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THE MOTION COURT ABUSED ITS DISCRETION BY DEEMING PLAINTIFF’S STATEMENT OF MATERIAL FACTS ADMITTED BECAUSE DEFENDANTS DID NOT SUBMIT A COUNTER STATEMENT OF UNDISPUTED FACTS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined that defendants’ failure to submit a counter statement of undisputed facts (22 NYCRR 202.8-g[b]) should not have been deemed an admission to plaintiff’s statement of material facts. Therefore plaintiff’s motion for summary judgment on the breach of contract cause of action should not have been granted:

Although the court had discretion under section 202.8-g (former [c]) to deem the assertions in plaintiff’s statement of material facts admitted, it was not required to do so … .  “[B]lind adherence to the procedure set forth in 22 NYCRR 202.8-g” was not mandated … .

Here, considering that plaintiff’s statement of material facts did not fully comply with 22 NYCRR 202.8-g (d) and ignored the pivotal factual dispute arising from discovery, we conclude that, although it would have been better practice for defendants to “submit a paragraph-by-paragraph response to plaintiff’s statement” … , “the court abused its discretion in deeming the entire statement admitted” … . On the Water Prods., LLC v Glynos, 2022 NY Slip Op 07320, Fourth Dept 12-23-22

Practice Point: Here plaintiff submitted a statement of material facts but defendants did not submit a counter statement of undisputed facts. The motion court was not required to deem the statement of material facts admitted and should not have done so under the specific circumstances of this case. Plaintiff’s motion for summary judgment in this breach of contract action should not have been granted.

 

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THE PEOPLE DID NOT DEMONSTRATE THE POLICE OFFICER HAD SUFFICIENT TRAINING AND EXPERIENCE TO VISUALLY ESTIMATE THE SPEED OF DEFENDANT’S CAR; SUPPRESSION SHOULD HAVE BEEN GRANTED IN THIS SPEEDING CASE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the People did not demonstrate the defendant was speeding. No radar gun was used and the officer estimated defendant’s speed. The People did not demonstrate the officer had sufficient training and experience to support the speed-estimate:

At the suppression hearing, the officer testified that he stopped the vehicle after he visually estimated defendant’s speed at 82 miles per hour in a 65 mph zone, and there was no testimony that the officer used a radar gun to establish defendant’s speed. While it is well-settled that a qualified police officer’s testimony that he or she visually estimated the speed of a defendant’s vehicle may be sufficient to establish that a defendant exceeded the speed limit … , here, the People failed to establish the officer’s training and qualifications to support the officer’s visual estimate of the speed of defendant’s vehicle … . Thus, inasmuch as the People failed to meet their burden of showing the legality of the police conduct in stopping defendant’s vehicle in the first instance, we conclude that the court erred in refusing to suppress the physical evidence and defendant’s statements obtained as a result of the traffic stop. Because our determination results in the suppression of all evidence supporting the crime charged, the indictment must be dismissed … . People v Reedy, 2022 NY Slip Op 07397, Fourth Dept 12-23-22

Practice Point: Although a police officer’s visual estimate of a vehicle’s speed may be sufficient to support a speeding conviction, the People must show the officer had sufficient training and experience to make the speed-estimate, which was lacking in this case.

 

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AT THE TIME THE POLICE PARKED THE POLICE CAR BEHIND THE CAR IN WHICH DEFENDANT WAS A PASSENGER SUCH THAT THE DRIVER COULD NOT LEAVE THE AREA, THE POLICE DID NOT HAVE REASONABLE SUSPICION THAT THE OCCUPANTS OF THE CAR HAD COMMITTED A CRIME; DEFENDANT’S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the police did not have the requisite reasonable suspicion when they parked behind the vehicle in which defendant was a passenger such that the driver could not leave the area. Therefore defendant’s motion to suppress should have been granted:

Police officer testimony at the suppression hearing established that, at the time the officers made the initial stop, they were responding to the sound of multiple gunshots that had originated at or near the gas station, which was known to be a high crime area. The officers also testified, however, that at no time did they visually observe the source of the gunshots, and they did not see any shots emanating from the area where defendant’s vehicle was parked. The officers’ attention was drawn to defendant’s vehicle because, at the time they arrived on the scene, it had collided with another vehicle as it tried to leave the area. Defendant’s vehicle was one of a number of vehicles and pedestrians that the police saw trying to leave the gas station due to the ongoing gunfire. Under those circumstances—i.e., where the police are unable to pinpoint the source of the gunfire, and the individuals in defendant’s vehicle are not the only potential suspects present at the scene—the evidence does not provide a reasonable suspicion that the individuals in defendant’s vehicle had committed, were committing, or were about to commit a crime … . On the record before us, defendant’s vehicle was, at most, “simply a vehicle that was in the general vicinity of the area where the shots were heard,” which is insufficient to establish reasonable suspicion … . People v Singletary, 2022 NY Slip Op 07392, Fourth Dept 12-23-22

Practice Point: Parking a police car behind a car such that the car cannot leave is a seizure requiring reasonable suspicion a crime has taken place.

 

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THERE WERE QUESTIONS OF FACT WHETHER DEFENDANTS IN THIS DOG-BITE CASE, INCLUDING THE LANDLORD, WERE AWARE OF THE DOG’S VICIOUS PROPENSITIES; THE PRE-DISCOVERY SUMMARY JUDGMENT MOTION WAS PREMATURE; THE ACTION WAS NOT FRIVOLOUS; THE DEFENDANTS WERE NOT ENTITLED TO ATTORNEY’S FEES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants in this dog-bite case were not entitled to summary judgment, the action was not frivolous, and defendants were not entitled to attorney’s fees. In addition, the summary judgment motion, made before discovery, was deemed premature. The court found there were questions of fact whether defendants, including the landlord (held to an ordinary negligence standard) were aware of the dog’s vicious propensities. The relationships among the parties and the unsuccessful arguments made by defendants in support of summary judgment are too detailed to fairly summarize here:

… “[A]n owner of a dog may be liable for injuries caused by that animal only when the owner had or should have had knowledge of the animal’s vicious propensities” … . “Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities” … . “Strict liability can also be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensit[ies]” … .

… “[A] landlord who, with knowledge that a prospective tenant has a vicious dog which will be kept on the premises, nonetheless leases the premises to such tenant without taking reasonable measures, by pertinent provisions in the lease or otherwise, to protect persons who might be on the premises from being attacked by the dog may be held liable [under a negligence standard] to a person who while thereafter on the premises is bitten by the dog” … . When, “during the term of the leasehold[,] a landlord becomes aware of the fact that [the] tenant is harboring an animal with vicious propensities, [the landlord] owes a duty to protect third persons from injury . . . if [the landlord] ‘had control of the premises or other capability to remove or confine the animal’ ” … . Michael P. v Dombroski, 2022 NY Slip Op 07318, Fourth Dept 12-23-22

Practice Point: A landlord who is aware of a dog’s vicious propensities can be held liable in a dog-bite case under a standard negligence theory.

 

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THE AMENDMENTS TO THE ANTI-SLAPP STATUTES SHOULD NOT HAVE BEEN APPLIED RETROACTIVELY TO DISMISS PLAINTIFF’S DEFAMATION COMPLAINT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the amendments to the anti-SLAPP statutes (Civil Rights Law §§ 70-a, 76-a) do not apply retroactively and therefore should not have been the basis for dismissal of plaintiff’s defamation complaint:

… [T]the presumption against retroactivity is not overcome because “[n]othing in the text ‘expressly or by necessary implication’ requires retroactive application of the [anti-SLAPP] statute as amended . . . Nor does the legislative history support such an interpretation” … . First, the text of the legislation does not contain an express statement requiring retroactive application … . Second, while the anti-SLAPP amendments took effect “immediately” (id.), that term “is equivocal in an analysis of retroactivity” … . Third, although the legislation is remedial in nature and such legislation is generally applied retroactively “to better achieve its beneficial purpose” … , simply classifying a statute as remedial “does not automatically overcome the strong presumption of prospectivity” … . Finally, the legislative history establishes that the rationale for the amendments was to better advance the purposes of speech protection for which the anti-SLAPP law was initially enacted and to remedy the courts’ failure to use their discretionary powers to award costs and fees in such cases. However, the legislative history does not offer any explicit or implicit support for retroactive application … . Therefore, we conclude that “the presumption of prospective application of the [anti-SLAPP] amendments has not been defeated” … . Hoi Trinh v Nguyen, 2022 NY Slip Op 07387, Fourth Dept 12-23-22

Practice Point: The recent amendments to the anti-SLAPP statutes (Civil Rights Law 70-a, 76-a) do not apply retroactively.

 

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AT THE TIME DEFENDANT RAN AS THE POLICE APPROACHED THERE WAS NO INDICATION THE POLICE WERE GOING TO CITE DEFENDANT FOR TRESPASS OR VIOLATION OF AN OPEN-CONTAINER LAW; DEFENDANT THEREFORE COULD NOT HAVE INTENDED TO OBSTRUCT GOVERNMENTAL ADMINISTRATION BY RUNNING; DEFENDANT’S RUNNING DID NOT PROVIDE PROBABLE CAUSE TO ARREST; THE PEOPLE’S ALTERNATIVE PROBABLE CAUSE ARGUMENT (TRESPASS AND OPEN-CONTAINER VIOLATION), ALTHOUGH PRESENTED TO THE SUPPRESSION COURT, WAS NOT RULED ON AND THEREFORE COULD NOT BE CONSIDERED ON APPEAL (FOURTH DEPT).

​The Fourth Department, reversing the denial of defendant’s suppression motion, determined the police did not have probable cause to arrest defendant for obstructing governmental administration. The People’s alternative argument (the police had probable cause to arrest defendant for trespass and violation of an open-container law), made in a post-suppression-hearing memo, could not be considered on appeal because the suppression court did not rule on it. The police approached defendant as he was sitting at a picnic table on vacant property drinking from a cup. As the police approached, defendant got up from the table and ran:

… [A]lthough the officers testified that they were planning to issue citations for violation of the open container ordinance as they approached the picnic table, there is no evidence that, when defendant jumped up from the table and attempted to run away, the officers were in the process of issuing the citations … or that they had given any directive for defendant to remain in place while they issued such citations … . The officers thus had no reasonable basis to believe that defendant had the requisite intent—i.e., the conscious objective—to prevent them from issuing citations … . * * *

… [T]he court’s determination that the officers had probable cause to arrest defendant for obstructing governmental administration, and that the searches and seizures were incident to a lawful arrest for that offense, “was the only issue decided adversely to defendant at the trial court” … . That determination “alone constituted the ratio decidendi for upholding the legality of the [searches and seizures] and denying the suppression of evidence” (id.). Our “review, therefore, is confined to that issue alone” … . People v Tubbins, 2022 NY Slip Op 07317, Fourth Dept 12-23-22

Practice Point: Here defendant did not know the police were going to cite him for trespass and an open-container violation at the time he ran. Therefore his running was not obstruction of governmental administration and did not provide probable cause for arrest on that ground.

Practice Point: The People’s alternative argument that the police had probable cause to arrest for trespass and an open-container violation was presented to the suppression court but was not ruled on. Therefore the appellate court could not consider it.

 

THIS WAS NOT A CIRCUMSTANCE WHERE THE ACCUSATORY INSTRUMENTS, AS OPPOSED TO THE LANGUAGE OF THE FLORIDA STATUTE ALONE, CAN BE USED TO DETERMINE WHETHER THE FLORIDA CONVICTION ALLOWED DEFENDANT TO BE SENTENCED AS A SECOND CHILD SEXUAL ASSAULT FELONY OFFENDER; THE FLORIDA STATUTE SHOULD NOT HAVE BEEN DEEMED A PREDICATE FELONY (FOURTH DEPT). ​

The Fourth Department, reversing County Court, determined defendant’s Florida conviction could not serve as a predicate felony allowing defendant to be sentenced as a second child sexual assault felony offender. This was not a circumstance where the underlying accusatory instruments, as opposed to the language of the Florida statute, can be the basis of a predicate-felony analysis. The appellate division’s analysis is comprehensive and too detailed to fairly summarize here:

We agree with defendant that consideration of the facts and circumstances of the underlying Florida conviction is impermissible in this case … . “[U]nder a narrow exception to the [general] rule, the underlying allegations must be considered when ‘the foreign statute under which the defendant was convicted renders criminal several different acts, some of which would constitute felonies and others of which would constitute only misdemeanors [or no crime] if committed in New York’ ” … . “In those circumstances, the allegations will be considered in an effort to ‘isolate and identify’ the crime of which the defendant was accused, by establishing ‘which of those discrete, mutually exclusive acts formed the basis of the charged crime’ ” … . * * *

… [W]e conclude that “[b]ecause the [Florida] statute, itself, indicates that a person can be convicted of the [Florida] crime without committing an act that would qualify as a felony in New York (i.e., by [instead committing the misdemeanor of sexual misconduct]), defendant’s [Florida] conviction for [lewd or lascivious battery] was not a proper basis for a predicate felony offender adjudication” … . People v Gozdziak, 2022 NY Slip Op 07377, Fourth Dept 12-23-22

Practice Point: Here the Florida statute, and not the accusatory instruments in the Florida prosecution, is the only proper basis for the predicate-felony analysis. The Florida statute should not have served as a predicate felony to allow defendant to be sentenced as a second child sexual assault felony offender.

 

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THE STRICT LIABILITY STANDARD IN DOG-BITE CASES APPLIES HERE WHERE THE DOG WAS HARBORED BY THE DEFENDANT UNTIL THE ANIMAL SOCIETY COULD FIND SOMEONE TO ADOPT HIM; THE NEGLIGENCE STANDARD WHICH APPLIES TO A DOG-BITE IN A VETERINARIAN’S WAITING ROOM (WHERE THE VETERINARIAN IS THE DEFENDANT) IS NOT APPLICABLE (FOURTH DEPT).

The Fourth Department determined the plaintiff’s motion to amend the complaint in this dog-bite case by adding a negligence cause of action was properly denied. The Court of Appeals recently held that a veterinarian could be liable for a dog-bite under a negligence theory where a dog in the veterinarian’s waiting room bit a customer. Here the dog was owned by an animal society and had been placed with defendant O’Rourke until the society could find someone to adopt him:

Although O’Rourke does not own the dog that bit plaintiff, “[a]n owner’s strict liability for damages arising from the vicious propensities and vicious acts of a dog ‘extends to a person who harbors the animal although not its owner’ ” … . * * *

Even assuming, arguendo, … [plaintiff could assert] a negligence cause of action against O’Rourke, … plaintiff would still have to establish in support of her negligence cause of action that O’Rourke had knowledge of the dog’s alleged “vicious propensities” … . … “[T]he vicious propensity notice rule has been applied to animal owners who are held to a strict liability standard, as well as to certain non-pet owners—such as landlords who rent to pet owners—under a negligence standard … .

… [P]laintiff’s proposed negligence cause of action against O’Rourke does not allege that O’Rourke had knowledge of the dog’s vicious propensities; instead, it alleges that O’Rourke was negligent because she did not “investigate the subject dog accepted from the foster care program . . . before introducing it to her property, thereby creating a dangerous condition on the property which she had a nondelegable duty to keep reasonably safe.” The proposed complaint therefore fails to state a viable negligence cause of action against O’Rourke. Cicero v O’Rourke, 2022 NY Slip Op 07316, Fourth Dept 12-23-22

Practice Point: The Court of Appeals recently held a veterinarian could be liable under a standard negligence theory for a dog-bite which occurs in the veterinarian’s waiting room because of the specialized knowledge of animal behavior attributed to a veterinarian. The negligence standard does not apply to a person who is harboring a dog for an animal society until someone adopts the dog. In that case, the strict liability (requiring knowledge of the dog’s vicious propensities) standard still applies.

 

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ALTHOUGH THE AGREEMENT BETWEEN PLAINTIFF COUNTRY CLUB AND DEFENDANT FOR THE CONSTRUCTION, MAINTENANCE AND USE OF A BOAT SLIP WAS A LICENSE, NOT A LEASE, THE LICENSE, BY THE TERMS OF THE AGREEMENT, WAS NOT TERMINABLE AT WILL BY THE COUNTRY CLUB; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the agreement between plaintiff country club and defendant concerning the construction, maintenance and use of a boat slip was a license, not a lease, but, under the terms of the agreement, the license was not terminable at will by the country club:

… [T]he terms of the agreement unambiguously state that defendant is required to pay the annual maintenance fee and to comply with plaintiff’s rules and policies, thereby establishing through implication that plaintiff may terminate the license only when defendant fails to comply with those specified terms … . Plaintiff’s interpretation of the agreement as permitting plaintiff to terminate the license at will, despite the aforementioned provisions governing defendant’s obligations, renders those specific provisions nugatory, contrary to the general approach to interpreting contracts …

… [T]he agreement expressly permits defendant to terminate it and receive a return of the monies contributed pursuant to the payment agreement, less any monies owed to plaintiff. We agree with defendant that the express inclusion of a right of termination for her compels the conclusion that the exclusion of any corresponding express right for plaintiff to terminate the agreement was intentional … . … [The] structure of the agreement establishes that the license is not terminable at will by plaintiff. Skaneateles Country Club v Cambs, 2022 NY Slip Op 07315, Fourth Dept 12-23-22

Practice Point: Licenses for the use of real property, here the construction, maintenance and use of a boat slip, are not automatically terminable at will. Here the terms of the underlying agreement were interpreted to mean the license was terminable only if defendant breached the agreement.

 

EVEN THOUGH THERE WAS A PRIOR STIPULATED ORDER OF CUSTODY AND VISITATION GRANTING PRIMARY CUSTODY TO GRANDMOTHER, THE NONPARENT (GRANDMOTHER), NOT THE FATHER, HAS THE BURDEN TO SHOW EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE DENIAL OF FATHER’S SUPERIOR RIGHT TO CUSTODY BEFORE THE BEST INTERESTS OF THE CHILDREN CAN BE CONSIDERED PURSUANT TO FATHER’S PETITION TO MODIFY CUSTODY (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Family Court, determined, in a modification of custody case, the nonparent (grandmother here), not the father, has the burden to demonstrate extraordinary circumstances exist before the court can consider the best interests of the children:

Pursuant to the prior order, the parties share joint legal custody of the subject children, with the grandmother having primary physical custody and the mother and the father having visitation under separate visitation schedules. …

Petitioner father appeals from an order granting the motion of respondent Dawn M. Freeland (grandmother), made at the close of the father’s case at a hearing, to dismiss his petition seeking modification of a prior stipulated order of custody and visitation, and his petition alleging that the grandmother violated that prior order. …

… [T]he court erred in requiring the father to prove that there had been a change in circumstances prior to making a determination regarding extraordinary circumstances … . “It is well settled that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” … . “The nonparent has the burden of establishing that extraordinary circumstances exist,” and “it is only after a court has determined that extraordinary circumstances exist that the custody inquiry becomes ‘whether there has been a change [in] circumstances [warranting further inquiry into] the best interests of the child[ren]’ ” … . “The foregoing rule applies even if there is an existing order of custody concerning th[e] child[ren] unless there is a prior determination that extraordinary circumstances exist” … . Here, “there is no indication in the record that, in the history of the parties’ litigation, the court previously made a determination of extraordinary circumstances divesting the [father] of [his] superior right to custody” … . Matter of Wells v Freeland, 2022 NY Slip Op 07375, Fourth Dept 12-23-22

Practice Point: Here father brought a violation-of-visitation petition against grandmother and petitioned for a modification of custody which had been agreed to by a stipulated order. Family Court held the father had the burden to show extraordinary circumstances justifying modification of custody. The appellate division disagreed and held the nonparent (grandmother) had that burden because father still had the superior right to custody which could not be disturbed absent extraordinary circumstances. The prior stipulated order of custody and visitation was not a substitute for an extraordinary-circumstances finding.

 

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