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Handling Of Consecutive Sentences Under the Drug Law Reform Act Explained

Finding the resentence excessive, the Second Department reduced defendant’s resentence under the Drug Law Reform Act (DLRA) from five consecutive 20-year terms to five consecutive 15-year terms, noting that because the original sentence (five 25-to-life terms) was consecutive, the terms imposed under the Drug Law Reform Act must also be consecutive:

Here, the defendant sought to be resentenced for the convictions of criminal sale of a controlled substance in the first degree, for which he had originally received consecutive sentences amounting to a total aggregate term of imprisonment of 125 years to life. Although the Supreme Court correctly observed that it was powerless, under the DLRA, to alter the defendant’s sentence so that the five terms of imprisonment imposed for the convictions of criminal sale of a controlled substance in the first degree run concurrently with each other …, it was nevertheless permitted to “consider any facts or circumstances relevant to the imposition of a new sentence” (L 2004, ch 738, § 23…). Accordingly, under the circumstances, in evaluating the appropriate terms of imprisonment to impose upon resentencing, the Supreme Court should have considered the fact that the sentences that were originally imposed for the convictions of criminal sale of a controlled substance in the first degree were directed to run consecutively to each other … . Here, since the resentences imposed by the Supreme Court were required to run consecutively with each other, the total aggregate term of imprisonment for the convictions of criminal sale of a controlled substance in the first degree still amounted to 100 years in prison. * * *Under the circumstances of this case, including the fact that the courts are constrained from giving effect to the ameliorative purpose of the DLRA by directing resentences to run concurrently with each other when they were originally directed to run consecutively …, we conclude that the resentence imposed was excessive to the extent indicated… . People v Cole, 2014 NY Slip Op 01182, 2nd Dept 2-19-14

 

“Vested Right” Doctrine Explained

The Second Department concluded that the plaintiffs, who were seeking to effect a development plan under less restrictive R-3 zoning regulations, did not have a “vested right” in the plan such that the plan could be carried out after the area was rezoned to implement the more restrictive R-1 zoning regulations. Plaintiffs had negotiated a boundary change and had demolished some structures in furtherance of the development plan. The Planning Board, however, had never granted final unconditional approval of the plan. In explaining the “vested interest” doctrine, the Second Department wrote:

“In New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development” … . “Neither the issuance of a permit . . . nor the landowner’s substantial improvements and expenditures, standing alone, will establish the right. The landowner’s actions relying on a valid permit must be so substantial that the municipal action results in serious loss rendering the improvements essentially valueless”… .”Reliance” is an essential element of the doctrine … . Although many cases speak in terms of reliance on permits …, a right may vest in certain situations when “subdivisions” have been given a “final grant of approval” … . Whether a planning board’s final unconditional approval of a site plan may, even in the absence of a building permit, satisfy the first prong of the test has not been settled in New York …, and it is not before us now. Matter of Exeter Bldg Corp v Town of Newburgh, 2014 NY Slip Op 00996, 2nd Dept 2-13-14

 

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Fall from Subway Platform Not the Result of Negligent Crowd Control

The Second Department reversed Supreme Court and dismissed a lawsuit stemming from plaintiff’s decedent’s fall from a subway platform to the tracks below. The court explained the negligence criteria with respect to the crowd on a subway platform:

“A subway company is not negligent merely because it permits crowds to gather on its platform. Before proof of negligence in this regard may be said to exist, it must be shown that the crowd was so large and unmanaged that a user of the platform was restricted in his free movements or was unable to find a safe standing place, and that as a result of either of those conditions an injury was sustained” … .Here, there is no evidence that the crowd on the subway platform was so large and unmanaged that it restricted the decedent’s freedom of movement to the extent necessary to impose liability on the Transit Authority. The evidence in the record was insufficient to make out a prima facie case of negligence against the Transit Authority and, in effect, was insufficient to establish that any negligence was a proximate cause of the decedent’s injuries… . Garcia v New York Tr Auth, 2014 NY Slip Op 00961, 2nd Dept 2-13-14

 

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Agent for Partially Disclosed Principal Is Personally Liable on the Contract

In finding the agent (Sussman) liable for a contract because the principal was not fully disclosed, the Second Department wrote:

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…[The evidence] indicates at best that Sussman was acting as an agent for a “partially disclosed principal,” in that the agency relationship was known, but the identity of the principal remained undisclosed (Restatement [Second] of Agency § 4[2]…). As an agent for an undisclosed principal, Sussman became personally liable under the contract (…Restatement [Second] of Agency § 321). Stonhard v Blue Ridge Farms, LLC, 2014 NY Slip Op 00985, 2nd Dept 2-13-14

 

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Warrantless Entry Into Defendant’s Backyard Constituted a Search/Defendant Had a Legitimate Expectation of Privacy in His Backyard

The Second Department determined that the police officer’s warrantless entry into defendant’s backyard constituted a search because the defendant had an expectation of privacy there. The fact that the officer was aware of an apparently false report of a fire in the area did not justify the application of the emergency doctrine (also analyzed in the decision). The seized evidence (marijuana and a firearm) should have been suppressed:

A search occurs, thereby triggering the protection of the Fourth Amendment to the United States Constitution and article I, section 12 of the New York Constitution, when the police invade an area where a person has a legitimate expectation of privacy … . A legitimate expectation of privacy exists where a person has manifested a subjective expectation of privacy that society recognizes as reasonable … . The curtilage of the home–the area immediately surrounding and associated with the home or the area that is related to the intimate activities of the home—is part of the home itself … . The determination of whether an area falls within the home’s curtilage may be made by reference to four factors: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by” … .Consideration of these factors in connection with the evidence in this record, including two photographs of a portion of the subject premises, compels us to conclude that the defendant’s rear yard was within the curtilage of the home. The rear yard was in close proximity to the home, shielded from view by those on the street, and within the natural and artificial barriers enclosing the home. This physical arrangement made manifest the defendant’s expectation of privacy, and that expectation is one that society recognizes as reasonable… . People v Theodore, 2014 NY Slip Op 01025, 2nd Dept 2-13-14

 

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Landowners Who Have Been Granted a Variance Are Necessary Parties In an Action Challenging the Variance (CPLR 1001 (b))

The Second Department determined that landowners who were issued a zoning variance were necessary parties in the action challenging the variance. The landowners had not been properly served and Supreme Court went ahead and determined the merits without the landowners in the suit. On appeal the petitioners did not dispute that the landowners were necessary parties, but argued their presence should be excused under the factors in CPLR 1001 (b). The Second Department disagreed, finding that, under the facts, factors 2 through 5 required the landowners to be parties to the action:

A court may excuse the failure to join a necessary party and allow an action to proceed in the interest of justice upon consideration of five factors enumerated in CPLR 1001(b):   (1) whether the petitioner has another remedy if the action is dismissed for nonjoinder, (2) the prejudice that may accrue from nonjoinder to the respondent or to the nonjoined party, (3) whether and by whom prejudice might have been avoided or may in the future be avoided, (4) the feasibility of a protective provision, and (5) whether an effective judgment may be rendered in the absence of the nonjoined party… . Matter of Feder v Town of Islip Zoning Board of Appeals, 2014 NY Slip Op 00998, 2nd Dept 2-13-14

 

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Public Interest Privilege (Protecting Government Documents from Disclosure) Explained

In determining Supreme Court erred when it ordered the county to produce documents sought during discovery without reviewing them to determine the applicability of the asserted public interest privilege, the Second Department wrote:

CPLR 3101(a) broadly mandates “full disclosure of all matter material and necessary in the prosecution or defense of an action.” This provision is to be liberally interpreted in favor of disclosure … . Nonetheless, a party from whom disclosure is sought may seek to prevent disclosure by properly invoking a recognized privilege. “A party asserting that material sought in disclosure is privileged bears the burden of demonstrating that the material it seeks to withhold is immune from discovery” … .”A public interest privilege inheres in certain official confidential information in the care and custody of governmental entities” … . “This privilege permits appropriate parties to protect information from ordinary disclosure, as an exception to liberal discovery rubrics” … . “Specifically, the privilege envelops confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged” … “The justification for the privilege is that the public interest might otherwise be harmed if extremely sensitive material were to lose this special shield of confidentiality”… . Ren Zheng Zheng v Bermeo, 2014 NY Slip Op 00979, 2nd Dept 2-13-14

 

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Subcontractor Which Does Not Supervise or Control Injured Worker May Be Liable Under Common Law Negligence Where It Creates an Unreasonable Risk of Harm

In the course of a decision which discussed several Labor Law issues, the Second Department noted when a subcontractor (here MCN) may be held liable under common law negligence, even where the subcontractor has no authority to supervise or control the injured party’s work:

A subcontractor may be held liable for negligence where the work it performed created the condition that caused the plaintiff’s injury, even if it did not possess any authority to supervise or control the plaintiff’s work or work area … . In response to MCN’s prima facie showing with respect to this cause of action, the plaintiff raised a triable issue of fact as to whether MCN’s employee created an unreasonable risk of harm that was a proximate cause of the plaintiff’s injuries… . Van Nostrand v Race & Rally Constr Co Inc, 2014 NY Slip Op 00651, 2nd Dept 2-5-14

 

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Medical Malpractice Stemming from “Lack of Informed Consent” Explained/Signing a Generic Consent Form Does Not Preclude Suit

The Second Department determined that a question of fact had been raised about medical malpractice stemming from a lack of informed consent.  The plaintiff’s signing of a generic consent form did not entitle the doctor to summary judgment:

…”[L]ack of informed consent is a distinct cause of action which requires proof of facts not contemplated by an action based merely on allegations of negligence” … . A cause of action premised on a lack of informed consent “is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation'” … . Thus, “[t]o establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . Walker v Saint Vincent Catholic Med Ctrs, 2014 NY Slip Op 00653, 2nd Dept 2-5-14

 

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Under City Administrative Code, Accident Occurred Before Time Had Expired for Property Owner to Address Ice on Abutting Sidewalk/Lessee Did Not Exacerbate the Dangerous Condition/No Liability for Slip and Fall

The Second Department determined that neither the owner nor the lessee of commercial property could be held liable for a slip and fall on ice covering the abutting sidewalk.  Under the Administrative Code of the City of New York the owner had until 11:00 am to address the ice that formed the night before (the accident occurred prior to 11:00 am). And the lessee was not liable because it did not undertake any ice removal efforts which made the condition more hazardous:

“The owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so” … . Section 7-210 of the Administrative Code of the City of New York (hereinafter section 7-210) places such a duty on commercial property owners, and imposes tort liability for injuries arising from noncompliance (see Administrative Code § 7-210[a], [b]…). “[T]he language of section 7-210 mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code sections 19-152 and 16-123” … . Pursuant to Administrative Code section 16-123(a), owners of abutting properties have four hours from the time the precipitation ceases, excluding the hours between 9:00 p.m. and 7:00 a.m., to clear ice and snow from the sidewalk (see Administrative Code § 16-123[a]…). Here, the owners had until 11:00 a.m. on the day of the accident to comply with the ordinance. Since that period had not yet expired at the time of the injured plaintiff’s fall, the owners demonstrated, prima facie, that they could not be liable for any failure to clear the sidewalk at the time of the accident … .

The tort liability imposed by section 7-210 extends to “the owner of real property abutting [the subject] sidewalk” (Administrative Code § 7-210[b]). In the absence of a statute or ordinance imposing tort liability on the lessee, it can be held liable only if it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous … . Schron v Jean’s Fine Wine & Spirits Inc, 2014 NY Slip Op 00648, 2nd Dept 2-5-14

 

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