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THE TOWN ZONING BOARD SHOULD NOT HAVE INTERPRETED THE TERM “SINGLE FAMILY DWELLINGS” SUCH THAT SHORT TERM RENTALS WERE PROHIBITED BECAUSE TRANSIENT TENANTS DO NOT MEET THE DEFINITION OF “FAMILY” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and annulling the zoning board’s (ZBA’s) ruling, determined the term “single family dwellings” should not have been interpreted to prohibit short-term rentals. The ZBA reasoned that short-term, transient tenants do not meet the definition of “family:”

“[L]ocal zoning boards have broad discretion, and [a] determination of a zoning board should be sustained on judicial review if it has a rational basis and is supported by substantial evidence” … . So long as a zoning board’s interpretation of its governing code “is neither ‘irrational, unreasonable nor inconsistent with the governing [code],’ it will be upheld” … . However, where, as here, the issue presented “is one of pure legal interpretation of [the code’s] terms, deference to the zoning board is not required” … . * * *

… [U]nder the Zoning Ordinance, the transient or temporary nature of a group is but one factor that “may” be considered to determine whether four or more persons who are not related by blood, marriage, or adoption are the “functional equivalent” of a “traditional family.” … [I]f petitioner rented her property to three or fewer persons, or to four or more persons who are related by blood, marriage, or adoption, those groups would meet the Zoning Ordinance’s definition of a “[f]amily” without regard to whether their tenancy was transient or temporary in nature. The ZBA’s determination to the contrary lacked a rational basis … , and the court erred in sustaining the determination. Matter of Friedman v Town of Dunkirk, 2023 NY Slip Op 05912, Fourth Dept 11-17-23

Practice Point: Where a zoning board purports to make a pure legal interpretation of terms used in the zoning code, a court’s deference to the zoning board is not required.

Practice Point: Here the zoning board’s interpretation of the term “family” within the phrase “single family residences” to exclude short-term rentals to transient tenants was irrational.

 

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PLAINTIFF, A PERMISSIVE DRIVER OF DEFENDANT’S TRUCK, WAS INJURED WHEN HE OPENED THE WATER RESERVOIR FOR THE ENGINE AND IT “EXPLODED,” APPARENTLY BECAUSE THE ENGINE OVERHEATED DUE TO THE POSITION OF THE SNOW PLOW AND THE CONSEQUENT BLOCKING OF AIR FLOW TO THE ENGINE; THERE ARE QUESTIONS OF FACT WHETHER THE INCIDENT WAS FORESEEABLE, WHETHER PLAINTIFF WAS THE SOLE PROXIMATE CAUSE, AND WHETHER DEFENDANT OWED PLAINTIFF A DUTY OF CARE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined there were questions of fact whether the incident was foreseeable, whether plaintiff’s conduct was the sole proximate cause of the incident, and whether defendant owed plaintiff a duty of care. Plaintiff was driving defendant’s truck when everything on the dashboard turned red and plaintiff pulled over to check out the problem. When plaintiff opened the water reservoir cap the reservoir “exploded” injuring him. Plaintiff was told by the police officer who stopped to help that the position of the snow plow on the front of the truck was blocking air flow to the engine (apparently causing the engine to overheat). The Fourth Department determined there were questions of fact whether the incident was foreseeable, whether plaintiff’s conduct was the sole proximate cause of the incident, and whether defendant owed plaintiff, a permissive user of defendant’s truck, a duty of care:

… [T]here are triable issues of fact whether plaintiff’s conduct was a normal and foreseeable consequence of the truck’s mechanical issues … . * * *

… [D]efendant failed to establish as a matter of law that plaintiff’s conduct, in investigating the cause of the malfunction and checking the water level in the reservoir, was of an unreasonable character, was done in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, or was done with conscious indifference to the outcome. * * *

The owner of a vehicle can be liable to permissive guests, users, or occupants if the owner knew or should have known of defects in the vehicle … . Bialecki v HBO Bldrs. W., Inc., 2023 NY Slip Op 05907, Fourth Dept 11-17-23

Practice Point: Here plaintiff, a permissive driver of defendant’s truck, was injured when he checked the engine water reservoir and it “exploded.” Apparently the engine overheated because the snow plow blocked air flow to the engine. There were questions of fact whether the incident was foreseeable, whether plaintiff was the sole proximate cause of the incident, and whether defendant owed plaintiff a duty of care.

 

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PLAINTIFF’S HUSBAND, THE INSURED, WAS DRIVING WHEN PLAINTIFF WAS SERIOUSLY INJURED IN A TRAFFIC ACCIDENT; PLAINTIFF MAY BE ABLE TO SHOW HER HUSBAND HAD REQUESTED COVERAGE ON HER BEHALF AND, BECAUSE THE INSURER (ALLEGEDLY) NEGLIGENTLY FAILED TO PROVIDE THE COVERAGE, THE INSURER IS OBLIGATED TO COVER HER LOSS, DESPITE HER STATUS AS A NONCLIENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the injured plaintiff might be able to show her husband (the insured) requested supplemental spousal liability (SSL) coverage on her behalf and that she was harmed by the insurer’s failure to provide it, despite her status as a nonclient. Plaintiff’s husband was driving and plaintiff was a passenger when she was seriously injured in a traffic accident:

“An insurance agent ordinarily does not owe a duty of care to a nonclient; however, where an agent’s negligence results in an insured being without coverage, the agent may be liable for damages sustained by an injured third party if the third party was the intended beneficiary of the insurance contract and ‘the bond between [the agent and the third party is] so close as to be the functional equivalent of contractual privity’ . . . The functional equivalent of privity may be found . . . where the defendants are aware that their representations are ‘to be used for a particular purpose,’ there was ‘reliance by a known party or parties in furtherance of that purpose’ and there is ‘some conduct by the defendants linking them to the party or parties and evincing [the] defendant[s’] understanding of their reliance’ ” … .

“[A] third party may sue as a beneficiary on a contract made for [its] benefit. However, an intent to benefit the third party must be shown, and, absent such intent, the third party is merely an incidental beneficiary with no right to enforce the particular contracts” … . Thus, “[p]arties asserting third-party beneficiary rights under a contract must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [their] benefit and (3) that the benefit to [them] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [them] if the benefit is lost” … . Smith v NGM Ins. Co., 2023 NY Slip Op 05815, Fourth Dept 11-17-23

Practice Point: An insurer may be liable for negligently failing to provide requested coverage for a nonclient. Here, the insured, plaintiff’s husband, allegedly requested supplemental spousal liability (SSL) coverage on behalf of his wife, the injured plaintiff. The insurer, which allegedly failed to provide the requested coverage, may be liable for her loss.

 

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A TEACHER IS NOT A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF A STUDENT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW; THEREFORE A SCHOOL DISTRICT IS NOT OBLIGATED TO REPORT SUSPECTED CHILD ABUSE BY A TEACHER (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the teacher (Grunwald) accused of sexual abuse of a student in this Child Victims Act suit was not a person legally responsible for the child’s care within the meaning of the Social Services Law. Therefore the defendant school district did not have a duty to report suspected abuse by the teacher:

… [P]laintiff alleged that Pioneer violated its statutory reporting duties under Social Services Law former § 413 by failing to report the abuse of plaintiff by Grunwald. Social Services Law former § 413, however, applied only where there was “reasonable cause to suspect that a child . . . [was] an abused or maltreated child” … . The Social Services Law incorporated the definition of “abused child” in the Family Court Act … , which in turn defined that term, as relevant here, as a child harmed by a “parent or other person legally responsible for [the child’s] care” … .

Under Family Court Act article 10, however, the definition “should not be construed to include [abuse by] persons who assume fleeting or temporary care of a child such as . . . those persons who provide extended daily care of children in institutional settings, such as teachers” … . Inasmuch as Grunwald, based on the allegations in the complaint, could not be the subject of a report for purposes of Social Services Law former § 413, Pioneer was not required to report any suspected abuse by him … . Solly v Pioneer Cent. Sch. Dist., 2023 NY Slip Op 05814, Fourth Dept 11-15-23

Practice Point: The Social Services Law obligates a person legally responsible for the care of a child to report suspected child abuse. Because a teacher is not a person legally responsible for the care of a student, the school district is not subject to that reporting requirement.

 

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AT THE SUPPRESSION HEARING THE PEOPLE DEMONSTRATED THE TRAFFIC STOP OF DEFENDANT’S VEHICLE WAS BASED ON A POLICE OFFICER’S COMPUTER DMV CHECK WHICH SHOWED DEFENDANT’S INSURANCE HAD LAPSED; IN SUPPORT OF THE SUPPRESSION MOTION THE DEFENDANT SUBMITTED VERIFICATION THAT THE INSURANCE HAD NOT LAPSED; AT THAT POINT THE PRESUMPTION OF RELIABILITY DISAPPEARED AND THE PEOPLE WERE REQUIRED TO SHOW THE RELIABILITY OF THE DMV CHECK, WHICH THEY FAILED TO DO (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s denial of suppression and dismissing the indictment, determined the People did not meet their burden of going forward at the suppression hearing by demonstrating the legality of the police conduct. The traffic stop was justified by a DMV check showing the insurance of defendant’s vehicle had lapsed. In support of defendant’s motion to suppress, defendant presented a verification of insurance form demonstrating coverage had not lapsed. At that point the presumption that the DMV check was accurate disappeared and the People were required to demonstrate the information relied upon by the police was accurate. The People failed to so demonstrate:

… [D]efendant’s submission of the verification of insurance form in support of his supplemental motion was sufficient to challenge the presumed reliability of the information obtained by the officer that the vehicle’s registration was suspended due to an insurance lapse … . It was therefore incumbent upon the People to submit proof at the suppression hearing in addition to the officer’s testimony to establish the reliability of the information received by the officer, and the People failed to meet that burden … . People v Walker, 2023 NY Slip Op 05902, Fourth Dept 11-17-23

Practice Point: At a suppression hearing the People must first demonstrate the police conduct was legal. Here the traffic stop was based on a DMV check showing an insurance lapse. Defendant presented proof the insurance had not lapsed. At that point the presumption the DMV check was reliable disappeared and the People were required to show the DMV check was in fact reliable, which they failed to do. Suppression should have been granted.

 

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DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER WITHOUT A HEARING DEMONSTRATING THE CRITERIA HAVE BEEN MET (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s sentence, determined the judge should have granted defendant’s request for a hearing before sentencing defendant as a persistent violent felony offender. There had been no determination whether the criteria for sentencing as a persistent violent felony offender (at least two sentences for violent felonies within the last 10 years) had been met:

Although defendant admitted at sentencing that he had been convicted of the prior violent felony offenses alleged in the People’s persistent violent felony offender statement, defendant did not concede that he had been sentenced on at least two of those violent felonies within 10 years prior to the commission of the instant offense, and the People’s statement did not set forth the commencement date, termination date, and place of imprisonment for each period of incarceration to be used for tolling of the ten-year limitation as required by CPL 400.15 (2). Moreover, as the People correctly concede, the record does not include a specific finding by the court regarding whether there was sufficient incarceration tolling for defendant’s prior violent felony convictions to count as predicate convictions. People v Scott, 2023 NY Slip Op 05900, Fourth Dept 11-17-23

Practice Point: Here defendant’s request for a hearing to determine whether the criteria for sentencing him as a persistent violent felony offender should have been granted.

 

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THE MAJORITY CONCLUDED THE GUN SHOTS AND THE 911 CALL STATING FOUR BLACK KIDS, ONE WITH A GUN, WERE WALKING AROUND JUSTIFIED APPROACHING DEFENDANT ON THE STREET AND JUSTIFIED PURSUING HIM AND SEARCHING HIM WHEN HE RAN; TWO DISSENTERS NOTED THAT THE DEFENDANT DID NOT MATCH THE 911 CALLER’S DESCRIPTION AND ARGUED HIS FLIGHT ALONE DID NOT JUSTIFY PURSUIT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police lawfully approached the defendant on the street, lawfully pursued him when he ran, and lawfully searched him, recovering a handgun. The police had heard gun shots and were aware of a 911 call indicating four Black kids were walking around and one had a gun. The dissenters argued that the police were justified in approaching the defendant but that defendant’s flight did not justify the pursuit and search:

… [T]he officers, when they encountered defendant on the street, had a “founded suspicion that criminal activity [was] afoot” … , thereby justifying a common-law approach and inquiry of all four men … . Contrary to defendant’s contention, we conclude that his flight when lawfully approached by the police justified the ensuing pursuit, especially considering the unorthodox manner in which he was running, which, again, was observed before the officers gave chase … . At that point, it was reasonable for the officers to suspect that defendant possessed a firearm or was otherwise involved in the shooting that occurred minutes earlier less than a block away. * * *

From the dissent:

… [D]efendant did not match the description provided by the 911 caller of the person the caller said had a gun … . Although defendant was observed walking in the general vicinity of the reported gun shots, that observation does not provide the “requisite reasonable suspicion,” i.e., “in the absence of other objective indicia of criminality that would justify pursuit” … . People v Watkins, 2023 NY Slip Op 05804, Fourth Dept 11-17-23

Practice Point: The majority held the police properly approached the defendant on the street based upon hearing gunshots and a 911 call stating four Black kids, one with a gun, were walking around. The majority further held that defendant’s flight justified pursuit and a search of defendant’s person. Two dissenters noted that the defendant did not match the 911 caller’s description and argued his flight alone did not justify the pursuit.

 

AFTER REMOVING THE FLASHING AND CAULKING AROUND A SECOND-STORY WINDOW, PLAINTIFF WAS GIVEN PERMISSION TO LOWER THE LIFT TO THE GROUND TO GO THE BATHROOM; THE UNSECURED WINDOW FELL ON HIS HEAD; PLAINTIFF WAS NOT THE SOLE PROXIMATE CAUSE OF THE ACCIDENT AND WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) action. After the flashing and caulking around the second-story window were removed, plaintiff was given permission to go to the bathroom and he lowered the scissors lift he was working from to the ground. The unsecured window fell and struck plaintiff on the head:

… [I]nasmuch as the record establishes that plaintiff and the supervisor were working together on the scissor lift to remove the window by prying off the metal flashing and removing the caulk, and that the supervisor then granted plaintiff permission to use the bathroom and lowered the lift to the ground while leaving the window unsecured on the second story of the building when the window was susceptible to falling, it cannot be said that plaintiff’s conduct was the sole proximate cause of the accident … . We thus conclude that plaintiff’s “conduct during the [window removal] process ‘raises, at most, an issue concerning his comparative negligence, which is not an available defense under Labor Law § 240 (1)’ ” … . Reyes v Episcopal Senior Hous. Greece, LLC, 2023 NY Slip Op 05898, Fourth Dept 11-17-23

Practice Point: Apparently because plaintiff’s supervisor gave plaintiff permission to lower the lift to go to the bathroom, leaving the second-story window he was working on unsecured, plaintiff was not the “sole proximate cause” of the accident (which would preclude Labor Law 240(1) liability). At most he was comparatively negligent, which is not a bar to summary judgment.

 

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MOTHER’S DECLINING HEALTH WAS A FACTOR IN THE COURT’S GRANTING MOTHER’S PETITION TO RECOCATE WITH THE CHILDREN NEAR HER MOTHER IN TENNESSEE; THE DISSENT ARGUED THE REFEREE DID NOT ADEQUATELY CONSIDER THE EFFECT ON VISITATION WITH FATHER AND MOTHER DID NOT MEET HER BURDEN TO SHOW THE CHILDREN WOULD BE BETTER CARED FOR OR BETTER EDUCATED IN TENNESSEE (FOURTH DEPT).

The Fourth Department, over a dissent, determined mother’s petition for sole custody and permission to relocate to Tennessee was properly granted:

... [M]other testified at the hearing that she has been the primary caregiver of the children and that her health has been steadily declining. She further established that the maternal grandmother, who moved to Tennessee in 2021, has provided her with extensive financial assistance, as well as assistance in caring for herself and the children, and that the maternal grandmother would continue to do so if the mother were to relocate closer to the maternal grandmother … . Further, the record establishes that the father has no “accustomed close involvement in the children’s everyday life” … and thus we conclude that the need to “give appropriate weight to . . . the feasibility of preserving the relationship between the noncustodial parent and [the] child[ren] through suitable visitation arrangements” does not take precedence over the need to give appropriate weight to the necessity for the relocation … .

From the dissent:

… [T]he Referee gave disproportionate weight to certain factors and largely ignored the impact of the move on the children’s future contact with the father despite that factor weighing heavily against relocation, given the distance between Clinton County, New York, where the father resides, and Tennessee … . …

… [M]other did not establish that the children’s lives will be enhanced economically, emotionally, or educationally by the move, even if the move would not diminish them … . The mother offered no testimony that the children would receive a better education in Tennessee, and there was no testimony comparing schools in each location … .

The mother also offered no explanation as to why she and the children would be better cared for in Tennessee by the maternal grandmother—who testified that she works approximately 45 to 50 hours per week at multiple jobs in addition to caring for her son’s newborn child—than in New York by the certified caregiver the mother was approved for but has never utilized … . Matter of Martin v Martin, 2023 NY Slip Op 05893, Fourth Dept 11-17-23

Practice Point: Here mother’s declining health was a factor granting mother’s petition to relocate near her mother in Tennessee. The dissent argued the referee ignored the impact of the move on the children’s contact with father and mother did not demonstrate the children would be better cared for or better educated in Tennessee.

 

ATTEMPTED ASSAULT SECOND DEGREE IS A LESSER INCLUSORY CONCURRENT COUNT OF ATTEMPTED ASSAULT FIRST DEGREE; THE TWO COUNTS MUST BE SUBMITTED TO THE JURY IN THE ALTERNATIVE (FOURTH DEPT).

The Fourth Department reversed the attempted assault second conviction as a lesser inclusory concurrent count of attempted assault in the first degree. Defendant had been convicted of both: The two counts should have been submitted to the jury in the alternative. People v Roach, 2023 NY Slip Op 05872, Fourth Dept 11-17-23

 

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