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Question of Fact Whether Firefighter’s Injury Was Proximately Caused by Driver’s Negligent Operation of His Car Under the “Danger Invites Injury” Doctrine—Firefighter Was Injured Removing Injured Driver from His Car After an Accident

The Second Department determined a firefighter may be entitled to coverage under his own insurance policy’s supplementary uninsured/underinsured motorists (SUM) coverage. Plaintiff-firefighter responded to a car accident and injured his shoulder removing the injured driver, Goodman, from his car. Plaintiff recovered the limit ($25,000) of Goodman’s policy and sought to recover under his own SUM endorsement. Reversing Supreme Court, the Second Department held it could not be determined as a matter of law that plaintiff’s injury was not proximately caused by Goodman’s negligent use of his car. Plaintiff had invoked the “danger invites rescue” doctrine in support of his argument that his shoulder injury was proximately caused by Goodman’s negligence:

SUM endorsements provide coverage only when the injuries are “caused by an accident arising out of such underinsured motor vehicle’s ownership, maintenance or use” … . Factors to be considered in determining whether an accident arose out of the use of a motor vehicle include whether the accident arose out of the inherent nature of the vehicle and whether the vehicle itself produces the injury rather than merely contributes to cause the condition which produces the injury … . ” [T]he [vehicle] itself need not be the proximate cause of the injury,’ but negligence in the use of the vehicle must be shown, and that negligence must be a cause of the injury'” … . ” To be a cause of the injury, the use of the motor vehicle must be closely related to the injury'” … . “[T]he use of the underinsured vehicle must be a proximate cause of the injuries for which coverage is sought” … .

[Plaintiff] invoked the doctrine of “danger invites rescue” to establish that Goodman’s negligent use of the underinsured vehicle proximately caused his injuries. That doctrine imposes liability upon a party who, “by his [or her] culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his [or her] aid” … . The doctrine also applies “where the culpable party has placed himself [or herself] in a perilous position which invites rescue” … . “In order for the doctrine to apply, the rescuer must have had a reasonable belief that the person being rescued was in peril” … .

Here, [the insurer] failed to establish that [plaintiff] was not entitled to coverage under the SUM endorsement. The evidence in the record establishes that Goodman’s negligent use of his vehicle directly caused the accident that led to him being trapped and in obvious need of medical attention, which, in turn, led to Rich’s intervention and resulting injuries … . It cannot be said, as a matter of law, that Goodman’s negligent use of his vehicle was not a proximate cause of [plaintiff’s] injuries under the doctrine of danger invites rescue. Accordingly, the Supreme Court should have denied that branch of the petition which was to permanently stay arbitration. Matter of Encompass Indem. Co. v Rich, 2015 NY Slip Op 06432, 2nd Dept 8-5-15

 

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Defendant Should Have Been Allowed to Present Expert Evidence Re: False Confessions—Criteria Explained—New Trial Ordered

The Second Department addressed several significant issues in a lengthy decision ordering a new trial in a murder case (which will be the defendant’s fifth trial in the matter). Although the defendant’s girlfriend had testified against the defendant in prior proceedings, she feigned a loss of memory and refused to testify in the most recent trial. County Court properly held that the girlfriend was “unavailable” within the meaning of Criminal Procedure Law 670.10 thereby allowing her prior testimony to be read into evidence. County Court should not, however, have allowed the People to amend the bill of particulars which, in response to the defendant’s alibi evidence presented in prior trials, extended the time period in which the crimes were alleged to have occurred. The focus of the decision, and the reason for reversal, was County Court’s error in excluding defendant’s expert testimony about false confessions. The confession was the principal evidence in the People’s case and was the product of seven hours of interrogation, 75 minutes of which was videotaped. The Second Department addressed the issue in depth:

Here … the proffered expert testimony was relevant to this particular defendant and the particular circumstances of the case, including the approximately seven-hour interrogation, the videotaped confession, and the lack of physical evidence or eyewitness testimony linking the defendant to the crime … .

In addition to reports from two relevant experts, the County Court was presented with a 75-minute video of the defendant’s late-night confession, taken after the defendant was in custody for almost 14 hours and interrogated for approximately 7 of those almost 14 hours. Among other things, the video shows that the defendant, whose hands were cuffed in front of him during the interview, spoke slowly and sat in a slouched position for a substantial portion of the interview. Further, the officers repeatedly employed suggestive and leading questions, fed the defendant specific details related to the crime scene, and used rapport-building techniques. * * *

Upon our consideration of the submissions and opinions of both experts, we find that the defendant made a thorough proffer that he was “more likely to be coerced into giving a false confession” than other individuals. His proffer clearly indicated that he was intellectually impaired, highly compliant, and suffered from a diagnosable psychiatric disorder, and also that the techniques used during the interrogation were likely to elicit a false confession from him … . Moreover, in light of the foregoing, the fact that no one had videotaped the nearly six hours of the interrogation that had been conducted before the confession was made raises significant concerns. People v Days, 2015 NY Slip Op 06731, 2nd Dept 9-2-15

 

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Village Did Not Have Authority to Sell Village Land Dedicated to Public Use (Public Roads) to Satisfy Property Tax Liens

The Second Department determined the village did not have the authority under the Real Property Tax Law (RPTL) to sell land dedicated to public use (dedicated public streets) to satisfy property tax liens:

… [W]hile RPTL [Real Property Tax Law] 995 allows a municipality to consent to the sale of property to satisfy a tax lien, not all property owned by a municipality is freely alienable. As relevant here, a municipality holds the fee of dedicated public streets in trust for the public …, and may not convey such a fee unless there is specific legislative authorization permitting it, or the parcel’s use as a dedicated public street has been discontinued… .

RPTL 995 did not provide the Village with that specific authorization. The statute only authorizes petitions to collect “validly levied or charged” taxes (RPTL 995). Since the Legislature limited the application of the statute in that way, it did not contemplate that municipally owned property held for public use, which is exempted from taxation by RPTL 406(1), would be subject to an enforcement proceeding under RPTL 995, or that such property would be sold by a municipality at public auction in reliance on section 995, in satisfaction of a claim for such taxes (see McKinney’s Cons Laws of NY, Book 1, Statutes § 222). Contrary to the Village’s contention, Village Law § 1-102 likewise did not provide the specific authorization necessary for the Village to sell a dedicated public road. Matter of AJM Capital II, LLC v Incorporated Vil. of Muttontown, 2015 NY Slip Op 06335, 2nd Dept 7-29-15

 

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Waiver of a Jury Trial in an Article 10 Sex-Offender Civil Commitment Proceeding Requires an On-the-Record Colloquy After Consultation with Counsel

The Second Department, in a full-fledged opinion by Justice Chambers, in a matter of first impression, determined that the state and federal constitutions mandated an on-the-record waiver of the right to a jury trail in an Article 10 sex-offender civil commitment proceeding. Here, the respondent sent a letter to the judge explaining his reasons for wanting a non-jury trial. The letter was deemed insufficient to establish a knowing waiver.

… [A]respondent’s statutory right to a jury trial in an article 10 proceeding is protected by Article I, § 2 of the New York State Constitution, which provides that “[t]rial by jury in all cases in which it has heretofore been guaranteed by constitution shall remain inviolate forever.” * * *

In view of the fact that article 10 proceedings are civil in nature, “the Due Process Clauses of the Fifth and Fourteenth Amendments … govern the scope of procedural due process” … . Accordingly, a respondent’s waiver of the right to a jury must comport with the procedural due process requirements under both the United States and New York Constitutions. * * *

With these general principles in mind, we hold that in order to accomplish a valid waiver of the right to a jury trial in an article 10 proceeding under Mental Hygiene Law § 10.07(b), and in accordance with due process, there must be an on-the-record colloquy, in order to ensure that the respondent understands the nature of the right, and that the respondent’s decision is knowing and voluntary after having had sufficient opportunity to consult with counsel … . * * *

We note, however, that a written waiver such as is mandated by CPL 320.10 in criminal proceedings is not required in order to satisfy the requirements of Mental Hygiene Law article 10 or due process … . Matter of State of New York v Ted B., 2015 NY Slip Op 06352, 2nd Dept 7-29-15

 

Insufficient Evidence of Incapacity—Appointment of Guardian Reversed

The Second Department, reversing Supreme Court, determined there was insufficient evidence to support the finding that the allegedly incapacitated person (AIP) was in fact incapacitated:

In order for a court to exercise its authority to appoint a personal needs guardian, it must make a two-pronged determination (see Mental Hygiene Law § 81.02[a]…). First, the court must determine that “the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety” (Mental Hygiene Law § 81.02[a][1]). Second, the court must determine “that the person agrees to the appointment, or that the person is incapacitated” (Mental Hygiene Law § 81.02[a][2]).

With respect to the second prong, “[t]he determination of incapacity . . . shall consist of a determination that a person is likely to suffer harm because” (1) “the person is unable to provide for [his or her] personal needs” and (2) “the person cannot adequately understand and appreciate the nature and consequences of such inability” (Mental Hygiene Law §§ 81.02[b][1], [2]). In reaching its determination as to whether an individual is incapacitated, the court is required to “give primary consideration to the functional level and functional limitations of the person” (Mental Hygiene Law § 81.02[c]).

“A determination that a person is incapacitated . . . must be based on clear and convincing evidence” (Mental Hygiene Law § 81.12[a]; see Mental Hygiene Law § 81.02[b]). “The burden of proof shall be on the petitioner” (Mental Hygiene Law § 81.12[a]…).

Here, the petitioner failed to demonstrate, by clear and convincing evidence, that the AIP is incapacitated (see Mental Hygiene Law § 81.02[b]…). The testimony presented by the petitioner at the hearing failed to show that the AIP was unable to provide for his personal needs and that he was unable to adequately understand and appreciate the nature and consequences of any such inability … . The Supreme Court’s conclusion that the AIP “suffers from dementia” was not supported by the record. The petitioner’s medical expert testified that the AIP had not “evidenced . . . dementia” and was “capable of impressive cognitive functioning” … . Matter of Edward S. (Georgis-Corey), 2015 NY Slip Op 06351, 2nd Dept 7-29-15

 

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Flaws in Causes of Action Stemming from the Alleged Breach of a Joint Venture Agreement Explained

In an action stemming from the alleged breach of a joint venture agreement, the Second Department, in the context of a motion to dismiss for failure to state a cause of action, went through each cause of action and, where dismissal was appropriate, noted the pleading failure. The joint venture cause of action did not allege a mutual promise to share the losses. The constructive trust cause of action did not allege a confidential or fiduciary relationship. The fraud allegations were not collateral to the terms of the alleged joint venture and no out-of-pocket losses were alleged. The tortious interference with contract cause of action did not allege the intentional procurement of a breach of the joint venture agreement. The accounting cause of action did not allege that a demand for an accounting was made. The Second Department noted that the motion to amend the complaint to cure some of the defects should have been granted. With respect to the criteria for determining a motion to dismiss for failure to state a cause of action where documentary evidence supporting the motion is submitted, the court explained:

“A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law” … .

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), “the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) … . When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, “the criterion is whether the [plaintiff] has a cause of action, not whether he [or she] has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate”… . Mawere v Landau, 2015 NY Slip Op 06317, 2nd Dept 7-29-15

 

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Police Officer’s Observations Filtered Through His Experience Justified Stop and Frisk

The Second Department, over a dissent, determined that the street stop of the defendant was justified by reasonable suspicion. Here the officer said he made eye contact with the defendant, saw an outline of a rectangular object under defendant’s clothes and the defendant’s movements were consistent with adjusting a weapon under the waistband. The majority held that was enough, because the officer could rely on his experience to interpret the defendant’s movements. The dissent argued that making eye contact, seeing the outline of a rectangular object, and the defendant’s adjusting his waistband was not enough to justify the stop:

“In determining whether an individual’s actions rise to the level of reasonable suspicion, police officers are permitted to interpret the behavior in light of their training and experience” … . Here, in contrast to the opinion of our dissenting colleague, the factual circumstances described by Mourad, coupled with the officer’s experience and training, were sufficient to permit him to request information from the defendant … . The decision to make inquiry of the defendant did not stem from mere “whim or caprice,” but was objectively based upon observation of the defendant’s actions as filtered through the officer’s experience … . Officer Mourad specifically testified that he believed the shape of the concealed object which he observed under the defendant’s clothing was the outline of a gun … . Mourad explained that the defendant moved in a way that he recognized, from experience, as typical of attempts to adjust a firearm kept in a waistband …, and further testified that the defendant began to increase his pace after the officers exited their vehicle and announced their presence … . Accordingly, there was reasonable suspicion to stop and frisk the defendant … . People v Fletcher, 2015 NY Slip Op 06366, 2nd Dept 7-29-15

 

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The Arbitrator Had the Power to Determine Whether Respondent Insurer Was a Motor Vehicle Insurer Subject to Mandatory Arbitration Pursuant to the No-Fault Insurance Law—The Arbitrator’s Conclusion that the Respondent Insurer Was Not a Motor Vehicle Insurer Had a Rational Basis

The Second Department, in a full-fledged opinion by Justice Hinds-radix, held the arbitrator had the power to determine whether the respondent insurance company, American Bankers Ins. Co., was a motor vehicle insurer subject to the mandatory arbitration provision of the No-Fault Insurance Law. The court affirmed the arbitrator’s determination that American Bankers Ins. Co. was not a motor vehicle insurer (and therefore was not subject to mandatory arbitration). The taxi insured by petitioner was involved in a collision with a horse. The rider was seriously injured and petitioner insurer paid out about $60,000 in no-fault benefits. The petitioner insurer then sought to recover the no-fault benefits from American Bankers Ins. Co., which insured the stable where the horse was kept. The Second Department explained the powers of the arbitrator and explained why the arbitrator’s conclusion (that the matter was not subject to mandatory arbitration under the Insurance Law) was rational. With respect to the arbitrator’s powers, the court wrote:

… [T]he arbitrator had the authority to rule on the issue of whether the controversy was subject to mandatory arbitration under Insurance Law § 5102 and its implementing regulations. An arbitrator’s authority generally “extends to only those issues that are actually presented by the parties” … . Therefore, an arbitrator is precluded from identifying and considering an affirmative defense that is not pleaded by a party to the arbitration. Here, however, the issue before the arbitrator cannot be characterized as an affirmative defense, such as lack of coverage … . Nor was the issue whether the petitioner satisfied a condition precedent to recovery in a loss-transfer proceeding … . Rather, the issue before the arbitrator was the threshold issue of whether American Bankers was an “insurer” subject to the mandatory arbitration procedures of Insurance Law § 5105, and 11 NYCRR 3.12(b) … . Furthermore, the fact that American Bankers elected not to participate in the arbitration did not divest the arbitrator of the authority to determine, in the first instance, whether American Bankers was an “insurer” within the meaning of the subject statute and regulation. An arbitrator may hear and determine a controversy upon the evidence produced, notwithstanding the failure of a party to appear (see CPLR 7506[c]…), and since American Bankers did not appear at the arbitration, it did not affirmatively waive the issue of whether it was an “insurer” subject to arbitration by participating in the arbitration and raising other issues to the exclusion of that issue … .

As noted by the Court of Appeals, a party may not be bound to arbitrate a dispute by mere inaction … . Therefore, American Bankers’ failure to move to stay arbitration pursuant to CPLR 7503 did not render this dispute arbitrable, where, as here, no agreement to arbitrate was ever made …, and where … American Bankers was not an insurer subject to the statutory requirement to submit to mandatory arbitration. Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Fla., 2015 NY Slip Op 06343, 2nd Dept 7-29-15

 

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Re: the Unsealing of the Grand Jury Proceedings Concerning Eric Garner’s Death at the Hands of the Police, a “Compelling and Particularized Need” for Disclosure Had Not Been Demonstrated—the Public Interest in Preserving Grand Jury Secrecy Outweighed the Public Interest in Disclosure

The Second Department, in an extensive, detailed decision (not fully summarized here), determined that the grand jury proceedings concerning the death of (unarmed) Eric Garner at the hands of the police (who were not indicted) should not be unsealed. As a threshold issue, the court found that New York City’s Public Advocate, pursuant to the terms of the City Charter, did not have the capacity to bring the petition. However, the other petitioners, the Legal Aid Society, the New York Civil Liberties Union, and the local branch of the NAACP, had standing to bring the petition. In essence, the court held that petitioners had not demonstrated the requisite “compelling and particularized” need for disclosure and the public interest in preserving grand jury secrecy outweighed the public interest in disclosure. In response to the District Attorney’s argument that the underlying order denying the petition to unseal the records was not appealable, the Second Department explained that the order was civil, not criminal, in nature (and therefore appealable). The court explained the general analytical criteria as follows:

The legal standard that must initially be applied to petitions seeking the disclosure of grand jury materials is whether the party seeking disclosure can establish a “compelling and particularized need” for access to them … . Only if the compelling and particularized need threshold is met must the court then balance various factors to determine whether the public interest in the secrecy of the grand jury is outweighed by the public interest in disclosure … . The decision as to whether to permit disclosure is committed to the trial court’s discretion … . However, “without the initial showing of a compelling and particularized need, the question of discretion need not be reached, for then there simply would be no policies to balance” … .

A party seeking disclosure will not satisfy the compelling and particularized need threshold simply by asserting, or even showing, that a public interest is involved. The party must, by a factual presentation, demonstrate why, and to what extent, the party requires the minutes of a particular grand jury proceeding “to advance the actions or measures taken, or proposed (e.g. legal action, administrative inquiry or legislative investigation), to insure that the public interest has been, or will be, served” … . “[I]f the supposed societal benefit of maximizing the public’s awareness could by itself trump all other considerations,” there would not exist a “legal presumption against disclosure of grand jury evidence, let alone a rule providing that such presumption may be overcome only by a showing of a particularized and compelling need for disclosure” … . Significantly, courts that have permitted disclosure of grand jury evidence have uniformly done so for some purpose other than generalized public interest and dissemination … . Matter of James v Donovan, 2015 NY Slip Op 06348, 2nd Dept 7-29-15

 

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With Regard to the Suit Against the Perpetrator, Perpetrator’s Criminal Conviction Barred Relitigation in the Wrongful Death Case Stemming from a Stabbing Outside Defendant Bar/With Regard to the Suit Against Defendant Bar, Questions of Fact Raised About the Foreseeability of the Attack, the Proximate Cause of the Injury, and the Adequacy of Defendant Bar’s Security Measures

The Second Department determined plaintiff’s decedent’s estate was entitled to summary judgment against the defendant, Taylor, who stabbed plaintiff’s decedent outside a bar both had just left. Taylor had pled guilty to manslaughter and waived the justification defense. Taylor was therefore collaterally estopped from relitigating the issue in the civil proceeding. Questions of fact about the foreseeability of the stabbing, the proximate cause of the incident and the adequacy of security precluded summary judgment re: the liability of the bar defendants. The Second Department noted that Supreme Court should have overlooked the fact that the depositions submitted in motion practice were unsigned (a basis for Supreme Court’s denial of requested relief). No party raised the “unsigned deposition” issue and it amounted to only a minor irregularity:

“Where a criminal conviction is based upon facts identical to those in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from relitigating the issue of liability” … . “The doctrine applies whether the conviction results from a plea or a trial” … . “The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action” … . “The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination” * * *

“A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties” … . “To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected, but the criminal conduct at issue must be shown to be reasonably predictable based on prior occurrences of the same or similar criminal activity at a location sufficiently proximate to the subject location” … . Here, the plaintiff met her prima facie burden of establishing her entitlement to judgment as a matter of law against [the bar defendants]. In opposition, the [bar defendants] raised a triable issue of fact on behalf … as to the issue of foreseeability, whether the decedent’s own conduct preceding the stabbing was a proximate cause of his injuries, and whether the … security measures were adequate … . Hartman v Milbel Enters., Inc., 2015 NY Slip Op 06314, 2nd Dept 7-29-15

 

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