You are here: / Fourth Department

Tag Archive for: Fourth Department

,

CITIZEN INFORMANT WHO WALKED INTO THE POLICE STATION PROVIDED SUFFICIENT INFORMATION TO JUSTIFY APPROACHING A VAN IN WHICH DEFENDANT WAS SLEEPING, LEADING TO DEFENDANT’S ARREST; A TWO-JUSTICE DISSENT ARGUED THE INFORMATION PROVIDED BY THE FACE-TO-FACE INTERVIEW WITH THE INFORMANT DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police, after interviewing a citizen informant who walked into the police station, had reasonable suspicion to approach a van in which the defendant was sleeping. Thereafter the police were justified in asking the defendant to step out of the van for safety reasons and in arresting the defendant when an officer saw a handgun in defendant’s waistband. The dissent argued the informant (who identified himself to the police but was not identified to the defendant) did not provide sufficiently detailed information to justify approaching the van:

…[T]he testimony of a police officer during the suppression hearing established that a citizen informant walked into a police station at 4:30 a.m. and reported that two men had “ripped him off” during “a drug deal gone wrong.” The informant, who identified himself by name to the officer but whose identity was not disclosed to defendant, appeared to be angry and upset and did not seem to be intoxicated. The informant alleged, inter alia, that the two men were in a purple minivan at a specific address on Stevens Street in the City of Buffalo, and that “there were drugs in the vehicle” and one of the men “was holding [a] handgun in his lap.” The police officer interviewed the informant for 10 to 15 minutes, during which time the officer had an opportunity to evaluate his reliability on the basis of his appearance and demeanor … . The informant’s reliability was enhanced because he identified himself to the officer and reported that he had attempted to take part in a drug transaction, thus making a declaration against penal interest and subjecting himself to potential prosecution for his own criminal activity … . The informant also waited at the police station while officers investigated the allegations, thereby subjecting himself to “the criminal sanctions attendant upon falsely reporting information to the authorities” … . Thus, we conclude that the People established the reliability of the informant by establishing that the officer obtained information from him during a face-to-face encounter … , and that information did not constitute an anonymous tip … .

From the dissent:

… [A]lthough the majority relies on the ability of the police “to evaluate [the] reliability [of the informant]” during face-to-face contact … , the testimony of the police officer who met the informant reveals that the officer lacked sufficient information to make such an evaluation. The officer believed that the informant appeared agitated, and conceded that he did not know whether the informant was sober. The informant offered the officer no description of the men who purportedly “ripped him off” or how the alleged drug deal had gone wrong, and the officer testified that he never even asked the informant when that incident took place. Instead, the informant offered no more than the description of the outside of a vehicle … . People v Edwards, 2020 NY Slip Op 05672, Fourth Dept 10-9-20

 

, ,

DEFENDANT SCHOOL DISTRICT DID NOT DEMONSTRATE THE APPLICABILITY OF THE STORM-IN-PROGRESS RULE IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant school district did not demonstrate the applicability of the storm-in-progress rule in this slip and fall case:

… [D]efendants did not meet their initial burden of establishing that plaintiff’s injuries were the result of “an icy condition occurring during an ongoing storm or for a reasonable time thereafter” … . Although defendants submitted an affidavit from a meteorologic expert, Doppler radar data, and deposition testimony establishing that it had been snowing and icy on the date of the accident from the early morning hours through 3:00 p.m., the time plaintiff fell, defendants also submitted conflicting evidence regarding how much snow actually accumulated in the area of the middle school. Defendants’ expert never set forth, by opinion or otherwise, any specific amount of snowfall in the Town of Yorkshire on the date of plaintiff’s fall. … Thus, defendants’ own submissions raised a question of fact whether there was a storm in progress at the time of the fall.

Even assuming, arguendo, that defendants met their initial burden, plaintiff raised an issue of fact whether the ice upon which she fell preexisted the weather event … . Plaintiff submitted the affidavit of an expert meteorologist who averred that a thaw in the days prior to the accident, followed by a drop in temperatures from the night before into the morning hours of the accident, would account for the formation of the ice. Plaintiff also submitted deposition testimony establishing that there had been thick ice in the parking lot since the day before the accident, and that defendants’ groundskeeper had plowed down to the ice … . We also conclude that plaintiff raised an issue of fact whether defendants had constructive notice of the condition … . Ayers v Pioneer Cent. Sch. Dist., 2020 NY Slip Op 05622, Fourth Dept 10-9-20

 

, ,

EVIDENCE OF CAUSATION IN THE ASBESTOS EXPOSURE CASE WAS SUFFICIENT, MOTION TO SET ASIDE THE VERDICT PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined the evidence of causation in this asbestos exposure case was sufficient to support the plaintiffs’ verdict and the motion to set aside was properly denied:

Although, to prove specific causation, plaintiff and decedent were required to establish that decedent “was exposed to sufficient levels of the toxin to cause” his alleged injuries, “it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship” … . There simply “must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of [the] agent that are known to cause the kind of harm that the plaintiff claims to have suffered” … . Such evidence may include an expert’s use of estimates generated by mathematical models taking a plaintiff’s work history into account, or the use of “more qualitative means” to determine the level of a plaintiff’s exposure, such as comparing the plaintiff’s exposure level “to the exposure levels of subjects of other studies” … . Matter of Eighth Jud. Dist. Asbestos Litig., 2020 NY Slip Op 05621, Fourth Dept 10-9-20

 

, ,

SUPREME COURT SHOULD NOT HAVE HELD AS A MATTER OF LAW THAT THE TRIGGERING EVENT FOR INSURANCE COVERAGE FOR ASBESTOS-INJURY IS THE FIRST EXPOSURE TO ASBESTOS AS OPPOSED TO EXPOSURE TO A CERTAIN LEVEL OF ASBESTOS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court in this asbestos exposure case, held it should not have been determined as a matter of law that insurance coverage is triggered by the first exposure to asbestos, as opposed after exposure to a certain level of asbestos:

The parties do not dispute that the applicable test in determining what event constitutes personal injury sufficient to trigger coverage is injury-in-fact, “which rests on when the injury, sickness, disease or disability actually began” … . Rather, the parties dispute when an asbestos-related injury actually begins: plaintiffs assert that injury-in-fact occurs upon first exposure to asbestos, while defendant denies that assertion and instead maintains that injury-in-fact occurs only when a threshold level of asbestos fiber or particle burden is reached that overtakes the body’s defense mechanisms. The court concluded, as a matter of law, that injury-in-fact occurs upon first exposure to asbestos. … [T]he court erred in that regard, and we therefore modify the judgment by denying the subject motion for partial summary judgment and vacating the declaration with respect to that motion. Carrier Corp. v Allstate Ins. Co., 2020 NY Slip Op 05620, Fourth Dept 10-9-20

 

,

COMPLAINT SUING A RETAILER WHICH SOLD AMMUNITION TO A 20-YEAR-OLD WHO SHOT PLAINTIFF’S DECEDENT PROPERLY SURVIVED A MOTION TO DISMISS (FOURTH DEPT).

The Fourth Department determined the complaint alleging defendant retailer negligently sold ammunition to a 20-year old (Klocek) who shot plaintiff’s decedent properly survived a motion to dismiss. The action was not precluded by the Protection of Lawful Commerce in Arms Act (PLCAA, 15 USC 7901):

… [A] qualified civil liability action [prohibited by the PLCAA] does not include … “an action brought against a seller for negligent entrustment or negligence per se” … or “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought” … . …

… [P]laintiffs allege that defendant violated 18 USC § 922 (b) (1) and Penal Law § 270.00 (5) when defendant allegedly sold “handgun ammunition” to Klocek, who was 20 years old at the time. The federal statute prohibits the sale or delivery of ammunition “other than . . . ammunition for a shotgun or rifle” to anyone the seller or deliverer “knows or has reasonable cause to believe is less than twenty-one years of age” (18 USC § 922 [b] [1]). The state statute prohibits the sale of ammunition “designed exclusively for use in a pistol or revolver” to anyone not authorized to possess a pistol or revolver (Penal Law § 270.00 [5]). Plaintiffs’ allegations, if true, establish that defendant committed a predicate offense under 15 USC § 7903 (5) (A) (ii) and, as a result, establish that this action is not a qualified civil liability action and not subject to immediate dismissal. King v Klocek, 2020 NY Slip Op 05619, Fourth Dept 10-9-20

 

,

FAMILY COURT CAN EXERCISE JURISDICTION OVER A NONRESIDENT PUTATIVE FATHER IN A PATERNITY ACTION AS LONG AS THE FACTS HAVE A CONNECTION WITH NEW YORK STATE; THE PETITION SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE (FOURTH DEPT).

The Fourth Department determined the paternity petition should not have been dismissed with prejudice because there are circumstances where the New York Family Court can obtain jurisdiction over an out-of-state respondent in the paternity action:

In a paternity proceeding, personal jurisdiction over a nonresident putative father may be established pursuant to Family Court Act § 580-201. Petitioner, however, admittedly failed to allege in her petition that respondent engaged in sexual intercourse with the mother in New York State at the time of conception, or that he had any other relevant ties to New York State, and no other grounds for jurisdiction apply (see Family Ct Act § 580-201 [6], [8]). Under the circumstances of this case, we conclude that the court should have granted the motion on the ground that petitioner failed to state a cause of action predicated upon respondent’s sexual intercourse with petitioner in New York State … . Inasmuch as such a dismissal is not on the merits, however, we further conclude that the petition should be dismissed without prejudice … . Matter of Joyce M.M. v Robert J.G., 2020 NY Slip Op 05616, Fourth Dept 10-9-20

 

,

THE MUNICIPALITY DID NOT OWE A SPECIAL DUTY TO PLAINTIFF’S DECEDENT WHO CALLED 911 DURING A SNOW STORM AFTER HIS CAR HAD BECOME STUCK AND WAS FOUND DEAD IN HIS CAR THREE DAYS LATER (FOURTH DEPT).

The Fourth Department determined the municipality was entitled to summary judgment in this wrongful death action. Plaintiff’s decedent’s car was stuck in snow during a snow storm. He called 911 three times over the course of seven hours and was found dead in his car three days later:

Preliminarily, we conclude that, during the events that led to decedent’s unfortunate death, defendants were acting in a governmental capacity … . “Under the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created” … . … According to plaintiff, a special relationship was formed in this case by … the voluntary assumption of a duty of care by defendants. That method requires plaintiff to establish “(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” … . Here, only the first and fourth elements are at issue. We conclude that defendants met their burden on the motion by establishing as a matter of law that there was no voluntary assumption of a duty of care, and plaintiff failed to raise a triable issue of fact whether defendants assumed, through promise or action, any duty to act on decedent’s behalf … . … [D]efendants also met their initial burden by establishing that any alleged reliance upon representations made by defendants or their agents was not justifiable, and plaintiff failed to raise a triable issue of fact in that regard … . Bauer v County of Erie, 2020 NY Slip Op 05623, Fourth Dept 10-9-20

 

,

PLAINTIFF DID NOT RAISE A QUESTION OF FACT WHETHER THE COUNTY WAS AFFIRMATIVELY NEGLIGENT IN THIS ICE AND SNOW SLIP AND FALL CASE; THEREFORE THE COUNTY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the county’s motion for summary judgment in this slip and fall case should have been granted. The county demonstrated it did not have written notice of the condition and was not affirmatively negligent:

The complaint alleged that a dangerous or defective condition existed as a result of defendant’s negligent snow and ice removal operations and procedures, and its failure to provide “a means of ingress/egress with a handrail.” …

Defendant established its entitlement to judgment as a matter of law by submitting evidence that it did not receive prior written notice of the allegedly dangerous or defective condition as required by Chautauqua County Local Law No. 4-09 … . In opposition, plaintiff failed to raise a triable issue of fact whether such prior written notice was given … . Further, plaintiff failed to raise an issue of fact regarding the applicability of an exception to the prior written notice requirement, i.e., as relevant here, that defendant “affirmatively created the defect through an act of negligence” … . A municipality” ‘may not be held liable for the mere passive failure to remove all snow and ice’ ” or to install a handrail because “[s]uch acts are acts of omission rather than affirmative acts of negligence” … . Here, plaintiff’s submissions establish only defendant’s alleged “nonfeasance, as opposed to affirmative negligence,” and the exception to the prior written notice requirement for affirmative acts of negligence therefore does not apply … . Brockway v County of Chautauqua, 2020 NY Slip Op 05659, Fourth Dept 10-9-20

 

DEFENDANT WAS NOT PRESENT AT A SIDEBAR CONCERNING THE BIAS OF A PROSPECTIVE JUROR, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant was deprived of his right to be present at a side bar concerning the bias of a prospective juror:

A … prospective juror was peremptorily excused by defendant’s counsel, however, and, during a sidebar conference at which defendant was not present, that juror was questioned “to search out [her] bias, hostility or predisposition to believe or discredit the testimony of potential witnesses” (Antommarchi, 80 NY2d at 250). Consequently, we conclude that, “absent a knowing and voluntary waiver by defendant of his right to be present at that sidebar conference, his conviction cannot stand” … . The only evidence in the record concerning a waiver consists of a conversation between the court, defendant’s counsel and codefendant’s counsel that occurred after the prospective juror was excused, in which codefendant’s counsel indicated that he had just discussed with codefendant the right to approach the bench during such conferences, and defendant’s counsel merely assented. Inasmuch as the discussion was vague and prospective, and there is no indication that defendant or defendant’s counsel were waiving defendant’s Antommarchi rights retrospectively, that conversation is insufficient to establish that defendant waived those rights concerning the questioning of the prospective juror at issue here. We therefore reverse the judgment of conviction and grant a new trial. People v Mckenzie-Smith, 2020 NY Slip Op 05653, Fourth Dept 10-9-20

 

,

DEFENDANT’S HOME WAS CONSTRUCTED ABOUT EIGHT FEET FROM THE PROPERTY LINE VIOLATING THE COVENANT OR RESTRICTION REQUIRING TEN FEET; PLAINTIFF, AFTER A BALANCING OF THE EQUITIES, WAS NOT, HOWEVER, ENTITLED TO EQUITABLE RELIEF (FOURTH DEPT).

The Fourth Department determined the defendant had violated a covenant or restriction imposed on property owners in a subdivision, but that plaintiff was not entitled to equitable relief. Defendant had constructed the home about eight feet from the property line and the covenant or restriction required ten feet:

… [D]efendant knew, or should have known, of the side setback violation on the right side, yet he chose to construct his house in disregard of the fourth paragraph of the covenants and restrictions, defendant did not act in good faith with respect to that violation, and the hardship was self imposed … . … [E]nforcement of the restriction would have little benefit to plaintiff inasmuch as the violation had no impact on the value of plaintiff’s home, the violation did not detract from any neighbor’s view of the lake, and the violation occurred on the side of defendant’s property that was not adjacent to another residential lot. A balancing of the equities under all the circumstances of the case established that plaintiff was not entitled to injunctive relief for the right side lot line violation … . Kleist v Stern, 2020 NY Slip Op 05652, Fourth Dept 10-9-20

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy