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Negligent Training and Supervision Causes of Action Properly Survived Summary Judgment/Lawsuit Stemmed from Sexual Contact Between an Employee of Defendant Residential Facility and Plaintiff, Who Was 14 Years Old

In a case stemming from an employee's (Williams') sexual contact with the plaintiff, a 14-year-old resident of defendant Berkshire Farm Center and Services for Youth, the Third Department determined the negligent training and supervision causes of action properly survived summary judgment:

In order to succeed on a claim of negligent training and supervision of an employee, it must be demonstrated that the employer “knew or should have known of the employee's propensity for the conduct which caused the injury” … and that the allegedly deficient supervision or training was a proximate cause of such injury … . In support of its motion seeking the dismissal of plaintiff's negligent training and supervision claims, defendant presented testimony from its employees — including those who assumed supervisory positions — indicating that there were no prior indicia or reports of any inappropriate conduct by Williams toward the youths residing in the detention facility and that the news of the incident with plaintiff came as a complete surprise … . * * *

…Review of the testimony of defendant's employees reveals that there was a general reluctance on the part of several staff members to report policy violations to supervisors or register complaints regarding staff conduct. Two staff members, in particular, testified that the director was not responsive to reports of improper conduct and she disregarded staff concerns regarding, among other things, scheduling male counselors to work alone during overnight shifts while there were female residents — some of whom were characterized as highly sexually active — in the facility. One staff member testified that he was aware of an incident in which Williams told plaintiff that she was “sexy” as she was returning to her room in a towel after having taken a shower, but he did not confront Williams or report it to his supervisors. Other evidence exists evincing Williams' propensity to engage in inappropriate contact with youths in the facility, including one occasion where it was discovered that a female resident had written Williams' phone number on a slip of paper. Rather than make a comprehensive inquiry about the matter, defendant limited its investigation to questioning the female and Williams. Despite the nature of the incident, defendant's director denied having any concerns about Williams' interaction with the residents. Other testimony by staff members described Williams as a counselor who appeared to relish having authority over the children and he acted aggressively toward them and without apparent concern for their interests. Specifically, one counselor averred that he observed Williams tell a female resident that he would “be with her” under different circumstances and that, although this staff member reported the exchange to a supervisor, Williams was not disciplined. Other complaints to supervisors regarding Williams' improper conduct appear to have gone unaddressed, causing one counselor to opine during his deposition that such reports “went in one ear and out the other.” Viewing this evidence, as well as counselor testimony that defendant did not test or otherwise ensure that its staff members were knowledgeable and compliant with its written policies and instructional materials, in a light most favorable to plaintiff, we find that material issues of fact preclude summary judgment on these causes of action … . Hicks v Berkshire Farm Ctr & Servs for Youth, 2014 NY Slip Op 0889, 3rd Dept 12-18-14

 

Breach of Contract Lawsuit Precluded by Claimant’s Failure to Comply With Notice Requirements Which Were Conditions Precedent—Alleged Misconduct by Defendant Did Not Prevent Compliance with Conditions Precedent—Conditions Precedent Not Waived by Defendant’s Participation In an Attempt to Resolve the Dispute

The Third Department noted that, absent any claim that defendant's misconduct prevented claimant from fulfilling the notice requirements in the contract, the notice requirements were conditions precedent which, because they were not met, precluded the breach of contract lawsuit:

Claimant alleged seven specific items of damages, each of which was subject to contract provisions requiring that notice be provided to defendant within 10 work days and that certain records be kept and submitted to defendant. The contract provided that “[t]he notification and record-keeping provisions of this Contract shall be strictly complied with for disputes of any nature and are a condition precedent to any recovery” … . No party can prevail on a breach of contract claim if that party has failed to perform a specified condition precedent … . According to the contract, the contractor's failure to supply the required notice and submit the required records is deemed a waiver of any related claim by the contractor, “notwithstanding the fact that [defendant] may have actual notice of the facts and circumstances which comprise such dispute and is not prejudiced by said failure.”

Defendant established its entitlement to summary judgment by submitting proof that claimant did not comply with the condition precedent, in that claimant did not provide timely notice for the alleged items of damages and did not timely submit the required records … . In response, claimant did not provide proof that it complied with the notice and record-keeping requirements, but argued that defendant waived noncompliance, had actual knowledge of the disputed items and prevented claimant from complying with those requirements. Those arguments are unavailing. Fahs Constr Group Inc v State of New York, 2014 NY Slip Op 0885, 3rd Dept 12-18-14

 

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Sheriff’s Deputy’s Driving During an Emergency Operation Did Not Rise to the “Reckless Disregard” Standard for Liability

The Third Department determined summary judgment was properly granted in favor of the sheriff's department because the conduct of the sheriff's deputy (Curry) involved in the vehicle accident did not meet the “reckless disregard” standard for vehicles involved in “emergency operations.”  The accident happened when the deputy made a U-turn because he noticed a police officer who appeared to be “having trouble with” a detained suspect:

“Vehicle and Traffic Law § 1104 (a) exempts the drivers of authorized emergency vehicles from the requirements of certain traffic laws when they are 'involved in an emergency operation'” … . This statutory qualified immunity “precludes the imposition of liability for otherwise privileged conduct except where the conduct rises to the level of recklessness” … . By statute, “[e]very . . . police vehicle” is an “authorized emergency vehicle” within the meaning of Vehicle and Traffic Law § 1104 (a) and (b) (Vehicle and Traffic Law § 101 [emphasis added]), and the fact that Curry's police vehicle was unmarked does not compel a contrary conclusion (see Vehicle and Traffic Law § 101…), although it may be relevant to the inquiry into whether he acted recklessly … .

We further find that Curry was exempt from certain traffic laws because he was engaged in an “emergency operation” (Vehicle and Traffic Law §§ 114-b, 1104 [a]…). Specifically, among other privileges, Curry was entitled to “[d]isregard regulations governing directions of movement or turning in specified directions” (Vehicle and Traffic Law § 1104 [b] [4]) and to “[s]top” his vehicle regardless of other traffic laws (Vehicle and Traffic Law § 1104 [b] [1]). Thus, while U-turns were not permitted at this location, Curry was permitted to stop or slow his vehicle in traffic and to make a U-turn, provided he did not act recklessly … . The evidence is undisputed that Curry, having acted to assist an officer who appeared to be having trouble with a detained suspect, was undertaking an “emergency operation.”  Jones v Albany County Sheriff's Dept, 2014 NY Slip Op 08895, 3rd Dept 12-18-14

 

“Possession of Unauthorized Medication” Charge Could Not Stand—Chain of Custody of the Pills Not Demonstrated

The Third Department determined the inmate's “possession of unauthorized medication” charge could not stand because the chain of custody of the pills was not demonstrated:

The procedure to be followed when a suspected contraband drug is found dictates that correction officials prepare “a request for test of suspected contraband drugs” and that “[e]ach person handling the suspected substance shall make an appropriate notation on the form to document . . . the chain of custody of the substance until it is identified” (7 NYCRR 1010.4 [b]). Petitioner sought a copy of the request form with proof of chain of custody and, indeed, sought to have the charges against her dismissed because that document had not been provided to her. Despite her complaints, the Hearing Officer made no effort to obtain either the request form or any other proof to establish the chain of custody… . Matter of Sanabria v Annucci, 2014 NY Slip Op 08893, 3rd Dept 12-18-14

 

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In a DWI Case, Operation Proved by Circumstantial Evidence

The Third Department determined circumstantial evidence the defendant had been driving while intoxicated was sufficient.  The defendant went to a witness' home seeking assistance after his car ended up in a ditch.  [Although not summarized here, the decision, which affirmed the conviction, also has in depth discussions of errors in juror selection (failure to address bias expressed by a juror re: a DWI case where peremptory challenges eventually exhausted), the criteria for juror disqualification when a juror is related to a witness but does not realize it until the witness testified, and related ineffective assistance claims.]:

A defendant need not be driving to operate a vehicle for purposes of the Vehicle and Traffic Law; it is enough if the evidence shows that he or she is behind the wheel with the engine running … . The testimony was that when defendant arrived on [a witness'] doorstep to request assistance with getting the car out of the ditch, he was alone and smelled of alcohol. In addition to the testimony of [witnesses] describing his efforts, defendant acknowledged that he was behind the wheel of the car, and that the car was running with the wheels spinning as he attempted to drive the car out of the ditch. These factors are sufficient to establish that defendant was operating a motor vehicle on a public highway … . People v Colburn, 2014 NY Slip Op 08875, 3rd Dept 12-18-14

 

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Worker’s Compensation Award Made by Arbitrator Pursuant to an Authorized Dispute Resolution Program Is Reviewed Under the Appellate Court’s Limited Arbitration-Review Powers (Not Under the Usual “Substantial Evidence” Standard)

The Third Department noted that a worker's compensation award made by an arbitrator pursuant to an authorized dispute resolution program is not reviewed by the Worker's Compensation Board and is reviewed by the appellate court under the court's limited arbitration-review powers:

Workers' compensation claims generally reach this Court on direct appeal from decisions of the Workers' Compensation Board and are subject to the substantial evidence standard of review (see Workers' Compensation Law § 23…). On the other hand, determinations of workers' compensation claims by arbitrators pursuant to an authorized alternative dispute resolution program are not reviewed by the Board, but may be appealed directly to this Court (see Workers' Compensation Law § 25 [2-c] [d]; 12 NYCRR 314.3 [b]). The substantial evidence standard does not apply to appeals of claims reaching us through the latter procedural route … . Instead, these cases are reviewed under the standard applicable to review of arbitration awards in general (see CPLR 7511).

Pursuant to that standard, courts have limited power to review an arbitrator's award … . Courts may vacate an arbitration award only if it was procured by “corruption, fraud or misconduct,” if the arbitrator was biased (CPLR 7511 [b] [1] [i]; see CPLR 7511 [b] [1] [ii]) or “if [the award] violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power” … . “[A]n arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice”…, nor should courts “otherwise pass upon the merits of the dispute” … . Matter of Diaz, v Kleinknecht Elec, 2014 NY Slip Op 0882, 3rd Dept 12-18-14

 

Reference to Statute in Indictment Cures Any Omission from the Indictment’s Description of the Elements of the Offense

The Third Department noted that failure to include an element of an offense in the description of the offense in the indictment is cured by a reference (in the indictment) to the relevant statute:

To be sure, defendant's claim that the indictment at issue is jurisdictionally defective survives both his guilty plea and his waiver of the right to appeal … . That said, “[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 the defendant of the charge and, therefore, renders the count jurisdictionally valid” … .

Here, defendant pleaded guilty under count 1 of the indictment to the reduced charge of attempting promoting prison contraband in the first degree (see Penal Law §§ 110.00, 205.25 [1]). While it is true that count 1 of the indictment did not allege that defendant “knowingly and unlawfully” introduced dangerous contraband into the correctional facility where he was incarcerated, said count did expressly incorporate by reference the provisions of Penal Law § 205.25 (1), thereby rendering such count jurisdictionally valid… . People v Cane, 2014 NY Slip Op 08879, 3rd Dept 12-18-14

 

Repeated Invitations to Review 60 to 80 Banker’s Boxes of Documents In Response to a Discovery Demand Constituted Willful and Contumacious Behavior Justifying the Striking of the Complaint

The Third Department determined Supreme Court properly struck the pleadings based upon plaintiffs’ failure to comply with discovery demands.  Plaintiffs sued defendants for profits allegedly lost when plaintiffs failed to procure a printing and copying contract with the state.  The defendants sought discovery of documents related to the lost profits (alleged to be $1,500,000). Although plaintiffs supplied some relevant information, the discovery demands were repeatedly met with an invitation to review 60 to 80 banker’s boxes of documents in a warehouse:

We recognize that plaintiffs provided certain documents and that [plaintiff’s principal] appeared at a deposition. This limited cooperation does not necessarily preclude a finding of willful and contumacious behavior… . Plaintiffs had the burden to prove damages and defendants were entitled to review documents supporting the damages claim prior to trial. Notably, plaintiffs were able to create and provide annual sales summaries, but never provided the documents that were used to calculate the sales figures. The record confirms that despite Supreme Court’s frequent intervention and direction to produce the documents in a more organized fashion, plaintiffs continued to insist that their offer to have defendants sift through 60 to 80 boxes of miscellaneous business records was adequate. Indeed, plaintiffs refused to respond otherwise even after defendants narrowed their document request following [a] deposition. * * *

In our view, the record demonstrates “[a] pattern of noncompliance” sufficient to support Supreme Court’s finding that plaintiffs’ conduct was willful … . Under the circumstances, we thus conclude that the court did not abuse its discretion in granting defendants’ motion and striking plaintiffs’ complaint. BDS Copy Inks Inc, v International Paper, 2014 NY Slip Op 08692, 3rd Dept 12-11-14

 

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Indian Point Nuclear Power Plants Exempt from a Consistency Review Under New York’s Coastal Management Program—No State Environmental Impact Statements Required—Federal Environmental Impact Statements Prepared in the 1970’s Deemed Sufficient to Trigger the Exemption Under the Plain Meaning of the Statutory and Regulatory Language

The Third Department, in a full-fledged opinion by Justice Clark, determined that the petitioners, owners and operators of Indian Point nuclear power plants seeking renewal of operating licenses, were exempt from New York’s Coastal Management Program (CMP).  The court explained that the plain language of the relevant statutes and regulations did not require the preparation of environmental impact statements pursuant to New York’s State Environmental Quality Review Act (SEQRA), as the Department of State and the lower court had ruled. The fact that environmental impact statements had been prepared in the 1970’s under the federal National Environmental Policy Act (NEPA) was deemed sufficient to trigger the exemption:

Petitioners particularly focus upon the second exemption in the CMP, which exempts from consistency review “those projects for which a final [e]nvironmental [i]mpact [s]tatement has been prepared prior to the effective date of the Department of State [p]art 600 regulations … .” 19 NYCRR part 600 took effect in 1982. Indian Point 2 and Indian Point 3 went into operation prior to the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) taking effect in 1976 and, as such, environmental impact statements were not prepared under SEQRA. Final environmental impact statements were prepared pursuant to the National Environmental Policy Act of 1969 (42 USC § 4321 et seq. [hereinafter NEPA]), however, and statements were completed for Indian Point 2 and Indian Point 3 in 1972 and 1975, respectively. Accordingly, applying the plain meaning of the language in the CMP, Indian Point 2 and Indian Point 3 are exempt from consistency review.

The Department nevertheless held that the exemption did not apply to Indian Point 2 and Indian Point 3 because their final environmental impact statements had not been prepared pursuant to SEQRA. There is simply no basis in law for injecting such a requirement. The Department noted that 19 NYCRR 600.3 (d) is cited in the exemption and refers to final environmental impact statements prepared under the SEQRA regulatory regime, but that regime permits the use of final environmental impact statements prepared under NEPA (see 6 NYCRR 617.2 [n]; 617.15 [a]; Philip Weinberg, Practice Commentaries, McKinney’s Cons Laws of NY, Book 17½, ECL 8-0111). Indeed, SEQRA is modeled upon NEPA, and there is no indication that the final environmental impact statements prepared for Indian Point 2 and Indian Point 3 would not have complied with SEQRA … . Matter of Entergy Nuclear Operation Inc v New York State Dept of State, 2014 NY Slip Op 08702, 3rd Dept 12-11-14

 

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Teacher Who Was Encouraged by the Superintendent to Resign Her Tenured Teaching Position to Take A Library-Position Which Was Subsequently Eliminated Did Not Thereby Voluntarily Waive Her Seniority Rights—She Was Entitled to Reinstatement In Her Tenured Teaching Position With Back Pay

The Third Department determined that a teacher (petitioner) who, at the request of the school superintendent resigned her teaching position to take a library media specialist (LMS) position, did not waive her seniority rights.  After the LMS position was eliminated and petitioner was terminated, petitioner brought an Article 78 proceeding to reinstate her as a tenured teacher. Supreme Court granted the petition and the Third Department affirmed:

Respondents maintain that Supreme Court erred in finding that the termination of petitioner’s employment was arbitrary and capricious and irrational, inasmuch as petitioner freely waived her seniority rights when she resigned from her position as an English teacher. Although an employee may waive his or her seniority rights by resigning or retiring, “such a relinquishment must be knowing and voluntary” … . An effective waiver of such rights must be free from any indicia of duress or coercion … .

The record demonstrates that, when petitioner was encouraged by the interim Superintendent to take the LMS position, she expressed her reluctance to leave her position as an English teacher and asked if she could take a leave of absence rather than resign. The interim Superintendent indicated that a leave of absence would not suffice and that petitioner’s resignation was required. After tendering her letter of resignation, which the Board accepted a month after appointing her to the LMS position, petitioner received a longevity pay increase, continued to accrue sick and personal leave time that had carried over from her English teaching position and also received a severance payment from the District that would not have been made if petitioner had voluntarily severed her employment. Notably, when petitioner moved into the LMS position, she assumed such position without any interruption in service … . Where, as here, an employee does not take the necessary “affirmative steps to terminate all aspects of his or her employment by a school district,” no waiver of seniority and tenure rights will be found … . Accordingly, as the Commissioner’s dismissal of petitioner’s appeal was arbitrary and capricious and lacking a rational basis, Supreme Court’s judgment annulling that determination shall remain undisturbed … . Matter of Kwasnik v King, 2014 NY Slip Op 08697, 3rd Dept 12-11-14

 

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