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Supreme Court’s Finding Respondent Was No Longer Suffering from a Dangerous Mental Condition Reversed

The Second Department, in a full-fledged opinion by Justice Chambers, over a partial dissent, determined Supreme Court erred in finding that the respondent no longer suffers from a dangerous mental condition and could be released from a secure psychiatric facility.  Respondent is now 74 years old and had stabbed a woman 20 years ago.  He refuses to take medication and he refused to undergo a psychiatric evaluation by the Office of Mental health. There were stark differences in the assessment of his mental condition presented at a hearing pursuant to Criminal Procedure Law 330.20.  The experts arguing for continued retention were named Simon-Phelan and Formica:

Mental Hygiene Law § 1.03(20) defines a mental illness as “an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation” (Mental Hygiene Law § 1.03[20]).

Upon our review of the record, we find that the credible evidence established that the respondent suffers from a mental illness, the first element of a dangerous mental disorder (see CPL 330.20[1];[c]). Simon-Phelan and Formica opined that the respondent suffers from bipolar disorder, along with various personality disorders, whether narcissistic, grandiose, or antisocial. Most relevant, the respondent’s behaviors, consistently displayed over the past 20 years, as thoroughly documented throughout the record, are indicative of these disorders. These behaviors include his aggressive and violent acts, his abrasiveness when speaking to others, his refusal to follow rules, his inappropriate sexual advances, his inflated self-esteem, his high level of energy, his excessive writing, and his overzealousness with respect to litigation … . Although the categorization of the respondent’s mental illness has differed between mental health professionals, a number of professionals have drawn the same conclusions as Simon-Phelan and Formica, dating back as far as 1994. As one psychiatrist put it in 2003, the debate about whether the respondent’s “pathology is Axis I or Axis II or some combination thereof . . . can be carried on indefinitely,” but when one considers his symptomatic exacerbation, poor judgment, and poor impulse control, all of which continue to exist, he remains in “the category of dangerously mentally ill.” Matter of Marvin P, 2014 NY Slip Op 03690, 2nd Dept 5-21-14

 

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Question of Fact Raised Re: Negligent Supervision of Student by School in an Indoor Floor Hockey Game—Student Injured by Gym Teacher Who Was Participating in the Game

The Second Department determined plaintiff, a student playing supervised indoor floor hockey in school, stated a cause of action for negligent supervision:

“A school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent” … . A school is under a duty to adequately supervise the students in its charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . “Whether a student is properly supervised depends largely on the circumstances attending the event'” … . * * *

The defendants’ submissions raised questions of fact as to whether the conduct of [the gym teacher], who was participating in the game during gym class and was involved in the contact which allegedly injured the plaintiff, constituted proper supervision, as well as whether the alleged negligent supervision was a proximate cause of the plaintiff’s injuries … . Godoy v Central Islip Union Free Sch Dist, 2014 NY Slip Op 03652, 2nd Dept 5-21-14

Requirements for Indefinite Tolling of 30-Day Period During Which a No-Fault Carrier Must Determine Whether to Pay or Deny a Claim Explained

The Second Department noted that a request for verification that precedes a no-fault insurer’s receipt of the N-F-5 claim form does not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny the claim. Once the tolling of the 30-day period is triggered, the insurer has 10 days from the expiration of the 30-day period to send a follow-up request for verification inorder to invoke an indefinite tolling of its time to pay or deny:

….[T]his action is not premature[—] the 30-day period in which the defendant must pay or deny the claim has not been indefinitely tolled. “[A]; request for verification that precedes a no-fault insurer’s receipt of the prescribed N-F 5 claim form does not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny such a claim” … . Here, the defendant sent two letters requesting verification, one dated March 15, 2010, and another dated April 15, 2010. The defendant’s verification request dated March 15, 2010, was sent after the defendant received an “interim bill” from the plaintiff, which was sent solely for the purpose of notifying the defendant of the claim, and preceded the defendant’s receipt of the N-F 5 form. Thus, the March 15, 2010, verification request did not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny the claim. Consequently, the only effective request for verification was the one dated April 15, 2010, six days after the defendant’s receipt of the plaintiff’s N-F 5 form … .

The April 15, 2010, verification request resulted in an initial toll of the 30-day period within which to pay or deny the claim (see id.). The defendant then had 10 days from the expiration of that 30-day period to send a follow-up request for verification in order to invoke the protection of the indefinite tolling of its time to pay or deny the claim … . However, no follow-up request was issued. Since the initial toll of the 30-day period following the plaintiff’s submission of the N-F 5 form to the defendant had expired by the time this action was commenced, this action is not premature… . Mount Sinai Hosp v Dust Tr Inc, 2014 NY Slip Op 03667, 2nd Dept 5-21-14

 

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Whether Color-Blind Bus Driver Should Be Given a Road Test to Determine Driving Abilities Was a Proper Subject of Arbitration Pursuant to the Collective Bargaining Agreement

The Second Department determined that whether a bus driver (Cruz), who had been found by a physician to be color-blind, should be given a road test to determine the safety of his driving was the proper subject of arbitration under the collective bargaining agreement.  The NYC Transit Authority (TA) argued that the driver should not undergo a road test and the physician should determine whether the driver met the vision requirements of Vehicle and Traffic Law 509-g (1) and related regulations.  The union filed a grievance on behalf of the driver arguing the TA’s refusal to cooperate with the administration of the road test violated the collective bargaining agreement (CBA):

In the public sector context, determining whether a grievance is arbitrable requires a court to first determine whether ” there is any statutory, constitutional or public policy prohibition against arbitration of the grievance'” … . If there is no prohibition against arbitration, then the court must determine “whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement” … .

Contrary to the TA’s contention, no statute or public policy absolutely prohibits an arbitrator from deciding whether Cruz should undergo a road test before it is determined whether Cruz meets the vision requirements. Moreover, the parties’ agreement to arbitrate this dispute is supported by the terms of the CBA. The relevant arbitration provisions of the CBA are broad, and there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA … . Any alleged ambiguity in the CBA as to whether the physician could recommend that Cruz undergo a road test ” is . . . a matter of contract interpretation for the arbitrator to resolve'” … .  Matter of New York City Tr Auth v Transport Workers Union of Greater NY Local 100, 2014 NY Slip Op 03689, 2nd Dept 5-21-14

 

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Voluntary Firefighter Should Not Have Been Suspended Without a Hearing Pursuant to the General Municipal Law

The Second Department determined a voluntary firefighter was entitled to a hearing pursuant to the General Municipal Law.  The firefighter was suspended (without a hearing) for six months for acting in a disorderly manner in an a manner unbecoming a member of the fire department:

…[T]here is no merit to the appellants’ contention that they did not have to comply with the hearing requirements of General Municipal Law § 209-l because this matter did not involve the petitioner’s “removal” from the Fire Company. Subsection (3) of General Municipal Law § 209-l provides that:

“[r]emovals on the ground of incompetence or misconduct, except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice and upon stated charges and with the right to such officer or member to a review pursuant to article seventy-eight of the civil practice law and rules. Such charges shall be in writing and may be made by any such authority. The burden of proving incompetency or misconduct shall be upon the person alleging the same.”

“[A] volunteer firefighter must be afforded due process in disciplinary proceedings” … . This is true whether the penalty that is ultimately imposed entails the firefighter’s permanent removal from his or her position, or a suspension from the position. As set forth in General Municipal Law § 209-l(5), “[t];he officer or body having the power to remove the person charged with incompetence or misconduct may suspend such person after charges are filed and pending disposition of the charges, and after the hearing may remove such person or may suspend him or her for a period of time not to exceed one year” (emphasis added). The plain meaning of this provision is that a volunteer firefighter may only be temporarily suspended, without a hearing, from the time that the charges are filed until the ultimate disposition of the charges, but that a hearing is required to actually dispose of the charges, and that a final penalty of suspension, not to exceed one year, may only be imposed after that hearing. Consequently, the appellants were required to comply with the procedures set forth in General Municipal Law § 209-l … . Matter of McEvoy v Oyster Bay Fire Co No 1, 2014 NY Slip Op 03688, 2nd Dept 5-21-14

 

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Collateral Estoppel Doctrine Will Not Be Invoked Unless there Has Been at Least One Full Hearing on the Issues Involved

The Second Department, in determining collateral estoppel did not apply to a Notice of Determination that plaintiff was not entitled to unemployment insurance benefits, explained that the collateral estoppel doctrine will not be invoked  unless there has been at least one full hearing on the issues involved:

Pursuant to the doctrine of collateral estoppel, which is otherwise known as issue preclusion, a party may be barred from relitigating an issue which has been decided in another proceeding by a court or in a quasi-judicial administrative forum … . In addition, … “[a];s the consequences of a determination that a party is collaterally estopped from litigating a particular issue are great, strict requirements for application of the doctrine must be satisfied to insure that a party not be precluded from obtaining at least one full hearing on his or her claim” … .

Here, the record does not demonstrate that the Notice of Determination was rendered after a hearing or that it otherwise constitutes a quasi-judicial determination … . Twaddell v Drop & Lock Stor Co Inc, 2014 NY Slip Op 03678, 2nd Dept 5-21-14

 

Proper Procedure Where Ostensibly Relevant Documents Are Not Provided in Discovery Explained

The Second Department explained the proper procedure when ostensibly relevant documents requested in discovery are withheld. The remedy for failure to follow the correct procedure here was the creation of a privilege log and in camera review of the log:

Pursuant to CPLR 3122(b), “[w]henever a person is required . . . to produce documents for inspection, and where such person withholds one or more documents that appear to be within the category of the documents required . . . to be produced, such person shall give notice to the party seeking the production and inspection of the documents that one or more such documents are being withheld. This notice shall indicate the legal ground for withholding each such document, and shall provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information: (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; and (4) such other information as is sufficient to identify the document” (CPLR 3122).

Here, the defendant did not comply with the requirements of CPLR 3122(b), as it failed to identify the type of document being withheld, the general subject matter of each document, and the date of the document … . Under the circumstances of this case, the appropriate remedy for the defendant’s failure to produce an adequate privilege log is to allow the defendant to produce an adequate privilege log and, thereafter, for the Court of Claims to review in camera the allegedly privileged documents, along with the privilege log … . Stephen v State of New York, 2014 NY Slip Op 03505, 2nd Dept 5-14-14

 

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Vehicle On a Flatbed Tow Truck Is Not In “Use or Operation” Within Meaning of Vehicle and Traffic Law 388

The Second Department reversed Supreme Court finding that the owner (Rosa) of a vehicle which is on a flatbed tow truck when the truck is involved in an accident cannot no be liable under Vehicle and Traffic Law 388:

Vehicle and Traffic Law § 388(1) imposes liability on all vehicle owners for accidents resulting from negligence in the permissive “use or operation” of their vehicles, including use “in combination with one another, by attachment or tow” (Vehicle and Traffic Law § 388[1]…). The statute’s primary objective is ” to provide recourse to an injured party against a person, financially able to respond, without whose conduct in permitting use of the vehicle the accident would not have happened'” … .

Here, Rosa’s vehicle was not in use at the time of the accident, either on its own or in combination with the flatbed tow truck… . Rather, it was merely cargo on the flatbed tow truck. Gibson v Sing Towinf Inc, 2014 Slip Op 03483, 2nd Dept 5-14-14

Plaintiffs’ Failure to Attend Depositions Warranted Dismissal of Complaint

The Second Department determined the motion to dismiss plaintiffs’ complaint because of plaintiffs failure to attend depositions should have been granted:

A court may, inter alia, issue an order “prohibiting the disobedient party . . . from producing in evidence . . . items of testimony” or “striking out pleadings” as a sanction against a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126[2], [3]). Before a court invokes the drastic remedy of striking a pleading or the alternative remedy of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious … . While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court … , the Appellate Division is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse … .

Here, in opposition to the appellants’ motion to dismiss the complaint, the plaintiffs’ counsel asserted that the infant plaintiff resides in Georgia and was unable to travel to New York on his own. The plaintiffs’ counsel did not proffer any excuse as to why the remaining plaintiffs could not appear for court-ordered depositions. The willful and contumacious character of the plaintiffs’ conduct can be inferred from their failures to comply with several court orders over a period of one year and five months directing them to appear for depositions, and the lack of a reasonable excuse for those failures … . That the infant plaintiff and his parents had made themselves unavailable does not preclude the dismissal of the complaint … . Harris v City of New York, 2014 NY Slip Op 03486, 2nd Dept 5-14-14

 

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Plaintiff Bicyclist Entitled to Summary Judgment—Defendant Driver Made a Left Turn into a Parking Lot When Plaintiff Was Riding in Oncoming Lane

The Second Department determined summary judgment was properly granted to plaintiff bicyclist who was struck by defendants’ vehicle.  Defendant driver (Robert) made a left turn into a parking lot when plaintiff was riding in the oncoming lane:

“There can be more than one proximate cause [of an accident] and thus, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” … . Consequently, “[t]o prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault” … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that Robert, who testified at his deposition that he did not see the plaintiff until seconds before the impact, was negligent in violating Vehicle and Traffic Law §§ 1141 and 1163(a) by making a left turn into the path of oncoming traffic without yielding the right of way to the plaintiff when the turn could not be made with reasonable safety … . The plaintiff also demonstrated that Robert’s negligence was the sole proximate cause of the accident and that he was not comparatively at fault in the happening of the accident through his deposition testimony that he saw Robert’s vehicle stopped and waiting to make the turn, slowed down in response, stood up on his pedals to make eye contact with Robert to ensure that Robert was aware of his presence, and continued riding when he believed that Robert had made eye contact with him. Further, the plaintiff testified that, upon seeing Robert commence making the left turn in front of him, he immediately attempted to apply his brakes and maneuver around Robert’s vehicle, but there was an insufficient amount of time to successfully do so … . Sirlin v Schreib, 2014 NY Slip Op 03504, 2nd Dept 5-14-14

 

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