Fourth Department Makes Findings on Summary Judgment Motions in Case of Stolen Brain Matter
In Dunn v County of Niagara, 2019 NY Slip Op 04530 (4th Dept. Jun. 7, 2019), on April 13, 2012, defendant Russell Jackman, then a coroner employed by defendant County of Niagara, responded to the fatal accident of plaintiffs’ son. Jackman took possession of the decedent’s brain matter, and absconded without plaintiffs’ consent. Defendant gave the brain matter to defendant Vincent Salerno, the Fire Chief of Cambria Volunteer Fire Company, at Salerno’s request, for use in training dogs used to located cadavers.
Jackman thereafter pleaded guilty to obstructing governmental administration in the second degree, and resigned. The plaintiff brought suit for negligent infliction of emotional distress. The County moved for summary judgment under the theory that Jackman was not acting in the scope of his employment when he stole the decedent’s brain matter. Judge Furlong granted the motion at the trial court level.
On appeal, the Fourth Department reversed, and reinstated the complaint against the County, finding a question of fact as to whether Jackman’s decision to transfer a portion of the remains to defendant Vincent Salerno, the Fire Chief of Cambria, was driven by a work-related purpose, rather than Jackman’s own personal interests. The Court also held that a question of fact existed as to whether it was foreseeable that Jackman, in performing his obligations as a county coroner, might negligently remove, transport, or even transfer decedent’s remains.
Separately, the Town of Cambria moved for summary judgment, asserting that Salerno was not acting in the scope of his employment when he requested the brain matter from Jackman. Judge Furlong granted the Town’s motion, and the Fourth Department affirmed.
The Fourth Department reasoned that Salerno was acting only out of personal interest when he requested the brain matter for use in training dogs to search for cadavers. The Court found that “Salerno had no official duties that required him to train cadaver dogs or obtain human remains to train such dogs.”
Fourth Department Annuls Town’s Determination Granting Easement
In the Matter of Frank J. Ludovico Sculpture Trail Corp. v Town of Seneca Falls, 2019 NY Slip Op 04621 (4th Dept. Jun. 7, 2019), the Town made a determination pursuant to Section 207 of the Eminent Domain Procedure Law to acquire an easement to install a sewer line. The Town sought an easement along a nature trail commemorating the women’s rights movement, owned by the petitioner.
The petitioner alleged that the Town failed to comply with the State Environmental Quality Review Act (SEQRA) in making its determination. In considering the facts of the case, the Fourth Department found that on November 19, 2015, the New York State Department of Environmental Conservation (DEC) made the Town aware that DEC’s database indicated the presence of certain endangered, threatened, or rare animal and plant species on the project site. Those species included the northern long-eared bat, the imperial moth, and the northern bog violet. In addition, the database indicated the presence of inland salt marsh. The DEC recommended that the Town conduct a survey of the professional literature and determine whether the project site contains habitats favorable to such species and, if so, that the Town conduct a field survey to determine whether the species are present. The DEC instructed that, if the Town determined that such species are present, modifications should be considered to minimize impact.
The Fourth Department found that the Town had never performed such a survey, as recommended by the DEC. In the December 2015 environmental assessment form (EAF) completed by the Town, the Town noted the presence of the previously mentioned endangered species, along with the Indiana bat, and presented the bare conclusion that there would be no significant impact on those species.
The Fourth Department therefore concluded that the Town had failed to make a reasoned basis for its determination granting the easement, and that the determination was arbitrary and capricious. The Fourth Department granted the petition, and annulled the determination of the Town.
Fourth Department Reverses Trial Court’s Permanent Stay of Arbitration
In Levere v City of Syracuse, 2019 NY Slip Op 04613 (4th Dept. Jun. 7, 2019), a vehicle operated by Officer Eric V. Gerace of the City of Syracuse police department struck the vehicle in which the plaintiffs were traveling. Gerace entered an intersection against a red traffic signal, allegedly injuring the plaintiffs.
The plaintiffs brought suit for their injuries, and the defendants moved for summary judgment, asserting that the plaintiffs did not meet the threshold of serious injury under Insurance Law §5102, and that the defendants were not liable under the “reckless disregard” standard of Vehicle and Traffic Law §1104.
The trial court granted the defendant’s motion as to serious injury against each defendant, but denied that part of the motion concerning the “reckless disregard” standard, holding that a negligence standard applied to the defendants.
The defendants appealed, and the Fourth Department reversed. The Fourth Department first found that Gerace was responding to an emergency that was “priority 1” at the time of the accident, satisfying the emergency requirement of VTL §1104. The Court further found that Gerace had slowed down as necessary for safe operation of his vehicle before proceeding through the red light at the intersection, conduct that is specifically exempted in VTL §1104.
The Fourth Department concluded that Gerace had not intentionally done an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome. Therefore, the defendants’ motion should have been granted in its entirety by the trial court.
Prepared by Eric W. Marriott