You are here: / Third Department

Tag Archive for: Third Department

, ,

Notice Element of Lead-Paint Injury Cause of Action Explained

In affirming the denial of summary judgment in a lead-paint injury case, the Third Department explained the “notice” elements as follows:

With respect to notice, “[i]t is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time  that, in the exercise of reasonable  care, it should  have been corrected” …. In this context, constructive notice may  be demonstrated by a showing “that the landlord (1) retained a right of entry to the premises and  assumed  a duty to make  repairs, (2) knew  that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” … . Derr v Fleming, 515399, 3rd Dept, 5-9-13

 

,

Post-Arrest Exception to Warrant Requirement for Automobile Search Explained

In upholding a search of a purse inside a vehicle after a traffic stop for a seatbelt violation, the Third Department explained the post-arrest exception to the warrant requirement for an automobile search:

Under the automobile exception to the warrant requirement, the police may search an automobile – including containers found inside – when they have arrested one of its occupants and there is “‘probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape’ “The search, however, need not be limited to items related to the crime for which the occupant is being arrested; it may be instituted when the circumstances provide probable cause to believe that any crime has been or is being committed … .  * * *

The Trooper testified that his search was prompted by his observation of the marihuana stem, the suspicious behavior of the front passenger with respect to the brown purse, the fact that none of the vehicle’s occupants  acknowledged  ownership of such purse and the inconsistent statements made by them regarding their destination. Viewing these circumstances as an integrated whole, we conclude that the Trooper had probable cause to believe that a crime had  been or was  being  committed,  which  justified a search of the vehicle, including the brown purse found therein ….. Since we find no error in the search of the vehicle, we also reject defendant’s claim that the statements he made thereafter should have been suppressed as “fruit of the  poisonous  tree.”  People v Thompson, 104836, 3rd Dept, 5-2-13

SEARCH, SUPPRESSION, SUPPRESS

,

Kicking In Window Satisfies Entry Element of Burglary

In this case, the Third Department determined kicking in a window satisfies the “entry” element of burglary and the recording by the police of a phone conversation between the defendant and his sister, although it may have violated the eavesdropping statute, was not an error preserved for appeal:

“[T]he entry element of burglary is satisfied ‘when a person intrudes within a building, no matter how slightly, with any part of his or her body'” …, and kicking in a window constitutes an entry even when the perpetrator then flees without further intruding into the building ….  *  *  *

Defendant contended  that he  had  a reasonable expectation of privacy during this conversation,  and  now  further asserts that  police committed the crime of eavesdropping by recording this conversation (see Penal Law § 250.05).  We agree with Supreme Court’s rejection of the privacy claim, and the unpreserved eavesdropping claim does not warrant modification in the interest of justice ….  People v McFarland, 104491, 3rd Dept, 5-2-13

 

Procedure for Resentencing Under Drug Law Reform Act Not Followed

County Court failed to comply with the statutory procedure for resentencing pursuant to the Drug Law Reform Act of 2004 (Criminal Procedure Law 440.46).  County Court did not issue a written order re: the new sentence, did not issue written findings of fact and reasons for the sentence, and did not inform the defendant of his right to appeal the resentence or his right to withdraw his motion for resentencing.  The Third Department wrote:

Resentencing under CPL 440.46 incorporates the detailed procedures of the Drug Law Reform Act of 2004 (L 2004, ch 738, § 23…). Those procedures require, as relevant here, that an order issued by  the court informing a defendant of the sentence it will impose in the event of resentencing “must include written findings of fact and reasons for such order” (L 2004, ch 738, § 23 …). Defendant must also be notified that he  or she has a right to appeal that written order of proposed resentencing as well as a right – which can be exercised after the appeal and upon remand – to be  given an  opportunity to withdraw  the application for resentencing before any resentence is imposed…. People v Delayo, 104402, 3rd Dept, 3-2-13

 

,

Post-Arrest Search of Purse Not in Grabbable Area and Not in Vehicle Invalid

The Third Department made a careful analysis of the police actions after receiving an anonymous tip that two women in car were taking drugs.  The court determined the police acted properly in escalating the police intrusion from questioning to arrest, including the search of the car without a warrant.  However, the Third Department held that the post-arrest search of a purse that was not inside the car, and was not in the defendant’s “grabbable area,” was not valid.  In addition the Third Department held the defendant’s answer to a police officer’s question about who owned the purses should have been suppressed, because, at the time of the question, the defendant would not have reasonably believed she was free to go and she had not waived her right to remain silent.  But because her statement was not “involuntary” it would be available for impeachment at trial should she testify.  People v Boler, 104092, 3rd Dept, 5-2-13

SUPPRESSION, SUPPRESS

Failure to Allow Inmate to Observe Search of Cell Required Annulment​

In annulling a disciplinary determination because petitioner was not allowed to observe the search of his cell, the Third Department wrote:

Department of Corrections and  Community Supervision Directive No. 4910 [V] [C] [1] provides, as relevant here, that “[i]f the inmate is removed  from quarters prior to [a] search, he or she shall be  placed outside the immediate area to be  searched, but allowed to observe the search. However, if, in the opinion of a supervisory security staff member, the inmate presents a danger to the safety and security of the facility, the inmate shall be  removed  from the area and  not allowed to observe the search.” At the disciplinary hearing, petitioner raised his objection that he  was  improperly removed  from the area of his cell despite his request to observe the search. Absent  any  indication that a  supervisory staff member determined  that petitioner posed  a  danger  to the security of the facility, we  cannot  conclude  that the Department  of Corrections and Community Supervision complied with Directive No. 4910.  Matter of Mingo v Chappius, 514655, 3rd Dept, 5-2-13

 

, ,

Town Zoning Ordinances Prohibiting Exploration For and Production of Natural Gas (In Response to Concerns Over Hydrofracking) Upheld​

In a full-fledged opinion by Justice Peters, the Third Department held that a town zoning ordinance which banned “all activities which related to the exploration for, and the production or storage of, natural gas and petroleum,” passed in response to concern over “hydrofracking,”  was not preempted by New York’s Oil, Gas and Solution Mining Law (OGSML) (ECL 23-0301, et seq).  The opinion includes an extensive discussion of the legislative history of the preemption language in the OGMSL, as well as the concepts of express, implied and conflict preemption. Norse Energy Corp, USA v Town of Dryden, et al, 515227, 3rd Dept, 5-2-13

For identical reasons, a similar ordinance enacted by the Town of Middlefield was held valid by the Third Department.  Cooperstown Holstein Corp v Town of Middlefield, 515498, 3rd Dept, 5-2-13

 

,

Limitation of Liability Clause in House-Design Contract Valid

he defendant designed plaintiffs’ residence and the first floor was built two feet below what the regulations required resulting in increased flood insurance premiums.  In the contract between the parties, it was agreed to limit defendant’s liability to the amount of the fees paid by plaintiffs.  After noting that contractual liability-limit clauses are valid and enforced except in cases of “gross negligence,” the Third Department determined “gross negligence” had not been demonstrated:  In describing “gross negligence,” the Third Department wrote:

In this context, it is settled  that  “gross negligence differs in kind, not only in degree, from claims of ordinary negligence.  It is conduct  that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing” … .  Soja v Keystone Tozze, LLC, 515422, 3rd Dept 5-2-13

 

, , ,

The Term “Release” (Re Hazardous Substances) Did Not Apply to Migration of Hazardous Substance to Neighbor’s Property Underground​

The Third Department determined there were two equally plausible interpretations of the term “sellers” as used in the contract, rendering the contract ambiguous.  Therefore, the motion to dismiss the complaint prior to discovery was properly denied. In addition, the Third Department determined that the term “release” (re: hazardous substances) did not extend to the migration of hazardous substances to neighboring properties under ground:

…[The provision] requires  indemnification  for environmental  claims  related  to, among other things, a “Release” of hazardous substances “at locations other than [500 Beech].” “Release”  is defined  to include  “any  spilling, leaking, pumping,  pouring,  emitting, emptying, discharging, injecting, dumping  or disposing of any Hazardous  Material  into  the  environment.” In its Canadian action, the neighbor alleged that contaminants – which would be classified as “Hazardous Materials” under the agreement – in the ground  at 500 Beech migrated into the soil and  groundwater at 606 Beech. There is no allegation that hazardous substances were spilled, leaked or otherwise disposed of directly onto the property at 606 Beech. Rather, the allegation is that the flow of underground water carried those substances from 500 Beech, where they had been spilled or leaked, to the neighboring property. Although the hazardous substances eventually wound up at 606 Beech, there is no support for an allegation that the “Release” of those substances occurred at a location other than 500 Beech. Vectron International, Inc, v Corning Oak Holding, Inc, 515408, 3rd Dept, 5-2-13

 

, , ,

Prevailing Wage Law Not Preempted by Federal Telecommunications Act or Labor Relations Act

In upholding the finding that petitioner had failed to pay the prevailing wage for work done for a school district, the Third Department determined the prevailing wage law was not preempted by the federal Telecommunications Act and the Labor Management Relations Act:

Generally, a federal law may supersede a state law where Congress explicitly declares preemption as its intent …, or where the federal law is “‘so pervasive as to make reasonable the inference that Congress left no room for the [s]tates to supplement it'” …. The Court of Appeals has observed, however, that “[t]he presumption against preemption is especially strong with regard to laws that affect the states’ historic police powers over occupational health  and safety issues” …. While the Telecommunications Act is intended to exclusively govern the field of telecommunications service (see 47 USC § 253 [a]), the prevailing wage law is a minimum labor standard … .As such, it falls within the Telecommunications Act’s safe harbor provision, which provides that  “[n]othing  in this section  shall affect the  ability of  a [s]tate to impose, on a competitively neutral basis . . . requirements necessary to . . . protect the public safety and welfare” (47 USC  §  253  [b]). … Nor is the prevailing wage law preempted by the federal Labor Management Relations Act. That statute provides that federal law governs suits to enforce collective bargaining agreements (see 29 USC § 185 [a]). While it is true that the Department  of Labor refers to collective bargaining agreements  to determine  prevailing wages,  those  agreements  are  not  necessarily determinative, and the rights conferred by the prevailing wage law  are independent of those conferred by  such  agreements … . Matter of Pascazi v Gardner, 513528, 3rd Dept, 5-2-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy