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Strict Liability for Clean Up of Petroleum Spilled Between 1890 and 1935

The Fourth Department determined the current owners of land contaminated with petroleum between 1890 and 1935 were strictly liable for clean-up under the Navigation Law, despite intervening use of the land as a scrap yard:

We conclude that plaintiffs established their entitlement to a determination that defendants are contributing “dischargers” pursuant to Navigation Law § 172 (8) and thus are strictly liable under section 181 (1) for, inter alia, the cleanup and removal costs…, despite the fact that the parcels subsequently were the sites for various commercial operations that also may have contributed to the contamination of the properties, including a scrap yard.  …

Plaintiffs provided the affidavits of two experts explaining that samples taken from depths of 6 to 14 feet below the surface contained contaminants that are consistent with refinery operations and that, based upon the age and depths of the samples, could only have been caused by the refinery operations. One Flint St LLC… v Exxon Mobil Corporation…, 1281, 4th Dept 12-27-13

 

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Criteria for Review of Agency’s Condemnation of Land Explained/Failure to Consider Future Development of Land Did Not Constitute Improper Segmentation of Environmental Impact Review

The Fourth Department determined the condemnation of land by the Lockport Industrial Development Agency (LIDA) and the related State Environmental Quality Review Act (SEQRA) review were properly done. The court determined that the failure to consider future development of the land did not amount to an improper segmentation of the SEQRA review process: The court explained its review powers in this context as follows:

It is well settled that the scope of our review of LIDA’s determination is “very limited” … .  We must “ ‘either confirm or reject [LIDA’s] determination and findings,’ and [our] review is confined to whether (1) the proceeding was constitutionally sound; (2) [LIDA] had the requisite authority; (3) its determination complied with SEQRA and EDPL article 2; and (4) the acquisition will serve a public use” (id.; see EDPL 207 [C]).  “The burden is on the party challenging the condemnation to establish that the determination ‘was without foundation and baseless’ . . . Thus, ‘[i]f an adequate basis for a determination is shown and the objector cannot show that the determination was without foundation, the [condemnor’s] determination should be confirmed’… . * * *

Although LIDA considered only the impact of the acquisition and not the impact of potential development, we reject [the] contention that LIDA thereby improperly segmented the SEQRA review process (see 6 NYCRR 617.2 [ag]).  Although LIDA intends to sell the property to a potential developer, there was no identified purchaser or specific plan for development at the time the SEQRA review was conducted …, and thus we conclude that under these facts the acquisition is not a “separate part[] ‘of a set of activities or steps’ in a single action or project”… . Matter of GM Components Holdings LLC v Town of Lockport Industrial Development Agency, 1275, 4th Dept 12-27-13

 

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No Legal Duty Owed Independent of Contract—Negligence Cause of Action Dismissed

In the context of the dismissal of a tort action against Ferguson Electric Service Company after a building fire, the Fourth Department explained when a contractual relationship can give rise to an action in tort:

“It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated . . . This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract” … .  Plaintiffs cannot maintain their tort cause of action because Ferguson … owed no legal duty that is independent of the contract … .  Moreover, “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party…”… . Niagara Foods, Inc…v Ferguson Electric Service Company, Inc…, 1044, 4th Dept 11-15-13

 

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Plaintiff Entitled to Summary Judgment Where Defendant Crossed Into Her Lane Attempting to Make a Left Turn

The Fourth Department determined plaintiff (Daniels) whose car was struck head-on by defendant (Rumsey), whose car crossed into plaintiff’s lane attempting to make a left turn into a parking lot, was entitled to summary judgment, even though plaintiff may have been driving five miles an hour above the speed-limit:

…[W]e conclude that the court properly granted Daniels’s motion for summary judgment dismissing the complaint and cross claims against her.  Pursuant to Vehicle and Traffic Law § 1141, “[t]he driver of a vehicle intending to turn to the left . . . into . . . [a] private road[] or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard.” To meet her initial burden on her motion, Daniels was required “to establish both that [Rumsey’s] vehicle suddenly entered the lane where [Daniels] was operating [her vehicle] in a lawful and prudent manner and that there was nothing [Daniels] could have done to avoid the collision” … .  Daniels met that burden by submitting evidence that the accident occurred after Rumsey turned her vehicle left into Daniels’s path of travel in the southbound curb lane of Delaware Avenue, that Daniels had the right-of-way, and that Daniels was proceeding at a speed of between 30 and 35 miles per hour at the time of the accident, i.e., no more than five miles per hour above the posted speed limit.  Daniels also established that she did not see Rumsey’s vehicle until its grill was in her lane of travel, and that she had only “[f]ractions of a second” to take evasive measures, which proved unsuccessful.  Contrary to Rumsey’s contention, the fact that Daniels may have been driving at a speed in excess of five miles per hour over the posted speed limit of 30 miles per hour is inconsequential inasmuch as there is no indication that she could have avoided the accident even if she had been traveling at a speed at or below the posted speed limit … . Daniels v Rumsey, 1168, 4th Dept 11-15-13

 

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Neglect Finding Cannot Be Based Upon Theoretical Future Harm

The Fourth Department determined that a finding of neglect “cannot be based upon the child’s possible reaction to future harm:”

…DSS failed to meet its burden of establishing by a preponderance of the evidence that the “child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” as a consequence of respondent’s failure to exercise a minimum degree of care … .  The court’s finding of neglect hinges of the testimony of DSS’s expert psychologist that respondent’s dismissive response to the child’s allegations that she had been sexually abused by her eight-year-old cousin put the child at risk of harm because such response would cause the child to be reluctant to report future allegations of abusive contact.  The evidence did not establish that the child was in fact sexually abused, and we therefore conclude that the court erred in finding that respondent is chargeable with neglect for failing to protect the child from actual harm … .  Moreover, the finding of neglect cannot be based upon the child’s possible reaction to future harm.  “[A] finding of neglect will not be based on a failure to prevent theoretical future harm which never occurred” … .  Matter of Lebraun H … 1203, 4th Dept 11-15-13

 

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Admissibility of Medical Records as Business Records Does Not Preclude Evidentiary Objections to Admission

In the context of a personal injury case, the Fourth Department noted that the failure to object to the admissibility of medical records within 10 days (CPLR 3122-a [c]) did not render the documents automatically admissible:

Defendants contend that the court erred in denying their request at the commencement of trial to admit all of plaintiff’s medical records in evidence pursuant to CPLR 3122-a (c).  According to defendants, the records were automatically admissible because plaintiff raised no objection within 10 days of trial (see id.).  We reject that contention.  Plaintiff’s failure to object within 10 days before the trial waived any objection plaintiff had to the admissibility of the records as business records (see CPLR 3122-a [c]; 4518 [a]), but he did not waive any objection to their admissibility based on other rules of evidence … .  Indeed, plaintiff properly objected at trial on relevancy grounds with respect to the admissibility of some of the records… . Siemucha v Garrison…, 1145, 4th Dept 11-15-13

 

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“Depraved Indifference” Standard Not Met/HIV Positive Defendant Did Not Disclose Status to Victim

The Fourth Department determined the evidence before the grand jury did not demonstrate defendant had acted with “depraved indifference to human life” (Reckless Endangerment, First Degree). The defendant, who was HIV positive, had unprotected sex with the victim without disclosing his HIV status:

…[W]e conclude that the evidence before the grand jury, viewed in the light most favorable to the People …, was legally insufficient to support a finding that defendant acted with depraved indifference to human life (see Penal Law § 120.25…).  Specifically, the evidence established that defendant engaged in unprotected sex with the victim on two to four occasions without disclosing his HIV positive status.

Shortly after their sexual relationship ended, defendant told the victim that a former sexual partner had tested positive for HIV and urged the victim to be tested.  The victim was diagnosed as HIV positive several months later.  We conclude that, although defendant may have acted with indifference to the victim’s health, his conduct lacked the “ ‘wanton cruelty, brutality, or callousness’ ” required for a finding of depraved indifference toward a single victim … .  Defendant told the police that he did not disclose his HIV positive status to the victim because he was “afraid [the victim] would not want to be with” him, and that he “loved [the victim] so very much.”  Defendant wrote a letter apologizing to the victim because he was “so upset” and “felt terrible.”  The fact that defendant encouraged the victim to be tested for HIV indicates that defendant “was trying, however weakly and ineffectively,” to prevent any grave risk that might result from his conduct … .  We thus conclude that, “while the evidence certainly shows that defendant cared much too little about [the victim]’s safety, it cannot support a finding that [he] did not care at all” … .

We further conclude that the grand jury evidence, viewed in the light most favorable to the People …., also did not establish that defendant’s conduct presented a grave risk of death to the victim (see Penal Law § 120.25…).  The victim’s physician, an infectious disease expert, testified that the ability to treat HIV has increased dramatically over the past 15 years, with over 20 different antiviral medications available for treatment.  The expert testified that although an HIV positive diagnosis may have been tantamount to a death sentence in the past, with treatment, the prognosis today is “outstanding,” particularly when a patient promptly learns that he or she is infected and seeks treatment.  Indeed, the expert testified that patients with HIV who take their medication, eat well, do not smoke, and reduce their alcohol intake can live a “very healthy, normal lifestyle,” and he expected a similar prognosis for the victim.  We thus conclude that, under the circumstances of this case, the People failed to establish that defendant’s reckless conduct posed a grave or “very substantial” risk of death to the victim… .  People v Williams, 1196, 4th Dept 11-15-13

 

Failure to Disclose Witness Was a Paid Informant Required Vacation of Conviction

The Fourth Department reversed County Court, finding that defendant’s CPL 440 motion seeking vacation of the conviction should have been granted.  The People failed to disclose that a prosecution witness was a paid informant:

We note at the outset that the following quote from People v Fuentes (12 NY3d 259, 263, rearg denied 13 NY3d 766) is instructive: “[t]he Due Process Clauses of the Federal and State Constitutions both guarantee a criminal defendant the right to discover favorable evidence in the People’s possession material to guilt or punishment .. . [, and i]mpeachment evidence falls within the ambit of a prosecutor’s Brady obligation . . . To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material . . . In New York, where a defendant makes a specific request for a document, the materiality element is established provided there exists a ‘reasonable possibility’ that it would have changed the result of the proceedings” … .

Here, there is no dispute that defendant satisfied the first element of the Fuentes test inasmuch as the People do not dispute that the prosecution witness at issue was a paid informant and do not contend that evidence of the status of that witness is not favorable to defendant.  … “[T]he mandate of Brady extends beyond any particular prosecutor’s actual knowledge” …, and “ ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police’ ” … .

We further conclude that the court should have granted defendant’s CPL 440.10 motion insofar as it sought vacatur of the judgment of conviction on the basis of the Brady issue.  Here, defendant made a specific request for Brady material including agreements between the People and their witnesses, disclosure of whether any information was provided by an informant, and the substance of that informant’s information.  We conclude that “there exists a ‘reasonable possibility’ that [such material] would have changed the result of the proceedings”… .  People v Gayden…, 1095, 4th Dept 11-15-13

 

Youthful-Offender Sentence In Excess of Four Years (After Probation Violation) Illegal

The Fourth Department wrote:

Defendant … appeals from an adjudication that revoked his probation and sentenced him to three terms of incarceration of 1… to 4 years, two of which were ordered to run consecutively to each other.  Defendant’s sentence thus aggregates to a term of incarceration of 2… to 8 years, and we agree with defendant that the sentence is illegal.  “[H]aving adjudicated defendant a youthful offender, [Supreme C]ourt was without authority to impose consecutive sentences in excess of four years.” We therefore modify the adjudication by directing that all of the sentences shall run concurrently with respect to each other… . People v Tajenee J, 1175, 4th Dept 11-15-13

 

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County Properly Passed Legislation Phasing Out Tax Exemption

The Fourth Department determined the county, by passing legislation, could remove a tax exemption for a municipal water and sewage treatment facility:

…[W]e agree with the court that the County Board’s adoption of the 2011 resolution phasing out all tax exemptions for municipal water and sewage treatment facilities constituted a “legislative change” within the meaning of the Exemption Agreement.  The County Board is a legislative body that exercises defendant’s power “through a local law or resolution duly adopted by the board” (County Law § 153 [1]; see § 150-a [1]), and the Exemption Agreement specifically provides that a legislative change shall modify the obligations of the parties to comply with such legislative change.  Village of Lowville v County of Lewis, 906, 4th Dept 11-15-13

 

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