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PORTIONS OF CITY SIDEWALK ELEVATED BY TREE ROOTS AND “REPAIRED” WITH COLD PATCH; QUESTIONS OF FACT WHETHER THE ABUTTING PROPERTY OWNERS AND CITY ARE LIABLE IN THIS SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court determined: (1) there are questions of fact concerning whether the abutting property owners are liable for this sidewalk slip and fall; (2) there are questions of fact whether the city created the dangerous condition by patching the sidewalk. Plaintiff tripped and fell in an area where the sidewalk had been elevated by tree roots:

… [T]he Charter of the City of Buffalo (Charter) § 413-50 (A) specifically imposes on “owner[s] or occupant[s] of any lands fronting or abutting on any street,” i.e., the property defendants, a duty to maintain and repair the sidewalk and provides that their failure to do so will result in liability for injuries to users of the sidewalk. Contrary to the property defendants’ contention, that duty to maintain and repair extends to damage caused by the roots of a tree owned by the City where, as here, “the local ordinance contains no exceptions to the duty imposed on abutting landowners to maintain the sidewalk, even if the allegedly dangerous condition was created by a root extending from [City] property” … . …

… [T]he evidence submitted by the property defendants in support of their motion, which was then incorporated into the City’s cross motion, raised triable issues of fact whether the City performed the “cold patch” repair to the area sometime before plaintiff’s accident and whether the condition of the sidewalk on the day of plaintiff’s accident was the same as when the “cold patch” was first applied. We thus conclude that the City failed to establish as a matter of law that it did not affirmatively create a dangerous condition or that the dangerous condition was due solely to conditions that developed over time … . Beagle v City of Buffalo, 2019 NY Slip Op 09126, Fourth Dept 12-20-19

 

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VENUE FOR THIS HYBRID ARTICLE 78/DECLARATORY JUDGMENT ACTION SEEKING TO ANNUL A TOWN LOCAL LAW WHICH CREATED A WILDLIFE OVERLAY DISTRICT IS THE COUNTY IN WHICH THE TOWN IS LOCATED PURSUANT TO TOWN LAW SECTION 66 (1) (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeJoseph, determined Supreme Court properly found that Orleans County, not Niagara County, was the correct venue for this hybrid Article 78/declaratory judgment action seeking to invalidate a Town of Shelby Local Law creating a wildlife refuge overlay district, and further seeking to annul the Town Board’s negative declaration under the State Environmental Quality Review Act (SEQRA). The legal analysis is too detailed to be fully summarized here:

The primary issue raised on this appeal involves the interplay between three statutory provisions concerning venue, i.e., CPLR 504 (2), CPLR 506 (b), and Town Law § 66 (1) and, ultimately, whether Supreme Court properly granted the motion of respondents-defendants (respondents) to transfer venue of this hybrid CPLR article 78 proceeding and declaratory judgment action from Niagara County to Orleans County. We conclude that the court properly transferred venue pursuant to Town Law § 66 (1). …

Town Law § 66 (1) provides that “[t]he place of trial of all actions and proceedings against a town or any of its officers or boards shall be the county in which the town is situated.”

We conclude that Town Law § 66 applies and, as such, the proper venue in the instant action is Orleans County rather than Niagara County. Matter of Zelazny Family Enters., LLC v Town of Shelby, 2019 NY Slip Op 09124, Fourth Dept 12-20-19

 

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AN ORDER ADDRESSING WHETHER DOCUMENTS SOUGHT IN DISCOVERY ARE PRIVILEGED IS APPEALABLE AS OF RIGHT (FOURTH DEPT).

The Fourth Department, reversing (modifying) an order concerning whether documents sought in discovery were privileged, noted that the order was appealable as of right:

During discovery, a dispute arose over allegedly privileged documents that plaintiff withheld or redacted. In its privilege logs, plaintiff asserted that many of the documents were protected from disclosure on three grounds, i.e., that they were material prepared in anticipation of litigation (see CPLR 3101 [d] [2]), attorney work product (see CPLR 3101 [c]), or protected by the attorney-client privilege (see CPLR 4503 [1]). Plaintiff asserted that a few documents were not discoverable on the sole basis that they were materials prepared in anticipation of litigation. Campany and the Travelers defendants separately moved, inter alia, to compel plaintiff’s disclosure of various documents or, in the alternative, for an in camera review of the documents. Plaintiff moved for, among other things, a protective order, contending that all communications involving attorneys or litigation experts on and after October 24, 2016 were presumptively privileged because the Travelers defendants and plaintiff contemplated litigation at that time. Supreme Court denied the Travelers defendants’ motion, denied in part Campany’s motion, and granted plaintiff’s motion by, as relevant here, ordering that all documents of plaintiff created on and after October 24, 2016 were not discoverable because they were material prepared in anticipation of litigation. Campany and the Travelers defendants appeal.

Initially, we reject plaintiff’s contention that the order is not appealable. CPLR 5701 (a) (2) (v) provides that, with limited exceptions, which are not applicable here, an appeal may be taken to this Court as of right from an order where the motion it decided was made upon notice and it “affects a substantial right.” An order granting a protective order and precluding discovery of numerous documents affects a substantial right of Campany and the Travelers defendants, and the order is thus appealable as of right … . John Mezzalingua Assoc., LLC v Travelers Indem. Co., 2019 NY Slip Op 09157, Fourth Dept 12-20-19

 

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SPANISH-LANGUAGE CONVICTION RECORDS FROM PUERTO RICO, WHICH WERE NOT TRANSLATED, WERE INSUFFICIENT TO PROVE DEFENDANT TO BE A SEX OFFENDER (FOURTH DEPT). ​

The Fourth Department, vacating the risk level determination, determined the proof defendant was a sex offender was insufficient. The documents relating to a conviction in Puerto Rico were in Spanish and were not translated:

We agree with defendant that, in making its determination that defendant is a sex offender, the Board erred in relying on documents in Spanish that were not accompanied by an English translation (see generally CPLR 2101 [b]). Upon defendant’s objection during the SORA hearing to the Board’s determination, no additional documents were submitted to support the Board’s determination. Thus, there is no English-translated document stating the offense of which defendant was convicted in Puerto Rico, and therefore there is no competent evidence to support the Board’s determination that defendant was convicted of a felony offense in another jurisdiction … . In addition, the purported sex offender registration form showing that defendant was required to register in Puerto Rico is entirely in Spanish, and thus there is no competent evidence to support the Board’s determination that defendant was required to register as a sex offender in Puerto Rico … . People v Ramos, 2019 NY Slip Op 09153, Fourth Dept 12-20-19

 

MOTHER’S PETITION FOR PERMISSION TO RELOCATE WITH THE CHILD SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s petition for permission to relocate with the child should not have been dismissed without a hearing:

In this proceeding pursuant to Family Court Act article 6, we agree with petitioner mother that Family Court erred in summarily granting respondent father’s motion to dismiss her petition to relocate with the parties’ child to the Honeoye Falls-Lima Central School District or Livingston County. A prior custody order entered upon the consent of the parties provided that the mother and the father had joint custody of the child with primary physical residence with the mother, and restricted the mother’s residency to certain towns within Monroe County. “Generally, [d]eterminations affecting custody and visitation should be made following a full evidentiary hearing’ ” … , and we conclude that the allegations in the mother’s petition “established the need for a hearing on the issue whether [her] relocation is in the best interests of the child” … .

The mother was not required to demonstrate a change of circumstances inasmuch as she sought permission to relocate with the subject child … . Further, the mother adequately alleged in her petition that relocation was in the best interests of the child inasmuch as she alleged that the cost of housing would be lower in Livingston County, that the child’s maternal grandfather would be able to assist the mother with childcare upon her relocation allowing her to return to work, and that the relocation would not interfere with the father’s visitation schedule. The court was therefore required to determine whether the proposed relocation was in the child’s best interests by analyzing the factors set forth in Matter of Tropea v Tropea (87 NY2d 727, 739-741 [1996] …). Matter of Johnston v Dickes, 2019 NY Slip Op 09208, Fourth Dept 12-20-19

 

DEFENDANTS’ DEPOSITION TESTIMONY IN THIS DOG-BITE CASE RAISED QUESTIONS OF FACT ABOUT DEFENDANTS’ PRIOR KNOWLEDGE OF THE DOG’S VICIOUS PROPENSITIES, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this dog-bite case should not have been granted:

We conclude that defendants failed to meet their initial burden of establishing that they neither knew nor should have known that the dog had any vicious propensities … . In support of their motion, defendants submitted their deposition testimony. Defendant Ron Bush admitted at his deposition that defendants had purchased the dog in part for protection and that he considered a dog’s bark to act like an “alarm.” Moreover, defendant Patricia Bush testified that, when the dog was running toward plaintiff at the time of the incident, she directed plaintiff to “[s]tand still.” Both defendants admitted that there were three “Beware of Dog” signs posted on their premises. Thus, taken together, defendants’ own submissions raise a triable issue of fact whether defendants had prior knowledge of the dog’s vicious propensities … . Opderbeck v Bush, 2019 NY Slip Op 09224, Fourth Dept 12-20-19

 

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IT IS REVERSIBLE ERROR FOR A JUDGE TO NEGOTIATE A PLEA DEAL WITH A CODEFENDANT IN EXCHANGE FOR TESTIMONY AGAINST THE DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the trial judge should not have negotiated a plea deal with a codefendant in exchange for testimony against the defendant:

… [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” … . Here, “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 on counts one and two of the indictment … . People v Lawhorn, 2019 NY Slip Op 09223, Fourth Dept 12-20-19

 

DEFENDANT WAS AWARE HER DOG COULD ATTACK ANOTHER DOG AND IT WAS FORESEEABLE A DOG OWNER WOULD TRY TO SEPARATE THE DOGS; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this dog-bite case should not have been granted. Defendant was aware that her dog might attack a small dog like plaintiff’s and it was foreseeable plaintiff would try to separate the dogs:

“Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation’ ” … . Thus, “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities” … .

Even assuming, arguendo, that defendant met her initial burden on the motion, we conclude that plaintiff raised an issue of fact to defeat that motion. Plaintiff submitted her own affidavit, wherein she stated that, after she was bitten, defendant told her that defendant “was aware of the risk that her dogs would attack small dogs.” It was “foreseeable that if [defendant’s dog] attacked another dog, someone would attempt to pull the dogs apart and be injured in the process” … . Modafferi v DiMatteo, 2019 NY Slip Op 08342, Fourth Dept 11-15-19

 

MOTHER’S PETITION FOR AN UPWARD MODIFICATION OF FATHER’S CHILD SUPPORT BASED UPON A CHANGE IN FATHER’S EMPLOYMENT STATUS WAS PROPERLY GRANTED, BUT THE MODIFICATION SHOULD HAVE BEEN MADE RETROACTIVE TO THE DATE OF EMPLOYMENT, NOT THE DATE OF THE PETITION (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s petition for an upward modification of father’s support obligation should have been granted in its entirety, i.e., retroactive to the date of the change in father’s employment status, not to the date of the petition:

The court erroneously concluded that the modification of child support could only be retroactive to the date petitioner filed the petition. Because it is undisputed that the father did not notify the Support Collection Unit of his change in employment status as required by the prior support order, the court had the authority to modify the child support payments retroactive to the date of his employment … . Matter of Oneida County Dept. of Social Servs. v Abu-Zamaq, 2019 NY Slip Op 08341, Fourth Dept 11-15-19

 

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SENTENCES MUST RUN CONCURRENTLY, NOT CONSECUTIVELY; ERROR NEED NOT BE PRESERVED (FOURTH DEPT).

The Fourth Department determined defendant’s sentences should run concurrently, not consecutively, noting that preservation of the error was not required:

… [T]he sentence is illegal insofar as County Court directed that the sentences imposed on the two counts charging criminal possession of a weapon in the second degree run consecutively to the sentence imposed on the count charging assault in the second degree. We note that defendant’s contention does not require preservation … . The People had the burden of establishing that consecutive sentences were legal, i.e., that the crimes were committed through separate acts or omissions (… see generally Penal Law § 70.25 [2]), and they failed to meet that burden. With respect to the count charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (1) (b), “the People neither alleged nor proved that defendant’s possession [of the gun] was marked by an unlawful intent separate and distinct from his intent to shoot the victim[]” … . With respect to the count charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (3), there was no evidence presented at trial that defendant’s act of possessing a loaded firearm “was separate and distinct from” his act of shooting the victim … . People v Tripp, 2019 NY Slip Op 08339, Second Dept 11-15-19

 

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