You are here: / Fourth Department

Tag Archive for: Fourth Department

“Sudden Stopping” and “Emergency Doctrine” Jury Instructions Proper in Rear-End Collision Case

Plaintiff was rear-ended by defendant [Dellapenta] on a clear, windy day when blowing snow caused a temporary whiteout. The jury returned a verdict of no cause for action.  The Fourth Department determined the jury was properly given the “sudden stopping” charge and the emergency doctrine:

While plaintiff claimed that he was forced to stop due to the actions of the vehicle ahead of him …, Dellapenta testified that plaintiff did not slow down before the whiteout, he did not see any vehicles ahead of plaintiff, plaintiff’s vehicle was completely stopped in the whiteout, he never saw plaintiff’s brake or hazard lights, and plaintiff told Dellapenta after the accident that he stopped because he could not see.  Thus, the issue whether plaintiff “stopped suddenly, without an apparent reason to do so,” was properly submitted to the jury … .

We reject plaintiff’s further contention that the court erred in instructing the jury on the emergency doctrine (see PJI 2:14) inasmuch as, evaluating the evidence in the light most favorable to defendants, a reasonable view of the evidence supported the conclusion that a sudden and temporary whiteout constituted a qualifying emergency … .  Although Dellapenta had previously experienced whiteouts … at that location, such experience does not negate the applicability of the emergency doctrine “as to the events in issue in this case” … . Barnes v Dellapente…, 1039, 4th Dept 11-8-13

 

,

Emergency Doctrine Precluded Action on Behalf of Driver of Car Which Crossed Into On-Coming Lane of Traffic; ”Noseworthy” Doctrine Did Not Apply to Reduce Plaintiff’s Decedent’s Burden of Proof

The Fourth Department reversed Supreme Court and granted summary judgment to defendant who was struck when plaintiff’s decedent’s on-coming car crossed into defendant’s lane.  The court determined the “Noseworthy” rule (lowering the plaintiff’s burden of proof) did not apply and the emergency doctrine precluded recovery:

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” … .

Here, defendants met their initial burden by establishing that the emergency doctrine applied, inasmuch as they established that decedent’s vehicle unexpectedly crossed over into defendant’s lane of travel, defendant had been operating his vehicle in a lawful and prudent manner, and defendant had little time to react to avoid the collision … .  Although “it generally remains a question for the trier of fact to determine whether an emergency existed and, if so, whether the [driver’s] response was reasonable” …, we conclude that summary judgment is appropriate here because defendants presented “sufficient evidence to establish the reasonableness of [defendant’s] actions [in an emergency situation] and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact”… . Shanahan… v Mackowiak…, 1105, 4th Dept 11-8-13

 

, ,

Purchase of Life Estate Considered Transfer of Property Requiring Delay of Medicaid Eligibility

The Fourth Department upheld the determination that petitioner’s transfer of property within the 60-month look-back period for Medicaid mandated an approximately fourteen-month delay in Medicaid eligibility (petitioner was in a nursing home, seeking payment of the expenses by Medicaid).  The Fourth Department explained the relevant criteria with respect to petitioner’s purchase of a life estate in property previously purchased by her daughter and grandson:

“ ‘In determining the medical assistance eligibility of an institutionalized individual, any transfer of an asset by the individual . . . for less than fair market value made within or after the look-back period shall render the individual ineligible for nursing facility services’ for a certain penalty period (Social Services Law § 366 [5] [d] [3]).  The look-back period is the ‘[60]month period[ ] immediately preceding the date that an [applicant] is both institutionalized and has applied for medical assistance’ (§ 366 [5] [d] [1] [vi]).  Where an applicant has transferred assets for less than fair market value, the burden of proof is on the applicant to ‘rebut the presumption that the transfer of funds was motivated, in part if not in whole, by . . . anticipation of future need to qualify for medical assistance’ ” … .  With respect to the specific issue of the purchase of a life estate for less than fair market value, Social Services Law § 366 (5) (e) (3) (ii) provides that “the purchase of a life estate interest in another person’s home shall be treated as the disposal of an asset for less than fair market value unless the purchaser resided in such home for a period of at least one year after the date of purchase.” Matter of Albino v Shah…, 1152, 4th Dept 11-8-13

 

, , ,

Bank Was Not a Statutory Lien Law Trustee; Question of Fact Whether Bank Was Aware Funds Were Diverted Lien Law Trust Funds

Plaintiff, a subcontractor in an environmental remediation project run by defendant AAA Environmental, sued on behalf of similarly situated subcontractors alleging that the arrangement AAA had with First Niagara Bank violated Lien Law article 3-A.  By that arrangement, each night funds from AAA’s operational account would be transferred to AAA’s line of credit account to reduce the balance. If the amount to be charged to AAA’s operational account exceeded the funds available, funds would be automatically transferred from the line of credit account to the operational account. Supreme Court determined the arrangement violated the Lien Law finding that Niagara Bank had notice the funds were diverted Lien Law trust funds and the bank was not a holder in due course. The Fourth Department disagreed and held Niagara Bank is not a Lien Law statutory trustee and there was a question of fact whether Niagara Bank had notice it was receiving diverted Lien Law trust funds:

First Niagara is not a Lien Law statutory trustee under the facts of this case and thus cannot be held liable for a violation of the Lien Law on that basis. “A lender is not a statutory trustee because ‘[n]o one other than an owner, contractor, or subcontractor is designated as a prospective trustee in article 3-A [of the Lien Law]’ ” … .  Although the Court of Appeals has held that a lender may become a statutory trustee when a contractor assigns its right of payment from the owner to the lender as security for a loan and the owner makes payments directly to the lender until the contractor’s debt is repaid …, First Niagara received no such assignment here.

…[T]he court erred in determining as a matter of law that it had actual notice that it was receiving diverted Lien Law trust funds, and thus could be held liable under Lien Law § 72 (1).  …

…[T]he court erred in applying a constructive notice standard in determining that First Niagara was not a holder in due course, and thus could be liable under Lien Law § 72 (1).  As the Court of Appeals noted in I-T-E Imperial Corp.—Empire Div. v Bankers Trust Co. (51 NY2d 811), “[w]ith the adoption . . . of the Uniform Commercial Code, the concept of notice under [UCC] article 3 (and by analogy under article 4 as well . . . ) has, as we have held in Chemical Bank of Rochester v Haskell (51 NY2d 85), been changed from an objective to a subjective standard, and that change must be deemed to have amended the Lien Law as well” (id. at 813-814…).

Furthermore, “[t]he purpose of UCC 3-304 (7)—unique to New York and Virginia—[is] to require that questions of notice . . . be determined by a subjective test of actual knowledge rather than an objective test which might involve constructive knowledge” … . Price Trucking Corp… v AAA Environmental Inc…m 1088, 4th Dept 11-8-13

 

,

Proof of Normal Notification Procedure Sufficient to Demonstrate Defendant Was Notified of Lead-Paint-Injury Exclusion in Policy

Over a two-justice dissent, the Fourth Department determined defendant (Donnelly) was notified of an amendment to his insurance policy which disclaimed coverage for injury related to the presence of lead paint (and therefore plaintiff-insurer was not obligated to defend or indemnify defendant in a lead-paint-injury case).  The court also determined that the lead-paint-injury exclusion did not violate public policy. With respect to the proof defendant was notified of the amendment, the court deemed evidence of the usual notification procedure sufficient:

…[W]e conclude that the documents established as a matter of law that the lead exclusion was properly added to Donnelly’s insurance policy and that Donnelly was notified of that amendment.  Although plaintiff did not submit evidence that the notice of the amendment was mailed to Donnelly and Donnelly could not recall receiving the notice, plaintiff submitted evidence in admissible form “of a standard office practice or procedure designed to ensure that items are properly addressed and mailed,” thereby giving rise to a presumption that Donnelly received the notice … .  …[T]he evidence submitted by plaintiff established that the “office practice [was] geared so as to ensure the likelihood that [the] notice[s of amendment] . . . [were] always properly addressed and mailed” … .  Specifically, the evidence established the procedure used by plaintiff for generating notices whenever an insurance policy was amended, and the documentary evidence established that a notice was generated for Donnelly’s policy during the year in which the lead exclusion was added to the policy. In addition, plaintiff submitted evidence that it placed the notices in envelopes with windows so that the address on the notice was the one used for mailing.  The envelopes were then delivered to the mail room, where they were sealed and the appropriate postage was added. Thereafter, the mail was hand delivered to the post office that was located adjacent to plaintiff’s parking lot. Preferred Mutual Insurance Company v Donnelly…, 857, 4th Dept 11-8-13

 

,

Prior Stipulation Based Upon Inaccurate Information Properly Vacated

In a divorce proceeding, the Fourth Department upheld Supreme Court’s vacating the child support and maintenance provisions of a prior stipulation, finding that the wife had not disclosed all of her assets and earnings at the time the stipulation was entered.  The Fourth Department also upheld $50,000 of imputed annual income assigned to the wife by Supreme Court:

… [T]he court did not err in vacating the child support and maintenance provisions of the parties’ October 2009 stipulation.  In that stipulation, the parties had agreed to impute income to the wife in the amount of $15,000, and the husband had agreed to maintenance and child support awards to the wife based on that imputed income.  Although “[s]tipulations of settlement are favored by the courts and not lightly cast aside” (…see generally CPLR 2104), “[a] stipulation of settlement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud, or where it is shown to be manifestly unjust because of the other spouse’s overreaching” … .  We agree with the court that “a reasonable inference exists that the [wife did not] fully disclose[] h[er] financial assets . . . , and, as a result, the terms of the agreement were so inequitable as to be manifestly unfair to the [husband]” … . …[T]he wife had over $100,000 more in income than was imputed to her in the stipulation, and her income was more than two times what the husband had earned in any of the years before the stipulation.  We thus conclude that, regardless whether the wife can be said to have committed fraud, the wife’s failure to disclose her earnings in the stock market resulted in an agreement that was manifestly unfair to the husband.  Marlinski v Marlinski, 979, 4th Dept 11-8-13

 

Visitation Details Should Not Have Been Left to Supervising Agency

The Fourth Department determined Family Court erred by delegating its authority with respect to the visitation schedule and sibling visits to the agency supervising the mother’s visitation:

…[T]he court “erred in failing to set a supervised visitation schedule, implicitly leaving it to the supervisor to determine” … .  By ordering only that visitation “shall take place through the Catholic Charities Therapeutic Supervised Visitation program,” the court improperly delegated its authority to the supervising agency … .  We note in addition that the court erred in merely indicating that “access should include the child’s siblings, if that can be accommodated by the program.”  If the court determined that sibling visitation is indeed in the best interests of the child, the court should specify in its order that the agency or organization designated to supervise visitation must be able to accommodate sibling visits.  We therefore modify the order accordingly, and we remit the matter to Family Court to determine the access schedule and whether sibling visitation shall occur. Matter of Green v Bontzolakes, 1034, 4th Dept 11-8-13

 

, , , ,

“Patient/Visitor Occurrence Report” Not Statutorily Privileged in Malpractice Action Against Hospital

The Fourth Department determined Supreme Court properly allowed plaintiffs, in a medical malpractice action, to see a “patient/visitor occurrence report” generated by defendant hospital.  The court noted that the report is subject to the privilege set forth in Education Law 6527 (3), but the hospital did not establish the report was generated in connection with a quality assurance review or a malpractice prevention program:

…[T]he hospital failed to meet its burden of establishing that the report was “generated in connection with a quality assurance review function pursuant to Education Law § 6527 (3) or a malpractice prevention program pursuant to Public Health Law § 2805-j” … .  Moreover, with respect to the privilege set forth in Public Health Law § 2805-j, we deem the conclusory statement in the affidavit submitted by the hospital’s director of risk management that “[t]he report was prepared solely and exclusively in connection with the hospital’s malpractice prevention program, as required by statute” to be insufficient to meet the hospital’s burden of demonstrating that the form was actually generated at the behest of the hospital’s malpractice prevention program.  Slayton … v Kolli…, 1083, 4th Dept 11-8-13

 

,

Representation by Counsel on Unrelated Matter Recently Concluded by Conviction Did Not Preclude Defendant from Validly Waiving Right to Counsel

The Fourth Department noted that the representation of defendant by counsel in an unrelated matter which had just been disposed of by conviction did not prevent defendant from validly waiving his right to counsel when interviewed by the police about the instant charge:

“Under New York’s indelible right to counsel rule, a defendant in custody in connection with a criminal matter for which he is represented by counsel may not be interrogated in the absence of his attorney with respect to that matter or an unrelated matter unless he waives the right to counsel in the presence of his attorney” … .  However, “[w]hen the prior charge has been disposed of by dismissal or conviction, the indelible right to counsel disappears and the defendant is capable of waiving counsel on the new charge” … .  Here, a police detective testified at the Huntley hearing that defendant had been sentenced on the unrelated criminal case before the detective questioned him regarding these crimes, and County Court therefore properly determined that the police were not precluded from questioning him regarding the instant crimes … .  We reject defendant’s contention that the right to counsel lasted until at least 30 days after sentencing, to allow for the filing of a notice of appeal … . People v Koonce, 1031, 4th Dept 11-8-13

 

Maximum Sentence Deemed Unduly Harsh and Severe

The Fourth Department determined the imposition of the maximum sentence for criminal possession of a weapon in the second degree (15 years) was unduly harsh and severe:

Defendant has no prior felony convictions, and he served four years in the United States Navy, receiving an honorable discharge.  Also, it is undisputed that defendant did not threaten anyone with the weapon or use it in a violent manner. Although we are mindful that defendant’s actions endangered the lives of innocent people, including the police officers who were pursuing his vehicle, we conclude that the maximum punishment is not warranted. We therefore modify the judgment as a matter of discretion in the interest of justice by reducing the sentence imposed for criminal possession of a weapon in the second degree to a determinate term of imprisonment of 10 years (see generally CPL 470.15 [6] [b]), to be followed by the five-year period of postrelease supervision imposed by the court. People v Atchison, 1091, 4th Dept 11-8-13

 

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