You are here: / Fourth Department

Tag Archive for: Fourth Department

,

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

 

, ,

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

 

,

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

 

Surrogate’s Court Should Have Held a Hearing to Determine the Validity of a Handwritten Will Supported by the Affidavits of Two Attesting Witnesses—If Valid, the 2012 Handwritten Will Would Have Revoked the 2002 Will

The Fourth Department reversed Surrogate’s Court and ordered that a hearing be held to determine whether a 2012 will revoked a 2002 will.  The 2012 will was handwritten and included some confusing language, but it was supported by the affidavits of two attesting witnesses.  There was sufficient evidence of the validity of the 2012 will to warrant a hearing:

We conclude that petitioner demonstrated a substantial basis for contesting the 2002 will. Execution of a subsequent will revokes a former will if the subsequent will is “so inconsistent with the former will that the two cannot stand together,” even in the absence of an express revocation clause in the subsequent will … . Here, the 2002 will named respondent as the sole beneficiary, but the 2012 will named petitioner as the sole beneficiary and purported to dispose of all of decedent’s property. We therefore conclude that the provisions of the 2002 will are so inconsistent with those of the 2012 will that, if the Surrogate were “satisfied with the genuineness of the [2012] will and the validity of its execution” (SCPA 1408 [1]), the 2012 will would revoke the 2002 will. Thus, in this case, whether petitioner had a reasonable probability of successfully vacating probate of the 2002 will was dependent upon whether he could prove, through competent evidence, that the 2012 will was genuine and duly executed and attested …. Matter of Gehr, 2014 NY Slip Op 03049, 4th Dept 5-2-14

 

,

Police Officer Struck by Plaintiffs’ Decedents When the Officer Was Making a U-Turn to Follow a Car Was Entitled to Summary Judgment Under the Statutory “Reckless Disregard” Standard

The Fourth Department determined summary judgment should have been granted in favor of a police officer (Bluman) who was struck by plaintiffs' decedents when the officer was attempting to make a u-turn to follow a vehicle.  The court determined the reckless disregard standard of Vehicle and Traffic Law 1104 applied and that the officer's “momentary judgment lapse” did not rise to the level of reckless disregard as a matter of law:

At the time of the accident, Bluman was operating an “authorized emergency vehicle” (Vehicle and Traffic Law § 1104 [a]) and was engaged in an emergency operation by virtue of the fact that he was attempting a U-turn in order to “pursu[e] an actual or suspected violator of the law” (§ 114-b). As the Court of Appeals recognized …, “the reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.” We conclude that, by attempting to execute a U-turn, Bluman's conduct was exempted from the rules of the road by section 1104 (b) (4). As a result, his conduct is governed by the reckless disregard standard of care in section 1104 (e).

It is well settled that a ” momentary judgment lapse' does not alone rise to the level of recklessness required of the driver of an emergency vehicle in order for liability to attach” (Szczerbiak v Pilat, 90 NY2d 553, 557). Here, Bluman acted under the mistaken belief that the other southbound vehicles were sufficiently behind him and that it was, at that moment, safe to execute a U-turn. This “constituted a momentary lapse in judgment not rising to the level of reckless disregard for the safety of others' “… . Dodds v Town of Hamburg, 2014 NY Slip Op 03060, 4th Dept 5-2-14

 

,

Emotional Injury Can Constitute “Serious Injury” Within the Meaning of the Insurance Law/On-coming Car Crossed Into Plaintiffs’ Lane—Plaintiffs Entitled to Summary Judgment (Re: On-coming Driver’s Negligence Cause of Action) Under the Emergency Doctrine

The Fourth Department noted a question of fact had been raised about whether post-traumatic-stress disorder constituted a serious injury within the meaning of Insurance Law 5102 (d).  Plaintiffs, husband and wife, were struck head-on when an on-coming car crossed into plaintiff’s lane.  The driver of the on-coming car was trying to avoid a deer which ran into the road. The court also determined plaintiffs were entitled to summary judgment dismissing the other driver’s negligence action based upon the emergency doctrine, even in the absence of expert evidence:

“[A] causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury” …, and posttraumatic stress disorder (PTSD) “may constitute such an injury when it is causally related to a motor vehicle accident and demonstrated by objective medical evidence” … . Moreover, “PTSD may be demonstrated without diagnostic testing for purposes of Insurance Law § 5102 (d) by symptoms objectively observed by treating physicians and established by the testimony of the injured plaintiff and others who observe the injured plaintiff” … .

Even assuming, arguendo, that plaintiffs met their initial burden on the issue of serious injury, we conclude that defendants raised an issue of fact sufficient to defeat the motion by submitting the records of [plaintiff’s]  psychologist … . * * *

“Under the emergency doctrine, “when [a driver] is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes [the driver] to be reasonably so disturbed that [he or she] must make a speedy decision without weighing alternative courses of conduct, the [driver] may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the [driver] has not created the emergency” ‘ … . It is well established that a driver is not required to anticipate that [a] vehicle, traveling in the opposite direction, [will] cross over into his [or her] lane of travel’ ” … . * * * The vehicle operated by decedent entered [plaintiff’s] lane of traffic without warning, and [plaintiff]  applied his brakes and swerved to the right as soon as he saw decedent’s vehicle cross into his lane. The absence of expert evidence on this issue is of no moment inasmuch as, “[i]n a cross-over collision case, a defendant [or a plaintiff seeking dismissal of an affirmative defense] may meet the burden of establishing entitlement to summary judgment [or dismissal of the affirmative defense] under the emergency doctrine even when [t]he only evidence in the record concerning [the movant’s] conduct’ is [his or her] own [deposition] testimony” … . Hill v Cash, 2014 NY Slip Op 03058, 4th Dept 5-2-14

 

,

Victim’s Statements Admissible as Excited Utterances Despite the Passage of Some Time Before the Statements Were Made

The Fourth Department determined the victim’s statements to an emergency medical technician were admissible as excited utterances even though some time had elapsed between the victim’s treatment and her statements.  The court determined that the stress of the situation had not diminished at the time the statements were made:

It is well settled that “[t]he admissibility of an excited utterance is entrusted in the first instance to the trial court. In making that determination, the court must ascertain whether, at the time the utterance was made, the declarant was under the stress of excitement caused by an external event sufficient to still his [or her] reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful. The court must assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth. Above all, the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection” … . Notably, “the time for reflection is not measured in minutes or seconds, but rather is measured by facts” … .

There is no dispute that there was a period of time between the victim’s treatment by the EMT and her statements. During that period of time, however, the victim’s child and niece were still in the apartment with defendant, the man who had kidnapped the victim and beaten her with a loaded gun. We thus conclude that “ ‘at the time the utterance[s were] made [the victim] was in fact under the stress of excitement caused by an external event sufficient to still . . . her reflective faculties’ . . . , including both the physical and emotional stress of the [kidnapping and] beating earlier administered by defendant[,] . . . the stress of being confined in [an apartment and car] with defendant following the attack,” and the stress of having two small children still in harm’s way… . People v Miller, 191, 4th Dept 3-28-14

 

Uninhabited Trailer Met Definition of a “Building” Within the Meaning of the Arson Statute

The Fourth Department determined that a trailer that periodically was used as lodging, although not so used at the time of the fire, constituted a “building” within the meaning of the arson statute:

“The ‘ordinary meaning’ of the term ‘building’ has been alternatively defined as ‘a constructed edifice designed to stand more or less permanently, covering a space of land, usu[ally] covered by a roof and more or less completely enclosed by walls, and serving as a dwelling’ . . . , ‘a structure with a roof and walls’ . . . and ‘[a] structure or edifice inclosing a space within its walls and usually, but not necessarily, covered with a roof’ . . . The term generally, though not always, implies the idea of a habitat for a person’s permanent use or an erection connected with his or her permanent use” … .

Inasmuch as the trailer herein was “a constructed edifice enclosed by walls, covered by a roof, designed to stand permanently, and serving a useful purpose, it is included within the ordinary meaning of the word ‘building’ ” … . …In addition to furnishings for sleeping, the trailer had a bathroom and a kitchen. Moreover, the trailer was equipped with a power cord for immediate access to power and a propane tank that could be used to power the refrigerator and heaters. At the time of the arson, the trailer was being used to secure the owners’ property while they were remodeling the inside of their house. In any event, with respect to the trailer’s character as a building in the ordinary sense of the word, it is of no moment that no one was actually residing in the trailer on the day of the incident … .

Even assuming, arguendo, that the trailer did not fit within the ordinary meaning of the term, we conclude that it constituted a building under the secondary definition of building contained in the statute, i.e., a “structure . . . used for overnight lodging of persons, or used by persons for carrying on business therein” (Penal Law § 150.00 [1]). Defendant recognized that the trailer was used for overnight lodging “on ‘vacations’ or weekend retreats,” and it is undisputed that defendant had previously rented the trailer as overnight lodging for a period of four months. Although no one was residing in the trailer on the day of the fire, we likewise conclude that such fact does not alter the essential character of the structure as one used for overnight lodging. People v Norcutt, 195, 4th Dept 3-28-14

 

,

Summary Judgment Properly Granted in Favor of Defendant Who Had the Right of Way When Plaintiff Pulled Into Defendant’s Path from a Stop, Even Though there Was Evidence Defendant Was Travelling Slightly Over the Speed Limit/No Evidence Accident Would Have Been Avoided Had the Defendant Been Traveling at the Speed Limit

The Fourth Department, over a dissent, determined that summary judgment was properly granted to defendant truck driver who struck plaintiff’s vehicle as it entered the roadway from a stop.  The truck driver had the right of way (there was no stop sign for the truck driver) and there was evidence the truck was travelling in excess of five miles an hour over the speed limit. The court determined there was no evidence the accident could have been avoided even if the truck had been traveling at the speed limit:

“It is well settled that a driver who has the right-of-way is entitled to anticipate that drivers of other vehicles will obey the traffic laws requiring them to yield” (…see Vehicle and Traffic Law § 1142 [a]). Nevertheless, “a driver cannot blindly and wantonly enter an intersection . . . but, rather, is bound to use such care to avoid [a] collision as an ordinarily prudent [motorist] would have used under the circumstances” … .

Here, we conclude … that defendants met their initial burden of establishing that defendant was operating his vehicle “ ‘in a lawful and prudent manner and that there was nothing [he] could have done to avoid the collision’ ” … . Defendant testified that he saw plaintiff’s vehicle at the stop sign, braked as soon as he entered the intersection, and turned to the left “microseconds” after he braked. Despite defendant’s efforts to avoid the accident, his truck struck the rear of plaintiff’s vehicle on the passenger’s side. In opposition to the motion, plaintiff failed to raise an issue of fact … . Contrary to plaintiff’s contention, “the fact that [defendant] may have been driving at a speed in excess of five miles per hour over the posted speed limit . . . is inconsequential inasmuch as there is no indication that [defendant] could have avoided the accident even if [he] had been traveling at or below the posted speed limit” … . Heltz v Barratt…, 184, 4th Dept 3-28-14

Similar (but not identical) facts, same result, over a dissent, in Johnson v Time Warner…, 175, 4th Dept 3-28-14

 

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