided there and never received any correspondence related thereto. Defendant did not execute any lease agreements with respect to the property. “To establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition” … . Hamilton v Picardo, 2014 NY Slip Op 04290, 4th Dept 6-13-14

 

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Suit Against City for Attempting to Resuscitate Plaintiff with an Inoperable Defibrillator Properly Dismissed—No Special Duty Owed to Plaintiff

The Fourth Department determined causes of action against the city stemming from an inoperable defibrillator which delayed the resuscitation of plaintiff (Angona) were properly dismissed.  Angona had suffered a heart attack and fire department personnel responded. The rendering of resuscitative care and treatment involved a governmental function and the city owed no special duty to the plaintiff:

All of [the] claims of negligence arise from the City’s exercise of governmental functions … . Thus, “[t]o sustain liability against [the City], the duty breached must be more than that owed the public generally” … . The City met its burden of establishing the absence of a special duty owed to Angona in these circumstances …, and plaintiff failed to raise a triable issue of fact. We reject plaintiff’s contention that the City owed a special duty to Angona by virtue of his status as an off-duty firefighter. Angona v City of Syracuse, 2014 NY Slip Op 04322, 4th Dept 6-13-14

 

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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

 

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Requirements for Notice of Intent Met Despite Flaws in Document

The Fourth Department determined a flawed document which followed the format of a Notice of Claim under the General Municipal Law met the requirements for a Notice of Intent under the Court of Claims Act:

Here, we conclude that the document is a proper notice of intent. We agree with defendant that the document “had all the hallmarks of a notice of claim against a municipality,” rather than a notice of intent against the State, including the title of the document, the stated venue as “Supreme Court,” the references to the General Municipal Law, and the naming of the County of Orleans as a “respondent.” Nevertheless, the document names the State as a “respondent” and alleges that the premises where claimant fell were owned by the State, and claimant served the document on the Attorney General. In addition, we conclude that the mistake in naming the place where the claim arose as the “Orleans County Correctional Facility” (emphasis added) does not require dismissal of the claim. Claimant provided the proper address where the claim arose, which showed that her fall occurred at the Orleans Correctional Facility, and not at the Orleans County Jail, which is located on a different street.With regard to the requisite specificity as to the place where the claim arose, we note that ” [w]hat is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable [defendant] to be able to investigate the claim promptly and to ascertain its liability under the circumstances’ ” …. .  Mosley v State of New York, 2014 NY Slip Op 03054, 4th Dept 5-2-14

 

Homeowners’ Association Had Power to Direct Property Owners to Remove Chickens

The Fourth Department, over a two-justice dissent, determined the plaintiff homeowners’ association acted properly when it directed defendants to remove two chickens from their property.  The “Declaration of Covenants, Conditions and Restrictions…” gave the board “the absolute power to prohibit a pet from being kept on the Properties…”:

“It is well settled that, [s]o long as the [B]oard [of directors of a homeowners’ association] acts for the purposes of the [homeowners’ association], within the scope of its authority and in good faith, courts will not substitute their judgment for [that of] the [B]oard[ ]’ ” … . The Declaration provides that plaintiff’s Board “shall have the absolute power to prohibit a pet from being kept on the Properties, including inside residences constructed thereon.” Here, plaintiff established that its Board was acting for the purposes of the homeowners’ association and within the scope of its authority when it directed defendants to remove the chickens from the property. In addition, there is no evidence that defendants were ” deliberately single[d] out . . . for harmful treatment’ ” inasmuch as no other residents of the subdivision had chickens or were in violation of the applicable restrictive covenant …, and defendants otherwise ” failed to present evidence of bad faith . . . or other misconduct’ ” … . Preserve Homeowners’ Assn Inc v Zahn, 2014 NY Slip Op 03047, 4th Dept 5-2-14

 

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Low-Income Families’ Challenges to Child Care Copayment Regulation Rejected

The Fourth Department rejected challenges to a copayment regulation by low-income families who are eligible for child care assistance but who are required to pay more than 10% of their gross incomes for the care.  The families alleged that the co-payment regulation, 18 NYCRR 415.3 (e), violated Social Services Law 410-x because it did not provide for a single sliding fee scale, the existing sliding fee scales are not based upon the family’s ability to pay, and the regulation failed to provide equitable access to child care as required by statute.  The families further alleged the copayment regulation violated the families’ right to travel within the state and their right to equal protection of the law.  With respect to the sliding scale aspect of the argument, the court wrote:

Plaintiffs …contend that the copayment regulation violates Social Services Law § 410-x (6) because it does not provide for a single sliding fee scale, as required by statute, and instead allows each of the 58 social services districts to set its own sliding fee scale. We reject that contention as well. “It is well settled that the Legislature may authorize an administrative agency to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation’ ” … . “In so doing, an agency can adopt regulations that go beyond the text of that legislation, provided they are not inconsistent with the statutory language or its underlying purposes” … . An agency’s interpretation of a governing statute will not be disturbed unless it is unreasonable or irrational … .

Here, section 410-x (6) delegates regulatory authority to the Office of Children and Family Services, of which defendant is Commissioner, by providing that, “[p]ursuant to department regulations, child care assistance shall be provided on a sliding fee basis based on the family’s ability to pay.” The statute does not expressly require defendant to adopt a single state-wide sliding fee scale, and we do not consider it unreasonable or irrational for defendant to adopt a regulation that gives flexibility to social services districts to choose a multiplier between 10% and 35% to use in calculating an eligible family’s share of child care costs. Williams v Carrion, 2014 NY Slip Op 03044, 4th Dept 5-2-14

 

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Corporate Integrity Documents Privileged Under Education Law 6527 (3)

The Fourth Department determined corporate integrity documents sought by plaintiffs in a fraud and dental malpractice action were privileged under the Education Law and did not have to be disclosed:

We conclude that the court erred in determining that the requested corporate integrity documents were not privileged under Education Law § 6527 (3). [Defendant] met its burden of establishing that the corporate integrity documents sought by plaintiffs were related to the “performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program” … . Specifically, [defendant] established that the corporate integrity documents were prepared pursuant to state and federal corporate integrity agreements, which set forth procedures for the review and monitoring of the quality of care of the dental clinics. Thus, [defendant] established” that it has a review procedure and that the [corporate integrity documents] for which the [privilege] is claimed [were] obtained or maintained in accordance with that review procedure’ ” … . Contrary to plaintiffs’ contention, there is nothing in the language of section 6527 (3) limiting applicability of the privilege to agencies located in New York or records prepared in the state… . Matter of Small Smiles Litig, 2014 NY Slip Op 03080, 4th Dept 5-2-14

 

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