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No Question of Fact Raised About Whether Buyer Was a Bona Fide Purchaser

The Third Department determined summary judgment was properly granted in favor of a bona fide purchaser(Doyle) of property that had been the subject of plaintiff’s prior sales contract:

…[W]e reject plaintiff’s assertion that Supreme Court erred in finding that Doyle was a bona fide purchaser as a matter of law. “A bona fide purchaser — one who purchases real property in good faith, for valuable consideration, without actual or record notice of another party’s adverse interests in the property and is the first to record the deed or conveyance — takes title free and clear of such adverse interests” … . In support of his motion, Doyle averred that he purchased the property for $455,000, recorded the deed on April 20, 2012 and “was unaware of any contract to purchase [the property] between [NKT] and anyone” prior to doing so. He also denied having ever heard of either plaintiff or its principal prior to filing the deed. [Counsel] confirms that he did not inform Doyle of the negotiations with plaintiff — or even of plaintiff’s existence — prior to the sale of the property. Further, the recording page accompanying the deed — which indicates a purchase price of $455,000 and reflects payment of a transfer tax commensurate with that amount — corroborates Doyle’s allegation regarding the consideration paid for the property (see Tax Law § 1402 [a]). Given this evidence, the burden shifted to plaintiff to raise a question of fact as to whether Doyle “ha[d] knowledge of any fact, sufficient to put him on inquiry [notice] as to the existence of some right or title in conflict with that he [was] about to purchase”… . 10 Cardinal Lane LLC v NKT Land Acquisitions Inc, 2014 NY Slip Op 02990, 3rd Dept 5-1-14

 

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Untimely ​Strict Products Liability Cause of Action Related Back to Timely Negligent Design Cause of Action—Motion to Amend Pleadings to Add Strict Products Liability Cause of Action Against Lessor of Heavy Equipment Should Have Been Granted

The Third Department determined plaintiff should have been allowed to amend the complaint to assert a strict products liability cause of action against the lessor of heavy equipment.  Plaintiff claimed to have slipped and fallen from a slippery surface on the heavy equipment.  The court noted the untimely strict products liability claim was nearly identical to the negligent design cause of action which had been timely alleged:

A commercial lessor may be held liable, even in the absence of fault, for injuries caused by a defective product that the lessor is in the business of leasing … . Leave to amend is to be freely granted “at any time,” so long as there is no prejudice or surprise to the other party (CPLR 3025 [b]…), “and the amendment is not plainly lacking in merit” … .

Although plaintiffs did not seek to amend the complaint until four years after the commencement of the action, [defendant] has not identified any actual prejudice or valid claim of surprise. The proposed amendment is not based on new facts and there is “almost no difference” between negligence and strict products liability claims based on defective design … . Given the functionally synonymous nature of the claims, we conclude that the complaint provided adequate notice of the necessary elements and the proposed amendment relates back to the timely interposition of the negligence claim (see CPLR 203 [f]…). Furthermore, the strict products liability claim cannot be said to be plainly lacking in merit as plaintiffs submitted an affidavit from a certified safety professional who opined that the slippery surface of the excavator was unreasonably dangerous, described why and explained how it could have been made safer … . Stokes v Komatsu Am Corp, 2014 NY Slip Op 02997, 3rd Dept 5-1-14

 

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Plaintiff Injured Falling Off Operating Table—Record Insufficient to Determine Whether Action Sounded in Medical Malpractice (Rendering It Untimely) or Negligence (Rendering It Timely)

The Third Department determined there was insufficient information in the record to determine whether plaintiff’s action sounded in negligence or medical malpractice.  Plaintiff was injured when she fell off the operating table.  The case hinged on whether the 2 1/2 year medical malpractice of the 3 year negligence statute of limitations applied. Supreme Court determined the medical malpractice statute applied and dismissed the complaint. The Third Department sent the matter back for the service of an amended complaint:

The sole issue here is whether the complaint sounds in medical malpractice such that it is subject to a 2½-year statute of limitations, which would make it untimely, or whether it alleges personal injury claims based on ordinary negligence that are subject to a three-year statute of limitations (compare CPLR 214-a, with CPLR 214 [5]). “Conduct may be deemed malpractice, rather than negligence, when it ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician'” … .

The record here does not contain enough factual information to make such a determination. The complaint contains some language that generally refers to malpractice, such as that the “action arose from a surgery,” that plaintiff was “owed a duty by [d]efendants to use the due care of medical specialists in performing” the surgery, and that plaintiff fell after she “was extubated by the [a]nesthesiologist” or “while extubated by” him. While some of the medical records also indicate that plaintiff’s fall from the operating table may have been substantially related to the rendition of medical treatment, one medical note indicates that plaintiff rolled off the table due to the failure to remove an obstruction that prevented a stretcher from being placed next to the operating table. Plaintiff’s causes of action would sound in medical malpractice if she fell off the table due to improper pressure or movement in the removal of the breathing tube, or the failure to properly evaluate her safety and restraint needs while she was under anesthesia … .

On the other hand, her causes of action would sound in ordinary negligence if she never received any safety assessment, if the hospital staff failed to remove an obstruction between the operating table and stretcher and allowed her to fall between them, or if she was simply dropped by the staff members when they were transferring her from the operating table to the stretcher … . Newell v Ellis Hosp, 2014 NY Slip Op 02992, 3rd Dept 5-1-14

 

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General Municipal Law 205-a and Strict Products Liability Causes of Action Brought by Firefighter Injured During a Fire Survive Defendants’ Summary Judgment Motions

The Third Department determined motions for summary judgment by the owners of a building and the manufacturer of a device used to locate firefighters in an emergency were properly denied.  Plaintiff (Dryer) was a firefighter severely injured when a ceiling collapsed on him while he was searching for a fire within the building.  It was alleged the fire was related to violations of the Uniform Fire Prevention and Building Code and the “PASS” device which was supposed to facilitate the locating of a firefighter malfunctioned.  Questions of fact were raised re: the General Municipal Law 205-a and strict products liability causes of action:

General Municipal Law § 205-a creates a statutory cause of action for firefighters who are injured in the line of duty “directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any [federal, state or local] . . . statutes, ordinances, rules, orders and requirements” (General Municipal Law § 205-a [1]…). “To fall within the protective scope of the statute and defeat a motion to dismiss, a plaintiff seeking recovery under General Municipal Law § 205-a must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm to the firefighter” … . * * *

…[W]e [are not] persuaded that Supreme Court erred in denying the owners’ motions for summary judgment dismissing the General Municipal Law § 205-a cause of action. In this regard, the owners bore the initial burden of establishing either that they did not violate any relevant governmental provision or, if they did, that such violation did not directly or indirectly cause Dryer’s injuries … . The “directly or indirectly” language employed in General Municipal Law § 205-a “has been accorded broad application by the courts, ‘in light of the clear legislative intent to offer firefighters greater protections'” … . * * *

“In order to recover in a strict products liability action, the plaintiff must prove that the defendant manufactured for sale, or sold, distributed, leased, or otherwise marketed a product, that the product was defective, that the plaintiff was injured and that the defect was a substantial factor in causing the [plaintiff’s] injury” … . The requisite defect, in turn, may stem from “a manufacturing flaw, improper design or failure to warn” … . Dryer v Musacchio, 2014 NY Slip Op 02986, 3rd Dept 5-1-14

 

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New Paltz Local Wetlands Law Should Not Have Been Annulled

The Third Department, in a lengthy and detailed decision, reversed Supreme Court’s annulment of a Local Law enacted by the Town of New Paltz.  The law was enacted to prevent the “despoliation and destruction of wetlands.”  The court determined, among other issues, the town board had acted in compliance with the State Environental Quality Review Act (SEQRA), the law was not unconsitutionally vague, and the law was not preempted by other laws.  The  court described the “hard look” required by SEQRA, as well as the court’s review-role, as follows:

Initially, respondents contend that Supreme Court erred in concluding that the Board failed to take the “hard look” required by SEQRA before concluding that an environmental impact statement (hereinafter EIS) was not required. SEQRA requires an EIS when an agency action “may have a significant effect on the environment,” and such an impact is presumed to be likely where, as here, a type I action is involved (ECL 8-0109 [2]… 6 NYCRR 617.4 [a] [1]); however, a type I action does not, “per se, necessitate the filing of an [EIS]” … . A negative declaration may be issued, obviating the need for an EIS, if the lead agency — here, the Board — determines that “no adverse environmental impacts [will result] or that the identified adverse environmental impacts will not be significant” (6 NYCRR 617.7 [a] [2]…). Upon judicial review, we may not substitute our judgment for that of the Board, and may annul its decision “only if it is arbitrary, capricious or unsupported by the evidence” … . Matter of Gabrielli v Town of New Paltz, 2014 NY Slip Op 02826, Third Dept 4-24-14

 

Displaying What Appeared to Be a Firearm to Someone Other than the Robbery Victim During Flight from the Robbery Scene Supported Second Degree Robbery Conviction

After noting that merely telling the cashier he had a gun was not enough to meet the criteria for displaying a firearm in the course of a robbery, the Third Department determined that defendant’s “displaying” of what “appeared to be” a firearm to someone other than the victim of the robbery, as he was fleeing from the store he robbed, was sufficient to support his conviction for robbery in the second degree:

To prove the display element, “[t]he People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display” … . While the object displayed need not in fact be a firearm …, “it must appear to the victim by sight, touch or sound that he [or she] is threatened by a firearm” …. The display requirement “cannot be read so broadly as to include mere statements that a robber is armed with a gun” … . While such statements can give meaning to a robber’s otherwise ambiguous actions, such as “a hand consciously concealed in clothing” …, “words alone will not constitute a display of what appears to be a firearm” … .

Here, the cashier testified that defendant said the word “gun” when demanding that she turn over the money, but she did not testify to witnessing any action on his part that would constitute a display of a firearm, nor did she testify that she believed he possessed a firearm. Thus, her testimony is insufficient to establish that defendant displayed a firearm during the robbery. But the inquiry does not end there. Although several cases address the issue as whether the victim perceived the gun …, the statute does not mention to whom the apparent weapon must be displayed (see Penal Law § 160.10 [2] [b]; …). The language of the statute — namely, that the display can occur in the course of “immediate flight” from the robbery and not just during the commission thereof — implies that the display may be directed at an individual other than the victim of the robbery, with the implication that the apparent weapon must be displayed for the purpose of allowing the defendant to deter someone from attempting to either recover possession of the stolen property or impede the defendant’s escape (Penal Law § 160.10 [2] [b]). People v Colon, 2014 NY Slip Op 02626, 3rd Dept 4-17-14

 

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Res Ipsa Loquitur Doctrine Raised Question of Fact About Whether Anesthesiologist, Who Was Alone With the Unconscious Decedent at the Time of Death, Was Negligent

The Third Department noted that the doctrine of res ipsa loquitur raised a question of fact about whether an anesthesiologist (Waid) was negligent:

…[P]laintiff submitted a detailed expert affidavit … . The expert opined that Waid, through overinflation or improper insertion of the endotracheal tube, caused the hemorrhage that immediately led to decedent’s death. Although the exact source of bleeding was never identified, the expert explained possible ways that Waid may have caused the hemorrhage and stated that such bleeding does not ordinarily occur in the absence of negligence, Waid had exclusive control over decedent’s body and the medical instrumentalities at the time, and decedent was unconscious so he could not have contributed to the situation. Therefore, questions of fact exist and plaintiff may rely on the doctrine of res ipsa loquitur to attempt to establish Waid’s negligence… .  Cole v Champlain Val Physicians’ Hosp Med Ctr, 2014 NY Slip Op 02654, 3rd Dept 4-17-14

 

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Defendant’s Statement that He Was Thinking About Talking to an Attorney, Coupled With the Officer’s Interpretation of that Statement as a Request for Counsel, Rendered Invalid Defendant’s Subsequent Agreement to Speak with the Officer without an Attorney Present

The Third Department determined that stopping the defendant, asking him questions, patting him down, and searching a nearby vehicle (in which a loaded firearm was found) were supported by what the officer was told by persons who had just flagged down the officer.  The officer (Van Allen) was told the defendant had threatened one of the persons who flagged him down with a weapon and the defendant had been driving the van that was subjected to the warrantless search.  Subsequently, the defendant told the officer “I am thinking of talking to an attorney,” after which the office stopped questioning him.  Later, when the defendant told the officer he wished to speak with him, and the officer asked if he was willing to answer questions without an attorney present, the defendant said “yes.”  The Third Department determined, in part because the officer interpreted defendant’s statement that he was thinking about talking to an attorney as a request for an attorney, the defendant’s subsequent statement should have been suppressed:

Phrases such as “I think” or “maybe” do not necessarily establish that a request for counsel is uncertain or equivocal … . The relevant inquiry is whether a reasonable police officer would have understood the statement in question as a request for an attorney … . Although this is an objective standard, the fact that an officer did, in fact, treat a defendant’s request as an assertion of the right to counsel is properly taken into account in assessing what a reasonable police officer would have believed … . Here, despite the allegedly sarcastic tone of defendant’s initial statement, VanAllen indicated that he understood it as a request for counsel by promptly ceasing his inquiries. Further, when VanAllen later twice asked whether he had requested counsel, defendant confirmed without any equivocation that he had. Under these circumstances, a reasonable police officer would have understood that defendant had asserted his right to counsel … . Accordingly, defendant’s alleged waiver was ineffective, and his statements following the initial request should have been suppressed. People v Jemmott, 2014 NY Slip Op 02630, 3rd Dept 4-17-14

 

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Court Properly Allowed Defendant to Proceed Pro Se Three Weeks Into His Murder Trial

The Third Department affirmed defendant’s conviction for murder, rejecting the claim that county court’s informing all the jurors that defendant’s prior conviction for the same offenses had been reversed, as well as the community’s knowledge about the case due to publicity, deprived defendant of a fair trial.  In addition, the Third Department concluded that the trial judge did not err in allowing the defendant to proceed pro se three weeks into the trial.  With respect to the propriety of allowing the defendant to represent himself, the court explained:

Here, there is no question that defendant’s mid-trial request to proceed pro se — made some three weeks after the trial commenced — was untimely … . Faced, however, with defendant’s repeated, articulate and impassioned pleas to represent himself, County Court elected — in an exercise of its discretion — to consider the merits of defendant’s request. Although defendant now faults County Court’s decision in this regard, we cannot say — under the particular facts of this case — that reversal upon this ground is warranted.

To be sure, the Court of Appeals has held that once a trial has commenced and witnesses have testified, a defendant’s “right [to proceed pro se] is severely constricted and the trial court must exercise its sound discretion and grant the request only under compelling circumstances” … . The rationale for this rule, however, stems from concerns regarding “the potential for obstruction and diversion” that may attend a defendant’s decision — or be part of a defendant’s strategy — to abandon representation in the midst of the trial, as well as a desire to “avert[] delay and confusion” … . Such concerns were not an issue here, however, and it is clear that, under appropriate circumstances and following sufficient inquiry, mid-trial requests to proceed pro se may be granted … . Based upon our review of the record as whole, and taking into consideration defendant’s insistence that he be allowed to proceed pro se, we are satisfied that County Court did not abuse its discretion in considering the merits of defendant’s request.

As to the sufficiency of County Court’s inquiry, suffice it to say that County Court — repeatedly and in great detail — apprised defendant of the perils and pitfalls of proceeding pro se and went to great lengths to dissuade defendant from doing so. Specifically, County Court cautioned defendant that, while he may have been well versed with the facts of his case, “[t]he practice of law [was] not a simple process” and entailed education and experience that defendant did not possess. County Court went on to note the then-impending testimony of the People’s handwriting and DNA experts and suggested that defendant consider the legal expertise that counsel could bring to examining those witnesses. Additionally, County Court advised defendant that, if he proceeded pro se, he would be held to the same standard as an attorney and would be responsible for the “day-to-day operation of the [trial],” which would include making appropriate objections and motions, cross-examining the People’s witnesses, conducting his defense and preparing a summation. In this regard, County Court expressly warned defendant that his ability to introduce certain evidence or effectively argue any applicable motions likely would be hampered by his lack of legal training, and defendant was afforded ample opportunity to consider (and reconsider) his request and to discuss the matter with counsel.

To be sure, County Court’s inquiry could have been more seamless, but the Court of Appeals has expressly rejected a strict, formulaic approach in this regard, requiring only that the record as a whole “affirmatively disclose that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” … . People v Dashnaw, 2014 NY Slip Op 02624, 3rd Dept 4-17-14

 

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Aunt Met Her Burden of Establishing Extraordinary Circumstances Overcoming Mother’s Superior Right to Custody of Children/Appellate Division Has Authority to Make Those Findings Where Family Court Failed to Do So

After noting that Family Court failed to address whether petitioner, a maternal aunt, had established extraordinary circumstances overcoming the mother’s superior right to custody, the Third Department exercised its power to make the finding that petitioner had met her burden:

Notwithstanding Family Court’s failure to make the threshold determination regarding extraordinary circumstances, we may independently review the record to make such a determination where, as here, the record has been adequately developed … . Based upon that review, we conclude that petitioner met her burden of establishing extraordinary circumstances. Petitioner testified that the older child had lived with her for approximately four years. The younger child had lived with petitioner for about one year, returned to the mother’s home and then resumed living with petitioner. According to petitioner, and as partially corroborated by the mother, the mother’s health issues significantly limited her ability to care for the children. The evidence at trial established that the mother, who has substantial pulmonary issues and requires the aid of oxygen, excessively and inappropriately depended upon the children to assist her with personal and health needs, as well as housekeeping duties. The mother even required the younger child to sleep near her because she was afraid she would stop breathing while sleeping. Additionally, the mother’s health issues hindered her ability to supervise the younger child, who had behavior issues and was getting into trouble at school while she was living with the mother. During various hospitalizations, the mother left the younger child with neighbors and/or relatives, some of whom were of questionable reliability.

It is abundantly clear that the mother was unable to both provide the younger child with a structured environment and to properly care for her; instead, the mother relied upon the child to take care of her. Further, when the younger child was residing with petitioner, the mother consistently pressured her to return to her home — claiming, among other thing, that she needed her home because she was dying — which was upsetting to the child. Multiple witnesses also testified to the unsanitary living conditions in the mother’s trailer, including several occasions when it was flea infested. When the younger child came to live with petitioner, her clothing was ill-fitting and she had significant untreated dental issues. Finally, inasmuch as the older child had been living with petitioner for many years, placing the younger child in petitioner’s care allowed the siblings to reside together. Matter of Roth v Messina, 2014 NY Slip Op 02637, 3rd Dept 4-17-14

 

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