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Question of Fact Raised in Rear-End Collision Case

Over a dissent by two justices, the Fourth Department ruled a question of fact had been raised which precluded summary judgment to a defendant in a rear-end collision case:

Although defendant met his initial burden of establishing a prima facie case of negligence on the part of plaintiff inasmuch as it is undisputed that plaintiff’s vehicle rear-ended defendant’s stopped vehicle, we conclude that plaintiff submitted evidence of an adequate nonnegligent explanation for the collision… .

While other cases have held that a party’s testimony that he or she did not “see” the other vehicle’s brake lights illuminated before rear-ending that vehicle does not alone establish the requisite nonnegligent explanation for the collision…, those cases are distinguishable from this case. Here, plaintiff testified at his deposition that he was unable to discern whether defendant’s vehicle was stopped because defendant’s brake lights were not activated. Plaintiff, however, also submitted the deposition testimony of McCulloch [the driver of the vehicle in front of defendant] and defendant in which they both described traffic conditions on the date of the accident as “congested” and “stop and go.” Additionally, plaintiff submitted evidence that defendant stopped suddenly. Indeed, plaintiff testified at his deposition that defendant apologized to plaintiff for the accident, explaining that McCulloch had stopped suddenly and that defendant “couldn’t help it.” That evidence, when viewed in the light most favorable to the nonmoving party …, establishes a sufficient nonnegligent explanation for the collision.  Borowski v Ptak …, 1315, 4th Dept, 6-7-13

TRAFFIC ACCIDENTS

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Past Psychological Records Deemed Relevant in Lead-Paint Injury Case Where Psychological Injury Alleged

In a lead-paint injury case, the Fourth Department determined medical records regarding psychological injury stemming from a sexual assault were discoverable because the plaintiff alleged psychological injury associated with exposure to lead paint.  The Court ordered an in camera inspection of the records to weed out irrelevant information.  Dominique D. v Koerntgen…, 512, 4th Dept, 6-7-13

 

Respondent Failed to Demonstrate Insertion of Feeding Tube Would Impose an “Extraordinary Burden” Upon the Petitioner​

The Fourth Department reversed Supreme Court and ordered insertion of a feeding tube under general anesthesia for petitioner, Joseph P.  The Fourth Department noted there was evidence Joseph P. was “alert, awake, and communicative, … enjoys social interaction and activities” and, with a feeding tube, has “an excellent prognosis with many years of life.”  The Fourth Department wrote:

It is undisputed that the “threshold requirement” under [Surrogate’s Court Procedure Act] section 1750-b for allowing Joseph P.’s guardians to make the decision to withhold life-sustaining treatment has been met … . Joseph P.’s attending physician also fulfilled the requirements of section 1750-b (4) (a) of “confirm[ing] to a reasonable degree of medical certainty” that Joseph P. “lacks capacity to make health care decisions,” and of consulting with another physician “to further confirm” that lack of capacity …. There is also no dispute that Joseph P. has “a medical condition other than . .. mental retardation which requires life-sustaining treatment, is irreversible and . . . will continue indefinitely” (SCPA 1750-b [4] [b] [i] [C]), and that, without such treatment, he “will die within a relatively short time period” (SCPA 1750-b [1]). The sole issue before us is whether, in view of Joseph P.’s medical condition and the expected outcome of the life-sustaining treatment, i.e., the surgical insertion of the feeding tube artificially providing nutrition or hydration, imposes an “extraordinary burden” on him (SCPA 1750-b [4] [b] [iii] [B]).
Upon our review of the record, we conclude that respondent failed to establish by the requisite clear and convincing evidence that providing nutrition and hydration to Joseph P. by means of medical treatment would impose an extraordinary burden on him (see SCPA 1750-b [1]; [4] [b] [iii] [B…).  Matter of Joseph P. …, CA 13-00798, 4th Dept, 5-24-13

 

Sentence for Possession of Marijuana Deemed Unduly Harsh

The Fourth Department determined the sentence of a determinate term of incarceration for 2 ½ years for criminal possession of marijuana in the second degree was unduly harsh and severe.  The sentence was reduced to 1 ½ years.  People v Hirsh, KA 12-00043, 4th Dept, 5-17-13

 

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Motion to Set Aside Convictions Based On Newly Discovered Evidence Should Have Been Granted

The Fourth Department determined the trial court should have set aside defendant’s criminal contempt convictions pursuant to Criminal Procedure Law 330.30(3) based upon newly discovered evidence (phone records calling into question complainant’s trial testimony).  The Fourth Department wrote:

To set aside a verdict pursuant to CPL 330.30 (3), a defendant must prove that “there is newly discovered evidence (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and, (6) which does not merely impeach or contradict the record evidence”….  People v Madison, KA 11-00313, 389, 4th Dept, 5-3-13

 

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Suppression Ruling Reversed—Pat Down Search Justified for Officer Safety​

Over two dissents, the Fourth Department reversed the grant of suppression by County Court.  The questioning of the defendant was instigated by the defendant’s staring at the officer as the officer was in his vehicle and the defendant was riding a bicycle.  The defendant ran his bicycle into a porch, fell and ran up the steps. At that point the officer approached him and asked him for identification.  The defendant kept putting his hand in his pocket after the officer asked him not to. The officer grabbed the defendant’s hand as defendant reached into his pocket.  As he did so, the officer touched an object he believed to be a handgun and he reached into the pocket and removed it.  The majority felt the officer was justified in grabbing the defendant’s hand and retrieving the object to protect his safety.  The dissenters felt the information available to the officer did not amount to reasonable suspicion of criminality such that a forcible stop and frisk was justified. People v Sims, KA 12-01247, 324, 4th Dept, 5-3-13

SUPPRESS, SEARCH, STREET STOP

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Trial Court’s Refusal to Allow Defense Witness to Be Called Required Reversal 

The Fourth Department (over two dissents) reversed defendant’s conviction and ordered a new trial because the defense was precluded from calling a witness.  The prosecution’s theory was that the defendant committed robbery, assault and burglary against the victim in retaliation for the victim’s informing the police defendant was growing marijuana in his house. It was anticipated the witness the defense was not allowed to call would testify that defendant accused him (the witness) of being the informant but did not assault or threaten him.  The Fourth Department explained:

It is well settled that “a defendant’s ‘right to present his own witnesses to establish a defense . . . is a fundamental element of due process of law’ ” …In fact, “[f]ew rights are more fundamental than that of an accused to present witnesses in his [or her] own defense” …Thus, the testimony of a defense witness should not be prospectively excluded unless the offer of such proof is palpably in bad faith …. Instead, courts upon proper objection should “rule on the admissibility of the evidence offered” …. Here, the People do not suggest that the testimony of the proposed witness was offered in bad faith, and the court did not make such a finding at trial. Indeed, there is no basis in the record for concluding that the offer of proof was palpably in bad faith. The court therefore should have allowed the proposed witness to testify, whereupon the prosecutor could object to any testimony she deemed inadmissible or improper.  People v Arena, KA 12-01632, 179, 4th Dept, 5-3-13

RIGHT TO PRESENT A DEFENSE

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State Court Did Not Have Subject Matter Jurisdiction Over “Dangerous Sex Offender” Civil Management Proceeding Because Defendant Would Not Be Released Upon Finishing State Sentence—Defendant Had 19 Years to Go on Federal Sentence

As a sex offender (respondent) neared the end of his state sentence, the state (petitioner) sought a proceeding under article 10 of the Mental Hygiene Law alleging the respondent was a dangerous sex offender requiring civil management.  However, the respondent was also serving a federal sentence and would not be released for another 19 years.  For that reason, the Fourth Department determined the court did not have subject matter jurisdiction over the Mental Hygiene Law proceeding:

It is well settled that a court is without subject matter jurisdiction “when it lacks the competence to adjudicate a particular kind of controversy in the first place. As the Court of Appeals has observed, ‘[t]he question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it’ ”….Moreover, subject matter jurisdiction requires that the matter before the court is ripe …. In other words, courts “may not issue judicial decisions that can have no immediate effect and may never resolve anything,” and thus “an action may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur” ….It is axiomatic that an article 10 determination issued in 2013 would have no immediate effect on a sex offender who is not to be released from federal prison until 19 to 22 years later, especially considering the well-accepted principle that a sex offender, who is at one point determined to be dangerous, may subsequently be found to no longer be dangerous—a principle recognized by article 10’s allowance for annual reviews …. Matter of State v Calhoun, CA 11-02578, 314, 4th Dept, 5-3-13

 

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No Notice of Claim Required for Discrimination Claims Against Town

The issue before the Fourth Department was whether an action against the North Bailey Volunteer Fire Co alleging discrimination and tort causes of action must be preceded by a notice of claim pursuant to Municipal Law 50-e.  The Court concluded that, because the volunteer fire company was a “fire protection district,” it was part of the town and, therefore, a notice of claim was required as a condition precedent to suits in tort.  [The court noted that a “fire district,” in contrast, is a distinct legal entity and, therefore, not part of a town for purposes of a notice of claim.]  The discrimination claims, brought under the Human Rights Law, were deemed exempt from the notice of claim requirement because they were not “founded in tort.”  The tort claims, on the other hand, were subject to the notice of claim requirement. Thygesen v North Bailey Volunteer Fire Co, Inc, et al, CA 12-00789, 290, 4th Dept, 5-3-13

 

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Broad Arbitration Clause Required Arbitration of Topic Not Directly Covered by Collective Bargaining Agreement

In upholding the lower court’s determination that a matter involving “shift swapping” in the sheriff’s department was subject to arbitration even though the topic was not directly covered by the collective bargaining agreement (CBA), the Fourth Department wrote:

In determining whether the parties agreed to arbitrate the dispute at issue, “[o]ur review . . . is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom” …. “Where, as here, there is a broad arbitration clause and a ‘reasonable relationship’ between the subject matter of the dispute and the general subject matter of the parties’ [CBA], the court ‘should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them’ ” … .  Matter of Ontario County…, CA 12-01766, 309, 4th Dept, 5-3-13

 

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