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Jury Instruction Re: Presumption Will Was Duly Executed Proper Even In Absence of Self-Attesting Affidavits by the Witnesses

The Third Department determined the absence of self-attesting witness affidavits did not preclude instructing the jury that it could presume the will was duly executed if it found that the witnesses signed their names after the attestation clause:

…”[I]f the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, and no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution of what took place at the time” … . The attestation clause here states that decedent signed the will in the presence of the attesting witness, declared the document to be her last will and testament, and the witnesses signed the clause at decedent’s request and in her presence, in accord with the statutory criteria (see EPTL 3-2.1). Moreover, both attesting witnesses confirmed that they were present during the ceremony, that they signed the attestation clause and that decedent appeared of sound mind. One witness testified that he observed decedent sign the will, while the other witness, who was a notary public, testified that she would not have served as a witness unless decedent signed the will in her presence. In this context, Surrogate’s Court properly charged the jury regarding the presumption of due execution of the will … . Matter of Shapiro, 2014 NY Slip Op 07395, 3rd Dept 10-30-14

 

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Odor of Burnt Marijuana Provided Probable Cause to Search Defendant and Vehicle

The Third Department determined that, upon a valid traffic stop, the odor of burnt marijuana detected by officers Denise and Knoetgen provided probable cause for the search of the vehicle and its occupants:

As for the propriety of the … pat down and/or search of defendant, “it is well established that [t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle and its occupants” … . Here, both Denise and Knoetgen testified that they smelled burnt marihuana emanating from defendant’s clothing and the vehicle in which he was riding. Even accepting that Denise’s experience in detecting this distinctive odor was not sufficiently developed at the suppression hearing, we are satisfied that Knoetgen, as a drug recognition expert and a K-9 drug detection officer, possessed the requisite training and experience to do so. Further, and as noted previously, Knoetgen testified that the driver of the vehicle admitted that he and defendant had smoked marihuana prior to being pulled over for the underlying traffic violation … . As the circumstances presented and the observations made by the troopers provided probable cause for Knoetgen’s pat down/search of defendant, we discern no basis upon which to suppress the drugs subsequently seized from defendant’s pant leg. People v Rasul, 2014 NY Slip Op 07378, 3rd Dept 10-30-14

 

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Damages in Medical Malpractice Case Paid by Insurer and Hospital—Therefore Doctor, a Defendant in the Medical Malpractice Case, Could Show No Pecuniary Loss—Legal Malpractice Suit by Doctor Must Therefore Be Dismissed

The Third Department determined that because the damages assessed against a doctor in a medical malpractice action were paid entirely by the insurer and the hospital, she suffered no pecuniary loss.  In the absence of pecuniary loss, she could not maintain a legal malpractice action against her attorneys:

Elements that plaintiff must prove in a legal malpractice action include that her attorney was negligent, she would have succeeded on the merits “but for” her attorney’s negligence and she sustained actual and ascertainable damages … . * * *

Considering first the element of damages, the undisputed proof established that plaintiff did not have to pay any part of the verdict, which was covered in full by the insurer and hospital. Plaintiff’s contention that she sustained non-pecuniary damages, such as a taint on her reputation resulting from media and other coverage of the … verdict, is unavailing since “the established rule limit[s] recovery in legal malpractice actions to pecuniary damages” … . Plaintiff continued working at the hospital after the … verdict and, as her contract was coming to an end about a year later, plaintiff was offered a new contract. … Although plaintiff did not like some of the changes in the terms of the new contract, those same terms were also made mandatory for other physicians and plaintiff was not singled out in such regard because of the … verdict. Defendant produced proof that plaintiff took the position during contract negotiations that she desired to significantly scale back or eliminate the obstetrics part of her practice at the hospital, a move that was opposed by the hospital’s other physicians. Plaintiff eventually elected to resign from the hospital rather than renew her contract. Her arguments that her difficulty in obtaining employment with comparable compensation and that subsequent potential increases in her malpractice premiums resulted directly from the … verdict are speculative and unsupported in this record … . Kaufman v Medical Liab Mut Ins Co, 2014 NY Slip Op 07398, 3rd Dept 10-30-14

 

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Nail and Mail Service Not Valid—Not Calculated to Give Timely Notice of Order to Show Cause Challenging an Independent Nominating Petition

The Third Department determined that the method of service used for petitioner’s order to show cause challenging an independent nominating petition (naming a Libertarian Independent Party candidate for state senator) was not valid and reversed the granting of the application:

The manner of service provided in the order to show cause was not “‘reasonably calculated to give notice to the necessary parties so that receipt of such notice would normally be expected within the statutory 14-day period for commencing a proceeding concerning the validity of a designating petition'” … . To institute a proceeding “under Election Law § 16-102,” a petitioner “must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102 (2)” … . In order to complete service, actual delivery must occur … . The Court of Appeals has held that the method of service employed here — affixing the order to show cause and papers to Bowman’s residence and mailing the same on the last day permitted for commencing a proceeding — is not a method of service reasonably calculated to give timely notice … . Contrary to petitioners’ assertions, our decision in Matter of Grimaldi v Board of Elections of the State of N.Y. (95 AD3d 1644 [2012]) is distinguishable. In that case, we concluded that service by affixing the papers to the respondent’s residence and either faxing or leaving a copy at the office of the respondent’s counsel on the last day to commence a proceeding was permissible; we did not permit affixing the papers to a residence and mailing the same on the last day to commence (id. at 1645-1646). Inasmuch as service was not completed within the time limit set forth in Election Law § 16-102 (2), the proceeding must be dismissed … . Matter of Wilson v Bowman, 2014 NY Slip Op 07289, 3rd Dept 10-24-14

 

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A Retired Police Officer’s Personnel Records, Including Records of Misconduct, Are Exempt from the Freedom of Information Law

The Third Department noted that records of personnel records of a police officer, including records of misconduct, are exempt from the Freedom of Information Law pursuant to the Civil Rights Law, and the exemption extends to retired police officers:

An agency may properly deny access to records that are specifically exempted from disclosure by state statute (see Public Officers Law § 87 [2] [a]). As is relevant here, Civil Rights Law § 50-a (1) provides that “[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department . . .[,] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.” Personnel records include documents relating to misconduct or rule violations by police officers … . Thus, if a document relating to an officer’s public employment may be used “in litigation to harass, embarrass, degrade or impeach [that] officer’s integrity,” then it is protected by Civil Rights Law § 50-a … .

Inasmuch as this Court has expressly ruled that a police officer’s personnel records continue to be exempt from disclosure after he or she departs from public service, we disagree with petitioner’s contention that Supreme Court erred by concluding that Civil Rights Law § 50-a applies to the records of [the officer] as a retired police officer … . Whether an officer “is no longer employed by [an agency] has no bearing upon the question of whether the requested records were or were not used by [that agency] to evaluate his [or her] performance” … . Matter of Columbia-Greene Beauty School Inc v City of Albany, 2014 NY Slip Op 07233, 3rd Dept 10-23-14

 

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Order Re: an Easement Allowing Plaintiffs Access to a Lake Was Specific Enough to Support Finding the Defendants in Civil Contempt (for Violation of the Order)—Willfulness Is Not an Element of Civil Contempt—Mere Act of Disobedience Is Enough

The Third Department determined the defendants were properly found to be in contempt of an order concerning plaintiffs’ easement for access to a lake.  The court explained that the order was specific enough to justify the contempt finding and further explained that willfulness is not an element of civil contempt:

…[D]efendants thus contend that they were not prohibited from partially fencing the passageway or placing other property on it, provided that plaintiffs’ reasonable right of passage was not impaired … . However, the rule relied upon by defendants applies to rights-of-way that are not specifically defined or bounded by the language of the grant … . Here, the 2010 order determined that the deeds granted plaintiffs a defined 60-foot-wide easement and right-of-way consisting of the passageway, and that plaintiffs further possessed rights to construct, maintain and use a dock … . The 2010 order also expressly directed defendants to keep the passageway “free of all brush and tall grasses, junk boats, debris, and other personal property” that interfered or could interfere with plaintiffs’ rights, and to maintain the passageway in an unobstructed fashion. Defendants raised no factual challenge to plaintiffs’ claim that the fencing was partially obstructing the passageway, that they had permitted tall grass and brush to grow, and that they had allowed the accumulation of personal property and debris upon the passageway. Accordingly, Supreme Court correctly found that they violated a clear and unequivocal mandate in these respects … .

Although the 2010 order did not specify the precise location where plaintiffs were to construct their dock, it did direct defendants not to interfere with plaintiffs’ right to construct and use a dock “within the northerly extensions” of the passageway. Plaintiffs submitted a survey map and other evidence demonstrating that defendants had placed their dock in the center of the passageway in such a manner that insufficient space was left in the northerly end for plaintiffs to position or use a dock without infringing on the rights of a neighboring landowner. * * *

We reject defendants’ claim that the contempt finding was improper in that they allegedly believed their actions were justified and, thus, were not willfully disobedient. No finding of willfulness or deliberate disregard is required to sustain a civil contempt determination; “the mere act of disobedience, regardless of motive, is sufficient . . . if such disobedience defeats, impairs, impedes or prejudices the rights of a party”… . Hush v Taylor, 2014 NY Slip Op 07231, 3rd Dept 10-23-14

 

In a Slip and Fall Case, Plaintiff Was Unable to Raise a Question of Fact About Whether a Defect in a Concrete Slab Was More than “Trivial”—Criteria Explained

The Third Department determined a slip and fall complaint was properly dismissed because plaintiff failed to raise a question of fact about whether the chip in a concrete slab was more than a trivial, nonactionable, defect:

Generally, whether a condition is dangerous or merely a nonactionable, trivial defect is a factual question for a jury to resolve … . An owner will not be liable, however, for “‘negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance,'” which may cause “‘a pedestrian [to] merely stumble, stub his [or her] toes, or trip over a raised projection'” … . Accordingly, it is sometimes appropriate, after “consideration of such relevant factors as the dimensions of the alleged defect . . ., including [its] width, depth, elevation, irregularity, and appearance . . .[,] as well as the time, place, and circumstances of the injury” … to conclude as a matter of law that a defect is too trivial to be actionable … . * * *

Under these circumstances, and upon review of the color photographs of the defect, we conclude that defendants met their initial burden of establishing that the chip in the edge of the curb was a trivial defect … . In response to defendants’ prima facie showing, plaintiffs were obligated to submit “evidence to establish that the alleged defect has the characteristics of a trap, snare or nuisance” … . Given the undisputed circumstances of plaintiff’s fall, her attorney’s affirmation, which was of no probative value, was an insufficient response to defendants’ prima facie showing … . Gillis v Herzog Supply Co Inc, 2014 NY Slip Op 07220, 3rd Dept 10-23-14

 

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Where Jail Time Is Contemplated as Punishment for Disobeying an Order of Protection, the Standard of Proof for Willful Contempt is “Beyond a Reasonable Doubt”

The Third Department, in a full-fledged opinion by Justice Lahtinen, determined that the “beyond a reasonable doubt” standard applied in a contempt proceeding where jail time was imposed as a punishment for disobeying an order of protection.  The court held the proof met the standard, but sentenced the respondent to time-served (11 days):

Case law has not been consistent regarding the level of proof when considering an alleged willful violation of a protective order … . This inconsistency may be due in part to the statutory silence as to the quantum of proof (see Family Ct Act § 846-a [stating that the court must be satisfied by “competent proof”]), as well as the fact that, like other statutes implicating contempt, a Family Ct Act article 8 proceeding can involve civil contempt, criminal contempt or both. Criminal and civil contempt have different levels of proof as “criminal contempt must be proven beyond a reasonable doubt,” whereas “civil contempt . . . must be proven by clear and convincing evidence” … .

Where, as here, a person who has violated an order of protection is incarcerated as a punitive remedy for a definite period — with no avenue to shorten the term by acts that extinguish the contempt — then that aspect of the Family Ct Act article 8 proceeding “is one involving criminal contempt [and] [t]he standard of proof that must be met to establish that the individual willfully violated the court’s order is beyond a reasonable doubt” … . Matter of Stuart LL v Aimee KL, 2014 NY Slip Op 07222, 3rd Dept 10-23-14

 

Attack on Plaintiff Upon Leaving Defendant-Lodge’s Premises Not Foreseeable—Landowner Had No Duty to Take Measures to Protect Against the Attack—Evidence Lodge Is Located in a “High Crime” Area Insufficient to Render Such an Attack Foreseeable

The Third Department determined the landowner did not have a duty to take measures to protect plaintiff who was assaulted and stabbed after leaving defendant’s fraternal lodge, even though there was evidence the lodge was located in a “high crime” area.  The evidence of prior crimes at the premises was not sufficient to render the attack on plaintiff foreseeable:

Landowners have a duty of reasonable care to maintain their property in a safe condition; although they “have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not the insurers of a visitor’s safety” … . Notably, “even where there is an extensive history of criminal conduct on the premises, the landowner cannot be held to a duty to take protective measures unless it is shown that he or she either knows or has reason to know from past experience that there is a likelihood of conduct on the part of third persons which is likely to endanger the safety of the visitor” … . “The scope of the duty varies with the foreseeability of the potential harm” … . Stated another way, “no duty is imposed to protect . . . against unforeseeable and unexpected assaults” …, and “landowners have a duty to control third persons only when they have the opportunity to control such persons and are reasonably aware of the need for such control” … . Prior crimes need not be identical to a present crime in order to put a landowner on notice; “the inquiry of foreseeability depends upon the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question” … . Finally, although foreseeability is generally an issue to be resolved by the factfinder, it may be determined as a matter of law where the facts are undisputed and permit only one inference to be drawn therefrom … . Milton v IBPOE The World Forest city Lodge, #180, 2014 NY Slip Op 07242, 3rd Dept 10-23-14

 

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Review Criteria Re: Nonjury Trials Explained/Violation of Vehicle and Traffic Law, Including the Provision Requiring the Exercise of Care to Avoid Colliding with Bicyclists, Constituted Negligence Per Se

The Third Department affirmed a verdict in a nonjury trial finding a state trooper 70% responsible for injuries caused when the trooper’s car collided with plaintiff bicyclist.  The court explained its review powers re: a nonjury trial and noted that the trooper’s violations of Vehicle and Traffic Law, including the provision requiring the exercise of care to avoid colliding with a bicyclist, constituted negligence per se:

When reviewing a determination after a nonjury trial, this Court independently considers the weight of the evidence and may grant whatever judgment is warranted by the record, all while deferring to the trial judge’s factual findings, especially where those findings are based on credibility determinations … . * * *

After weighing the eyewitness and expert testimony and considering it along with the physical evidence, the court determined that the collision occurred in claimant’s lane of travel, meaning that the trooper crossed at least somewhat into claimant’s lane in violation of Vehicle and Traffic Law § 1120 (a). “[A]n unexcused violation of the Vehicle and Traffic Law constitutes negligence per se” … . The court also reasonably determined that the trooper was negligent in cutting the corner while making his left turn, in violation of Vehicle and Traffic Law § 1160 (b)… . Considering the trooper’s testimony that he never saw claimant until the moment of impact, along with evidence regarding the ample sight distance at the intersection and the legal concept that every driver has a duty to see what is there to be seen through the proper use of his or her senses …., the court properly found that the trooper was additionally negligent for violating Vehicle and Traffic Law § 1146 (a), which requires drivers to “exercise due care to avoid colliding with any bicyclist” … . Smith v State of New York, 2014 NY Slip Op 07229, 3rd Dept 10-23-14

 

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