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BASED ON THE PEOPLE’S THEORY, THE JURY SHOULD NOT HAVE BEEN INSTRUCTED POSSESSION OF A WEAPON IS PRESUMPTIVE EVIDENCE OF AN INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER; DEFENDANT’S REQUEST TO CALL A WITNESS SHOULD NOT HAVE BEEN DENIED; DEFENDANT’S REQUEST FOR $1000 TO HIRE A PSYCHIATRIC EXPERT SHOULD NOT HAVE BEEN DENIED; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction, determined the judge (1) should not have instructed the jury that possession of a weapon is presumptive evidence of an intent to use it unlawfully against another (2) should not have prevented defendant from calling as a witness a nurse practitioner who treated him at a psychiatric facility and (3) should have granted defendant’s request pursuant to the County Law for $1000 to hire a psychiatric expert:

County Court erred in charging the jury with respect to the presumption set forth in Penal Law § 265.15 (4) concerning the possession of weapons, i.e., that the possession by any person of any weapon is presumptive evidence of intent to use the same unlawfully against another. Pursuant to the statute, that presumption applies only where the defendant possesses the weapon in question (see Penal Law § 265.15 [4] …). Here, the People did not proceed on any theory that defendant had possession of the weapon at issue. … .

… [T]he court abused its discretion by precluding defendant from calling a proposed witness at trial, namely, a nurse practitioner who treated him at the Mohawk Valley Psychiatric Center prior to the incident, on the grounds that her testimony was not relevant and that defendant failed to give timely notice under CPL 250.10 (1) (c). It is well settled that “[a criminal] defendant has a fundamental right to call witnesses in his [or her] own behalf” … . Here, defendant established that the proposed witness would have provided relevant testimony with respect to his defense and also established good cause for the delay in the notice, and the People failed to establish any prejudice … .

“Pursuant to County Law § 722-c, upon a finding of necessity, a court shall authorize expert services on behalf of a defendant, and only in extraordinary circumstances may a court provide for compensation in excess of $1,000 per expert” … . Here, we conclude that the court abused its discretion by denying defendant’s application on the sole ground that defendant had a retained attorney … . People v Osman, 2023 NY Slip Op 00581, Fourth Dept 2-3-23

Practice Point: Based on the People’s theory the jury should not have been instructed that possession of weapon is presumptive evidence of an intent to use it unlawfully against another. The defendant’s request to call a witness who could offer relevant evidence should not have been denied where the delay in notification was explained and there was no prejudice. The defendant’s request pursuant to the County Law for $1000 to hire a psychiatric expert should have been granted.

 

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THE LACK-OF-STANDING DEFENSE WAS NOT RAISED IN THE ANSWER OR THE PREANSWER MOTION TO DISMISS; IT IS NOT A JURISDICTIONAL DEFECT; THEREFORE THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ACTION ON THAT GROUND (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed petitioners’ declaratory judgment action against the town for lack of standing. The petitioners sought a ruling that the town had failed to enforce a zoning code provision which prohibited respondent-defendant from operating a commercial business out of his residence. Although the town moved to dismiss the action, it did not raise lack-of-standing in its answer or its motion. Therefore the judge did not have the authority to dismiss on that ground:

“Standing ‘is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation’ ” … . Nonetheless, “a party’s lack of standing does not constitute a jurisdictional defect” … , and therefore a challenge to a party’s standing is waived if the defense is not asserted in either the answer or a preanswer motion to dismiss … . Here, the Town’s motion with respect to the second cause of action was not based on petitioners’ alleged lack of standing. Thus, we conclude that the court erred in sua sponte reaching the issue of standing with respect to that cause of action … . Matter of Cayuga Nation v Town of Seneca Falls, 2023 NY Slip Op 00575. Fourth Dept 2-3-23

Practice Point: A lack-of-standing is not a jurisdictional defect. Therefore, if it is not raised in the answer or a preanswer motion to dismiss, it is waived and the judge cannot raise it sua sponte.

 

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THE TOWN DID NOT OFFER PROOF THE ROAD LEADING TO PLAINTIFF’S HOME, WHICH WAS WIDENED BY THE TOWN, HAD BEEN USED BY THE PUBLIC AND MAINTAINED BY THE TOWN FOR 10 YEARS; THERFORE THE TOWN DID NOT PROVE THE ROAD WAS A PUBLIC HIGHWAY; THEREFORE PLAINTIFF’S EMINENT DOMAIN UNLAWFUL TAKING ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant municipality’s motion for summary judgment in this eminent domain “unlawful taking” action should not have been granted. Apparently the municipality did some work which widened the road leading to plaintiff’s home. Whether the work constituted an “unlawful taking” of plaintiff’s property turned on whether the road could be classified as a public highway. In order to demonstrate the road was a public highway the municipality had to prove the road was used by the public for at least 10 years. But the proof offered by the municipality only went back two years:

As the parties seeking summary judgment dismissing the eminent domain cause of action, defendants were required to establish, under these circumstances, that no unlawful taking occurred because Miller Road was a public highway by use pursuant to Highway Law § 189 and that all work that they performed was maintenance that did not have the effect of improperly widening the road. We agree with plaintiff that defendants failed to submit evidence establishing that Miller Road is a public highway within the meaning of section 189. “In order for a private road to be deemed a public highway by use, it must be show[n] that, for a period of at least 10 years, the road at issue was used by the public and the municipality exercised dominion and control over the road . . . Such a showing . . . requires more than intermittent use by the public and more than occasional road work by the municipality” … .

Here, in support of their motion, defendants submitted plaintiff’s testimony at a General Municipal Law § 50-h hearing, at which plaintiff repeatedly testified that the Town had, until shortly before the commencement of this action, refused to maintain the part of the road at issue, and the affidavit of defendant Highway Superintendent Joseph Wasilewski, who had personal knowledge of the facts concerning only the two years that preceded the filing of the motion. Consequently, we conclude that defendants failed to “make a prima facie showing of entitlement to judgment as a matter of law [by] tendering sufficient evidence to eliminate any material issues of fact from the case” … . Federman v Town of Lorraine, 2023 NY Slip Op 00553. Fourth Dept 2-3-23

Practice Point: Here the town widened the road leading to plaintiff’s house. Plaintiff brought an eminent domain unlawful taking action. In order to dismiss the complaint the town was required to prove the road was a public highway in that it was used by the public and maintained by the town for 10 years. The town’s proof fell short of that and plaintiff’s action should not have been dismissed.

 

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ALTHOUGH FAMILY COURT CAN DIRECT MOTHER TO ENGAGE IN COUNSELING, SUBMIT TO DRUG TESTS AND TAKE MEDICATION, FAMILY COURT CAN NOT MAKE THE DIRECTIVES A PREREQUISITE FOR VISITATION (FOURTH DEPT).

The Fourth Department determined Family Court did not have the authority to make mother’s compliance with drug-test, medication and counseling directives a prerequisite for visitation:

… [T]he court erred in requiring the mother to participate in counseling, take her medications as prescribed, and provide proof of a negative hair follicle test prior to having therapeutic visitation with the children. Although the court may include such directives as a component of visitation, it does not have the authority to make them a prerequisite to visitation … . We therefore modify the orders accordingly, and we remit the matters to Family Court to fashion schedules for the mother’s therapeutic visitation with each child. Matter of Sharlow v Hughes, 2023 NY Slip Op 00518, Fourth Dept 2-3-23

Practice Point: Family Court can direct mother to submit to drug tests, engage in counseling and take medication but it cannot make the directives a prerequisite for visitation.

 

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THE EMERGENCY DOCTRINE IS NOT APPLICABLE IN THIS TRAFFIC ACCIDENT CASE BECAUSE THE EMERGENCY (A WATER BOTTLE UNDER THE ACCELERATOR) WAS OF THE DEFENDANT’S OWN MAKING; THE GROSS NEGLIGENCE CAUSE OF ACTION AND THE DEMAND FOR PUNITIVE DAMAGES SURVIVED SUMMARY JUDGMENT; PUNITIVE DAMAGES ARE NOT AVAILABLE AGAINST DEFENDANT DRIVER’S EMPLOYER (FOURTH DEPT).

​The Fourth Department determined: (1) the emergency doctrine did not apply in this traffic accident case because the defendant driver caused the water bottle to fall from the cup holder where it lodged under the accelerator; (2) the cause of action alleging gross negligence and seeking punitive damages properly survived summary judgment; and (3) punitive damages are not available against defendant’s employer [Silvarole] pursuant to the respondeat superior theory:

… “[T]he emergency doctrine is only applicable when a party is confronted by [a] sudden, unforeseeable occurrence not of their own making” … . The “emergency doctrine has no application where . . . the party seeking to invoke it has created or contributed to the emergency” … .  … [T]he record … establishes that Davis [defendant driver] was the only person in the vehicle, and defendants did not submit evidence that any other person was responsible for the alleged emergency … . Thus, we conclude that defendants failed to demonstrate that the emergency encountered was not of Davis’s own making, “i.e., that [Davis] did not create or contribute to it” … . * * *

Punitive damages may be awarded “based on intentional actions or actions which, while not intentional, amount to gross negligence, recklessness, or wantonness . . . or conscious disregard of the rights of others or for conduct so reckless as to amount to such disregard” … . * * * Defendants … failed to meet their initial burden of establishing that Davis’s conduct, specifically his decision to look for and retrieve the obstacle while the tractor-trailer was in motion—despite the fact that his brakes were in working order—did not “amount to gross negligence, recklessness, or wantonness . . . or conscious disregard of the rights of others” … . …

Plaintiff seeks to hold Silvarole liable for punitive damages under a theory of vicarious liability. However, punitive damages are unavailable under such a theory absent limited circumstances not present here … . Miller v Silvarole Trucking Inc., 2022 NY Slip Op 07348, Fourth Dept 12-23-22

Practice Point: In a traffic accident case, the emergency doctrine does not apply where the emergency is of the defendant’s own making, here a water bottle under the accelerator.

Practice Point: The gross negligence cause of action and demand for punitive damages in this traffic accident case survived summary judgment.

Practice Point: Punitive damages are not available against the driver’s employer under a vicarious liability theory.

 

THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR PRIMA FACIE TORT BECAUSE IT DID NOT ALLEGE THE SOLE MOTIVATION OF DEFENDANTS WAS DISINETERESTED MALEVOLENCE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint did not state a cause of action for prima facie tort:

“The requisite elements of a cause of action for prima facie tort are (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful” … .. A plaintiff alleging prima facie tort must therefore allege that the defendant’s “sole motivation was ‘disinterested malevolence’ ” … . … Although the complaint alleges that defendants ” ‘acted maliciously’ and ‘with disinterested malice,’ ” … , it does not allege that defendants’ “sole motivation was ‘disinterested malevolence’ ” … . “There can be no recovery [for prima facie tort] unless a disinterested malevolence to injure [a] plaintiff constitutes the sole motivation for [the] defendant[‘s] otherwise lawful act” … . Spine Surgery of Buffalo Niagara, LLC v Geico Cas. Co., 2022 NY Slip Op 07343, Fourth Dept 12-23-22

Practice Point: The criteria for prima facie tort include an allegation that the “sole motivation” for a defendant’s conduct was “disinterested malevolence.”

 

AN UNRESTRICTED EASEMENT ALLOWING ACCESS TO A LAKE ENCOMPASSES THE RIGHT TO INSTALL, MAINTAIN AND USE A DOCK (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined that an unrestricted easement which allows access to a lake encompasses the right to installation, maintenance and use of a dock:

… [T]he relevant deeds … established that there were no restrictions on the easement and that the purpose of the right-of-way was to provide ingress to and egress from the lake … .. Given the purpose of the easement and the absence of restrictions, “any reasonable lawful use [by plaintiffs] within the contemplation of the grant is permissible” … , and the installation, maintenance, and use of a dock at the end of a right-of-way providing access to a lake is a “reasonable use incidental to the purpose of the easement” … . Mosley v Parnell, 2022 NY Slip Op 07342, Fourth Dept 12-23-22

Practice Point: An unrestricted easement allowing access to a lake encompasses the right to install, maintain and use a dock.

 

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SUPPRESSION OF THE WEAPON WAS PROPERLY DENIED, BUT DEFENDANT’S STATEMENT ADMITTING POSSESSION OF THE WEAPON SHOULD HAVE BEEN SUPPRESSED; ALTHOUGH THE HARMLESS ERROR DOCTRINE IS RARELY APPLIED TO UPHOLD A GUILTY PLEA WHERE SUPPRSSION SHOULD HAVE BEEN GRANTED, HERE THE APPELLATE DIVISION DETERMINED THE PLEA WOULD NOT HAVE BEEN AFFECTED BY SUPPRESSION OF THE STATEMENT; THE DISSENT DISAGREED (FOURTH DEPT). ​

The Fourth Department, over a dissent, determined defendant’s guilty plea to possession of a weapon could not have been affected by the failure to suppress his statement admitting possession of the weapon. The Fourth Department determined the statement was a product of unwarned custodial interrogation:

‘The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response’ ” … . “Although the police may ask a suspect preliminary questions at a crime scene in order to find out what is transpiring . . . , where criminal events have been concluded and the situation no longer requires clarification of the crime or its suspects, custodial questioning will constitute interrogation” … . Here, after defendant had been restrained and handcuffed, an officer asked defendant, “what’s going on? Are you all right? Are you okay?” Defendant responded, “you saw what I had on me. I was going to do what I had to do.” We conclude that the interaction between defendant and the officer “had traveled far beyond a ‘threshold crime scene inquiry’ ” and, under the circumstances, it was likely that the officer’s particular questions ” ‘would elicit evidence of a crime and, indeed, it did elicit an incriminating response’ ” … . …

“[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision, unless at the time of the plea he [or she] states or reveals his [or her] reason for pleading guilty” (People v Grant, 45 NY2d 366, 379-380 [1978]). “The Grant doctrine is not absolute, however, and [the Court of Appeals has] recognized that a guilty plea entered after an improper court ruling may be upheld if there is no ‘reasonable possibility that the error contributed to the plea’ ” … . People v Robles, 2022 NY Slip Op 07336, Fourth Dept 12-23-22

Practice Point: This case is rare exception to the rule that a guilty plea will not stand if a suppression motion should have been granted. Here the appellate division determined suppression of defendant’s statement admitting possession of the weapon would not have affected his decision to plead guilty because the weapon itself had not been suppressed. There was a dissent.

 

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PLAINTIFF WAS PRESCRIBED ATIVAN, WHICH CAUSES DROWSINESS, IN THE EMERGENCY ROOM, WAS DISCHARGED WHILE UNDER ITS INFLUENCE AND WAS INVOLVED IN A CAR ACCIDENT; THE MEDICAL MALPRACTICE CAUSES OF ACTION BASED ON THE ALLEGEDLY NEGLIGENT DISCHARGE AND THE ALLEGED FAILURE TO EXPLAIN THE EFFECTS OF ATIVAN BOTH SOUNDED IN MEDICAL MALPRACTICE AND PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT).

​The Fourth Department determined defendants’ motion for summary judgment in this medical malpractice action was properly denied. Plaintiff was treated at the emergency department of defendant hospital and prescribed Ativan, a drug which causes drowsiness. Plaintiff was released while under the influence of the drug and had a car accident. Plaintiff alleged he was negligently discharged and was not informed of the possible effects of Ativan:

… [T]he evidence … raised issues of fact whether Iannolo [the treating physician] deviated from the standard of care by discharging plaintiff at a time when the concentration of Ativan in his system was at or near its peak and while plaintiff was experiencing the effects of the medication, including drowsiness. Those submissions also raised issues of fact whether any such deviation was a proximate cause of plaintiff’s injuries … . Regarding the hospital’s motion, the evidence that the hospital submitted raised issues of fact whether … a nurse employed by the hospital deviated from the standard of care and committed an act of negligence independent of Iannolo … , by failing to explain the discharge instructions to plaintiff or advise him of the possible effects of Ativan, and whether any such deviation was a proximate cause of plaintiff’s injuries … .

… [T]he hospital … contends that the court erred in denying its motion with respect to the negligence cause of action against it. We agree … . “A complaint sounds in medical malpractice rather than ordinary negligence where, as here, the challenged conduct [by a nurse] ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician’ to a particular patient” … . Johnson v Auburn Community Hosp., 2022 NY Slip Op 07332, Fourth Dept 12-23-22

Practice Point: Discharging a patient from the hospital emergency room while under the influence of Ativan, which causes drowsiness, may be the basis of a medical malpractice action stemming from a subsequent car accident. The failure to explain the effects of Ativan was deemed a separate cause of action sounding in medical malpractice (not ordinary negligence).

 

PLAINTIFF PULLED A LOAD OF WASTE BACKWARDS THROUGH AN ACCESS DOOR APPARENTLY EXPECTING THE LIFT TO BE POSITIONED OUTSIDE THE DOOR; THE LIFT HAD MOVED TO A DIFFERENT FLOOR AND PLAINTIFF FELL FROM THE THIRD FLOOR TO THE GROUND; THE ACCESS DOOR WAS SUPPOSED TO BE LOCKED BEFORE THE LIFT MOVED TO A DIFFERENT FLOOR; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION BECAUSE THE ACCESS DOOR LOCK, A SAFETY DEVICE, WAS MISSING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff pulled a load of waste backwards through an access door which did not have a lock and then fell from the third floor because the lift which he (apparently) assumed was positioned outside the access door had moved to a different floor. Each access door was supposed to have a lock and the lift operator was supposed to lock the door before moving to a different floor:

Plaintiff met his burden of establishing the absence of an adequate safety device that could have prevented his fall, namely, a lock on the third-floor access door … .. In opposition, defendants failed to raise a triable issue of fact whether plaintiff’s own negligence was the sole proximate cause of his injuries … . Here, there is no evidence in the record that plaintiff removed the lock and was therefore the sole proximate cause of the accident … . Moreover, even assuming, arguendo, that plaintiff was negligent in walking backwards out the access door and in failing to look back prior to going through the door to ensure the lift was there, we conclude that such “actions [would] render him [merely] contributorily negligent, a defense unavailable under [Labor Law § 240 (1)]” … . Hyde v BVSHSSF Syracuse LLC, 2022 NY Slip Op 07329, Fourth Dept 12-23-22

Practice Point: Even though plaintiff may have been contributorily negligent in not looking behind him as he pulled a load of waste through an access door, contributory negligence is not a defense to a Labor Law 240(1) cause of action.

 

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