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Defendant-Homeowner’s Providing Plaintiff With a Ladder With Allegedly Worn Rubber Feet Raised a Question of Fact About Defendant’s Liability for the Ladder’s Slipping and Plaintiff’s Fall—Cause of Accident Can Be Proven by Circumstantial Evidence

The Second Department determined Supreme Court should not have granted summary judgment to the defendant homeowner.  Plaintiff was using defendant’s ladder when the ladder slipped and plaintiff fell.  Plaintiff alleged the rubber feet on the ladder were totally destroyed. That allegation created a question of fact whether defendant provided dangerous or defective equipment to the plaintiff which caused plaintiff’s injury. In response to defendant’s argument that plaintiff could not explain the cause of the accident without resort to speculation, the court noted that the cause of an accident can be proven by circumstantial evidence (here the condition of the feet of the ladder and fact that the feet slipped):

“[W]hen a defendant property owner lends allegedly dangerous or defective equipment to a worker that causes injury during its use, the defendant moving for summary judgment must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition” … . While lack of constructive notice can generally be established by evidence demonstrating when the area or condition was last inspected relative to the time of the accident …, the absence of rubber shoes on a ladder is a “visible and apparent defect,” evidence of which may be sufficient to raise a triable issue of fact on the issue of constructive notice … . Here, the defendants satisfied their prima facie burden with evidence that the ladder had been inspected prior to the accident. The defendant Billis Arniotis (hereinafter Billis) testified that, since purchasing the ladder 20 years before the accident, he had used it once per week and had inspected its rubber feet each time. Billis last inspected the ladder one or two weeks before the accident and did not observe any wear at that time. However, the plaintiff testified that he inspected the ladder after the accident and found that its rubber feet were “totally eaten up, worn,” and “destroyed.” This conflicting evidence, coupled with Billis’s testimony that the ladder had not been used between the time of the accident and the plaintiff’s inspection, raised a triable issue of fact.

Contrary to the defendants’ contention, they failed to make a prima facie showing that the plaintiff cannot identify the cause of his fall without engaging in speculation. A plaintiff’s inability to testify exactly as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence … . Here, Billis’s testimony establishes that he was present at the time of the accident and that he watched the ladder slide down while the plaintiff was on it. Evidence that the ladder’s rubber feet were worn down also is sufficient to permit the inference that this defective condition caused the slippage … . Patrikis v Arniotis, 2015 NY Slip Op 05167, 2nd Dept 6-17-15

 

Liability for a Defective or Dangerous Condition on Real Property Must Be Predicated Upon Ownership, Occupancy, Control, or Special Use of the Property—Here Defendant Demonstrated None of Those Factors Applied

The Second Department, finding that defendant’s motion for summary judgment in a slip and fall case was properly granted, noted that in order for a defendant to be liable for a dangerous or defective condition on real property the liability must be predicated “upon ownership, occupancy, control, or special use of that property …”.  Here no such factors were demonstrated (defendant denied the allegation that it acted as the property manager).  Reynolds v Avon Grove Props., 2015 NY Slip Op 05169, 2nd Dept 6-17-15

 

Co-Tenants of Dog Owner Can Be Strictly Liable for Harboring a Dog with Vicious Propensities—Co-Tenants’ Motions for Summary Judgment Should Have Been Denied

The Second Department, in a full-fledged opinion by Justice Austin, determined the summary judgment motions by co-tenants of the owner of a dog which injured plaintiff should have been denied.  Although the cotenants did not own the dog, there was a question of fact whether the co-tenants “harbored” the dog.  The court further determined a joint trial including the cotenants was proper. The meaning of “harboring” and the proof requirements for “vicious propensities” were explained:

… [W]e hold that cotenants can be held strictly liable for a vicious attack by dogs owned solely by another cotenant, provided that there is evidence that the cotenants participated in the care of the dogs in their household to a sufficient degree to support a finding that they joined with the dogs’ owner in harboring the animals. We further determine that a unified trial is appropriate in this case. * * *

Generally, the owner of a domestic animal who knows or should know that the animal has a vicious disposition or vicious propensity is strictly liable for an injury caused by the animal … . Strict liability can also be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensity … . However, no liability can be found against a defendant who neither owned, harbored, nor exercised dominion and control over the animal, and did not permit it to be on or in his or her premises … . * * *

“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'” … . “Once this knowledge is established,” the owner or anyone harboring the animal “faces strict liability” … . “Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm” … .

The owner or harborer of a dog with vicious propensities is not entitled to the benefit of the so-called “one free bite” rule … . Even a dog which has not previously bitten or attacked may subject its owner or harborer to strict liability where its propensities are apparent … .

Knowledge of an animal’s vicious propensities may also be discerned, by a jury, from the nature and result of the attack … . Matthew H. v County of Nassau, 2015 NY Slip Op 05157, 2nd Dept 6-17-15

 

Failure to Pronounce the Amount of Restitution at Sentencing Survives Waiver of Appeal and Requires Vacation of the Sentences and Remittal

The Second Department noted that county court’s failure to pronounce the amount of restitution at sentencing survived waiver of appeal and required vacation of the sentences and remittal for that purpose:

Since the County Court failed to pronounce the sentences of restitution in open court, the sentences must be vacated and the matter remitted to the County Court, Orange County, for resentencing in accordance with CPL 380.20 … . People v Guadalupe, 2015 NY Slip Op 05206, 2nd Dept 6-17-15

 

Sole Proximate Cause of Plaintiffs’ Injuries Should Have Been Determined as a Matter of Law—Complaint Against Non-Negligent Driver (Whose Car Was Pushed into the Pedestrian-Plaintiffs by the Negligent-Driver’s Car) Should Have Been Dismissed

Reversing Supreme Court, the Second Department found that the proximate cause of the accident should have been determined as a matter of law and the complaint against the non-negligent driver should have been dismissed.  The negligent driver violated the Vehicle and Traffic Law by attempting to make a left turn and crossing the lane in which the non-negligent driver was travelling.  The non-negligent driver ‘s car collided with negligent driver’s car and then struck plaintiffs (pedestrians).  Here it was clear that the negligent-driver’s actions were the sole proximate of the plaintiffs’ injury as a matter of law:

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . “There can be more than one proximate cause of an accident” …, and “[g]enerally, it is for the trier of fact to determine the issue of proximate cause” … . “However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” … . Velez v Mandato, 2015 NY Slip Op 05174, 2nd Dept 6-17-15

 

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No “Reasonable Suspicion” Justifying Vehicle Stop—Revocation of License for Refusal of Chemical Test Reversed

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

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Revocation of Driver’s License for Refusal of the Chemical Test Reversed—No “Reasonable Suspicion” to Justify Vehicle Stop

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

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Defense Counsel’s Failure to Pursue a Minimal Investigation (i.e., Failure to Access Defendant’s Psychiatric Records and Failure to Have the Defendant Examined by an Independent Psychiatrist) Constituted Ineffective Assistance of Counsel—Conviction Reversed

The Second Department determined defendant’s motion to vacate his conviction should have been granted.  Defendant suffered from mental illness and had been hospitalized for psychiatric disorders.  The trial court had granted defense counsel permission to access to defendant’s psychiatric records and had granted authorization for the appointment of an independent psychiatrist to evaluate defendant.  Defense counsel did not seek the psychiatric records, nor the evaluation by the independent psychiatrist.  The Second Department, after an in-depth explanation of the criteria, held that defendant was deprived of effective assistance of counsel.  The court noted that the ground at issue here, defense counsel’s failure to pursue minimal investigation, required reversal without a showing that the result of the trial would have been different had the investigation been conducted:

A criminal defendant is guaranteed the effective assistance of counsel under both the federal and the state constitutions (see US Const Amend VI; NY Const, art I, § 6). Generally, to prevail on a claim of ineffective assistance of counsel under the United States Constitution, a defendant must show, first, “that counsel’s representation fell below an objective standard of reasonableness” …, and, second, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” … .

Under the New York Constitution, a defendant must show that he was not afforded “meaningful representation” … , which also entails a two-pronged test, “with the first prong identical to its federal counterpart” …, and the second being a “prejudice component [which] focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … and, thus, is “somewhat more favorable to defendants” … . A reviewing court must examine whether “the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” … .

Under both state and federal law, a defendant’s right to the effective assistance of counsel includes assistance by an attorney who has conducted a reasonable investigation into the relevant facts and law to determine whether matters of defense can be developed … .

Generally, in order to make out a claim of ineffective assistance under the New York Constitution, a defendant is required to make some showing of prejudice, albeit not necessarily the “but for” prejudice required under federal law … . However, prejudice is not an “indispensable element in assessing meaningful representation” … . The Court of Appeals has indicated that counsel’s failure to pursue the minimal investigation appropriate with respect to an issue central to the defense itself “seriously compromises [the] defendant’s right to a fair trial,” regardless of whether the information would have altered the uninformed strategy counsel employed, or otherwise helped the defense … .

Here, the People’s case hinged almost entirely on their ability to prove the defendant’s state of mind, and trial counsel undisputedly failed to take the minimal steps of obtaining the defendant’s psychiatric records and having him evaluated by an expert, which were necessary to make an informed decision as to whether or not to present a psychiatric defense. Under the circumstances of this case, the People’s argument that, even with the benefit of the evidence trial counsel should have obtained, there is no reasonable chance that a mental disease or defect or EED defense would have been successful, or that the outcome of the trial would otherwise have been different, misconstrues the central issue in this case. The issue is not whether trial counsel’s choice to have certain documents excluded from the record constitutes a legitimate trial strategy, but whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pretrial investigation phase of a criminal case, constitutes meaningful representation as a matter of law … . Trial counsel’s “total failure” in this regard deprived the defendant of meaningful representation … . People v Graham,2015 NY Slip Op 04862, 2nd Dept 6-10-15

 

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Demolition of Building Without Notice or Opportunity to Be Heard Was a Proper Exercise of City’s Police Powers

The Second Department determined summary judgment dismissing the complaint against the city, based upon the city’s demolishing a building without notice or the opportunity to be heard, was properly granted:

“In the exercise of its police powers [a] municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger” … . “[W]here there is competent evidence allowing the official to reasonably believe that an emergency does in fact exist, or that affording pre-deprivation process would be otherwise impractical, the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion” … . Here, the defendant City of New York made a prima facie showing that its decision to cause the demolition of the subject building was not arbitrary or an abuse of discretion … . In opposition, the plaintiffs failed to raise a triable issue of fact. Iavarone v City of New York, 2015 NY Slip Op 04811, 2nd Dept 6-10-15

 

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