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No Question of Fact About Whether Defendant Was Strictly Liable for Actions of Dog—Bicyclist Injured When Dog Ran Into Path of Bicycle

The Third Department determined plaintiff did not raise a question of fact about whether a dog had a propensity to chase bicyclists or run into the path of bicyclists. Therefore, the plaintiff, a bicyclist injured when defendant’s dog (Dudley) ran into plaintiff’s path, did not raise a question of fact about whether defendant was strictly liable for the actions of defendant’s dog:

The sole viable claim against the owner of a dog that causes injury is one for strict liability … .  To establish strict liability, “there must be evidence that the animal’s owner had notice of its vicious propensities” … .  “Vicious propensities include the ‘propensity to do any act that might endanger the safety of the persons and property of others in a given situation'” … . Indeed, “a dog’s habit of chasing vehicles or otherwise interfering with traffic could be a ‘vicious propensity'” … .  Therefore, in a case such as this, in the absence of proof that Dudley has a history of chasing bicycles or vehicles or otherwise interfering with traffic, “there is no basis for the imposition of strict liability” … .  Notably, evidence that a dog has a history of barking and running around is insufficient, by itself, to establish a vicious propensity, as such actions “are consistent with normal canine behavior” … . Buicko v Neto, 516669, 3rd Dept 12-5-13

 

Question of Fact Whether Tavern Served Visibly Intoxicated Defendant

The Third Department determined the defendant tavern was unable to exclude the possibility defendant driver was served alcohol after defendant driver was visibly intoxicated in violation of General Obligations Law 11-101:

In order to establish its entitlement to summary judgment, the Tavern was required to present evidence excluding the possibility that it served [defendant driver] alcohol when she was visibly intoxicated (see Alcoholic Beverage Control Law § 65 [2]…).  Hurtado… v Williams, 516727, 3rd Dept 12-5-13

 

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Defendant’s Snow Removal Practices May Have Caused Icy Condition in Parking Lot

In a slip and fall case, the Third Department determined there was a question of fact about whether the snow removal practices of defendant’s contractor created the dangerous icy condition:

…[T]here are factual issues posed as to whether defendant’s snow removal procedures created the dangerous condition.  Defendant had hired an outside contractor to plow the snow into piles.  Plaintiff alleges that some of the piles were located on the parking lot’s perimeter, as well as between her parking spot and the sidewalk adjacent to the building.  There is a slight grade extending from these areas, encompassing the area of her fall.  Thus, there are factual issues as to whether the snow removal techniques caused the dangerous icy condition when the snow piles melted in the warm weekend weather and then refroze in the night before plaintiff’s accident… . Riozzi v 30 Kingston Realty Corporation, 516533, 3rd Dept 12-5-13

 

Comparative Negligence Not Available in Labor Law 240 (1) Action—Claimant Entitled to Partial Summary Judgment—Suspended Cable On Which Claimant Was Walking to Access Scaffolding Broke

The Third Department determined claimant was entitled to partial summary judgment on his Labor law 240 (1) action.  A cable suspended under a bridge (which held up scaffolding) broke when claimant was walking on the cable to get to the scaffolding. The defendant countered that the workers were instructed to use ladders, not the suspended cables, to access the scaffolding, and claimant should have attached his lanyard to a separate safety cable, not the cable he was walking on:

The purpose of the suspension cables at the work site was to support workers and materials at the elevated height where the work necessarily occurred.  The cable that broke failed to fulfill this fundamental function, and that failure resulted in claimant’s fall.  Claimant established a prima facie case for liability under Labor Law § 240 (1).  Defendant produced proof that, contrary to claimant’s assertion, a separate safety cable was available that he should have used instead of attaching his lanyard to the cable upon which he was walking.  By attaching his lanyard to the suspension cable, claimant protected against the risk of falling but not the possibility of the cable breaking. While this action by claimant could go to comparative negligence (which is not available in a Labor Law § 240 [1] action), it was not the sole proximate cause of the accident and does not establish the recalcitrant worker defense … .

Similarly, the assertion that ladders were available and workers had been instructed to use them instead of walking across the suspension cables does not raise a triable issue under the circumstances of this claim.  This is not a case where claimant lost his balance and fell off the cable while using it instead of the safer way to access the scaffold via a ladder.  Here, the cable broke.  Hence, a device intended to support a worker at an elevated height failed, and that failure was a proximate cause of claimant’s injury.  “Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a [claimant’s] injury) to occupy the same ground as a [claimant’s] sole proximate cause for the injury” … . Accordingly, claimant was entitled to partial summary judgment on his Labor Law § 240 (1) claim.  Portes v New York State Thruway Authority, 516749, 3rd Dept 12-5-13

 

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Five-Month Delay in Notifying Carrier Not Justified by Insured’s Belief Lawsuit Was Fraudulent

The Third Department determined, as a matter of law, that defendant’s failure to notify the insurance carrier of a personal injury lawsuit for nearly five months justified the carrier’s denial of coverage.  The court noted that defendant’s belief the lawsuit was fraudulent was not a “good-faith belief of nonliability;”

“Where a policy of liability insurance requires that notice of an occurrence be given ‘as soon as practicable,’ such notice must be accorded the carrier within a reasonable period of time. The insured’s failure to satisfy the notice requirement constitutes a failure to comply with a condition precedent which, as a matter of law, vitiates the contract” … .  Although “there may be circumstances where the insured’s failure to give timely notice is excusable, . . . [t]he insured bears the burden of establishing the reasonableness of the proffered excuse” … .  In this regard, the reasonableness of the insured’s excuse – although generally presenting a question of fact for a jury … – “may be determined as a matter of law where the evidence, construing all inferences in favor of the insured, establishes that the belief was unreasonable or in bad faith” … .

Here, defendant made a prima facie showing of its entitlement to judgment as a matter of law based upon plaintiff’s nearly five-month delay (August 2008 to January 2009) in notifying defendant of the underlying personal injury action …, and plaintiff failed to tender sufficient proof to raise a question of fact as to the reasonableness of such delay.  Plaintiff’s personal belief that the guest’s lawsuit was fraudulent is not the equivalent of “a good-faith belief of nonliability” … . Vale…v Vermont Mutual Insurance Group, 515999, 3rd Dept 12-5-13

 

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Commissioner of Labor Can Not Be Sued for Her Exercise of Discretionary Judgment Even Where Action Taken by Commissioner Resulted from a Mistaken Interpretation of Labor Law Statutes

The Third Department determined that the Commissioner of Labor was immune from a lawsuit stemming from her orders to seize and destroy fireworks.  At the time of the seizure and destruction, the Commissioner believed the fireworks were “explosives” within the meaning of Labor Law 451 and that the storage of the fireworks violated Labor Law 453.  It was subsequently determined by the Industrial Board of Appeals (IBA) that the fireworks were not “explosives” within the meaning of the Labor Law. In finding that the Commissioner could not be sued for her exercise of discretion (seizing and destroying the fireworks), the court wrote:

As relevant here, this statute authorizes the Commissioner “to seize and impound any explosives found within this state . . . which are in apparent violation” of Labor Law article 16, “where the [C]ommissioner has reason to believe that public safety is endangered by such explosives” (Labor Law § 460 [1] [emphases added]).  Further, “where, in the opinion of the [C]ommissioner, the . . . storage . . . or location of explosives . . . [represents] a danger to public safety, the [C]ommissioner may, without [a] hearing and without liability . . . to the owner . . . direct the seizure and destruction of such explosives” (Labor Law § 460 [5] [emphasis added]).

Under the … statutory authority, the Commissioner was empowered – in her discretion – to seize explosives that appeared to be in violation of Labor Law article 16 if she had reason to believe that they endangered public safety, and to order their destruction “without liability.”  Under settled law, “the common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions” …  That is, “[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the [claimant]” … .  The Commissioner’s determination under Labor Law § 460 to order the seizure and, later, the destruction of the fireworks on the belief – albeit later determined by the IBA to be mistaken – that they constituted “explosives” within her jurisdiction under Labor Law former § 451 (1) was the epitome of a discretionary judgment call and an action taken in the performance of her official duties and governmental functions.  Esposito v State of New York, 515963, 3rd Dept 12-5-13

 

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Hearsay Evidence from Confidential Informant Insufficiently Detailed to Allow Independent Assessment of Credibility and Reliability

The Third Department annulled certain charges against the petitioner because the hearsay evidence was inadequate:

Hearsay in the form of confidential information may provide substantial evidence to support a determination of guilt when it is sufficiently detailed and probative to permit the Hearing Officer to make an independent assessment of its credibility and reliability … .Here, however, the correction officer’s description of the sources’ statements did not indicate that they had been threatened or had personal knowledge of any threats, nor did the officer provide details regarding the basis of their knowledge or whether they personally witnessed any conduct or statements by petitioner.  The testimony was insufficiently detailed and specific to enable the Hearing Officer to independently assess the credibility or reliability of the confidential information, and it appears that he impermissibly relied on the correction officer’s assessment that the sources were truthful… .  Matter of Rosa v Fischer, 515981, 3rd Dept 12-5-13

 

“Strangulation” Conviction Affirmed

In a full-fledged opinion by Justice Garry, the Third Department affirmed defendant’s conviction for strangulation in the second degree (as well as assault in the third degree).  The victim of domestic abuse alleged the defendant choked her with one hand and shoved a piece of pizza in her face with the other.  The court explained the statutory strangulation offenses as follows:

In 2010, the Legislature enacted several criminal statutes to address choking, strangling, and other forms of intentional interference with a victim’s breathing or circulation (see Penal Law art 121; William C. Donnino, Practice Commentaries McKinney’s Cons Laws of NY, Book 39, Penal Law § 121.11, 2013 Pocket Part at 38).  At the time of enactment, the Legislature stated that domestic abusers use strangulation as “a form of power and control [that] has a devastating psychological effect on victims and a potentially fatal outcome” (Senate Mem in Support, Bill Jacket, L 2010, ch 405, 2010 McKinney’s Session Laws of NY at 1977) and noted that strangulation can be challenging to prosecute as it may not cause obvious injuries, thus allowing the crime to go unpunished (see Assembly Mem in Support, Bill Jacket, L 2010, ch 405).  In the statutory scheme, the severity of the offense is measured by the degree of the consequent harm.  A person commits the misdemeanor of criminal obstruction of breathing or blood circulation when, “with intent to impede the normal breathing or circulation of the blood of another person, he or she a. applies pressure on the throat or neck of such person; or b. blocks the nose or mouth of such person,” with no resulting injury (Penal Law § 121.11).  Such acts resulting in “stupor, loss of consciousness for any period of time, or any other physical injury or impairment” constitute the felony of strangulation in the second degree (Penal Law § 121.12); strangulation in the first degree involves “serious physical injury” (Penal Law § 121.13).  People v Carte, 105808, 3rd Dept 12-5-13

 

One Party’s Video-Recording of Consensual Sexual Activity Without the Other Party’s Knowledge and Consent Violates the Unlawful Surveillance Statute

In a full-fledged opinion by Justice Stein, the Third Department affirmed defendant’s conviction for violating New York’s Unlawful Surveillance statute (Penal Law 250.45).  This “first impression” case involved the defendant’s recording of his sexual activities with two women without the women’s knowledge or consent. The statute was found to apply to the video recording of consensual sexual activity by one of the parties involved in that activity.  Defendant was sentenced to a term in prison.  The relevant portions of the statute at issue provide:

“A person is guilty of unlawful surveillance in the second degree when:

1.         For his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or

2.         For his or her own, or another person’s sexual arousal or sexual gratification, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or

3.         (a) For no legitimate purpose, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent” (Penal Law § 250.45 [1], [2], [3] [a]).  People v Puznarksi, 105460, 3rd Dept 12-5-13

 

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Regulations Promulgated by Administrative Bodies Are Quasilegislative Acts—Any Challenge to the Regulations Must Be Brought in an Article 78 Proceeding Alleging the Regulations to Be Arbitrary and Capricious

The Third Department assumed, without deciding, that the plaintiffs, three New York residents and electricity ratepayers, had standing to bring an action challenging the Regional Greenhouse Gas Initiative (RGGI) which implemented a carbon-dioxide-emission cap and trade program for New York power plants.  The challenged RGGI regulations had been promulgated by the Department of Environmental Conservation (DEC) and the New York State Energy Research and Development Authority (NYSERDA). The court determined the complaint was properly dismissed because, although couched in terms of a request for a declaratory judgment, the action should have been brought as an Article 78 proceeding subject to the four-month statute of limitations:

Although declaratory judgment actions are typically governed by a six-year statute of limitations (see CPLR 213 [1]), “a court must look to the underlying claim and the nature of the relief sought and determine whether such claim could have been properly made in another form” …. “Where, as here, governmental activity is being challenged, the immediate inquiry is whether the challenge could have been advanced in a CPLR article 78 proceeding” … .  “While it is well established that a challenge to the validity of legislation may not be brought under [CPLR] article 78, this principle does not apply to the quasilegislative acts and decisions of administrative agencies,” which are subject to a four-month statute of limitations … .

Here, plaintiffs’ first three causes of action challenge the validity of the RGGI regulations promulgated by DEC and NYSERDA pursuant to the statutory authority granted to those respective administrative bodies pursuant to the Environmental Conservation Law and the Public Authorities Law.  The enactment of such regulations was “quasi-legislative” and, as such, plaintiffs’ challenges thereto were capable of being reviewed in the context of a CPLR article 78 proceeding … .  Although at times couched in terms of constitutional infirmity and illegality, the essence of plaintiffs’ claims against DEC and NYSERDA is that the RGGI regulations are “arbitrary and capricious” and that the decision to promulgate such regulations was “affected by an error of law” (CPLR 7803 [3]…).  Thrun v Cuomo, 516556, 3rd Dept 12-5-13

 

 

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