In Arrahim v. City of Buffalo, (4th Dept. 2017 WL 2492058), plaintiff commenced an action for injuries he allegedly sustained after his vehicle collided with a snowplow owned by the City of Buffalo. Defendants argued that the reckless disregard standard of care, as opposed to ordinary negligence, applied to the action pursuant to Vehicle and Traffic Law §1103(b). A triable issue of fact precluded summary judgment as to whether the operator of the snowplow was in fact “plowing” or “salting” the roadway at the time of the accident. The Fourth Department went on to hold that the defendants failed to demonstrate, as a matter of law, that the operator of the snowplow “was working his run or beat at the time of the accident.” Section 1103(b) is inapplicable if the operator was merely traveling from one route to another.
In Johnson v. State of New York, (4th Dept. 2017 WL 2491310), the claimant sought monetary damages for injuries she sustained when her tractor-trailer rolled over on a State highway. The claimant alleged that the State was negligent in failing to install “rumble strips” on the highway shoulder as well as failing to repave the shoulder, thereby causing a depression. The Court of Claims concluded that claimant’s speed was a significant contributing factor and apportioned 30% liability against the State and 70% against the claimant. “When the State or one of its governmental subdivisions undertakes to provide a paved strip or shoulder alongside a roadway, it must maintain the shoulder in a reasonably safe condition for foreseeable uses.” Nonetheless, the Fourth Department affirmed the apportionment of liability.
In Clauss v. Village of Williamsville, (4th Dept. 2017 WL 2490962), plaintiff commenced an action for injuries she sustained after allegedly tripping on a public sidewalk. “Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner. That rule does not apply, however, if there is an ordinance or municipal charter that specifically imposes a duty on the abutting landowner to maintain and repair the public sidewalk and provides that a breach of that duty will result in liability for injuries to the users of the sidewalk; the sidewalk was constructed in a special manner for the use of the abutting landowner; the abutting landowner affirmatively created the defect; or the abutting landowner negligently constructed or repaired the sidewalk.”
The Village of Williamsville contended that the trial court erred in denying its motion for summary judgment because any defect in the sidewalk was trivial as a matter of law. “In determining whether a defect is trivial as a matter of law, a court must consider ‘all the facts and circumstances presented” which include the defect’s dimensions, appearance and elevation at the time of the plaintiff’s injury. In support, the Village submitted an affidavit of an employee who took photographs of the alleged defect who opined the defect was one-half inch or less. The photographs, however, were only black-and-white. Additionally, the Village submitted excerpts from the deposition testimony of employees of Jones Lang, a codefendant, who reviewed the color photographs of the defect and testified that it “should be repaired because it could be a tripping hazard.” Therefore, the Fourth Department affirmed the trial court’s denial of summary judgment in favor of the Village.
In Frongetta v. City of Rochester, (4th Dept. 017 WL 2491659), plaintiff commenced an action for injuries she allegedly sustained when she tripped and fell on uneven bricks near a drainage grate in a public market. In her Notice of Claim, the plaintiff mistakenly identified the name of the street where the accident occurred which was later corrected in the amended complaint. The Fourth Department held the mistake was not made in bad faith and the defendant failed to establish that it was prejudiced by the error. Additionally, there was nothing in the record indicating that the defendant instructed anyone to investigate the scene of the accident, either before or after the correct location of the accident was revealed.
In Morris v. City of Buffalo, (4th Dept. 2017 WL 2491529), the plaintiff alleged his civil rights were violated pursuant to 42 U.S.C. §1983 for false arrest and malicious prosecution. The Fourth Department affirmed the trial court’s dismissal of the complaint. “An arresting officer is immune from a suit for damages if he or she had arguable probable cause to arrest a plaintiff. Arguable probable cause exists where (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” During a suppression hearing, the arresting officer testified that he observed the plaintiff provide another individual a cigarette in exchange for money and two cartons of unstamped cigarettes were found in the plaintiff’s possession. Therefore, this established, as a matter of law, that it was objectively reasonable to arrest the plaintiff for a violation of Tax Law §1814(b) (possession of unstamped cigarettes for the purpose of sale).
In Scheidelman v. State of New York, (4th Dept. 2017 WL 2491358), the plaintiff commenced an against the State of New York alleging he was unjustly imprisoned pursuant Court of Claims Act § 8-b. The Court of Claims dismissed the complaint and this appeal ensued. Prior to the instant appeal, the claimant was convicted of sexual abuse in the first degree for which he appealed. On appeal of the original conviction, the Fourth Department determined the verdict comported with the weight of the evidence, but reversed due to prosecutorial misconduct and granted a new trial. Upon remittitur to County Court, the claimant entered into a plea agreement whereby he pleaded guilty to one count of endangering the welfare of a child, a misdemeanor.
Pursuant to Court of Claims Act §8-b, a defendant can recover damages for unjust imprisonment when the “judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not
guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the [judgment] of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of [certain enumerated grounds, including, as relevant here,] paragraph…(b)…of subdivision one of section 440.10 of the criminal procedure law.” Moreover, Criminal Procedure Law §440.10 permits vacatur of a judgment if “[t]he judgment was procured by duress, misrepresentation or fraud on the part of…a prosecutor or a person acting for or in behalf of a…prosecutor.”
Essentially, the “linchpin” of success as to a claim brought pursuant to Court of Claims Act §8-b is to demonstrate one’s innocence. Therefore, “if it appears that the claimant will not be able either to establish his innocence or to demonstrate
that conviction was not the result of his own conduct, the claim must be dismissed.” Conversely, “[t]o defeat a motion to dismiss, the statute places the burden on the claimant to provide the requisite documentary evidence establishing that the judgment of conviction was reversed and the indictment was dismissed pursuant to
one of the grounds listed in section 8-b (3) (b) of the Court of Claims Act.”
Here, after a new trial was granted, the claimant pleaded guilty to a second charge in satisfaction of the underlying indictment. The claimant merely pleaded to a lesser charge involving the same conduct that gave rise to the initial conviction of sexual abuse. Therefore, the Fourth Department concluded that “the claim does not satisfy the
pleading requirements of Court of Claims Act § 8-b (3) (b), because the evidence submitted in conjunction with the claim establishes that the dismissal of the indictment was based on the plea to the misdemeanor, and was not based on any of the grounds set forth in the statute.” The Appellate Division also noted that although the original conviction was reversed due to prosecutorial misconduct, “that misconduct does not rise to the level of prosecutorial misrepresentation or fraud, as required by section 8-b (3) (b) and the applicable subdivisions of CPL 440.10.”
Prepared by Nicholas Hriczko, Esq.