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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

 

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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

 

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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

 

FALL WHILE UNLOADING A FLATBED TRUCK CAN BE A COVERED ACTIVITY AND INVOLVED AN ELEVATION-RELATED RISK; INDUSTRIAL CODE VIOLATION FIRST ASSERTED IN OPPOSITION PAPERS SHOULD NOT HAVE BEEN REJECTED; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action should not have been granted. Plaintiff was unloading a man lift from a flatbed truck and was on the man lift when it rolled off the truck. The Fourth Department determined: (1) unloading a truck at an active construction site is a covered activity; (2) the fall involved an elevation-related risk; and (3), although an industrial code violation was first asserted in opposition paper, it should not have been rejected:

Delivery of equipment is a covered activity if the equipment is being delivered to an active construction site … or is being “readied for immediate use” … . Delivery of equipment is not a covered activity if it is being delivered to an inactive construction site and is merely being “stockpil[ed] for future use” … . …

Although a fall from a flatbed truck generally does not present the sort of elevation-related risk that Labor Law § 240 (1) is intended to cover … , we have distinguished those cases in which a falling object causes the injured worker to fall … . …

Although plaintiff alleged a violation of section 23-1.5 (c) (3) for the first time in opposition to the motion, a plaintiff may be entitled to leave to amend his or her bill of particulars where, as here, he or she makes a showing of merit, raises no new factual allegations or legal theories, and causes the defendant no prejudice … . Shaw v Scepter, Inc., 2020 NY Slip Op 05651, Fourth Dept 10-9-20

 

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THERE WAS A QUESTION OF FACT WHETHER DEFENDANT HAD CONSTRUCTIVE KNOWLEDGE OF A RECURRING ICY CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether defendant had constructive knowledge of a recurring icy condition where plaintiff allegedly slipped and fell. Plaintiff slipped after leaving a tenant’s apartment. The tenant testified at a deposition:

… [P]laintiff submitted, inter alia, the deposition testimony of the tenant that she had treated on the day of the incident. The tenant testified that, “basically[,] what happens is there’s a lot of runoff from the ground over here. When the snow melts the whole area gets flooded and then it freezes, and then you have a solid sheet of ice pretty much over these last few blocks of the sidewalk and then down in the end, right at the end where the parking lot meets the sidewalk. I’ve actually contacted management many times in regards to that issue.” The tenant further testified that, when he contacted the property manager on such occasions prior to the incident, he was told that there was nothing that could be done because “the snow melts, thaws and freezes, and there’s nothing [*2]they can do about water.” He also noted that he had been living at the property for 11 years, and no steps had been taken during that time to eliminate water from pooling on the sidewalk. Monnin v Clover Group, Inc., 2020 NY Slip Op 05325, Fourth Dept 10-2-20

 

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PLAINTIFF WAS A THIRD-PARTY BENEFICIARY OF THE CONTRACT WITH THE ARCHITECTS; THEREFORE THE ARCHITECTURAL MALPRACTICE ACTION ACCRUED WHEN THE CONSTRUCTION WAS COMPLETE, RENDERING THE ACTION TIME-BARRED (FOURTH DEPT).

The Fourth Department determined the architectural malpractice action accrued when the construction was complete, despite the fact that plaintiff was not a party to the contract with the architects. Therefore the action was time-barred. The court noted that Supreme Court should have settled the record on appeal by including the transcript of the motion to dismiss the complaint as well as the accompanying memorandum of law to demonstrate preservation of the issues for appeal:

Before breaking ground on the project, plaintiff entered into an agreement with an engineering firm, pursuant to which the engineering firm agreed to provide professional engineering services on the project. The engineering firm, in turn, entered into a contract with defendant, pursuant to which defendant agreed to provide professional architectural services on the project.  * * *

A claim against an architect accrues upon the completion of performance … . “This rule applies ‘no matter how a claim is characterized in the complaint’ because ‘all liability’ for defective construction ‘has its genesis in the contractual relationship of the parties’ ”  … . “Even if the plaintiff is not a party to the underlying construction contract, the claim may accrue upon completion of the construction where the plaintiff is not a ‘stranger to the contract,’ and the relationship between the plaintiff and the defendant is the ‘functional equivalent of privity’ ” … .

Despite the lack of privity between plaintiff and defendant, plaintiff was “not a stranger to the contract” … . Indeed, we conclude that plaintiff was an intended third-party beneficiary of the contract … . * * *

Because plaintiff “is not a ‘stranger to the contract,’ ” its professional malpractice cause of action accrued upon completion of performance by defendant … . Town of W. Seneca v Kideney Architects, P.C., 2020 NY Slip Op 05323, Fourth Dept 10-2-20

 

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THE POLICE DID NOT HAVE REASONABLE SUSPICION TO JUSTIFY THE TRAFFIC STOP AND DID NOT HAVE PROBABLE CAUSE TO ARREST AT THE TIME DEFENDANT GOT OUT OF THE CAR; THE STATEMENTS MADE BY DEFENDANT AND THE COCAINE SEIZED FROM HIS PERSON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing the convictions related to statement which should have been suppressed, determined the police did not have reasonable suspicion to justify a traffic stop and did not have probable to handcuff the defendant, a de facto arrest, when he got out of the car. Therefore the statements which led to the search and seizure of cocaine, as well as the seized cocaine, should have been suppressed:

Inasmuch as the officer conducting the surveillance and directing the stop of defendant “did not see what the defendant and [the alleged buyer] exchanged, could not see if one of the [participants] gave the other something in return for something else, and did not see money pass between the two [individuals],” we conclude that the officers detaining defendant lacked reasonable suspicion to do so … .

… Although the use of handcuffs does not automatically transform a defendant’s detention into a de facto arrest … , such use must be justified by some additional circumstances, such as a threat of evasive conduct … . …

… [T]here was no testimony that the officer who handcuffed defendant “reasonably suspect[ed] that he [was] in danger of physical injury by virtue of [defendant] being armed” … . “[T]he test for determining whether a defendant is in custody or has been subjected to a de facto arrest is ‘what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant’s position’ ” … . People v Hernandez, 2020 NY Slip Op 05321, Fourth Dept 9-30-20

 

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THE MERE PRESENCE OF A REINSTATEMENT CLAUSE IN THE MORTGAGE, WHICH ESSENTIALLY ALLOWS A BORROWER IN DEFAULT TO PAY THE ARREARS AND STOP THE ACCELERATION OF THE DEBT, DOES NOT AFFECT OR IMPEDE THE ACCELERATION OF THE DEBT WHEN A FORECLOSURE ACTION IS STARTED; THE DEBT HERE WAS ACCELERATED WHEN THE FIRST FORECLOSURE ACTION WAS COMMENCED IN 2009 RENDERING THE INSTANT FORECLOSURE ACTION TIME-BARRED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Curran, agreeing with the Second Department, determined the mere presence of reinstatement clause in a mortgage, which allows a borrower who has missed payments to pay the amount of the missed payments and resume monthly payments, does not affect or impede the acceleration of the debt when a foreclosure action is brought. Therefore the foreclosure action at issue was time-barred:

The mortgage is a uniform instrument issued by Fannie Mae, among others, for use in New York State and contains several provisions that are relevant on appeal. Section 22 (acceleration provision) permits the lender to require immediate payment of the loan in full upon the borrower’s default, provided certain conditions are met. Section 19 (reinstatement provision) grants a borrower in default the right to effectively de-accelerate the maturity of the mortgage debt by paying in full the past due amount, thereby returning the loan to its pre-default status. * * *

… [W]e conclude that the mortgage’s reinstatement provision does not in any way affect or impede acceleration of the full mortgage debt. The reinstatement provision is not mentioned anywhere in the text of the mortgage’s acceleration provision, which governs when Fannie Mae could exercise its option to accelerate the full debt … . Further, the language of the reinstatement provision “indicates that [Fannie Mae’s] right to accelerate the entire debt may be exercised before the [borrower’s] rights under the reinstatement provision . . . are exercised or extinguished” … . Thus, in effect, the reinstatement provision merely “gives the borrower the contractual option to de-accelerate the mortgage when certain conditions are met” … —which presupposes that an acceleration has already occurred. Federal Natl. Mtge. Assn. v Tortora, 2020 NY Slip Op 05410, Fourth Dept 10-2-20

 

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DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM HIM THE DECISION WHETHER TO TESTIFY WAS HIS TO MAKE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a hearing was required on defendant motion to vacate his conviction alleging defense counsel was ineffective for failing to inform him the decision whether to testify was defendant’s to make:

… [T]he court erred in denying his motion without a hearing with respect to whether defense counsel fulfilled his duty of advising defendant that his decision to testify was ultimately his own, not defense counsel’s, to make (see People v Cosby, 82 AD3d 63, 66 [4th Dept 2011], lv denied 16 NY3d 857 [2011]). Defendant has made a proper showing for a hearing by asserting a viable legal basis for the motion, substantiated by his own unrefuted sworn allegations and other evidentiary submissions … , and neither the mandatory denial provisions of CPL 440.10 (2) nor the permissive denial provisions of CPL 440.10 (3) apply to this case … . Cosby, relied on by both the court and the People in support of denying the motion, is distinguishable from this case inasmuch as a hearing pursuant to CPL 440.30 (5) was held in Cosby, thereby permitting us to determine on the merits that defendant was not deprived of his constitutional right to effective assistance of counsel and, consequently, that his right to a fair trial was not seriously compromised … . No such determination on the merits can be made on the record before us. We therefore reverse the order and remit the matter to Supreme Court for a hearing pursuant to CPL 440.30 (5) on that part of defendant’s motion. People v Mirabella, 2020 NY Slip Op 05388, Fourth Dept 10-2-20

 

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