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QUESTIONS OF FACT ABOUT WHETHER THERE WAS A MISREPRESENTATION BY THE INSURED ABOUT A PRIOR BITE BY A DOG, AND WHETHER THERE ACTUALLY WAS A PRIOR BITE, PRECLUDED SUMMARY JUDGMENT ON WHETHER A CANINE POLICY EXCLUSION APPLIED AND WHETHER THERE WAS A TIMELY DISCLAIMER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there were questions of fact whether the insured made a misrepresentation to the insurer and whether the insurer timely disclaimed coverage for a dog bite. There were questions of fact whether the insured was asked about a prior bite by the dog and gave a false answer, and whether there had actually been a prior bite by the dog which would trigger a policy exclusion:

“When construing Insurance Law § 3420 (d), which requires an insurer to issue a written disclaimer of coverage for death or bodily injuries arising out of accidents ‘as soon as is reasonably possible,’ [the Court of Appeals has] made clear that timeliness almost always presents a factual question, requiring an assessment of all relevant circumstances surrounding a particular disclaimer[, and] cases in which the reasonableness of an insurer’s delay may be decided as a matter of law are exceptional and present extreme circumstances” … . “The timeliness of an insurer’s disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage” … . The insurer has an obligation not only to promptly provide notice of disclaimer once it has reached that decision, but to promptly investigate and reach a decision on whether to disclaim … . …

[The insurer] argues that it was entitled to rely on [the insured’s] statement that the dog had not previously bitten anyone. As noted above, there is a question of fact regarding whether [the insurer’s] claims manager actually asked [the insured] if she knew of any prior biting events. If the claims manager never asked that question, the record evidence presents a triable issue of fact as to whether [the insurer] failed to conduct a reasonable and prompt investigation into the potential applicability of the canine exclusion … . If the claims manager asked that question and received a negative answer, as she averred, then [the insurer] would be justified in relying on the representation by its insured … ; however, given that the [insured] had owned the dog for only approximately one month, there would still be a triable question of fact regarding the reasonableness of [the insured’s] investigation. As neither party established, as a matter of law, the reasonableness or unreasonableness of the delay in [the insured’s  disclaimer, neither party was entitled to summary judgment … . Battisti v Broome Coop. Ins. Co., 2018 NY Slip Op 04992, Third Dept 7-5-18

​INSURANCE LAW (DOG BITES, QUESTIONS OF FACT ABOUT WHETHER THERE WAS A MISREPRESENTATION BY THE INSURED ABOUT A PRIOR BITE BY A DOG, AND WHETHER THERE ACTUALLY WAS A PRIOR BITE, PRECLUDED SUMMARY JUDGMENT ON WHETHER A CANINE POLICY EXCLUSION APPLIED AND WHETHER THERE WAS A TIMELY DISCLAIMER (THIRD DEPT))/ANIMAL LAW (DOG BITES, INSURANCE LAW, QUESTIONS OF FACT ABOUT WHETHER THERE WAS A MISREPRESENTATION BY THE INSURED ABOUT A PRIOR BITE BY A DOG, AND WHETHER THERE ACTUALLY WAS A PRIOR BITE, PRECLUDED SUMMARY JUDGMENT ON WHETHER A CANINE POLICY EXCLUSION APPLIED AND WHETHER THERE WAS A TIMELY DISCLAIMER (THIRD DEPT))/DISCLAIMERS (INSURANCE LAW, DOG BITES, QUESTIONS OF FACT ABOUT WHETHER THERE WAS A MISREPRESENTATION BY THE INSURED ABOUT A PRIOR BITE BY A DOG, AND WHETHER THERE ACTUALLY WAS A PRIOR BITE, PRECLUDED SUMMARY JUDGMENT ON WHETHER A CANINE POLICY EXCLUSION APPLIED AND WHETHER THERE WAS A TIMELY DISCLAIMER (THIRD DEPT))

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INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing County Court, determined there was sufficient evidence before the Grand Jury to support several counts dismissed by the motion court. The dismissed counts related to allegedly false information on business records about farm employees’ hours and pay and the employment of a minor (a 14-year-old killed operating heavy farm equipment) in violation of the Labor Law:

“To dismiss an indictment or counts thereof on the basis of insufficient evidence before a grand jury, a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” … . “In the context of grand jury proceedings, ‘legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'” … . “The reviewing court’s inquiry is limited to ‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the [g]rand [j]ury could rationally have drawn the guilty inference'” … . * * *

Viewed most favorably to the People, we find that the evidence before the grand jury provided a prima facie case of falsifying business records in the first degree and offering a false instrument for filing in the first degree. Although there was no proof that defendant himself compiled the relevant time sheets or submitted them to [the bookkeeper], the evidence established that employees reported their hours directly to defendant — who regularly paid them in cash off the books — and that defendant was solely responsible for the accuracy of the payroll information, personally certified the accuracy of two amended [the unemployment insurance] forms and instructed one of his employees to lie about the number of hours he worked. * * *

“[W]here an indictment count incorporates by reference the statutory provision applicable to the crime intended to be charged, it has been repeatedly held that this is sufficient to apprise [a] defendant of the charge and, therefore, renders the count jurisdictionally valid” … . Here, counts 14 and 15 of the indictment each begin by accusing defendant of the crime of prohibited employment of a minor in violation of Labor Law § 145, which provides that a knowing violation of a provision of article 4 of the Labor Law is punishable by a misdemeanor. While County Court correctly noted that Labor Law § 145 does not state a substantive offense, each count then goes on to specify the particular section of article 4 of the Labor Law which defendant is alleged to have violated, as well as the conduct forming the basis of the charges. People v Park, 2018 NY Slip Op 04985, Third Dept 7-5-18

​CRIMINAL LAW (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/INDICTMENTS (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/GRAND JURY (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/EMPLOYMENT LAW (CRIMINAL LAW, FALSE BUSINESS RECORDS, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/LABOR LAW (CRIMINAL LAW, INDICTMENTS, GRAND JURY, EVIDENCE,  INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/MINORS (EMPLOYMENT LAW, CRIMINAL LAW, LABOR LAW, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/UNEMPLOYMENT INSURANCE (CRIMINAL LAW, EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))

SEX OFFENDER MANAGEMENT PROCEEDING IN THIS HIGH PROFILE CASE SHOULD BE CLOSED TO THE PUBLIC TO PROTECT THE IDENTITIES OF THE VICTIMS (THIRD DEPT).

The Third Department determined the respondent’s sex offender management proceeding should be held in a closed courtroom and the record should be sealed to protect the identities of the victims in this high profile sex offense case:

Here, Supreme Court has taken steps to preserve the victims’ anonymity that include orders directing the media to withhold their names, sealing the trial record and granting anonymity to respondent. Nevertheless, our review of the factual details that may be discussed by petitioner’s experts persuades us that, in this particular case, media coverage of a public trial could well lead to the identification of the victims in the media, on the Internet or by those who followed the high profile proceedings in the past. The risk is particularly acute in view of the online presence that permits many of today’s media outlets to disseminate news beyond their subscribers and their local geographic area, in a form that may foster public discussion in comments or on social media, and which then remains permanently available.

Generally, public policy disfavors “limitations on public access to court proceedings” … . However, the right to such access is not without limitation and “must be balanced against other interests which might justify the closing of the courtroom to the public” … . We note that Mental Health Law § 10.08 reflects the strong public policy in favor of protecting the confidentiality of victims of sex offenses by including provisions that prohibit or limit the disclosure of identifying information … . Further, the controlling regulation cites “the nature of the proceedings and the privacy of the parties” as factors that may justify closing the courtroom during civil management proceedings … . Upon balancing the competing interests, we find that — in the limited and particular circumstances presented here — there is a significant risk that a public trial may compromise the anonymity of respondent’s victims. Thus, good cause has been shown to close the courtroom to the public during respondent’s civil management trial … . Matter of State of New York v John T.. 2018 NY Slip Op 05012, Third Dept 7-5-18

​MENTAL HYGIENE LAW (SEX OFFENDER MANAGEMENT PROCEEDING IN THIS HIGH PROFILE CASE SHOULD BE CLOSED TO THE PUBLIC TO PROTECT THE IDENTITIES OF THE VICTIMS (THIRD DEPT))/COURTROOM CLOSURE (MENTAL HYGIENE LAW, SEX OFFENDER MANAGEMENT PROCEEDING IN THIS HIGH PROFILE CASE SHOULD BE CLOSED TO THE PUBLIC TO PROTECT THE IDENTITIES OF THE VICTIMS (THIRD DEPT))

THE SCOPE OF A LANDOWNER’S DUTY TO KEEP PROPERTY IN A SAFE CONDITION IS MEASURED BY FORESEEABILITY, HERE A GRASSY PATH WAS CLEARED OF SNOW BY A SCHOOL CUSTODIAN, SO USE OF THE PATH WAS FORESEEABLE, HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE PATH CONSTITUTED A DANGEROUS CONDITION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there was a question of fact whether a grassy path used to walk from a parking lot to a school building constituted a dangerous condition in this slip and fall case. The path had been cleared of ice and snow by a custodian but the plaintiff described the path as wet and muddy, as opposed to having ice and snow on it. There was a paved walkway to the school and there was testimony the grassy path should not have been cleared of snow:

“As the party seeking summary judgment, defendant bore the initial burden of demonstrating that it had maintained the property in a reasonably safe condition and that it did not create or have actual or constructive notice of the specific allegedly dangerous condition that resulted in plaintiff’s injury” … . To that end, “the scope of a landowner’s duty is measured in terms of foreseeability” … . “Foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated” … .

Here, the evidence shows that defendant created the path on which plaintiff fell and, therefore, the only valid inference is that it was foreseeable that people would use the path once it had been cleared… . Thus, defendant had a duty to maintain the path in a reasonably safe condition … . However, whether “a dangerous condition exists is generally a question for the jury” … , unless “only a single inference can be drawn from the undisputed facts” … . The deposition testimony established that defendant’s employee created the path, but there was no testimony regarding whether there was any additional maintenance. Also, although plaintiff testified that the path was wet and muddy, she could not recall if there was snow or ice on it. Therefore, a triable question of fact exists as to whether the path constituted a dangerous condition … . Ellis v Lansingburgh Cent. Sch. Dist., 2018 NY Slip Op 05011, Third Dept 7-5-18

​NEGLIGENCE (SLIP AND FALL, THE SCOPE OF A LANDOWNER’S DUTY TO KEEP PROPERTY IN A SAFE CONDITION IS MEASURED BY FORESEEABILITY, HERE A GRASSY PATH WAS CLEARED OF SNOW BY A SCHOOL CUSTODIAN, SO USE OF THE PATH WAS FORESEEABLE, HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE PATH CONSTITUTED A DANGEROUS CONDITION (THIRD DEPT))/SLIP AND FALL (THE SCOPE OF A LANDOWNER’S DUTY TO KEEP PROPERTY IN A SAFE CONDITION IS MEASURED BY FORESEEABILITY, HERE A GRASSY PATH WAS CLEARED OF SNOW BY A SCHOOL CUSTODIAN, SO USE OF THE PATH WAS FORESEEABLE, HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE PATH CONSTITUTED A DANGEROUS CONDITION (THIRD DEPT))/FORESEEABILITY (SLIP AND FALL, THE SCOPE OF A LANDOWNER’S DUTY TO KEEP PROPERTY IN A SAFE CONDITION IS MEASURED BY FORESEEABILITY, HERE A GRASSY PATH WAS CLEARED OF SNOW BY A SCHOOL CUSTODIAN, SO USE OF THE PATH WAS FORESEEABLE, HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE PATH CONSTITUTED A DANGEROUS CONDITION (THIRD DEPT))

NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that a new provision of the Workers’ Compensation Law, which directly related to claimant police officer’s disability claim (anxiety and phobias related to the sight of blood), was intended to take effect immediately and should have been applied by the Board. The Board had denied the claim finding that the sight of blood is a usual occurrence in police work:

In September 2016, claimant applied for reconsideration and/or full Board review, which the carrier opposed. On April 10, 2017, while that application was pending, Workers’ Compensation Law § 10 (3) (b) was materially amended, effective immediately. The amendment provided that, as relevant here, “[w]here a police officer . . . files a claim for mental injury premised upon extraordinary work-related stress incurred in a work-related emergency, the [B]oard may not disallow the claim, upon a factual finding that the stress was not greater than that which usually occurs in the normal work environment” … . …

In our view, by directing that the apparent substantive change in the law was to take effect immediately, “the Legislature clearly indicated that th[is] amendment[ is] to be viewed as remedial, designed to correct imperfections in prior law, by giving relief to [an] aggrieved party”… . Moreover, as a general rule, “the law as it exists at the time a decision is rendered on appeal is controlling”… . Consequently, we find that, under these circumstances, the Board was bound to apply the law as it existed at the time it was considering and determining the reconsideration and/or review application, notwithstanding the parties’ apparent failure to make supplemental arguments in submissions to the Board addressing this change in the law. Matter of McMillan v Town of New Castle, 2018 NY Slip Op 04801, Third Dept 6-28-18

WORKERS’S COMPENSATION LAW (NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT))/POLICE OFFICERS (WORKERS’ COMPENSATION LAW, NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT))/BLOOD (ANXIETY RELATED TO THE SIGHT OF BLOOD, POLICE OFFICERS, WORKERS’ COMPENSATION LAW, NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT))/ANXIETY (WORKERS’ COMPENSATION LAW, ANXIETY RELATED TO THE SIGHT OF BLOOD, POLICE OFFICERS, WORKERS’ COMPENSATION LAW, NEW LAW THAT WENT INTO EFFECT WHEN THE CLAIM WAS BEING RECONSIDERED SHOULD HAVE BEEN APPLIED, CLAIMS MAY NO LONGER BE DENIED ON THE FACTUAL FINDING THAT THE STRESS EXPERIENCED BY CLAIMANT IS NOT GREATER THAN THAT WHICH USUALLY OCCURS IN THE WORK ENVIRONMENT, POLICE OFFICER CLAIMED ANXIETY AND PHOBIAS RELATED TO THE SIGHT OF BLOOD (THIRD DEPT))

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DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering a new SORA hearing, determined defendant did not have notice of or an opportunity to object to a 20 point assessment made by the judge sua sponte:

“A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment” … . To that end, SORA requires the People to provide defendant with written notice, at least 10 days prior to the hearing, if they intend to seek a presumptive risk level classification that differs from the Board’s recommendation along with their reasons for doing so… . Similarly, “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to be respond” … . People v Maus, 2018 NY Slip Op 04796, Third Dept 6-28-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT))

POLICE OFFICER’S INJURY WHEN HELPING LIFT A HEAVY DECEASED PERSON WAS NOT THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT).

The Third Department, over a partial dissent, determined the injury to petitioner police officer’s hand was not caused by an “accident” within the meaning of the Retirement and Social Security Law. The injury occurred when officer was helping to lift a heavy deceased person:

With regard to accidental disability retirement benefits, “[p]etitioner bears the burden of demonstrating that his disability arose out of an accident as defined by the Retirement and Social Security Law, and respondent’s determination in that regard will be upheld if supported by substantial evidence”… . To qualify as an accident, the underlying incident “must be a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular or routine employment duties”… . “[A]n injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury”… .

Here, petitioner responded to a call and sustained an injury to his fingers while assisting the medical examiner in carrying a large, deceased male to a transport vehicle. Petitioner acknowledged that this work was within the scope of his job duties, regardless of the heft of the body to be carried. Matter of Iovino v DiNapoli, 2018 NY Slip Op 04814, Third Dept 6-28-18

RETIREMENT AND SOCIAL SECURITY LAW (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICE OFFICER’S INJURY WHEN HELPING LIFT A HEAVY DECEASED PERSON WAS NOT THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT))/POLICE OFFICERS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICE OFFICER’S INJURY WHEN HELPING LIFT A HEAVY DECEASED PERSON WAS NOT THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT))/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (POLICE OFFICER’S INJURY WHEN HELPING LIFT A HEAVY DECEASED PERSON WAS NOT THE RESULT OF AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT))

DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT).

The Third Department determined the road defect which allegedly caused plaintiff to fall off her bicycle over the handlebars was properly found to be trivial and summary judgment was properly awarded to the defendant:

Although a landowner has a duty to maintain its property in a reasonably safe condition…, trivial defects are not actionable… . “[T]here is no predetermined height differential that renders a defect trivial”… . Instead, courts must consider “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury”… . Thus, “a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it unreasonably imperil[s] the safety of a pedestrian” …

The record includes photographs that confirm the size and location of the defect, relative to the roadway and crosswalk, and evinces that plaintiff previously traversed this area on bicycle several times prior to the accident, without incident. The photographs also reveal that the crosswalk against which the defect is located, made of bricks and demarcated from the asphalt with a granite boarder, would be visible to a bicyclist well before his or her tires made contact with the defect… . Gami v Cornell Univ.,2018 NY Slip Op 04812, Third Dept 6-28-18

NEGLIGENCE (BICYCLE ACCIDENT, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))/BICYCLES (NEGLIGENCE, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))/TRIVIAL DEFECT (NEGLIGENCE, BICYCLE ACCIDENT, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))/HIGHWAYS AND ROADS (NEGLIGENCE, BICYCLE ACCIDENTS, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))

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DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT)

The Third Department, in a full-fledged opinion by Justice Devine, determined that the defendant did not have statutory authorization to appeal from a ruling by County Court which allowed the prosecutor access to a pre-sentence investigation report (PSI) prepared in connection with defendant’s prior conviction:

Defendant pleaded guilty to attempted criminal possession of a weapon in the third degree in Saratoga County, and a presentence investigation report (hereinafter PSI) was prepared for County Court prior to his 2006 sentencing. Several years later, an indictment was handed up in Schenectady County charging defendant with various offenses. The Schenectady County District Attorney believed that the PSI contained information relevant to the new criminal action and, as a result, applied to County Court for the limited disclosure and use of the PSI. County Court granted that request, prompting this appeal by defendant. * * *

… [T]he Schenectady County District Attorney’s Office applied for disclosure of the PSI with the aim of using it in a pending criminal action against defendant. The application therefore “relate[s] to a prospective, pending or completed criminal action” so as to constitute a criminal matter, and statutory authorization is required to appeal from any order emanating from it (CPL 1.20 [18] [b]). No such authorization can be found in CPL 450.10 or 450.15 and, thus, the present appeal must be dismissed … . People v Young, 2018 NY Slip Op 04596, Third Dept 6-21-18

​CRIMINAL LAW (DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT)).PRE-SENTENCE INVESTIGATION REPORT (PSI) (DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT))

QUESTION OF FACT WHETHER A FLOOR MAT NINE-SIXTEENTHS OF AN INCH THICK CREATED A TRIPPING HAZARD IN THIS SLIP AND FALL CASE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff, in response to defendant’s motion for summary judgment, had raised a question of fact about whether mats outside shower stalls created a dangerous condition, Plaintiff alleged she tripped on the exposed edge of a mat, which was nine-sixteenths of an inch thick:

… [P]laintiff submitted, among other things, her affidavit, photographs of the mats and the affidavit of Frederick Bremer, an architect who investigated the condition of the locker room. Plaintiff also relied on her own deposition testimony. Plaintiff testified that she was familiar with the locker room and showers because she had been utilizing them five days each week for 11 years and that the photographs accurately depict the condition of the mats. She noted that there were two large, square mats in the shower area that were each comprised of nine smaller interlocking squares. Plaintiff claimed that because the larger mats were never connected, they often moved in relation to each other so that they sometimes overlapped and at other times were located several inches apart — a condition that she claimed had existed continuously since the mats were installed. Plaintiff also stated that she had personally rearranged the mats on several occasions prior to her injury to eliminate the risk of her tripping on them. According to plaintiff, she fell when the toe of her sneaker caught the exposed edge of a mat near the exit to the shower in the location that she marked on one of the photographs that she had submitted.

Bremer concluded that the mats were not properly installed. Specifically, he opined that a gap was created between the mats because they were neither attached to each other nor otherwise properly secured. The resulting gap exposed the edges of the mats, and Bremer opined that the nine-sixteenth-inch height of the exposed mat edges constituted a tripping hazard that violated applicable design standards. He also noted that the manufacturer of the mats recommended installation of a sloped transition piece to eliminate such exposed edges, and that transition pieces were not utilized in the location where plaintiff fell. Facteau v Mediquest Corp., 2018 NY Slip Op 04631, Third Dept 6-21-18

​NEGLIGENCE (QUESTION OF FACT WHETHER A FLOOR MAT NINE-SIXTEENTHS OF AN INCH THICK CREATED A TRIPPING HAZARD IN THIS SLIP AND FALL CASE (THIRD DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER A FLOOR MAT NINE-SIXTEENTHS OF AN INCH THICK CREATED A TRIPPING HAZARD IN THIS SLIP AND FALL CASE (THIRD DEPT))/FLOOR MATS (SLIP AND FALL, QUESTION OF FACT WHETHER A FLOOR MAT NINE-SIXTEENTHS OF AN INCH THICK CREATED A TRIPPING HAZARD IN THIS SLIP AND FALL CASE (THIRD DEPT))

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