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No Probable Cause to Search Car Interior After Occupants Were Out of the Car and Patted Down

The Second Department determined the police officer who stopped the car in which defendant was a passenger did not have probable cause to search the interior of the car after the occupants were out of the car and had been patted down.  The court explained the relevant law:

” [A] police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his [or her] own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself [or herself] from harm'” … . Therefore, “absent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’ safety has consequently been eliminated” … . A “narrow exception” to this rule exists in circumstances where:

” following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officer’s safety sufficient to justify further intrusion, notwithstanding the suspect’s inability to gain immediate access to that weapon'”… . People v Baksh, 2014 NY Slip Op 00112, 2nd Dept 1-8-14

 

Defense Counsel Should Have Been Present During Exchange Between Judge and Juror Which Resulted in Disqualification of Juror/Judge Should Have Disclosed Reason for Disqualification

The Second Department determined defense counsel’s absence from an exchange between the judge and a juror, which led to the disqualification of the juror, required reversal:

The juror reported that a third party had told him that the defendant had an “aggressive demeanor,” was a “little wild,” was “somebody you don’t mess around with,” and was someone he “should avoid.” The trial court, in discharging the juror, merely told defense counsel that this juror had lied to the court and, thus, was grossly unqualified to continue serving pursuant to CPL 270.35.

“[A]n inquiry to determine the existence and extent of prejudice affecting the gross disqualification of a sworn juror . . . is inextricably related to defendant’s entitlement to a fair hearing … . Therefore, the unique, indispensable presence of at least the single-minded counsel for the accused’ … is minimally necessary to safeguard that fundamental fairness to defendant” … .

Here, the absence of defense counsel from the in camera interview, coupled with the court’s failure to disclose what the juror said, deprived the defense of the opportunity to inquire as to whether the juror made similar prejudicial statements to any other jurors… . People v Otigho, 2014 NY Slip Op 00128, 2nd Dept 1-8-14

 

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Federal Arbitration Act Applies When Interstate Commerce Involved

The Second Department determined the parties had entered an agreement to arbitrate and, because interstate commerce was involved, federal arbitration law applied.  A New York architectural firm was hired re: the renovation and construction of buildings in Connecticut:

As a threshold matter, the defendants are correct in asserting that this action is governed by the Federal Arbitration Act (hereinafter the FAA) (9 USC § 1 et seq.), which applies to any arbitration agreement evidencing a transaction involving interstate commerce (see 9 USC § 2). * * *

Through the FAA, Congress has declared “a strong federal policy favoring arbitration as an alternative means of dispute resolution” … . In accordance with this policy, doubts as to the arbitrability of a claim are to be resolved in favor of arbitrability … .

On the other hand, arbitration is “a matter of consent, not coercion” … and “a party cannot be required to submit to arbitration any dispute which [it] has not agreed so to submit” … . Under the FAA, the determination as to whether the parties have entered into an agreement to arbitrate is made by applying ordinary state law principles governing the formation of contracts… . Highland HC, LLC v Scott, 2014 NY Slip Op 00089, 2nd Dept 1-8-14

 

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Court Does Not Have the Power to Determine Whether Arbitrator Misinterpreted Collective Bargaining Agreement/Court Can Not Review Merits of Arbitrator’s Determination

The Second Department determined Supreme Court should not have vacated the arbitrator’s award because the award was not “irrational:”

“[J]udicial review of arbitration awards is extremely limited” … . In determining any matter arising under CPLR article 75, “the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute” (CPLR 7501). Accordingly, it is ” not for the courts to interpret the substantive conditions of [a] contract or to [otherwise] determine the merits'” … . “An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached'” … .

The Court of Appeals has recognized “three narrow grounds that may form the basis for vacating an arbitrator’s award—that it violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power”… . As relevant here, an arbitrator exceeds his or her power if the award “g[ives] a completely irrational construction to the provisions in dispute and, in effect, ma[kes] a new contract for the parties” …

The petitioner’s contention that the arbitrator misinterpreted the terms of the collective bargaining agreement constitutes a challenge to the merits of the arbitrator’s determination … . Since the arbitrator’s determination was not “completely irrational” … , the petitioner’s challenge to the merits of the arbitrator’s determination does not provide a ground for vacating that determination… . Matter of Sheriff Officers Assn Inc v Nassau County, 2014 NY Slip Op 00108, 2nd Dept 1-8-14

 

Petitioners Did Not Have Standing to Challenge Construction of Shopping Mall/No Showing of Unique Environmental Injury

The Second Department determined that members of a “Neighborhood Preservation Coalition” did not have standing to challenge the construction of a shopping mall.  The petitioners lived approximately 1300 to 2000 feet away from the proposed construction site:

Contrary to the petitioners’ contention, the Supreme Court properly concluded that they lacked standing. ” [I]n land use matters . . . the plaintiff[s], for standing purposes, must show that [they] would suffer direct harm, injury that is in some way different from that of the public at …large'” … . Here, the individual petitioners, none of whom allege that the site of the proposed mall is visible from their homes, do not live close enough to the site to be afforded a presumption of injury-in-fact based on proximity alone … . Further, the individual petitioners’ allegations are insufficient to demonstrate that the construction of the proposed mall would cause them to suffer an environmental injury different from that of members of the public at large, who use Fairway Drive for access, inter alia, to a golf course… . Matter of Riverhead Neighborhood Preserv Coalition Inc v Town of Riverhead Town Bd, 2013 NY Slip Op 08640, 2nd Dept 12-26-13

 

No Rigid Formula for a Constructive Trust

The Second Department determined that a petition seeking to impose a constructive trust on an IRA properly survived a motion for summary judgment. The petitioners are the children of James (now deceased) and the former beneficiaries of James’ Oppenheiner Funds IRA.  The respondent, Holbrook, is the executor of the estate of James’ second wife (the decedent) and the current beneficiary of the Oppenheimer IRA.  The petitioners alleged that, in return for James’ naming the decedent the beneficiary of the Oppenheimer IRA, the decedent promised to sign a consent form making petitioners the beneficiaries of another IRA.  The petitioners alleged that, when presented with the consent form, the decedent refused to sign it:

…[T]he petition seeking to impose a constructive trust adequately states a cause of action to impose a constructive trust on the proceeds of the Oppenheimer Funds IRA. “The usual elements of a constructive trust are (1) a confidential or fiduciary relation[ship], (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment'” … . However, these factors “are not an unyielding formula which limits a court’s freedom to fashion this equitable remedy’ and the requirements are not to be rigidly applied” … . Thus, a constructive trust “will be erected whenever necessary to satisfy the demands of justice” … .

Here, the marital relationship between James and the decedent provides the necessary confidential relationship …. . The petitioners have sufficiently alleged a promise by the decedent, a change in beneficiary of the Oppenheimer Funds IRA to the decedent in reliance upon that promise, and the decedent’s, and then Holbrook’s, unjust enrichment therefrom. Contrary to Holbrook’s contention, the petitioners possessed a sufficient interest as the previously designated beneficiaries of the Oppenheimer Funds IRA to seek to impose a constructive trust on the proceeds … . Matter of Harold, 2013 NYSlip Op 08629, 2nd Dept 12-26-13

 

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No Special Duty Owed to Claimant/County Clerk Cannot Be Sued For Failure to Properly Docket a Judgment

In a full-fledged opinion by Justice Angiolillo, the Second Department determined that the County Clerk could not be sued by a judgment debtor based on the clerk’s failure to properly docket a judgment.  The court held that no special duty of care was owed by the municipality to the claimant, and therefore it was unnecessary to address the “sovereign immunity” and “discretionary” versus “ministerial” issues:

A “special duty” is “a duty to exercise reasonable care toward the plaintiff,” and is “born of a special relationship between the plaintiff and the governmental entity” (Pelaez v Seide, 2 NY3d 186, 189, 198-199; see McLean v City of New York, 12 NY3d at 199).

“A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” (Pelaez v Seide, 2 NY3d at 199-200; see McLean v City of New York, 12 NY3d at 199). * * *

To satisfy the first and second prerequisites, the claimant must be “one of the class for whose particular benefit the statute was enacted,” and it must be shown that “recognition of a private right of action would promote the legislative purpose” of the governing statutes … . A determination that these two prerequisites are met here would require us to conclude that the class for whose particular benefit the governing statutes were enacted comprises judgment creditors, and that the legislative purpose of the statutory scheme was to make judgment creditors whole for their losses. This is simply not the case. * * *

In any event, even if the first two prerequisites have been met, the third one has not. “[T]he most critical inquiry in determining whether to recognize a private cause of action where one is not expressly provided is whether such action would be consistent with the over-all legislative scheme” … . A private right of action for a new type of claim should not be judicially recognized by implication “where the statutes in question already contain[ ] substantial enforcement mechanisms, indicating that the Legislature considered how best to effectuate its intent and provided the avenues for relief it deemed warranted” … . The judgment lien created by CPLR 5018 and 5203 is simply one weapon in the “arsenal of enforcement mechanisms under CPLR article 52” provided to judgment creditors… .  Flagstar Bank FSB v State of New York, 2013 NY Slip Op 08592, 2nd Dept 12-26-13

 

Defendant Shoveled Sidewalk and Snow Piled on Either Side Melted/Question of Fact Whether Defendant Created the Dangerous Condition Resulting from Subsequent Freezing of Melted Snow

The Second Department determined a question of fact existed about whether defendant created the hazardous condition (ice on a sidewalk) which caused plaintiff to fall.  Defendant testified she shoveled the sidewalk which left one-foot high piles of snow on either side of the sidewalk.  She also testified that she observed the piles of snow melting.  The temperature subsequently fell below freezing and was below freezing at the time of the accident:

The defendant, as the property owner, failed to establish as a matter of law that her snow removal activities did not create the allegedly hazardous icy condition which resulted in the plaintiff’s injuries … . The defendant’s submissions failed to eliminate all triable issues of fact as to whether the ice upon which the plaintiff slipped was formed when snow piles created by the defendant’s snow removal efforts melted and refroze … . Viera v Rymdzionek, 2013 NY Slip Op 08615, 2nd Dept 12-26-13

 

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Rear-End Collision: No Rational Process By Which Jury Could Have Found Plaintiff Negligent

The Second Department determined there was no rational process by which the jury could have found the plaintiff negligent in a rear-end collision case.  Plaintiff’s CPLR 4401 motion for judgment as a matter of law should have been granted. The plaintiff was stopped to allow a pedestrian, who had run in front of the vehicle, to cross.  The defendant acknowledged that he took his eyes off the road briefly to look at the pedestrians and then struck the rear of plaintiff’s car:

” A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision'” … . Moreover, although the issue of comparative fault generally presents a question of fact …, that issue should be submitted to a jury “only where there is a triable issue of fact as to whether the frontmost driver also operated his or her vehicle in a negligent manner” … .

Here, viewing the evidence in the light most favorable to the defendant, there is no rational process by which the jury could find that the defendant had a nonnegligent explanation for the accident, or that the plaintiff was, to any extent, at fault in the happening of the accident. Clarke v Phillps, 2013 NY Slip Op 08585, 2nd Dept 12-26-13

 

“Wheel Stop” in Parking Lot Does Not Present an Unreasonable Risk of Harm

In this slip and fall case, the Second Department determined that a “wheel stop” or concrete divider in a parking lot is an open and obvious condition that does not present an unreasonable risk of harm:

While a landowner has a duty to maintain its premises in a reasonably safe manner for its patrons …, there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous … . Generally “[a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm” … . Bellini v Gypsy Magic Enters Inc, 2013 NY Slip Op 08581, 2nd Dept 12-26-13

 

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