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Requirements for a Negligence Action Against a Municipality (Based Upon Personal Injuries Allegedly Caused by the Actions of Police Officers) Explained

The Fourth Department, in affirming the grant of summary judgment to the defendant municipality in a suit based upon injuries alleged to have been caused by police officers, the court explained the law relevant to negligence suits against municipalities:

With respect to the negligence cause of action, it is well settled that, in an action against a municipality, it is “the fundamental obligation of a plaintiff pursuing a negligence cause of action to prove that the putative defendant owed a duty of care. Under the public duty rule, although a municipality owes a general duty to the public at large to [perform certain governmental functions], this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created. This is an offshoot of the general proposition that[,] ‘[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally’ . . . The second principle relevant here relates not to an element of plaintiff[’s] negligence claim but to a defense that [is] potentially available to [defendant]—the governmental function immunity defense . . . [T]he common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions . . . [pursuant to which] ‘[a] public employee’s discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality’s liability even when the conduct is negligent’ ” … .

With respect to the issue whether a special duty exists, it is well settled “that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public . . . Such a duty, . . . [i.e.,] a duty to exercise reasonable care toward the plaintiff[,] is born of a special relationship between the plaintiff and the governmental entity” … . “A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … . According to plaintiff, a special relationship was formed in this case by the second method, i.e., the voluntary assumption of a duty of care by the municipal agency. That method requires plaintiff to establish “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking … .

We conclude that defendants met their burden on the motion by establishing as a matter of law that there was no voluntary assumption of a duty of care, and plaintiff failed to raise a triable issue of fact whether the police officers who came to the house assumed, through promise or action, any duty to act on his behalf. Even assuming, arguendo, that plaintiff raised a triable issue of fact with respect to that requirement, we conclude that he also failed to raise a triable issue of fact with respect to the fourth requirement, i.e., whether he justifiably relied on any such assumption of duty by the police officers … . Consequently, we conclude that the court erred in denying the motion with respect to the negligence cause of action.

We further conclude, in any event, that the defense of governmental function immunity constitutes a separate and independent ground for dismissal of the negligence cause of action. That defense “shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions” … . Here, defendants established that they were providing police protection and engaging in the investigation of possible criminal behavior. It is well settled that “[p]olice and fire protection are examples of long-recognized, quintessential governmental functions” … . Furthermore, “defendants established that the conduct of the police officers throughout the course of their interaction with [plaintiff] was undertaken in the exercise of reasoned professional judgment of the officers, and was not inconsistent with accepted police practice. Accordingly, such conduct cannot serve as a basis for municipal liability” … . Bower v City of Lockport…, 159, 4th Dept 3-21-14

 

Skiers Do Not Assume the Risk of Recklessness on the Part of Another Skier

The Fourth Department determined the doctrine of assumption of the risk did not rule out a novice skier’s lawsuit against a skier who ran into her. There was a question whether defendant’s conduct was reckless:

It is well established that, “by engaging in a sport orrecreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “While awareness or appreciation of such risks must be ‘assessed against the background of the skill and experience of the particular plaintiff’ . . . , ‘[t]he risk of injury caused by another skier is an inherent risk of downhill skiing’ ” … . Nevertheless, “a sporting participant ‘will not be deemed to have assumed the risks of reckless or intentional conduct’ ” … . “ ‘Generally, the issue of assumption of [the] risk is a question of fact for the jury’ ”… . Moore… v Hoffman, 138, 4th Dept 2-14-14

 

Evidence Sufficient to Demonstrate No Constructive Notice of Ice on Step

Over a dissent, the Fourth Department determined defendants had demonstrated they did not have constructive notice of ice alleged to be on a step. The proof submitted by the defendants included evidence that the step was routinely inspected every morning, although no evidence of such an inspection on the morning in question was submitted:

The facilities supervisor testified that he routinely inspects the bank’s steps and sidewalk upon his arrival at the bank between 6:30 a.m. and 7:30 a.m. He or his employees salt or shovel “first thing” in the morning, if the conditions require such action. In addition to inspecting the property upon their arrival, facilities personnel regularly monitor conditions throughout the day and “re-salt or re-shovel” as needed, and do so more frequently during inclement weather or if a customer complains. Defendants did not receive any complaints about snow, ice, or any other dangerous condition on the step prior to the accident. After the accident, which occurred at approximately 12:15 p.m., the facilities supervisor did not salt the steps or direct an employee to do so because he saw nothing to salt. Defendants also submitted the deposition testimony of their regional manager, who testified that there was no ice on the step when he arrived at the bank between 8 a.m. and 8:30 a.m. on the morning of the accident and that, after the accident, he inspected the step and the surrounding area and did not observe any snow or ice. A bank security officer testified that he photographed the step approximately two hours after the accident, at which time there was no snow or ice on the step. The security officer testified that he was “perplex[ed]” when he viewed the accident scene because he observed “nothing . . . to slip or fall on.” The postaccident photographs of the step depict what appears to be salt residue, but no ice. Austin v CDGA National Bank Trust and Canandaigua National Corporation…, 1298, 4th Dept 2-14-14

 

Questions of Fact About Whether Covenants Restricting Use of Land Were Violated

The Fourth Department explained the analytical criteria for covenants restricting the use of land:

The law favors the free and unrestricted use of real property, and therefore covenants restricting such use are strictly construed against those seeking to enforce them … . Plaintiffs, as the parties seeking to enforce the covenants at issue, were required to “prove, by clear and convincing evidence, the scope . . . of the restriction” … . In addition, “where the language used in a restrictive covenant is equally susceptible of two interpretations, the less restrictive interpretation must be adopted” … . Viewing the language of the covenants in light of those rules, we conclude that plaintiffs failed to establish that the structure erected by defendant violates the covenant prohibiting erection or maintenance of a fence … . We further conclude that plaintiffs failed to establish that the structure violates the covenant prohibiting the obstruction of established trails or roads or otherwise interferes with plaintiffs’ rights of access to White Lake … . Rather, triable issues of fact remain whether the covenants at issue were intended to prohibit the structure in question and thus whether defendant violated those covenants… . Halfond… v White Lake Shores Association Inc, 1380, 4th Dept 2-14-14

 

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Motion to Vacate Pursuant to CPLR 5015 Should Have Been Granted On “Subject Matter Jurisdiction” and “Fraud Upon the Court” Grounds

In a full-fledged opinion by Justice Centra, the Fourth Department determined Wells Fargo had either perpetrated a fraud upon the court or failed to reveal all the facts to the court which granted a nunc pro tunc order adding a second parcel to a foreclosure action. The Fourth Department noted that Wells Fargo knew the foreclosure action did not relate to the second parcel and therefore knew the nunc pro tunc order purporting merely to correct a mistake should not have been granted:

First, we agree … that the court … should have granted the motion to vacate the nunc pro tunc order because the court … was without subject matter jurisdiction to issue the nunc pro tunc order (see CPLR 5015 [a] [4]). Wells Fargo moved for the nunc pro tunc order pursuant to CPLR 2001, which provides that a “court may permit a mistake, omission, defect or irregularity . . . to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.” The court erred in granting the nunc pro tunc motion because Wells Fargo was not seeking to correct a mere ministerial or clerical mistake… . * * *

…[W]e agree … that the court … also should have granted the motion to vacate the nunc pro tunc order based on “fraud, misrepresentation, or other misconduct of an adverse party” (CPLR 5015 [a] [3]…).. In its nunc pro tunc motion, Wells Fargo asserted that the “common address” of 124-128 East Main Street contained both Parcel No. 1 and Parcel No. 2. Wells Fargo failed to advise the court …., however, that the metes and bounds descriptions of the two parcels are different. Wells Fargo does not dispute that, “when there is a discrepancy between the street address and the legal description of a piece of real property, the legal description controls” … . Wells Fargo also failed to advise the court of the second mortgage that encumbered Parcel No. 2, which, as noted earlier, was executed on the same date as the first mortgage. Further, Wells Fargo failed to advise the court that there was a two-family dwelling on Parcel No. 1 and a separate four-family dwelling on Parcel No. 2. Had Wells Fargo made the court aware of those facts, the court may have realized that there was no clerical error in omitting Parcel No. 2 from schedule A. Wells Fargo Bank NA … v Podeswik…, 81, 4th Dept 2-14-14

 

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“Summary Exhibits” Improperly Admitted Under “Voluminous Writings” Exception to the Best Evidence Rule

The Fourth Department reversed defendant’s conviction finding that summary exhibits were improperly admitted in evidence under the “voluminous writings” exception to the best evidence rule. In addition, the court determined defense counsel was ineffective for failure to review the summary exhibits and object to their admission:

We conclude that the summary exhibits were improperly admitted under the voluminous writings exception to the best evidence rule inasmuch as defendant was not provided with the data underlying those exhibits prior to trial …nor were those exhibits based solely upon information already in evidence … . Defendant was thus denied “a full and fair opportunity” to challenge the accuracy of the summary exhibits… . People v Case, 1310, 4th Dept 2-14-14

 

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Whether an Element of a Crime Has Been Proven Beyond a Reasonable Doubt Can Now Be Determined in a “Weight of the Evidence” Review/Such a Determination Is a Matter of Law Identical to a Determination the Evidence Is Legally Insufficient/After Making Such a “Legal” “Weight of the Evidence” Determination, the Court Is Not Constrained to Dismiss the Indictment As It Is When It Makes a “Factual” Determination a Conviction Is Not Supported by the Weight of the Evidence

In a full-fledged opinion by Justice Scudder, with concurring and dissenting opinions, the Fourth Department reduced defendant’s conviction from murder to manslaughter after applying a “weight of the evidence” analysis. The court explained it is now well-settled that a “weight of the evidence” review may consider whether the elements of the crime were proved beyond a reasonable doubt. Here the court determined there was insufficient evidence of an intent to kill. The stab wounds were inflicted in an attempt to escape the victim’s grasp during an altercation started by the victim. Even though the evidence was analyzed under a “weight of the evidence” review, the court actually concluded the evidence of intent to kill was insufficient as a matter of law. Because a question of law was determinative, the court held that it had the power to reduce the conviction, rather than dismiss the indictment (dismissal of the indictment is the statutory remedy for a “factual” “against the weight of the evidence” finding):

…[I]t is now well established that, “in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution’s witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt” (Danielson, 9 NY3d at 349). Upon our review of the elements of the crime of murder in the second degree, we conclude that, viewing the facts in the light most favorable to the People, “a jury could [not] logically conclude that the People sustained [their] burden of proof” with respect to the element of intent to kill … . * * *

We therefore conclude that, despite the fact that our review is in the context of a contention that the verdict is against the weight of the evidence, our assessment of the elements of the crime of murder in the second degree under these circumstances is not a determination on the facts (see CPL 470.15 [5]), i.e., a consideration of the “credible evidence, conflicting testimony and inferences that could be drawn from the evidence” (Danielson, 9 NY3d at 349). Instead, our assessment is a determination on the law that the evidence is legally insufficient with respect to the element of intent (see CPL 470.15 [4] [b]).

We respectfully disagree with our dissenting colleague’s conclusion that our review is limited by defendant’s “request for only a weight-based review” and that, based on that request, we must reverse the judgment as against the weight of the evidence and dismiss the indictment. Our conclusion that the judgment should be modified by reducing the conviction to a lesser included offense is supported by our reasoning that a defendant may not usurp our authority to determine the appropriate statutory remedy as set forth in CPL 470.20 by the manner in which he or she challenges the legal sufficiency of the evidence, i.e., within the context of a weight of the evidence contention rather than by an express contention that the conviction is not supported by legally sufficient evidence (see generally Bleakley, 69 NY2d at 495). In other words, we conclude that we are not required to afford the remedy of dismissal of the indictment pursuant to CPL 470.20 (5) merely because defendant’s contention that the evidence of the intent to kill was not proved beyond a reasonable doubt is made in the context of a request for a weight of the evidence review, rather than in the context of a contention that the conviction is not supported by legally sufficient evidence, even if that contention is not preserved for our review. People v Heatley, 1051, 4th Dept 2-14-14

 

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Plaintiff Raised a Question of Fact About Whether Her Employment Was Terminated in Retaliation for Protected Activity

The Fourth Department concluded plaintiff had raised a question of fact about whether the termination of her employment with the county was in retaliation for protected activity. The wife of plaintiff’s boss was a special education teacher working with plaintiff’s son. Shortly after complaining to the school district about the special education plaintiff’s son was receiving, plaintiff’s job was eliminated. The Fourth Department summarized the applicable law as follows:

In order to make out a claim for unlawful retaliation under state or federal law, a plaintiff must show that “(1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action” … .In order to establish entitlement to summary judgment in a retaliation case, a defendant may “demonstrate that the plaintiff cannot make out a prima facie claim of retaliation” or, alternatively, a defendant may “offer legitimate, nonretaliatory reasons for the challenged actions,” and show that there are “no triable issue[s] of fact . . . whether the . . . [reasons are] pretextual”… . * * *With respect to the element of a causal connection, we note that such element “may be established either ‘indirectly by showing that the protected activity was followed closely by [retaliatory] treatment, . . . or directly through evidence of retaliatory animus directed against a plaintiff by the defendant’ ”… . Calhoun v County of Herkimer, 1303, 4th Dept 2-14-14

 

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Defendant’s Reaching for Something in His Pocket, Without More, Did Not Justify Police Pursuit

The Fourth Department, over a dissent, determined that the defendant’s reaching for something in his pocket, without more, did not justify police pursuit. Therefore defendant’s suppression motion was properly granted:

Here, although defendant was reaching for his jacket pocket as he walked or ran away from the second officer, neither officer testified that he saw a bulge or the outline of a weapon in defendant’s jacket. Rather, the second officer believed that defendant had a gun only because, in his experience, if an individual pulled vigorously at an object in his or her pocket, but the object did not come out easily, that object usually was a weapon. While we are mindful that an officer may rely on his or her knowledge and experience in determining whether reasonable suspicion exists, we respectfully disagree with our dissenting colleagues that the above circumstances were sufficient to establish the requisite reasonable suspicion “in the absence of other objective indicia of criminality” … . Here, before pursuing defendant, the second officer knew only that defendant was walking across the street in a high-crime area, in the general vicinity of a house where an unnamed person of unestablished reliability claimed to have seen guns, and that, when the police approached, defendant walked or ran away while grabbing at his jacket pocket. We cannot conclude, based on the totality of those circumstances, that the police were justified in pursuing defendant… . People v Ingram, 1115, 4th Dept 2-14-14

 

No Probable Cause for Arrest—Convictions Stemming from Arrest Reversed

The Fourth Department determined the deputy sheriff did not have probable cause to arrest the defendant without a warrant because the defendant had not committed a crime in the deputy’s presence. Therefore all the charges stemming from the illegal arrest were not supported by legally sufficient evidence:

We conclude that the evidence is legally insufficient to establish that the deputy’s arrest of defendant was lawful inasmuch as the deputy lacked reasonable cause to believe that defendant committed an offense in her presence (see CPL 140.10 [1] [a]). Because the arrest was not authorized at its inception, the evidence is legally insufficient to support the conviction of assault, obstructing governmental administration, and resisting arrest …, and reversal therefore is required. People v LaBoy, 96, 4th Dept 2-14-14

 

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