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SUPREME COURT MUST RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL BEFORE THE APPELLATE COURT CAN CONSIDER THE ISSUE, MATTER REMITTED FOR A RULING; THE SENTENCE IN THIS DWI CASE WAS ILLEGAL (FOURTH DEPT).

The Fourth Department, remitting the case to Supreme Court, determined the trial court must rule on the motion for a trial order of dismissal before the appeal of that issue can be considered. The Fourth Department noted that the sentence imposed in this DWI case was illegal:

… [W]e may not address defendant’s contention because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998] … ), we cannot deem the court’s failure to rule on the . . . motion as a denial thereof” … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a ruling on defendant’s motion … . …

… [W]e note … that the sentence is illegal insofar as the court directed that defendant serve a term of five years of probation, with an ignition interlock device for a period thereof, consecutive to the indeterminate term of imprisonment of 1 to 3 years on his conviction for violating Vehicle and Traffic Law § 1192 (4-a) … . People v Capitano, 2021 NY Slip Op 05225, Fourth Dept 10-1-21

 

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THE TRIAL JUDGE SHOULD NOT HAVE NEGOTIATED A PLEA DEAL WITH A CO-DEFENDANT REQUIRING TESTIMONY AGAINST THE DEFENDANT IN EXCHANGE FOR A MORE FAVORABLE SENTENCE; NEW TRIAL BEFORE A DIFFERENT JUDGE ORDERED (F0URTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge assumed the function of an interested party when he negotiated and entered into a plea agreement with a co-defendant requiring the co-defendant to testify against the defendant in exchange for a more favorable sentence:

… [T]he court committed reversible error when it “negotiated and entered into a [plea] agreement with a codefendant[,] requiring that individual to testify against defendant in exchange for a more favorable sentence” … . We conclude that, “by assuming the function of an interested party and deviating from its own role as a neutral arbiter, the trial court denied defendant his due process right to ‘[a] fair trial in a fair tribunal’ ” … . We therefore reverse the judgment and grant a new trial before a different justice … . People v Johnson, 2021 NY Slip Op 05217, Fourth Dept 10-1-21

 

THE JURY SHOULD NOT HAVE BEEN ALLOWED TO CONSIDER A THEORY OF DEPRAVED INDIFFERENCE MURDER WHICH WAS NOT ALLEGED IN THE BILL OF PARTICULARS (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction and ordering a new trial, determined the jury instructions allowed the jury to consider a theory of prosecution that was not alleged in the bill of particulars. The defendant was charged with hitting and shaking the child victim, but the jury was allowed to consider defendant’s alleged inaction after the alleged assault:

“A defendant has a right to be tried only for the crimes charged in the indictment” … . ” ‘Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories’ ” … . We agree with defendant that the People’s theory of depraved indifference, as outlined in the bill of particulars, was limited to defendant’s assaultive conduct, i.e., his infliction of head injuries by shaking or hitting the child, and that the court’s instruction allowed the jury to consider, in addition to the specifically delineated assaultive conduct, defendant’s “inaction” after the assault ended. … [D]efendant objected during the charge conference to a modification of the depraved indifference charge. The charge, as modified, allowed the jury to … consider “the defendant’s later inaction as a factor when considering the brutal, prolonged and ultimately fatal course of conduct,” and defendant objected on the ground that such proof was outside the scope of the bill of particulars. People v Faison, 2021 NY Slip Op 05184, Fourth Dept 10-1-21

 

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A TOWN IS NOT LIABLE FOR THE NEGLIGENCE OF A VOLUNTEER FIREFIGHTER IN A “FIRE DISTRICT,” BUT IS LIABLE FOR THE NEGLIGENCE OF A VOLUNTEER FIREFIGHTER IN A “FIRE PROTECTION DISTRICT” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the application for leave to file a late notice of claim against the town in this traffic accident case should not have been denied on the ground the town was not liable for an accident caused by a member of the fire company. Plaintiff alleged the defendant driver was acting within the scope of his duties as a firefighter at the time of the accident. The Fourth Department noted that a town is not liable for the negligence of a volunteer fireman in the employ of a “fire district,” but is liable for the negligence of a member of a “fire protection district:”

A fire district is a “wholly independent political subdivision whose members, including its volunteer firemen, are employees of the district and not of the town” … . The “fire district rather than the town appoints its own members, furnishes fire and ambulance service and is liable for negligence on the part of its members, including their negligent operation of vehicles” … . Accordingly, a “town is not liable on the theory of respondent superior for the negligence of a volunteer fireman in the employ of a fire district” … .

In contrast, “a fire protection district is simply a geographic area, with no independent corporate status, for which the town board is responsible for providing for the furnishing of fire protection” …  and, “[t]o that end, [a town board] may ‘contract with any city, village, fire district or incorporated fire company . . . for the furnishing of fire protection’ ” … . “Members of the fire departments or companies established within a fire protection district ‘are deemed officers, employees, or appointees of the town[,] and the town is liable for any negligence on the part of such members’ ” … . Matter of Froelich v South Wilson Volunteer Fire Co., 2021 NY Slip Op 05207, Fourth Dept 10-1-21

 

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A FRIVOLOUS APPEAL IN THIS DIVORCE PROCEEDING WARRANTED SANCTIONS AGAINST APPELLANT’S ATTORNEY (FOURTH DEPT).

The Fourth Department, determined sanctions against plaintiff’s attorney for bringing a frivolous appeal were in order in this divorce proceeding:

… [W]e consider defendant’s request for costs, attorney’s fees, and sanctions pursuant to 22 NYCRR 130-1.1. We grant defendant’s request in part and award costs in the form of reimbursement by plaintiff’s attorney, Angelo T. Calleri, for actual expenses reasonably incurred and reasonable attorney’s fees resulting from the frivolous conduct of Calleri in prosecuting this appeal … and we remit the matter to Supreme Court to determine such amount … . “[C]onduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” … . We conclude that Calleri’s appellate brief is replete with arguments that qualify as frivolous under the first paragraph of subdivision (c). Indeed, plaintiff’s frivolous request that we impose sanctions against defendant by itself qualifies as frivolous conduct … .  Marshall v Marshall, 2021 NY Slip Op 05194, Fourth Dept 10-1-21

 

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PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the claim for punitive damages in this medical malpractice action should have been dismissed because there was no evidence defendant doctor acted with malice or evil intent. Apparently, plaintiff alleged defendant’s fallure to adequately treat a skin condition warranted punitive damages:

Defendant explained that he initiated conservative treatment because, given plaintiff’s other conditions, it was appropriate to address plaintiff’s abdominal skin condition by attempting to alleviate her inflammatory process before considering surgical intervention. Defendant’s submissions established that, contrary to plaintiffs’ allegations, he had indeed treated plaintiff’s abdominal skin condition, albeit conservatively as he deemed appropriate under the circumstances, and that he had not abandoned plaintiff’s treatment in that regard … . We conclude that, even viewing the evidence in the light most favorable to plaintiffs, defendant established that his conduct “did not manifest spite or malice, or a fraudulent or evil motive . . . , or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton” … . Gaines v Brydges, 2021 NY Slip Op 05193, Fourth Dept 10-1-21

 

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DEFENDANT TENANT CLOSED ITS BUSINESS AND ABANDONED THE LEASED PROPERTY DUE TO THE COVID PANDEMIC; PLAINTIFF LANDLORD TOOK POSSESSION OF THE PROPERTY AND CHANGED THE LOCKS; DEFENDANT WAS ENTITLED TO DISCOVERY TO DETERMINE WHETHER PLAINTIFF ACCEPTED SURRENDER OF THE PREMISES AND THE APPROPRIATE AMOUNT OF DAMAGES (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendant was entitled to discovery in this action on a commercial lease. Defendant closed its furniture business due to the COVID pandemic and abandoned the leased property. Plaintiff took possession of the property and changed the locks. Therefore questions remained concerning whether plaintiff accepted surrender of the property and whether the accelerated rent amounted to a penalty:

Generally, a tenant is relieved of its obligation to pay full rent due under a lease where it surrenders the premises before expiration of the term and the landlord accepts its surrender … . A surrender by operation of law may be inferred from the conduct of the parties where “the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem their lease terminated” … . “Such a surrender and acceptance severs the relationship between the parties upon the creation of an estate inconsistent with the prior tenant’s rights under the lease” … . Further, “conduct by the landlord which [falls] short of an actual reletting but which indicate[s] the landlord’s intent to terminate the lease and use the premises for his [or her] own benefit” may evince an intent to accept a tenant’s surrender of the premises … .

… [W]hile plaintiff had no duty to mitigate damages …, any actions it may have taken to offset the rent owed by defendants are relevant to determining the amount of damages … . Thus … the discovery sought by defendants is relevant to the issues presented in plaintiff’s motion for summary judgment … . … [B]ecause plaintiff seeks accelerated rent constituting liquidated damages … , defendants should have been afforded an opportunity to obtain information regarding whether the undiscounted accelerated rent amount was disproportionate to plaintiff’s actual losses and thus an enforceable penalty … . University Sq. San Antonio, Tx. LLC v Mega Furniture Dezavala, LLC, 2021 NY Slip Op 05192, Fourth Dept 10-1-21

 

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DEFENDANT CAR DEALERSHIP OWNED THE CAR IN WHICH PLAINTIFF, ITS SALESMAN, WAS INJURED DURING A TEST DRIVE; THE DEALERSHIP, AS PLAINTIFF’S EMPLOYER, IS IMMUNE FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW AND IS NOT VICARIOUSLY LIABLE AS THE OWNER OF THE CAR UNDER THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant Paddock Chevrolet was immune from suit by its employee in this traffic accident case. Plaintiff, a salesman for Paddock, was a passenger in a car owned by Paddock which was being test-driven at the time of the accident. The court noted that the Workers’ Compensation Law protected Paddock from vicarious liability as the owner of the car pursuant to the Vehicle and Traffic Law:

Workers’ Compensation Law § 11 provides that “[t]he liability of an employer prescribed by [section 10] shall be exclusive and in place of any other liability whatsoever, to such employee, . . . or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom . . .” We thus agree with Paddock that plaintiff’s claims against it are barred.

Paddock correctly contends that New York has rejected the “dual capacity” doctrine … , rendering it irrelevant whether the amended complaint and cross claims asserted against Paddock were based on its status as plaintiff’s employer or its status as the owner of the vehicle who is vicariously liable for the negligence of a nonemployee driver under Vehicle and Traffic Law … . Mansour v Paddock Chevrolet, Inc., 2021 NY Slip Op 05190, Fourth Dept 10-1-21

 

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CLAIMS AGAINST DEFENDANT NURSING HOME SOUNDED IN MEDICAL MALPRACTICE AND IN NEGLIGENCE, REQUIRING ANALYSES USING DIFFERENT CRITERIA; SOME CAUSES OF ACTIONS SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined some of plaintiff’s causes of action alleging medical malpractice and negligence against defendant nursing home should have been dismissed. The complaint alleged plaintiff’s decedent, a double amputee, was left unsupervised and fell from his bed. The Fourth Department noted the complaint alleged claims sounding in medical malpractice and in negligence:

… [T]he complaint … alleges several claims sounding in medical malpractice … [and] ]he summary judgment standard for medical malpractice claims should apply to those claims. … [P]laintiff alleges that defendants failed to “provide proper services to the decedent[,] . . . provide . . . adequate . . . staff[ing,] . . . change and/or adjust the decedent’s care plan . . . [, and] adequately formulate and/or promulgate a care plan in accordance with a comprehensive assessment[],” all of which sound in medical malpractice because they challenge defendants’ assessment of the decedent’s need for supervision … . * * * … [P]laintiff raised a triable issue of fact … by submitting the affidavit of her own expert, who opined that defendants deviated from the standard of care insofar as they did not amend the decedent’s care plan to require greater supervision after he was noted to be experiencing confusion and delirium … .  Plaintiff’s expert did not, however, address the claims regarding inadequate staffing procedures and training, and those claims are accordingly deemed abandoned … .

… [P]laintiff’s claims that defendants were negligent in failing to follow the care plan and to equip the decedent’s wheelchair with a seatbelt sound in ordinary negligence inasmuch as they relate to defendants’ general duty to safeguard the nursing home’s residents, measured by “the capacity of [a resident] to provide for his or her own safety” … and “the [resident’s] physical and mental ailments known to the [agency’s] officials . . . and employees” … . … Defendants met [their] burden with respect to the claim alleging negligence in failing to equip the decedent’s wheelchair with a seatbelt by submitting evidence that they formulated a plan of care that addressed the decedent’s risk of falling, and that a restrictive lap belt was not used in their facility. Plaintiff failed to raise a triable issue of fact in opposition with respect to that claim inasmuch as plaintiff’s expert failed to opine how a nonrestrictive lap belt would have prevented the subject accident … . Noga v Brothers of Mercy Nursing & Rehabilitation Ctr., 2021 NY Slip Op 05189, Fourth Dept 10-1-21

 

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BUFFALO MAYOR’S CONSTITUTIONAL CHALLENGE TO THE ELECTION-LAW DEADLINE FOR FILING AN INDEPENDENT NOMINATING PETITION, WHICH WAS ACCEPTED BY SUPREME COURT, REJECTED BY THE 4TH DEPARTMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined Election Law 6-158 (9) was not unconstitutional as applied to a Buffalo mayoral race. The petitioner, who had lost in a primary, attempted to file an independent nominating petition in August but the Election Law required filing in May:

The degree of scrutiny used to analyze the constitutionality of a state election regulation depends on the severity of the regulation’s burden on the constitutional rights of candidates and their supporters … . If that burden is severe, the law “must be narrowly drawn to advance a state interest of compelling importance” … . A provision imposing “only reasonable, nondiscriminatory restrictions,” however, can be justified by a state’s “important regulatory interests” … and is subject to a review that is “quite deferential” and requires “no elaborate, empirical verification” … . The totality of a state’s overall plan of election regulation should be considered in determining the severity of the restrictions … . * * *

Because a “reasonably diligent candidate” could be expected to meet New York’s requirements for independent candidates and gain a place on the ballot … and because those requirements do not unfairly discriminate against independent candidates … , we conclude that Election Law § 6-158 (9) places only a minimal burden on the constitutional rights of those candidates and their voters. Matter of Brown v Erie County Bd. of Elections, 2021 NY Slip Op 05014, Fourth Dept 9-16-21

 

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