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Escalating Intrusiveness of Police-Encounter with Defendant Justified Under DeBour Criteria—Criteria Explained and Applied

The Second Department, over a dissent, determined the arresting officer, Schwizer, properly escalated the intrusiveness of his encounter with the defendant (under the DeBour criteria) based upon the actions of the defendant:

“On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance” …, the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity … . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality … . The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion … . The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime … . The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime … .

“Encounters between citizens and the police in public places are of an endless variety with no two being precisely alike” … . Here, Schwizer properly exercised his common-law right of inquiry when he initially encountered the defendant, as the defendant matched the general description of a man with a gun at the subject location … .

At this stage in the encounter, absent reasonable suspicion of criminal activity, Schwizer could not forcibly detain the defendant … . However, during his common-law right of inquiry, Schwizer was permitted to ask the defendant to show or raise his hands as a self-protective measure … .

The defendant’s failure to comply with Schwizer’s request to show his hands, coupled with the nature of the report, and the presence of the defendant’s hands in his waist area, escalated the encounter and justified Schwizer’s conduct in grabbing the defendant’s hands as a self-protective measure … . Once Schwizer felt the firearm in the defendant’s waist area, he was furnished with reasonable suspicion … . People v Abdul-Mateen, 2015 NY Slip Op 02489, 2nd Dept 3-25-15

 

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Criteria for Emergency Exception to the Warrant Requirement (Re: Entry of an Apartment) Not Met

The Second Department determined the police should not have entered and apartment without a warrant because the emergency exception to the warrant requirement did not apply.  The landlord had simply indicated a woman was in the apartment without any indication the woman was in distress:

Under the emergency exception to the warrant requirement, the police may make a warrantless entry into a protected area if (1) they have reasonable grounds to believe that there was an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) the search was not primarily motivated by an intent to arrest and seize evidence; and (3) there was some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched … . The United States Supreme Court has determined that the second prong, regarding the subjective intent of the police, is no longer relevant under the Fourth Amendment (see Brigham City v Stuart, 547 US 398, 404-405). However, we need not decide whether the second prong of Mitchell is still viable under the New York Constitution because we conclude that the People did not satisfy the first prong of Mitchell … . The mere sound of unspecified banging and a woman’s voice coming from the upstairs apartment was insufficient to show that there was an emergency at hand requiring the immediate assistance of the police in order to protect life or property … . The owner did not say that she heard the woman screaming or crying for help, and the officers did not observe any indicia of an emergency … . People v Hammett, 2015 NY Slip Op 02498, 2nd Dept 3-25-15

 

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Question of Fact Whether Board of Education Liable for Negligent Supervision of Violent Student

The Second Department determined questions of fact existed re: whether the school had notice of a student’s propensity for violent behavior.  The student allegedly held plaintiff partially outside a fourth-floor window at the school. The court noted that the city was not a proper party to the suit:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Actual or constructive notice to the school of prior similar conduct generally is required, and “an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence” … . A plaintiff also must establish that the alleged breach of the duty to provide adequate supervision was a proximate cause of the injuries sustained … .

Here, in support of their motion for summary judgment, the defendants failed to establish, prima facie, that the Board of Education lacked sufficiently specific knowledge or notice of the dangerous conduct that caused the injury … . The defendants’ motion papers reflect the existence of triable issues of fact as to whether the Board of Education had knowledge of the offending student’s dangerous propensities arising from his involvement in other altercations with classmates in the recent past … . Thus, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the cause of action sounding in negligent supervision insofar as asserted against the Board of Education.  Mathis v Board of Educ. of City of New York, 2015 NY Slip Op 02459, 2nd Dept 3-25-15

 

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Plaintiff Struck by Sled—Village Immune from Liability Under General Obligations Law

The Second Department determined the lawsuit against a village was properly dismissed.  Plaintiff was standing at the bottom of a hill when struck by someone who was sledding.  The hill had long been used for sledding:

The defendant (village) established as a matter of law that it was immune from liability pursuant to General Obligation Law § 9-103, which applies “to private as well as government landowners against claims for ordinary negligence brought by members of the public who come on their property to engage in certain enumerated activities where the land is suitable for those activities” …, including undeveloped areas of public parks (see Myers v State, 11 AD3d 1020, 1021). This statute also applies to a person who is injured when other individuals engaged in an enumerated recreational activity collide with the injured plaintiff … . In opposition, the plaintiff failed to raise a triable issue of fact … . Vannatta v Village of Otisville, 2015 NY Slip Op 02469, 2nd Dept 3-25-15

 

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Board of Commissioner’s Rejection of Hearing Officer’s Award of Supplemental Benefits Was Supported by Substantial Evidence—“Substantial Evidence” Defined and Review Criteria Explained

The Second Department determined the Board of Commissioners of the Greenville Fire District properly rejected a hearing officer’s recommendation that the petitioner be awarded supplemental benefits pursuant to the General Municipal Law. The court explained its review powers and the evidentiary requirements:

“Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence” … . “Substantial evidence means more than a mere scintilla of evidence,’ and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides” … . “When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'” … . “Moreover, where there is conflicting expert testimony, in making a General Municipal Law § 20-a determination, a municipality is free to credit one physician’s testimony over that of another'” … . “Thus, even if conflicting medical evidence can be found in the record,’ the municipality’s determination, based on its own expert’s conclusions, may still be supported by substantial evidence” … .

Here, the determination of the Board of Commissioners of the Greenville Fire District (hereinafter the Board), which rejected the recommendation of a hearing officer and denied the petitioner’s application for benefits pursuant to General Municipal Law § 207-a(2), was supported by substantial evidence … . The Board was entitled to make a finding contrary to the hearing officer’s recommendation, as long as substantial evidence supported the determination … . The Board was free to credit the expert of the Greenville Fire District (hereinafter the Fire District) over the petitioner’s expert, as it did, so long as testimony of the Fire District’s expert was consistent and supported by the medical evidence … . Since the Board’s determination was supported by substantial evidence, we confirm the determination and deny that branch of the petition which was to annul the determination … . Matter of Delgrande v Greenville Fire Dist., 2015 NY Slip Op 02474, 2nd Dept 3-25-15

 

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Observing a “Bulge” Did Not Justify Forcible Detention

The Second Department reversed defendant’s conviction, finding that the police officer’s observation of a bulge did not justify forcible detention:

…[T]he arresting officer did not have reasonable suspicion to believe that the defendant had committed or was about to commit a crime … . The officer briefly observed what he initially characterized only as a “bulge” on the right side of the defendant’s pants. Despite this initial characterization, the officer later testified that he thought he had observed a holster, which turned out to be a buckle attached to the right side of the defendant’s pants. This observation, without more, was not sufficient to permit the officer to forcibly detain the defendant … . Accordingly, the physical evidence recovered from the defendant as a consequence of the unlawful detention and arrest should have been suppressed… . People v Severino, 2015 NY Slip Op 02509, 2nd Dept 3-25-15

 

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Referee’s Authority Exceeded—Authority Comes from Consent of the Parties

The Second Department determined the referee had exceeded his authority in a custody proceeding:

“A referee derives authority from an order of reference by the court (see CPLR 4311), which can be made only upon the consent of the parties, except in limited circumstances,” which are not applicable here … . Here, the parties did not consent to the determination of any issues by a referee, and the order of reference directed the referee to hear and report (see CPLR 4317[a]). Absent the parties’ consent, the referee had the power only to hear and report his findings (see CPLR 4317[a]…). Thus, the referee exceeded his authority in signing an order to show cause pursuant to which the defendant, in effect, sought leave to submit a motion to modify a prior order of custody and to stay the enforcement of an order entered in a related custody proceeding commenced in the Family Court, pending her appeal of that order. The referee further exceeded his authority in temporarily restraining the enforcement of the Family Court’s order and all proceedings in the Family Court pending the determination of that branch of the defendant’s motion which was for a stay … .  Albert v Albert, 2015 NY Slip Op 02439, 2nd Dept 3-25-15

 

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Proof of General Cleaning Procedures Not Sufficient for Summary Judgment to Defendant in a Slip and Fall Case

In a slip and fall case, reversing Supreme Court, the Second Department explained (once again) that proof of general cleaning procedures (as opposed to proof when the area in question was last inspected or cleaned) is not sufficient to warrant summary judgment to the defendant:

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it … . To meet their burden on the issue of lack of constructive notice, the defendants were required to offer some evidence as to when the accident site was last cleaned or inspected prior to the injured plaintiff’s fall … . “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … . Here, the affidavit of the Safety and Security Manager for the subject IKEA store, which was submitted in support of the defendants’ motion, only provided information about the store’s general cleaning and inspection procedures concerning the promenade, and did not show when the subject area had last been inspected or cleaned prior to the happening of the accident … . Thus, the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly dangerous condition … . Furthermore, the defendants failed to establish, prima facie, that the alleged condition was too trivial to be actionable, or was open and obvious and not inherently dangerous as a matter of law. Barris v One Beard St., LLC, 2015 NY Slip Op 02083, 2nd Dept 3-18-15

 

Even Employees “Working Off the Books” Are Barred from Suing Employer in Tort

The Second Department determined plaintiff’s suit against his employer was barred by the Workers’ Compensation Law, even if plaintiff was “working off the books:”

Workers’ compensation benefits are [t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment” … . “This precludes suits against an employer for injuries in the course of employment” … . “[W]henever it appears or will appear from a plaintiff’s pleading, bill of particulars or the facts that the plaintiff was an employee of the defendant, the obligation of alleging and, in any event, of proving noncoverage falls on the plaintiff” … .

Here, in support of their motion for summary judgment, the defendants presented evidence that the plaintiff was an employee of the defendant N.B. Painting and Decorating Corp. (hereinafter N.B. Painting), who was injured in the course of his employment, and that N.B Painting maintained a Workers’ Compensation policy on the date of the accident. Accordingly, the defendants established prima facie that the exclusivity provisions of Workers’ Compensation Law § 11 barred the plaintiff from seeking a recovery in tort against N.B. Painting … .

In opposition, the plaintiff failed to raise a triable issue of fact. “[A]ll employees of an employer are deemed covered by the employer’s workers’ compensation policy, regardless of whether an employee may have been working off the books’, where the employer has secured a policy of insurance coverage” … . De Los Santos v Butkovich, 2015 NY Slip Op 02089, 2nd Dept 3-18-15

 

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Plaintiff Could Not Demonstrate Cause of Her Fall Without Resorting to Speculation

The Second Department determined summary judgment was properly granted to the defendant in a slip and fall case because the plaintiff could not identify the case of her fall:

“Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” … .

“[A] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” … . “Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a slip and fall accident, any determination by the trier of fact as to causation would be based upon sheer conjecture” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting a transcript of the plaintiff’s deposition testimony, which demonstrated that the plaintiff could not identify the cause of her fall without resorting to speculation … . Mitgang v PJ Venture HG, LLC, 2015 NY Slip Op 02101, 2nd Dept 3-18-15

 

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