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Complaint Against Town for Sewage Backup in Home Dismissed

The Fourth Department affirmed the dismissal of a negligence complaint against a town arising from the backup of sewage in plaintiffs’ house.  The decision includes a concise but complete explanation of the issues relevant to municipal liability for negligence:

In an action against a municipality such as defendant, 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 plaintiffs’ 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’ ” … ..  Middleton v Town of Salina, 604, 4th Dept 7-5-13

 

4 ½ Inch Drop Raised Question of Fact About Dangerous Condition and Failure to Warn

The Fourth Department determined a 4 ½ inch drop just inside the entrance to a bowling alley raised a question of fact about whether the drop was a dangerous condition, even though no building codes applied.  In addition, there was a question of fact about the failure-to-warn cause of action.  Belsinger v M & M Bowling & Trophy Supplies, Inc, 558, 4th Dept 7-5-13

SLIP AND FALL

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“Employer” of Independent Contractor Not Liable for Contractor’s Alleged Negligence

The Fourth Department reversed Supreme Court and granted summary judgment dismissing claims which alleged Sirota, who worked as an independent contractor for defendant Ridgeway, was negligent in advising plaintiff to purchase “certain security and investment vehicles.”  The Fourth Department determined Ridgeway was entitled to summary judgment as Ridgeway had demonstrated it owed no duty of care to plaintiff to supervise Sirota (an independent contractor) because it did not direct or control Sirota’s providing investment advice:

…“[O]rdinarily, a principal is not liable for the acts of independent contractors in that, unlike the master-servant relationship, principals cannot control the manner in which the independent contractors’ work is performed”… . Although there are exceptions to that general rule …, we conclude that none apply to the circumstances presented here.  Although plaintiff’s claim sounds in negligent supervision, one of the recognized exceptions…, it is well settled that “the mere retention of general supervisory powers over an independent contractor cannot form a basis for the imposition of liability against the principal”,,,  Wendt v Bent Pyramid Productions, LLC, et al, 448, 4th Dept 7-5-13

 

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Default Finding Should Not Have Been Made Where Attorney Appeared and Asked for Adjournment

In reversing the order of Family Court, the Fourth Department determined the Support Magistrate should not have ruled respondent had defaulted (respondent’s attorney appeared and requested an adjournment) and the colloquy between petitioner and the Support Magistrate was not a sufficient basis for a factual finding respondent had willfully violated a support order.  Family Court, therefore, should not have confirmed the Support Magistrate’s order.  Matter of Manning v Sobotka, 739, 4th Dept 6-28-13

 

Child Support Awarded to Wife Even though Husband Awarded Sole Custody; Residency Shared Equally/Husband Has Much Higher Income than Wife

In a full-fledged opinion by Justice Lindley, the Fourth Department determined child support should have been awarded to the wife (defendant), even though the husband had sole legal custody, because the residency of the children was shared equally and the wife’s income was less than the husband’s:

…[T]he court erred in awarding child support to plaintiff and that the court instead should have awarded child support to her. It is well settled that in shared residency arrangements, where neither parent has the children for a majority of the time, the party with the higher income is deemed to be the noncustodial parent for purposes of child support….  Here, as noted, the residency schedule affords the parties equal time with the children, and thus neither party has the children for the majority of the time. Inasmuch as plaintiff’s income exceeds that of defendant — at the time of trial, plaintiff earned $134,924.48 annually, while the JHO imputed income of $25,000 to defendant, whose actual earnings were $14,109.53— plaintiff is the “noncustodial” parent and, as such, he must pay child support to defendant.

It is true, as plaintiff points out, that [the cited cases] involve awards of joint legal custody, whereas he was awarded sole legal custody; that fact, however, should not affect the child support determination.  Although the award of sole legal custody to plaintiff allows him to make important decisions in the children’s lives, that decision-making authority does not increase his child-related costs. A parent’s child-related costs are dictated by the amount of time he or she spends with the children, and, here, plaintiff spends no more time with the children than does defendant.  We note, moreover, that there is already a significant disparity in the parties’ incomes, and an award of child support to plaintiff would only widen that gulf.  In our view, the children’s standard of living should not vary so drastically from one parent’s house to the other.

Thus, under the circumstances of this case — where plaintiff has sole legal custody, but the residency schedule affords the parents equal time with the children — an award of child support to defendant will best “assure that [the] children will realize the maximum benefit of their parents’ resources and continue, as near as possible, their preseparation standard of living in each household” … .  Leonard v Leonard, 402, 4th Dept 6-28-13 

 

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Contractual Relationship Did Not Preclude Causes of Action Sounding in Tort

In affirming most of Supreme Court’s denial of a defendant’s motion for summary judgment, the Fourth Department explained why the economic loss doctrine did not preclude plaintiff’s recovery in tort, in spite of the contractual relationship between plaintiff and defendant and the contract-based causes of action in the complaint.  Pursuant to two contracts, the defendant supplied electronics and fluorescent-tube recycling systems which allegedly failed resulting in mercury contamination:

…[T]he economic loss doctrine does not preclude plaintiff from recovering in tort as a matter of law.“ Pursuant to that doctrine, a plaintiff may not recover in tort against a manufacturer for economic loss that is contractually based, ‘whether due to injury to the product itself or consequential losses flowing therefrom’ ”…. Where, however, there is harm to persons or property other than the property that is the subject of the contract, a plaintiff is entitled to recover in tort… .  The factors to consider are “the nature of the defect, the injury, the manner in which the injury occurred, and the damages sought”…. We conclude that defendant failed to meet its initial burden on the motion with respect to the causes of action sounding in tort because the evidence submitted by defendant establishes that the mercury contamination of plaintiff’s facility, which was allegedly caused by defendant’s products, caused damage to persons and property other than the property that was the subject of the contracts.   Electrical Waste Recycling Group, Limited v Andela Tool & Machine, Inc…, 626, 4th Dept 6-28-13

 

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Malicious Prosecution Action Against County, Medical Examiner and District Attorney Survived Motion to Dismiss/Prosecutorial and Governmental Immunity Doctrines Explained

The Fourth Department affirmed Supreme Court’s denial of a motion to dismiss a malicious prosecution (intentional tort) action against two counties, a district attorney and a medical examiner.  The action was commenced after plaintiff was arrested and indicted for the death of his seven-month-old daughter (the indictment was subsequently dismissed).  In explaining the nature of the action, the Fourth Department wrote:

Once a suspect has been indicted, the grand jury action creates a presumption of probable cause….  “If plaintiff is to succeed in his malicious prosecution action after he has been indicted, he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith” … .  Here, the complaint sufficiently alleges fraud, perjury, and conduct undertaken in bad faith. Plaintiff alleged that the police concluded in their initial investigation, based upon statements by [the medical examiner], that the infant’s death was accidental, and the case was closed. However, after plaintiff’s wife spoke with [the district attorney], [the district attorney] allegedly began a campaign to bring charges against plaintiff despite knowing that plaintiff’s wife was giving inconsistent information. Plaintiff alleged that [the district attorney] encouraged or coached [the medical examiner] to provide false information to the police and false testimony to the grand jury regarding the infant’s cause of death and time of death. Plaintiff further alleged that [the district attorney] and [the medical examiner] were aware that the information was not mentioned in the autopsy report, was not supported by any document, and had no scientific basis.

In concluding the prosecutorial and governmental-function immunity doctrines did not require the dismissal of the complaint, the Fourth Department described the elements of both as follows:

Prosecutorial immunity provides absolute immunity “for conduct of prosecutors that was ‘intimately associated with the judicial phase of the criminal process’ ” …, i.e., conduct that involves “ ‘initiating a prosecution and in presenting the State’s case’ ” ….  Thus, a prosecutor’s conduct in preparing for those functions may be absolutely immune, but acts of investigation are not ….  Prosecutors are afforded only qualified immunity when acting in an investigative capacity…   The focus is on the conduct for which immunity is claimed … .It is therefore the case that, where the prosecutor advises the police … or performs investigative work in order to decide whether a suspect should be arrested …, the prosecutor is not entitled to absolute immunity.  * * *The governmental function immunity defense “shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions” …. This limitation on liability “ ‘reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second- guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury’ ”….

“Whether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor’s particular position and whether they inherently entail the exercise of some discretion and judgment . … If these functions and duties are essentially clerical or routine, no immunity will attach” …. Discretionary acts “involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” …. If a functional analysis shows that the employee’s position is sufficiently discretionary, then the municipal defendant must also show “that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated” )….

“[G]overnmental immunity does not attach to every action of an official having discretionary duties but [attaches] only to those involving an exercise of that discretion” …. .

Here, the functions and duties of…the Medical Examiner include conducting an autopsy, reporting his findings to the police, and testifying before a grand jury.  The functions and duties of …an assistant district attorney include evaluating the evidence assembled by police officers. Those functions and duties are discretionary …..

Based on plaintiff’s allegations, however, it cannot be said that the conduct of [the medical examiner] and [the district attorney] was related to an exercise of their discretionary duties. Plaintiff alleged that [the medical examiner] fabricated findings and gave testimony that was not included in his autopsy report, and that [the district attorney] coached [the medical examiner] to lie. That alleged conduct plainly did not involve the exercise of “reasoned judgment which could typically produce different acceptable results” …..  Kirchner v County of Niagara …, 561, 4th Dept 6-28-13

 

Statute of Limitations for Article 78 “Mandamus to Compel;” Doctrine of Laches Applied

The Fourth Department affirmed the dismissal (as untimely) of an Article 78 proceeding against the City of Buffalo and others which sought to compel the city to investigate two fires pursuant to General Municipal Law section 204-d.  The Fourth Department explained when the four-month statute of limitations in this “mandamus to compel” action was triggered and applied the doctrine of laches:

…[T]the petition is in the nature of mandamus to compel inasmuch as petitioner seeks to “compel the performance of a ministerial act [imposed] by law”… . In such a proceeding, the four-month statute of limitations begins to run when a respondent refuses a petitioner’s demand that it “perform its duty” (CPLR 217 [1];…). The petitioner’s “demand must be made within a reasonable time after the right to make the demand occurs”…. Here, petitioner made a February 8, 2010 written demand to the Erie County District Attorney’s Office to conduct a further investigation. The Erie County District Attorney’s Office, however, is not a named respondent, and we conclude that petitioner “unreasonably delayed” in failing to make the demand to respondents on February 8, 2010 and that “this proceeding is barred by laches” ….  Matter of Van Tol v City of Buffalo…, 582, 4th Dept 6-28-13

 

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Defendant Should Have Been Adjudicated a Youthful Offender; Waiver of Appeal Not Valid

The Fourth Department determined the defendant’s waiver of appeal was invalid and County Court should have adjudicated the defendant a youthful offender (re: criminal possession of a weapon):

…[T]he waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice”… .

A defendant between the ages of 16 and 19 who, like defendant herein, “has been convicted of an armed felony offense . . . is an eligible youth if the court determines that . . . [there are] mitigating circumstances that bear directly upon the manner in which the crime was committed” (CPL 720.10 [3] [i]), and we conclude that such is the case here. The record reflects that defendant was the victim of a brutal attack by multiple perpetrators the day prior to the armed felony offense at issue herein. … Defendant told the police that he had fired a single shot into the porch of his attackers’ house “to send a message to them to stop messing with him as he was a serious threat if need be.” According to defendant, he knew that his attackers would not be home and, indeed, the record reflects that the residence was unoccupied at the time of the shooting.  People v Amir W, 759, 4th Dept 6-28-13

 

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Appellate Court Recognized Prior Decision Was “Clearly Erroneous” and Did Not Hold Trial Court to It

The Fourth Department noted that a trial court is bound by an appellate decision, even if the decision is wrong.  However, in this case, the Fourth Department upheld the trial court’s modification, acknowledging that its prior decision should not be followed:

It is well settled that, until a decision of this Court is “ ‘modified or reversed by a higher court, . . . the trial court is bound by our decision’ ”…, regardless of whether our decision was correctly decided….  We thus conclude that the Surrogate erred in failing to comply with our prior decision. Nevertheless, this Court is not likewise required to follow our prior decision under the doctrine of law of the case.    Indeed, for the reasons that follow, we conclude that we should not apply the doctrine of law of the case herein, and we therefore affirm the modified decree … .“As the doctrine of . . . law of the case is not one of inflexible law, but permits a reasoned exercise of a certain degree of discretion in its application, the better rule is that the doctrine should not be utilized to accomplish an obvious injustice, or applied where the former appellate decision was clearly, palpably, or manifestly erroneous or unjust . . . [T]he effect of a prior ruling by an appellate court in a later appeal before that court, or in a subsequent stage of the same appeal before that court, presents the problem of balancing the interest in foreclosing reconsideration of the prior decision with the desire for a just result . . .  We recognize that our earlier decision was “clearly erroneous”…, as “shown by contrary authority emanating from [the Court of Appeals,] whose rulings . . . are controlling”…. We also conclude that “correction of the error made on the former appeal [will] create no injustice or hardship, [inasmuch as] no change has been made in the status of the parties in reliance upon the ruling in the former appeal” ….  Matter of Ladelfa, 580, 4th Dept, 6-14-13

 

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