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No Assets Left to Distribute—Disposition of a Painting Which Was Part of the Estate and Had Been Donated to a Museum Could Be Protected by the Attorney General (Charged with Protecting the Donor’s Wishes)–No Need to Issue Letters of Administration to Petitioner to Ensure Proper Use of the Painting

The Fourth Department determined letters of administration should not have been granted because all the assets of the estate had been distributed.  The letters were sought by a relative of the decedent who was concerned about the disposition of a valuable painting which was a charitable gift to a museum and could not be otherwise disposed of without a court order.  The court concluded that the disposition of the painting could be protected by the Attorney General:

…[W]e … conclude that [the Surrogate] erred in granting letters of administration c.t.a. to petitioner. It is undisputed that there are no assets of the estate that have not been administered … . As the Court of Appeals has written, “[t]here may be cases where letters of administration are necessary to be granted for other purposes than the recovery and distribution of assets[,]” including a “claim in respect to them which can be enforced” … . Nevertheless, we conclude that any claim with respect to the painting is to be “enforced by the [Attorney General], pursuant to his duty to effectuate the donor’s wishes” …, and we conclude that letters of administration c.t.a. are not “necessary” … .

We further conclude that limited letters of administration also are not “appropriate or necessary in respect of the affairs of the estate” (SCPA 702 [10]…). … [T]he Surrogate has previously prohibited the disposition of the painting without court approval, and there is no basis to conclude that the Attorney General is not properly fulfilling his duty to protect the decedent’s wishes with respect to the bequest to the Emerson Foundation … . Matter of Seward, 2014 NY Slip Op 04317, 4th Dept 6-13-14

 

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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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Statutory “Reckless Disregard” Standard in Vehicle and Traffic Law 1103 (b) Applied to the Driver of a Town Truck—The Driver Was Using a Plow to Remove Water and Debris from a Road—Because the Driver Was Acting On His Own and Had Not Been Assigned to Remove the Water and Debris, the Question Raised on Appeal Was Whether the Driver Was Doing “Work” within the Meaning of Section 1103 (b) such that the Statutory Standard, as Opposed to the Ordinary Negligence Standard, Applied

The Fourth Department, over a two-justice dissent, determined the statutory “reckless disregard” standard of Vehicle and Traffic Law 1103 (b), not the ordinary negligence standard, applied to the actions of the driver of a town truck..  The driver, Grzybek,  was using a plow to remove water and debris from a service road.  The water sprayed onto the windshield of the truck, obstructing the driver’s vision and causing the driver to cross into an oncoming lane, striking plaintiffs’ vehicle. Because the driver was not assigned the task of removing water and debris from the road, the dissenters argued the driver was not engaged in “work” within the meaning of Vehicle and Traffic Law 1103 (b) and, therefore, the ordinary negligence standard, not the “reckless disregard” standard of section 1103 (b), applied:

…[T]he statute exempts “all [municipal] vehicles actually engaged in work on a highway’ . . . from the rules of the road” … . The statute does not state that it exempts only those vehicles engaged in “assigned” work. Plowing water and debris from a road is work, and that work is within the scope of Grzybek’s duties. Plaintiffs do not suggest otherwise. Rather, their contention is that the statute applies only when the vehicles are “performing their assigned work” and that Grzybek was not assigned to plow water and debris from the service road on the day of the accident. In our view, interpreting the statute as the dissent and plaintiffs suggest improperly adds language to the statute by qualifying the word “work.” It is not the function of this Court to usurp the power of the legislature and rewrite a clear and unambiguous statute. Aside from statutory exceptions not relevant herein, all municipal vehicles actually engaged in work are exempt from the rules of the road. Inasmuch as Grzybek’s vehicle was actually engaged in work, albeit unassigned work, the reckless disregard standard of care set forth in Vehicle and Traffic Law § 1103 (b) applies as a matter of law. * * *

…[W]e conclude that plaintiffs, in opposition to defendants’ cross motion, submitted evidence from which a jury could find that Grzybek “had intentionally committed an act of an unreasonable character in disregard of a known or obvious risk “that was so great as to make it highly probable that harm would follow” and [did] so with conscious indifference to the outcome’ ” … . Gawron v Town of Cheektowaga, 2014 NY Slip Op 03051, 4th Dept 5-2-14

 

No Liability for Injury to Child Who Suddenly Darted Out Into Traffic

The Fourth Department determined all causes of action arising from a child’s darting out into traffic should be dismissed. There was no evidence the driver who struck the child (Hosley) was negligent.  And there was no evidence the adults in the car from which the child darted into traffic (Ricks and Still) were negligent.  The driver parked the car intending to escort the child to her school bus:

Specifically, the evidence establishes as a matter of law that, “without looking in the direction of oncoming traffic” …, the child darted from behind the front of Still’s parked vehicle, “directly into the path of” Hosley’s vehicle, leaving Hosley “unable to avoid contact with the [child]” …, and plaintiff failed to raise an issue of fact … . Contrary to plaintiff’s contention, the record does not establish that there is an issue of fact whether Hosley operated her vehicle in a negligent manner. Rather, the record establishes as a matter of law that Hosley acted as a reasonably prudent person when she slowed her rate of speed immediately upon seeing the parked vehicle ahead, and that she proceeded with caution while attempting to pass it safely on the left … .

With respect to the motion of Ricks and Still, we note that “[t]he operator of a private passenger vehicle owes to his passengers a duty of reasonable care [in] providing a safe place to alight” … . Ricks and Still met their initial burden on their motion by establishing that Ricks did not breach that duty to the child when, intending to escort the child, he parked the vehicle against the curb on a side street. Plaintiff’s “[m]ere conclusions, expressions of hope or unsubstantiated allegations” asserted in opposition to the motion failed to raise an issue of fact … . Green v Hosley, 2014 NY Slip Op 03066, 4th Dept 5-2-14

 

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Causes of Action Against County Personnel Based Upon Negligent Hiring, Training and Supervision Should Not Have Been Dismissed–Plaintiff’s Decedent Was Killed at the Hands of Her Mother and Half-Brother—Complaint Alleged County’s Negligence in Failing to Protect Plaintiff’s Decedent

In a lawsuit alleging county personnel, including deputy sheriffs, were negligent resulting in the death of plaintiff’s decedent at the hands of her mother and half-brother, the Fourth Department determined: (1) governmental immunity could not be determined at the pleading stage because whether the government’s actions were discretionary (and therefore immune) was a question of fact; (2) absent a local law to the contrary, a sheriff can not be held vicariously responsible for the actions of deputy sheriffs under the doctrine of respondeat superior; (3) the causes of action for negligent hiring, training and supervision of county personnel should not have been dismissed; (4) the notices of claim were sufficient to notify the county of the negligent hiring, training and supervision causes of action; and (5) the notice of claim was not defective for failing to name the sheriff in his official capacity.  Mosey v County of Erie, 2014 NY Slip Op 03041, 4th Dept 5-2-14

 

Defect Not Trivial as a Matter of Law

The Fourth Department determined defendant failed to establish a defect in pavement was trivial as a matter of law:

Here, we conclude that defendant failed to meet its initial burden of establishing that the defect was trivial and nonactionable as a matter of law … . The photographs submitted in support of defendant’s motion depict a lengthy edge in the pavement that was more than two-thirds of an inch deep and spanned the width of the painted walking area adjacent to the designated handicapped parking space … . Defendant also submitted plaintiff’s deposition testimony, in which she testified that her right foot caught on “a quite high ledge” in the pavement at the rear of the parking space … . Although defendant characterizes the edge as “a small, rounded lip in the pavement,” the photographs depict crumbling asphalt, and the edge appears to be irregular, jagged and abrupt as opposed to gradual …, where the trivial defect involved ” a small area’ ” of a ” cracked and crumbly’ ” curb that “had no measurable depth,’ ” plaintiff’s deposition testimony and the photographs in this case, particularly the photographs depicting the area closest to plaintiff’s vehicle, suggest a measurable edge in the pavement that could pose a tripping hazard. Lupa v City of Oswego, 2014 NY Slip Op 03055, 4th Dept 5-2-14

 

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