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WAIVER OF APPEAL OF THE UNDERLYING PLEA DOES NOT PROHIBIT APPEAL OF THE SENTENCE FOR A SUBSEQUENT VIOLATION OF PROBATION; NO PRESERVATION REQUIREMENT; APPELLATE COURT HAS POWER TO MODIFY A LEGAL SENTENCE (FOURTH DEPT).

The Fourth Department, reducing defendant’s sentence, noted that a waiver of appeal at the underlying plea proceeding did not prohibit the appeal of the severity of the sentence for a subsequent violation of probation. The court further noted there is no preservation requirement for the appeal of an excessive sentence:

… [E]ven if defendant executed a valid waiver of the right to appeal at the underlying plea proceeding, it would not encompass his challenge to the severity of the sentence imposed following his violation of probation … . Contrary to the People’s contention, defendant’s challenge to the severity of the sentence is not subject to a preservation requirement … . “A claim that a sentence is excessive is, by definition … , addressed to this Court’s interest of justice jurisdiction, and does not need to be preserved as a question of law … . Contrary to the People’s further contention, in reviewing that challenge, “it is inappropriate for this Court to address whether the sentencing court abused its discretion” … . Rather, this Court “has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range,” and such “sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court” … . We agree with defendant that the sentence is unduly harsh and severe under the circumstances of this case, and we therefore modify the sentence as a matter of discretion in the interest of justice to a determinate term of imprisonment of five years … . People v Kibler, 2020 NY Slip Op 05365, Fourth Dept 10-2-20

 

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DEFAMATION CAUSE OF ACTION AGAINST DEFENDANT AND HIS EMPLOYER, UNDER A RESPONDEAT SUPERIOR THEORY, SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the defamation cause of action against defendant Polit and Polit’s employer, ADP, should not have been dismissed. Polit allegedly posted defamatory statements on defendant-restaurant’s Facebook page on behalf of Polit’s employer:

Plaintiffs commenced this action seeking damages arising from an allegedly defamatory statement authored by defendant David Thomas Polit and published by him to the Facebook page of plaintiff Crave L & D, LLC (Crave), a restaurant. Polit’s statement advised potential customers to stay away from the restaurant, alleging, among other things, health code violations, mistreatment of staff, and criminal activity. …

… [W]e conclude that plaintiffs sufficiently pleaded the existence of respondeat superior liability through … allegations, including, among other things, that Polit visited Crave for the sole purpose of soliciting plaintiffs to enter into a payroll service agreement with ADP, that Polit represented himself as ADP’s district manager and requested Crave’s business and payroll records in order to provide Crave with a quote for ADP’s services, that the post was based on Polit’s review of those records, that ADP encouraged Polit to use social media in connection with his sales work, that Polit published the post during regular business hours, and that ADP was aware of Polit’s use of Facebook and authorized his conduct. Elizabeth Votsis & Crave L&D, LLC v ADP, LLC, 2020 NY Slip Op 05311,  Fourth Dept 10-2-20

 

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ALTHOUGH THE DISMISSAL OF THE COMPLAINT IN THIS TRAFFIC ACCIDENT CASE INVOLVING A LIMOUSINE BUS WAS REVERSED ON APPEAL, PLAINTIFFS DID NOT ADDRESS ON APPEAL THE ASPECT OF THE DECISION WHICH DISMISSED THE FAILURE-TO-PROVIDE-SEATBELTS CAUSE OF ACTION; THEREFORE ANY CHALLENGE TO THAT ASPECT OF THE DISMISSAL WAS ABANDONED BY PLAINTIFFS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s dismissal of the complaint in this traffic accident case, noted that the plaintiffs’ failure to address an aspect of the decision granting defendants’ motion for summary judgment constituted an abandonment of any challenge to that portion of the decision. The motion court had dismissed the complaint in its entirety including plaintiffs’ cause of action alleging defendants were negligent in not providing seatbelts for the limousine in which plaintiff was a passenger. However the seatbelt ruling was not challenged by the plaintiffs on appeal. Therefore Supreme Court’s dismissal of the seatbelt cause of action remained in effect:

Supreme Court erred in granting that part of defendants’ motion seeking summary judgment dismissing the complaint based on application of the emergency doctrine. ” ‘The existence of an emergency and the reasonableness of a driver’s response thereto generally constitute issues of fact’ ” … . Upon our review of the record, we conclude that “whether the emergency doctrine precludes liability presents a question of fact and, therefore, summary judgment for defendants . . . was inappropriate” … .

We note, however, that the court also granted that part of defendants’ motion seeking to dismiss plaintiffs’ claim that defendants were negligent in failing to provide seatbelts on the ground that defendants were under no duty to do so. Plaintiffs failed to brief any argument with respect to the dismissal of that claim, thereby abandoning any challenge to that part of the order … . We therefore modify the order by denying the motion in part and reinstating the complaint except insofar as the complaint, as amplified by the bill of particulars, alleges that defendants were negligent in failing to provide seatbelts. VanEpps v Mancuso, 2020 NY Slip Op 05359, Fourth Dept 10-2-20

 

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PETITIONERS WERE NOT REQUIRED TO OBTAIN A USE VARIANCE BEFORE APPLYING FOR A SPECIAL PERMIT TO OPERATE THEIR RESIDENCE AS AN AIRBNB, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Zoning Board of Appeals’ (ZBA’s) ruling that petitioners would have to obtain a use variance before applying for a special use permit to operate their residence as an Airbnb rental lacked a rational basis:

Town Code § 280-31 provides that the uses and structures permitted in the R-1 District, where petitioners’ residence is located, include the principal uses and structures permitted under section 280-24, which governs R-E Districts, except those specified in subdivisions four and five of the six enumerated subdivisions in that section. The sixth subdivision allows “[t]he following uses by special use permit authorized by the Planning Board: . . . (b) Bed-and-breakfast establishments and tourist homes” … . A plain reading of sections 280-24 and 280-31 therefore unambiguously demonstrates that special uses are permitted principal uses, subject to authoriztion by the Planning Board … . …

… [W]e conclude that the Town Code establishes that special uses are permitted uses in specific districts, but the burden is on an applicant for a special use permit to show that the proposed use is allowable within that district by establishing that the use has the requisite individual characteristics … . Our interpretation of the Town Code is supported by Town Law§ 274-b (1), which defines a special use permit as “an authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with such zoning ordinance or local law and will not adversely affect the neighborhood if such requirements are met.” Matter of Churchill v Town of Hamburg, 2020 NY Slip Op 05356, Fourth Dept 10-2-20

 

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GRAND JURY EVIDENCE WAS SUFFICIENT TO SUPPORT THE STRANGULATION COUNT DESPITE THE ABSENCE OF A DEFINITION OF THE “STUPOR” ELEMENT OF THE OFFENSE (FOURTH DEPT).

The Fourth Department, reversing County Court on a People’s appeal and reinstating the strangulation count, determined the evidence before the grand jury was sufficient to charge strangulation. County Court had reduced the charge to criminal obstruction of breathing or blood circulation. County Court ruled the People had not presented evidence sufficient to support the theory the strangulation caused “stupor” citing the People’s failure to define the term:

In order to sustain the charge of strangulation in the second degree against defendant, the People were required to present to the grand jury legally sufficient evidence of the following three elements: (1) that defendant applied pressure on the throat or neck of the alleged victim; (2) that defendant did so with the intent to impede the normal breathing or circulation of the blood of the alleged victim; and (3) that defendant thereby caused stupor, loss of consciousness for any period of time, or any other physical injury or impairment to the alleged victim … .

… [T]he prosecutor’s instructions to the grand jury comported with the statute and mirrored the pattern criminal jury instructions … , and we conclude that the failure of the prosecutor to offer a definition of the term “stupor” did not impair the integrity of the grand jury proceedings or potentially prejudice defendant … .

… [T]he alleged victim testified before the grand jury that defendant “put both of his hands around [her] neck and choked [her] until [she] could barely breathe anymore” and “was starting to lose consciousness.” She was “pushed up against the wall and the door” and felt “[v]ery light-headed and kind of like—like there was a buzzing in [her] head and everything was starting to turn purple in [her] vision before—by the time [the alleged victim] got him to let go.”  People v Ruvalcaba, 2020 NY Slip Op 05354, Fourth Dept 10-2-20

 

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INSUFFICIENT EVIDENCE DEFENDANT HAD CONSTRUCTIVE NOTICE OF A LOOSE PANEL ON A SELF CHECK OUT MACHINE IN DEFENDANT’S STORE; THE PANEL ALLEGEDLY FELL OFF AND INJURED PLAINTIFF’S FOOT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s (BJ’s) motion for summary judgment in this personal injury case should have been granted. There was insufficient evidence BJ’s had constructive notice that a metal panel on a self-check-out machine could detach and fall off. It was alleged plaintiff’s foot was injured by the panel:

It is well established that, “[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a] defendant’s employees to discover and remedy it” … . Here, defendants’ submissions on the motions established that no one, including plaintiff, observed any defect in the machine or the metal panel that injured plaintiff … . Indeed, defendants’ evidence demonstrated that the self-check-out machine was inspected and tested on the morning of the incident, that an employee was stationed directly in front of the machine prior to the incident and observed nothing abnormal about the machine, and that plaintiff herself had observed nothing abnormal about the machine while standing in line and waiting to use it. Although the deposition testimony of one of BJ’s employees referenced that the employee had previously “adjust[ed]” a panel on an unidentified self-check-out machine at some time, nothing in that testimony indicated that BJ’s had notice of a defective or dangerous condition of the machine that injured plaintiff. Ginsberg v BJ’s Wholesale Club, Inc., 2020 NY Slip Op 05350, Fourth Dept 10-2-20

 

DEFENDANT MANUFACTURER OF METAL ROOFING WAS A CONTRACTOR WITHIN THE MEANING OF LABOR LAW 240 (1) BECAUSE IT HAD THE AUTHORITY TO EXERCISE CONTROL OVER PLAINTIFF’S WORK, EVEN IF IT DID NOT DO SO; PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION STEMMING FROM A FALL FROM A ROOF WHERE THE METAL ROOFING WAS BEING INSTALLED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant Union was a contractor within the meaning of Labor Law 240 (1) and plaintiff was entitled to summary judgment against Union on his Labor Law 240 (1) cause of action stemming from his fall from the roof of a residence where metal roofing manufactured by Union was being installed by plaintiff’s employer:

It is well settled that the Labor Law “holds . . . general contractors absolutely liable for any breach of the statute even if the job was performed by an independent contractor over which [they] exercised no supervision or control” … , inasmuch as “[t]heir status as contractors is dependent on their right to exercise control, not whether they in fact did so” … . In determining whether a defendant may be found liable pursuant to section 240 (1), it is well settled that, where, as here, a defendant “ha[s] the authority to choose the part[y] who did the work, and directly enter[s] into [a] contract[] with th[at party], it ha[s] the authority to exercise control over the work, even if it [does] not actually do so” … .

… [P]laintiff submitted evidence establishing that Union entered into a contract with plaintiff’s employer to install the roofing materials at issue and that the contract provided Union with the power to, inter alia, perform inspections, stop work, and remove plaintiff’s employer from the job. We therefore conclude that plaintiff demonstrated as a matter of law that Union is a “contractor” within the meaning of Labor Law § 240 (1) … . Barker v Union Corrugating Co., 2020 NY Slip Op 05349, Fourth Dept 10-2-20

 

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DEFENDANT, IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW, FAILED TO YIELD THE RIGHT OF WAY WHEN PULLING OUT OF A PARKING LOT IN THIS TRAFFIC ACCIDENT CASE; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this traffic accident case should have been granted. Defendant failed to yield the right of way when entering the roadway from a parking lot:

“It is well settled that a driver who has the right-of-way is entitled to anticipate that the drivers of other vehicles will obey the traffic laws that require them to yield. Because [defendant] was entering the roadway from a parking lot, []he was required to yield the right-of-way to [plaintiff’s] vehicle” ( … see Vehicle and Traffic Law § 1143). Here, plaintiffs met their initial burden of proof with respect to defendant’s negligence by submitting, inter alia, plaintiff’s deposition testimony recounting the circumstances of the accident and the corroborating police report, which established as a matter of law that defendant violated Vehicle and Traffic Law § 1143, breached his duty to operate his vehicle with due care, and thereby caused the accident … .

… Defendant’s claimed inability to recall the circumstances of the accident “is not affirmative proof that the event did not happen[ and is] . . . thus insufficient to create an issue of fact” … . Moreover, while defendant made inconsistent statements about his actions before pulling into the street from the parking lot, those statements offered no basis for a rational factfinder to excuse his violation of Vehicle and Traffic Law § 1143 or negate his responsibility for the accident … . Kowalyk v Wal-Mart Stores, Inc., 2020 NY Slip Op 05346, Fourth Dept 10-2-20

 

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EVIDENCE DID NOT ESTABLISH AS A MATTER OF LAW THAT THE INSURED’S WATER-DAMAGE CLAIM WAS FRAUDULENTLY INFLATED; INSURER WAS NOT ENTITLED TO SUMMARY JUDGMENT DISCLAIMING COVERAGE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant insurer (Allegany) did not present sufficient evidence an inflated water-damage claim to warrant disclaiming coverage. The insurer’s summary judgment motion should not have been granted:

Allegany failed to meet its initial burden on its motion of establishing as a matter of law that the claim was inflated … . A policy may be voided if the insured ” ‘willfully and fraudulently placed in the proofs of loss a statement of property lost which [the insured] did not possess, or has placed a false and fraudulent value upon the articles which [the insured] did own’ ” … . “Incorrect information is not necessarily tantamount to fraud or material misrepresentation as the insurer must tender ‘proof of intent to defraud—a necessary element to the defense’ ” … . ” ‘[U]nintentional fraud or false swearing or the statement of any opinion mistakenly held[, however,] are not grounds for vitiating a policy’ ” … .

… [A]lthough Allegany’s submissions in support of its motion demonstrate a disparity between the estimates of plaintiff’s contractor and Allegany’s assessor of the amount of damage and loss … , the submissions fail to establish fraudulent intent on the part of plaintiff … . Plaintiff’s proof of loss statement did not include duplicative items, unincurred expenses, or substantial sums of money that were unaccounted for … , and the disparity between the damage estimate of plaintiff’s contractor and the estimate of Allegany’s assessor is not “so grossly excessive as to constitute false swearing and misrepresentation” … . Magnano v Allegany Co-Op Ins. Co., 2020 NY Slip Op 05339, Fourth Dept 10-2-20

 

PLAINTIFF GOLFER ASSUMED THE RISK OF SLIPPING AND FALLING ON A LANDING WET FROM RAIN AT THE TWELFTH HOLE OF DEFENDANT GOLF COURSE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff assumed the risk of slipping and failing on a stairway landing wet from rain. The stairway is used to accessed the tee box on the twelfth hole of defendant golf course:

“As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” … . ” ‘It is not necessary to the application of assumption of [the] risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results’ ” … . “The doctrine of primary assumption of the risk, however, will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased” … . …

Here, defendants established on their motion that plaintiff was an experienced golfer who had played defendants’ golf course several times in the past … . Moreover, defendants demonstrated that, at the time of the incident, plaintiff knew that the course was still wet from rain that had just fallen, and that he was familiar with the stairway in question, having just used it moments before his accident. Conrad v Holiday Val., Inc., 2020 NY Slip Op 05333, Fourth Dept 10-2-20

 

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