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THE FOURTH DEPARTMENT, NOTING A SPLIT OF AUTHORITY, DETERMINED THE PLAINTIFF DID NOT SET FORTH ALLEGATIONS WHICH DEMONSTRATED A SPECIAL RELATIONSHIP BETWEEN HER AND THE COUNTY; THEREFORE THE COUNTY COULD NOT BE HELD LIABLE FOR SEXUAL ABUSE ALLEGEDLY SUFFERED BY THE PLAINTIFF WHILE IN FOSTER CARE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and noting a split of authority, determined plaintiff in this Child Victims Act action alleging sexual abuse while in foster care did not demonstrate a “special relationship” with the county. The decision includes a concise explanation of the complex intertwined issues controlling governmental tort liability:

In Mark G. v Sabol (93 NY2d 710 [1999]), the Court of Appeals analyzed provisions in the Social Services Law designed to protect foster children and to prevent child abuse generally and concluded that a private right of action was not consistent with the legislative scheme (see id. at 720-722; see also McLean, 12 NY3d at 201). Notably, in McLean, the Court of Appeals cited Mark G. approvingly … . We therefore conclude that plaintiff cannot establish a special duty based upon the County’s alleged violation of its duties under the Social Services Law. We note that, to the extent that there is case law in the First and Second Departments that would support a contrary conclusion, we decline to follow those cases … .

… [P]laintiff cannot establish the requisite special relationship between the parties based upon the County’s alleged voluntary assumption of a duty that generated justifiable reliance on her part … . To establish such a special relationship, a plaintiff must show “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” (Cuffy v City of New York, 69 NY2d 255, 260 [1987] …). ” ‘[A]ll four elements must be present for a special duty to attach’ ” … .

… “[T]he failure to perform a statutory duty, or the negligent performance of that duty, cannot be equated with the breach of a duty voluntarily assumed” … . Even assuming, arguendo, that plaintiff sufficiently alleged the existence of a duty on the part of the County apart from its statutory obligations, we … conclude that plaintiff failed to set forth allegations that, if proven, would establish each of the four elements articulated in Cuffy … . Weisbrod-Moore v Cayuga County, 2023 NY Slip Op 02445, Fourth Dept 5-5-23

Practice Point: Here the plaintiff sued the county alleging sexual abuse while in foster care. Noting a split of authority, the Fourth Department held the plaintiff did not set forth allegations demonstrating a special relationship between her and the county, a prerequisite for governmental tort liability. The decision includes a concise explanation of the confusing, intetwined issues surrounding governmental tort liability. 

 

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THE DEFENDANT TESTIFED THE VICTIM WAS ON TOP OF HIM REPEATEDLY STRIKING HIM IN THE HEAD WHEN HE PULLED OUT HIS FIREARM AND SHOT THE VICTIM; EVEN IF DEFENDANT’S VERSION WAS DEEMED UNLIKELY, THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction and ordering a new trial, determined defendant was entitled to a jury instruction on the justification defense. Defendant testified he was on the ground with the victim on top of him, repeatedly striking him in the head, when he drew his weapon and shot the victim:

“Even if [the … victim] had not already employed deadly physical force against . . . defendant at the time . . . defendant allegedly used deadly physical force against [the … victim], the question remains whether . . . defendant could reasonably have believed that the use of such force against him was imminent” … . The … victim was not armed, but defendant testified that he knew that the … victim owned at least one gun and that, at the time of the shooting, he did not know whether the … victim was armed. Further, defendant’s testimony that the … victim pinned him down and was repeatedly punching his face and head could support a finding that defendant reasonably believed that such conduct presented an imminent threat of deadly force inasmuch as “[t]he natural and probable consequences of repeatedly striking a man while he is on the ground defenseless is that he will sustain a serious physical injury within the meaning of Penal Law § 10.00 (10)” … . Although defendant’s version of the incident may be “dubious, a trial court is required to give the justification charge even where the defendant’s version of events is ‘extraordinarily unlikely’ ” … . People v Swanton, 2023 NY Slip Op 02433, Fourth Dept 5-5-23

Practice Point: Here defendant testified he was on the ground with the victim on top of him, repeatedly striking him in the head, when he pulled out his firearm and shot the victim. Even though the victim was not using deadly force, and even if the defendant’s version of events was deemed unlikely, defendant was entitled to a jury instruction on the justification defense; new trial ordered.

 

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ONE OF THE GRAND JURORS HAD A FELONY CONVICTION RENDERING THE GRAND JURY ILLEGALLY CONSTITUTED; THE INDICTMENT SHOULD HAVE BEEN DISMISSED; WHETHER THE DEFENDANT WAS PREJUDICED WAS IRRELEVANT (FOURTH DEPT). ​

The Fourth Department, reversing County Court, determined the grand jury was illegally constituted because one of the jurors had a felony conviction. The indictment should have been dismissed without considering whether defendant was prejudiced:

CPL 210.20 (1) (c) authorizes a court to dismiss an indictment on the ground that “[t]he grand jury proceeding was defective, within the meaning of [CPL] 210.35.” As relevant here, CPL 210.35 provides that “[a] grand jury proceeding is defective . . . when . . . [t]he grand jury was illegally constituted” … . A grand jury is illegally constituted when … one of its members is not qualified to serve as a juror pursuant to the Judiciary Law … . Here, it is undisputed that the grand jury was illegally constituted because one of the grand jurors had been convicted of a felony, rendering him unqualified to serve as a grand juror (see Judiciary Law §§ 501, 510 [3]).

Despite the illegally constituted grand jury, the court nonetheless determined that dismissal of the indictment was unwarranted inasmuch as the alleged defect did not result in any prejudice to defendant. We conclude that it was error for the court to require a showing of prejudice before dismissing the indictment for a violation of CPL 210.35 (1). The Court of Appeals has held that “[t]he clear intention of [the drafters of CPL 210.35] was to establish a rule of automatic dismissal [of an indictment] for a limited number of improprieties that were deemed most serious”—including, inter alia, “the specific defect[] delineated in” CPL 210.35 (1) … . With respect to those most serious improprieties, “judicial inquiries into prejudice to the accused or other forms of actual harm are wholly out of place” … . Any consideration of prejudice is limited to defects alleged in connection with the catchall provision of CPL 210.35 (5) … . Here … there is no dispute that the grand jury proceedings were defective under CPL 210.35 (1) due to the presence of the unqualified grand juror, and therefore the court should have automatically dismissed the indictment without requiring any showing of prejudice by defendant … . People v Ashley, 2023 NY Slip Op 02432, Fourth Dept 5-5-23

Practice Point: If one member of a grand jury has a felony conviction, the grand jury is illegally constituted requiring automatic dismissal of the indictment. Whether the defendant was prejudiced is irrelevant.

 

HERE THE NEW STATUTE REQUIRING THE PEOPLE TO FILE AND SERVE A CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS WENT INTO EFFECT AFTER THE PEOPLE HAD ANNOUNCED READINESS FOR TRIAL; THE STATUTE RETURNED THE PEOPLE TO A STATE OF UNREADINESS; DEFENDANT’S MOTION TO DISMISS ON SPEEDY-TRIAL GROUNDS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendant’s motion to dismiss the indictment on speedy trial grounds should have been granted. A new law went into effect during the course of the prosecution requiring the People to serve and file a certificate of compliance with discovery obligations (CPL 245.50(3)). Although the People had already announced they were ready for trial, the statute returned them to a state of unreadiness:

… “[T]he procedures outlined in CPL article 245 became applicable to [pending] action[s] as soon as that article became effective” … . * * *

… [W]ith respect to the effect of CPL 245.50 (3) on pending prosecutions in which the People had previously announced readiness for trial, we agree with the courts that have concluded that the People “were placed in a state of nonreadiness on January 1, 2020, the effective date of CPL article 245, as a matter of law, [where] no [certificate of compliance] had been filed as of that date” … . People v King, 2023 NY Slip Op 02409, Fourth Dept 5-5-23

Practice Point: CPL 245.50(3) went into effect during this prosecution after the People had announced readiness for trial. The statute returned the People to a state of unreadiness. The defendant was entitled to dismissal of the indictment.

 

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THE TEXTS AND EMAILS WERE NOT SUBSCRIBED; THE BREACH OF CONTRACT ACTION BASED UPON THE EMAILS AND TEXTS WAS BARRED BY THE STATUTE OF FRAUDS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the emails and texts did not meet the criteria for a written contract (here a purported agreement to purchase property). The breach of contract cause of action was therefore barred by the statute of frauds:

Initially, “[a]n e-mail sent by a party, under which the sending party’s name is typed, can constitute a [signed] writing for [the] purposes of the statute of frauds” … . Here, however, not one of the text messages or emails submitted by plaintiff contains a signature block or other electronic signature of defendant. Those communications are therefore “clearly inadequate, since [they were] not subscribed, even electronically, by the defendant[] who [is] the part[y] to be charged, or by anyone purporting to act in [his] behalf” … . We further agree with defendant that the doctrine of part performance does not apply to defeat the affirmative defense of the statute of frauds (see § 5-703 [4]; CPLR 3211 [a] [5]). Under the circumstances of this case, plaintiff’s actions in paying property taxes and related expenses, including making renovations to a sunroom on the property, “were not ‘unequivocally referable’ to an agreement to purchase the property to warrant invoking the doctrine of part performance … . Preston v Nichols, 2023 NY Slip Op 02408, Fourth Dept 5-5-23

Practice Point: Here the texts and emails which were alleged to constituted a valid property purchase agreement were not subscribed. The breach of contract action based upon the texts and emails was therefore barred by the statute of frauds.

 

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IN THIS CHILD VICTIMS ACT ACTION, THE JUDGE CORRECTLY STRUCK INFLAMMATORY LANGUAGE FROM THE COMPLAINT BUT SHOULD NOT HAVE SEALED THE COMPLAINT WITHOUT MAKING WRITTEN FINDINGS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the judge was correct in striking inflammatory language from this Child Victims Act complaint but should not have sealed the complaint:

Pursuant to CPLR 3024 (b), “[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading.” “[I]t is generally held that the test under this section is whether the allegation is relevant, in an evidentiary sense, to the controversy and, therefore, admissible at trial” … . Although “factual averments about sexual abuse are necessary in any action where those allegations form the predicate for an award of damages, to state a cause of action generally and pursuant to the CVA [Child Victims Act] specifically” … , the language struck by the court does not contain any factual averments necessary to plaintiff’s causes of action. Further, the court’s decision to strike the inflammatory language does not preclude plaintiff from attempting to prove at the trial stage that defendant committed acts of sexual abuse against her. We thus conclude that “there is no prejudice to plaintiff as a result of the order, whereas if [the language is] not stricken prejudice may result to defendant” … .

We further conclude, however, that the court erred in granting that part of the cross-motion seeking to seal the complaint without making “a written finding of good cause, . . . specify[ing] the grounds thereof,” as required by 22 NYCRR 216.1 (a) … . LG 101 Doe v Wos, 2023 NY Slip Op 02404, Fourth Dept 5-5-23

Practice Point: In this Child Victims Act case, the judge properly struck inflammatory language from the complaint but should not have sealed the complaint absent written findings of good cause.

 

WALMART DID NOT OWE A DUTY OF CARE TO PLAINTIFF, AN OFF-DUTY POLICE OFFICER INJURED BY ANOTHER POLICE OFFICER AFTER RESPONDING TO A THEFT AT A WALMART STORE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant Walmart did not owe a duty of care to plaintiff, an off-duty police officer who was injured by another police officer after responding to a call about a theft from Walmart:

Walmart contends that it owed no duty to plaintiff and that the court thus erred in denying its motion. We agree. “Before a defendant may be held liable for negligence, it must be shown that the defendant owes a duty to the plaintiff . . . ‘Absent a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm’ ” … . “[T]he definition of the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration” … , and that determination is made “by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability … .

… [P]rior thefts at the Walmart store do not bear a sufficient relationship to what occurred in this instance—a negligent motor vehicle accident between plaintiff and his coworker—so as to create a duty flowing from Walmart to plaintiff. …

… [A]ny alleged violation of Walmart’s internal policy did not create a duty flowing from Walmart to plaintiff. The purpose of the internal policy was to protect “the physical well-being of [s]uspects, customers and Walmart associates.” Plaintiff was an off-duty police officer responding to an alleged criminal event who never entered the store. He was not one of those covered by the goal of the policies … . Brown v Wal-Mart Stores, Inc., 2023 NY Slip Op 02403, Fourth Dept 5-5-23

Practice Point: To be liable for negligence, there must be a duty of care running to the plaintiff on the part of the allegedly negligent defendant. Here plaintiff, an off-duty police officer, was injured by another police officer pursuing a suspect who allegedly stole merchandise from Walmart. Walmart did not owe plaintiff a duty of care.

 

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PETITIONER, A CORRECTION OFFICER WHO WAS INJURED MOVING LAUNDRY BAGS BLOCKING A HALLWAY IN THE JAIL, WAS ENTITLED TO GENERAL MUNICIPAL LAW 207-C BENEFITS; ALTHOUGH SUPREME COURT SHOULD NOT HAVE TRANSFERRED THE ARTICLE 78 TO THE APPELLATE DIVISION, THE FOURTH DEPARTMENT CONSIDERED THE MERITS (FOURTH DEPT).

The Fourth Department, reversing the denial of General Municipal Law 207-a benefits in this Article 78 proceeding, determined petitioner, a correction officer, was injured performing her duties when she attempted to move laundry bags blocking the hallway in the jail housing unit. The Fourth Department noted that Supreme Court should not have transferred the Article 78 proceeding to the appellate division because the determination was not based upon a hearing at which evidence was taken “pursuant to direction by law:”

… Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804 (g) on the ground that the petition raised a substantial evidence issue. Respondent’s determination “was not ‘made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law’ (CPLR 7803 [4]). Rather, the determination was the result of a hearing conducted pursuant to the terms of [an] agreement” between petitioner’s union and respondent … . Nevertheless, in the interest of judicial economy, we consider the merits of the petition …. …

Petitioner testified at the hearing that she thought the laundry bags outside the main entrance door were a “safety issue,” particularly because they would block other officers from moving through the hallway quickly and because persons using the hallway may get hurt. She further testified that her training and job responsibilities required her to address safety concerns. Petitioner also submitted documentary evidence that correction officers were under the duty to ensure that laundry bags are not placed on the housing unit floor at any time. Moreover, it is undisputed that there was no policy prohibiting correction officers from moving laundry bags. Although respondent submitted testimony that correction officers should order inmates to move laundry bags, that testimony did not address the location of the laundry bags and the safety hazard posed by laundry bags left in a hallway. We therefore conclude that the determination to deny petitioner’s application for section 207-c benefits was arbitrary and capricious … . Matter of Williams v County of Onondaga, 2023 NY Slip Op 02262, Fourth Dept 4-28-23

Practice Point: A correction officer injured moving laundry bags blocking a jail hallway was performing her duties and was entitled to General Municipal Law 207-c benefits.

Practice Point: An Article 78 proceeding should not be transferred to the appellate division unless evidence was taken at a hearing “pursuant to direction by law.” Here the hearing, which was held pursuant to an agreement between the respondent and petitioner’s union, did not meet that criteria.

 

THE FIRST, THIRD AND FOURTH DEPARTMENTS HAVE HELD THAT THE VIOLATION OF THE INDUSTRIAL CODE PROVISION 12 NYCRR 23-4.2 (K) WILL NOT SUPPORT A LABOR LAW 241(6) CAUSE OF ACTION BECAUSE IT IS NOT SUFFICIENTLY SPECIFIC; THE SECOND DEPARTMENT HAS HELD THE VIOLATION OF THAT SAME PROVISION SUPPORTS A LABOR LAW 241(6) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court in this Labor Law 241(6) construction-accident action, determined that the violation of the Industrial Code provision 12 NYCRR 23-4.2 (k) will not support a Labor Law 241(6) cause of action. The court noted the split of authority on this issue:

… [T]he court erred in denying the moving defendants’ motion with respect to the Labor Law § 241 (6) claim against [defendant] insofar as it was based on the alleged violation of 12 NYCRR 23-4.2 (k). We have repeatedly held that 12 NYCRR 23-4.2 (k) is not sufficiently specific to support a Labor Law § 241 (6) claim … . Inasmuch as the First and Third Departments have held similarly … , we decline to adopt contrary precedent in the Second Department … . Vicki v City of Niagara Falls, 2023 NY Slip Op 02260, Fourth Dept 4-28-23

Practice Point: In the First, Third and Fourth Department the Industrial Code provision 12 NYCRR 23-4.2 (k) is not specific enough to support a Labor Law 241(6) cause of action. The Second Department has held that the violation of the provision will support a Labor Law 241(6) cause of action.

 

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THE EVIDENCE SUPPORTED HARASSMENT AS A FAMILY OFFENSE BUT DID NOT SUPPORT AGGRAVATED HARASSMENT OR DISORDERLY CONDUCT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court in this family offense proceeding, determined harassment was supported by the evidence but disorderly conduct and aggravated harassment were not:

The undisputed evidence at the fact-finding hearing established that the parties had dated more than a decade earlier and that, after petitioner terminated the relationship, respondent continued to contact her, prompting petitioner to obtain at least two orders of protection against him. After years of not seeing each other, respondent went to petitioner’s house uninvited on October 28, 2021 and rang the doorbell. When petitioner answered the door, respondent said that she owed him a conversation. Petitioner responded that she did not want to talk to him and repeatedly asked him to leave. Respondent refused to leave, prompting petitioner to call the police. Respondent eventually left before the police arrived. Approximately six weeks later, respondent again went to petitioner’s house uninvited and demanded to speak to her. Petitioner asked him to leave at least a dozen times, but respondent ignored those requests and entered her garage where she was standing. The police arrived shortly thereafter and took respondent into custody, charging him with trespass.

In our view, Family Court properly determined that respondent committed the family offense of harassment in the second degree by engaging in a course of conduct or repeatedly committing acts that alarmed or seriously annoyed petitioner while having the intent to harass, annoy or alarm petitioner (see Penal Law § 240.26 [3] … ). We agree with respondent, however, that petitioner failed to meet her burden of establishing by a fair preponderance of the evidence that respondent committed the family offenses of disorderly conduct (§ 240.20) or aggravated harassment in the second degree (§ 240.30 [1]). Matter of Ohler v Bartkovich, 2023 NY Slip Op 02256, Fourth Dept 4-29-23

Practice Point: Here the facts supported harassment as a family offense but did not support aggravated harassment or disorderly conduct.

 

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