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AFTER THE INITIAL INVESTIGATION AT THE SCENE AND AFTER DEFENDANT WAS HANDCUFFED AND SEATED IN THE BACK OF THE POLICE CAR, THE OFFICER ASKED DEFENDANT “WHAT HAPPENED?”; DEFENDANT’S RESPONSE SHOULD HAVE BEEN SUPPRESSED; CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined statements made by defendant when he was handcuffed in the back of a police car should have been suppressed. The officer (Nellis) asked the defendant “What happened?” after the initial investigation was over:

After Nellis arrived at the scene and discovered defendant in the driveway, he entered the residence and found the victim being treated by defendant’s mother. The victim was convulsing and making gurgling sounds, and Nellis observed bruises and dried blood on her face. Nellis radioed emergency services to respond immediately, exited the residence and informed defendant that he was being detained for questioning. The officer did not immediately ask defendant what happened, but, after defendant was handcuffed and placed in the backseat of the patrol car, Nellis asked defendant, “What happened?” In response, defendant told him that he “snapped” and he “wanted her to feel the pain he had.” Defendant also admitted, “I choked her with a rope but never struck her in the face.” County Court allowed the statements, reasoning that the purpose of Nellis’ questioning was to clarify the nature of the volatile situation rather than to elicit evidence of a crime. We disagree.

The incident had been completed, the parties had been identified and medical assistance requested; defendant had been cooperative and responsive. “[W]here criminal events have been concluded and the situation no longer requires clarification of the crime or its suspects, custodial questioning will constitute interrogation” … . …

We cannot say beyond a reasonable doubt that these statements did not contribute to defendant’s conviction and, as such, the error was not harmless. People v McCabe, 2020 NY Slip Op 02288, Third Dept 4-16-20

 

DEFENDANT WAS NOT GIVEN TIME TO EXERCISE HIS RIGHT TO APPEAR BEFORE THE GRAND JURY; INDICTMENT WAS PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined defendant was not accorded a reasonable time to exercise his right to appear before the grand jury and affirmed the dismissal of the indictment:

… [T]he People were required pursuant to CPL 190.50 (5) (a) to “accord . . . defendant a reasonable time to exercise his right to appear as a witness” before the grand jury. The statute “does not mandate a specific time period for notice; rather ‘reasonable time’ must be accorded to allow a defendant an opportunity to consult with counsel and decide whether to testify before a [g]rand [j]ury” … . As County Court duly recognized, defendant had no such opportunity, for the order assigning counsel was not initially provided to [the conflict defender] by the local court. Defendant, who remained incarcerated, was in no position to know that the appointment order had been misdirected. Nor did the generic presentment notice issued by the People … clarify matters, as it was sent to a number of attorneys, including [the conflict defender]. The People contend, nonetheless, that defendant had an opportunity to testify after the grand jury vote but before the indictment was filed pursuant to CPL 150.5 (5) (a). That contention is unavailing because, under the circumstances presented, defendant was deprived of an opportunity to testify before the grand jury voted … . People v Clark, 2020 NY Slip Op 02204, Third Dept 4-9-20

 

QUESTION OF FACT WHETHER PLAINTIFF ACTED TO MITIGATE ITS DAMAGES FROM THE BREAKDOWN OF EQUIPMENT IN THIS BUSINESS INTERRUPTION INSURANCE CASE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there was a question of fact about whether plaintiff did enough to mitigate damages stemming from the two-day breakdown of a concrete mixer. Plaintiff manufactured and sold precast concrete products:

… [D]efendant relied upon a policy provision that required plaintiff to reduce its losses by undertaking efforts to “[m]ake up for lost business within a reasonable period of time” and “[m]ake use of every reasonable means to reduce or avert loss, including . . . [w]orking extra time or overtime.” Defendant argued that plaintiff failed to make up for the lost production by scheduling extra shifts or weekend work and, thus, failed to mitigate its losses as required by the policy.

Like any other policy provision, mitigation requirements in business interruption insurance policies must be enforced according to their terms … . Here, plaintiff’s president testified that it could not use extra shifts during the work week to make up for lost production due to the nature of its manufacturing process, and that various constraints related to that process and plaintiff’s labor force made it so difficult to schedule weekend work that plaintiff rarely did so. Plaintiff thus limited most of the weekend work that it did schedule to small projects requiring only a few employees. Viewing the evidence in the light most favorable to defendant, we find that the reasonableness of plaintiff’s decision to make up for the lost production during its normal work hours rather than by scheduling overtime shifts on subsequent weekends, as well as the effect of this decision on the amount of its damages, present factual issues that must be resolved by a factfinder … . Binghamton Precast & Supply Corp. v Liberty Mut. Fire Ins. Co., 2020 NY Slip Op 02214, Third Dept 4-9-20

 

CLAIMANT WAS ENTITLED TO MORE COMPENSATION FOR THE 3.86 ACRES TAKEN FOR AN AIRPORT RUNWAY AND THE 80.72 ACRES TAKEN FOR AN AVIGATION (RUNWAY APPROACH) EASEMENT; PURSUANT TO THE ISSUES OF CONTIGUITY, UNITY OF USE AND UNITY OF TITLE. THE ENTIRE PARCEL, NOT A SINGLE SMALLER PARCEL, WAS AFFECTED BY THE TAKING (THIRD DEPT).

The Third Department, in a comprehensive decision too detailed to fairly summarize here, determined claimant was entitled to more compensation for 3.86 acres for an airport runway and 80.72 acres for an avigation easement appropriated by the County. The court considered the following issues: (1) the entire 97.48 acres, as opposed to a 12.9 acre portion, was affected by the taking because there was contiguity, unity of use, and unity of title or ownership; (2) the pretaking value of the land; and (3) the diminution of value based on the avigation easement which affected the height of buildings which could be constructed on the easement. With respect to contiguity, unity of use and unity of title, the court wrote:

Contiguity will be found between parcels when they are “adjacent and lack[] any physical boundary . . . [and are] capable of being traversed” … . “A public highway actually traveled . . . running through a large tract devoted to one purpose does not necessarily divide it into independent parcels, provided the owner has the legal right to cross the intervening strip of land” … . Given the adjacent nature of the parcels and that claimant has a 200-foot right-of-way to cross the power line fee, we find that the parcels meet the element of contiguity … .* * *

… [C]laimant’s planned development, which included retail on the southern parcel and a technology park on the northern parcel, was not merely a “prospective use existing only in the mind’s eye of [claimant] or based upon claimant’s history as a developer” … , but rather a bona fide development, planned thoroughly, whose progress was cut short by the condemnation. As such, the evidence has established that the elements of contiguity, unity of use and unity of ownership have been met … . Matter of County of Warren, 2020 NY Slip Op 02217, Third Dept 4-9-20

 

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RESPONDENT WAIVED HIS RIGHT TO ARBITRATE HIS TERMINATION PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT BY BRINGING A BREACH OF CONTRACT ACTION SEEKING THE SAME RELIEF ON THE SAME GROUNDS, AS WELL AS DAMAGES (THIRD DEPT).

The Third Department, reversing Supreme Court, determined respondent (Ferreira) had waived his right to arbitrate his discharge from employment as a teacher pursuant to the collective bargaining agreement (CBA) because he sought an action at law seeking the same relief on the same grounds, as well as damages:

“Generally, when addressing waiver, courts should consider the amount of litigation that has occurred, the length of time between the start of the litigation and the arbitration request, and whether prejudice has been established” … . Moreover, the Court of Appeals has found no waiver where the ultimate objective of multiple procedures is the same, but the grounds urged for relief are discrete … .

Here, Ferreira waived his right to arbitrate because he chose to pursue an action at law asserting virtually the same grounds for relief and remedies sought in the arbitration. His notice of claim, alleging breach of contract, was filed approximately three months prior to his request for arbitration. An action was thereafter commenced, which was still pending at the time of oral argument, and, “[b]y commencing an action at law involving arbitrable issues, [Ferreira] waived whatever right [he] had to arbitration” … . Although use of litigation to preserve the status quo while awaiting arbitration does not effectuate waiver, Ferreira did not merely seek an equitable relief; rather, he sought monetary damages and other affirmative relief as a result of the termination of his employment and petitioner’s alleged violation of the CBA … . Matter of New Roots Charter Sch. (Ferreira), 2020 NY Slip Op 02223, Third Dept 4-9-20

 

QUESTIONS OF FACT WHETHER DEFENDANT WAS THE OWNER OF THE SCOOTER, WHETHER DEFENDANT KNEW DECEDENT WAS NOT COMPETENT TO OPERATE THE SCOOTER, AND WHETHER DEFENDANT GAVE DECEDENT PERMISSION TO TEST DRIVE THE SCOOTER; THE NEGLIGENT ENTRUSTMENT ACTION SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court in this negligence entrustment action, determined there were questions of fact whether defendant had dominion and control over a scooter which was for sale at a car dealership and therefore “owned” the scooter, whether defendant knew decedent was not competent to operate the scooter, and whether defendant gave the decedent permission to take the scooter for a test drive. Decedent was killed in an accident when she was taking the test drive:

“An owner of a motor vehicle . . . may be liable for negligent entrustment if he or she was negligent in entrusting it to one who he or she knew, or in the exercise of ordinary care should have known, was incompetent to operate it” … . … The [dealership] owner stated in an affidavit that neither his father nor defendant [dealership] owned the scooter. Nevertheless, the scooter was displayed for sale on defendant’s front lot and the owner stated in his deposition testimony that he would push the scooter from the garage to the lot each morning. The keys for the scooter would be in the scooter when it was on display in the lot and then was kept in a separate box behind the owner’s desk when it was not on display. The helmet was likewise kept in the office of the owner’s father. Viewing the foregoing evidence in the light most favorable to plaintiff, we conclude that a question of fact exists as to whether defendant exerted dominion and control over the scooter so as to be its owner … . …

Defendant alternatively argues that it did not have knowledge that decedent was incompetent to operate the scooter. The owner stated that he thought decedent had a motorcycle permit, but he did not confirm this fact with decedent nor did he inquire as to whether she knew how to drive the scooter. The owner also did not check decedent’s driver’s permit or have her sign anything prior to when she drove the scooter. Other than knowing that decedent had ridden a two-wheel Yamaha Enduro road bike in the past, the owner had never seen decedent operate a scooter prior to the accident. In view of this evidence, we find that there is an issue of fact regarding whether the owner should have known that decedent was incompetent to ride the scooter … .

… The owner … admitted that, other than verbally telling decedent to wait for his father, he did not do anything else to try to stop decedent from taking the scooter. Indeed, when asked what he did when decedent walked into his father’s office and took the helmet for the scooter, the owner responded, “Nothing.” A customer who was with the owner when decedent arrived testified that it appeared that decedent did not take the scooter against the owner’s will and that “it look[ed] like . . . there was some sort of agreement because she did go.” Maguire v Upstate Auto, Inc., 2020 NY Slip Op 02226, Third Dept 4-9-20

 

THE CARRIER’S APPLICATION FOR APPEAL SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO INCLUDE THE DATE WHEN THE OBJECTION WHICH IS THE BASIS OF THE APPEAL WAS MADE; THERE WAS ONLY ONE HEARING AND THE REGULATION IN EFFECT AT THE TIME ONLY ASKED “WHEN” THE OBJECTION WAS MADE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the appeal should not have been dismissed for failure to include the date when the objection upon which the appeal is based was made. Apparently there was only one hearing and the regulation in effect at the time of  the appeal application did not specifically require the date of the objection (only “when” the objection was made):

The Board found that the carrier’s response to question number 15 was not complete because it failed to specify “the date of the hearing” at which the carrier interposed its objection or exception to the ruling. “Although the Board has consistently found that listing the hearing date at which the objection or exception was made constitutes a complete response to [the temporal requirement of] question number 15” … , the regulation in effect at the time that the carrier submitted its application for review in June 2018 only required the applicant to state, as pertinent here, “when” the objection or exception was interposed; it did not then require that a date be specified … .

In reviewing the Board’s decision, we are guided by the fundamental principle of administrative law that “judicial review of an agency’s determination is limited to . . . the actual grounds that were relied upon by the agency in reaching its determination” … . Given that the carrier’s response to question number 15 provided temporal information, and in the absence of any finding by the Board that there were multiple hearings, we find that the Board’s denial of the carrier’s application for Board review on the ground it was incomplete — solely because it did not list a date of the hearing — was an abuse of discretion … . Matter of Mone v Deer Park Sand & Gravel Corp., 2020 NY Slip Op 02228, Third Dept 4-9-20

 

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A PART-TIME COLLEGE INSTRUCTOR SHOULD NOT HAVE BEEN AWARDED UNEMPLOYMENT BENEFITS BECAUSE HE HAD BEEN ASSURED OF EMPLOYMENT IN THE SEMESTER FOLLOWING THE SUMMER BREAK; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, over a two-justice dissent, determined claimant, a part-time community college instructor, should not have been awarded unemployment benefits because he had been notified he would be employed in the semester after the summer break. The dissenters argued his employment depended upon course-enrollment which was uncertain:

Pursuant to Labor Law § 590 (10), “professionals who are employed by educational institutions are precluded from receiving unemployment insurance benefits during the period between two successive academic periods if they have received a reasonable assurance of continued employment” … . “A reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period … . * * *

On the record before us, the Board’s decision was not supported by substantial evidence … . inasmuch as claimant received a reasonable assurance of continued employment for the 2018 fall semester such that he was ineligible to receive unemployment insurance benefits … . Matter of Barnett (Broome County Community Coll.–Commissioner of Labor), 2020 NY Slip Op 02229, Third Dept 4-9-20

 

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THE “FALSELY REPORTING AN INCIDENT” STATUTE IS UNCONSTITUTIONAL AS APPLIED TO DEFENDANT’S FALSE TWEETS ALLEGING A RACIALLY-MOTIVATED ASSAULT (THIRD DEPT).

The Third Department, reversing defendant’s “falsely reporting an incident” conviction, in a full-fledged opinion by Justice Pritzker, determined defendant’s tweets were protected by the First Amendment. Defendant was accused of falsely tweeting she was the victim of a racially-motivated assault:

… [A]lthough it was “not unlikely” that defendant’s false tweets about a racial assault at a state university would cause public alarm (Penal Law § 240.50 [1]), what level of public alarm rises to the level of criminal liability? Indeed, United States v Alvarez (567 US at 734 [Breyer, J., concurring]) informs us that criminalizing false speech requires either proof of specific harm to identifiable victims or a great likelihood of harm. Certainly, general concern by those reading defendant’s tweets does not rise to that level, nor does the proof adduced at trial, which established that defendant’s tweets were “retweeted” a significant number of times. In fact, because these “retweets” led to nothing more than a charged online discussion about whether a racially motivated assault did in fact occur, which falls far short of meeting the standard set forth in United States v Alvarez (567 US at 734 [Breyer, J., concurring]), we reach the inescapable conclusion that Penal Law § 240.50 (1), as applied to defendant’s conduct, is unconstitutional. …

… “[T]he remedy for speech that is false is speech that is true” (United States v Alvarez, 567 US at 727) and “social media platforms are information-disseminating fora. By the very nature of social media, falsehoods can quickly and effectively be countered by truth, making the criminalizing of false speech on social media not ‘actually necessary’ to prevent alarm and inconvenience” … . This could not be more apparent here, where defendant’s false tweets were largely debunked through counter speech; thus, criminalizing her speech by way of Penal Law § 240.50 (1) was not actually necessary to prevent public alarm and inconvenience … . People v Burwell, 2020 NY Slip Op 02205, Third Dept 4-9-20

 

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OUT-OF-POSSESSION LANDLORD MAY BE LIABLE FOR PLAINTIFF’S SLIP AND FALL ON ICE WHICH FORMED ON THE STEP LEADING TO HER APARTMENT, DESPITE IT BEING PLAINTIFF’S RESPONSIBILITY TO REMOVE ICE AND SNOW FROM THE AREA (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there was a question of fact whether defendant out-of-possession landlord is liable for plaintiff’s slip and fall on ice on a step leading to her apartment, despite it being plaintiff’s responsibility to remove ice and snow from the area. Plaintiff alleged the ice formed because of a leak in the porch roof:

… [P]laintiff contends that the condition that led to the formation of the ice patch was present and ascertainable for at least several days. …

… “[A] landlord has a duty to use ordinary care to keep those areas which are reserved and intended for the common use of the tenants and owner of the building and subject to the landlord’s control, i.e., the common areas, in a reasonably safe and suitable condition” … .

The roof here was not accessible or available for use by the tenants … , but the record indicates that the exterior of the building may have been within defendants’ control. Since purchasing the building in 1994, defendants had replaced the roof, replaced the gutter system along at least one side of the building and recoated part of the roof with tar. Defendant Timothy J. Charest, who was responsible for managing the property, testified that the gutter system was on the building when defendants purchased the property, but also testified that “if there were problems with a gutter” on the side of the building containing the apartment entrances, “there were repairs made,” though he could not remember when any such repairs had been made. Charest testified that he inspected the property approximately weekly, as well as after every storm. He did not keep records of his inspections but would do them on a weekday; plaintiff’s accident occurred on a Friday evening. Neither defendant could specifically identify when he had last inspected the property. Harkins v Tuma, 2020 NY Slip Op 02145, Third Dept 4-2-20

 

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