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 In People v. Caban, Lynette Caban was backing up her Jeep into a pedestrian right of way when she struck an elderly pedestrian and killed her. (At the time of the accident, one of the jeep's windows was taped up with a brown paper bag, causing a blind-spot in the direction from which the pedestrian was approaching.)
After a jury trial, Caban was convicted by the New York County Supreme Court of criminally negligent homicide and was sentenced to 1 to 3 years in prison.
While the Appellate Division, First Department, agreed that the evidence was sufficient to support the verdict, the lower court was found to have erred when it allowed the jury to hear that Caban's driver's license had been suspended. The AD1 was of the opinion the suspension of her driver's license wasn't relevant to the case or to a negligence determination. Therefore, since that information lacked "probative value" and was "highly prejudicial," the AD1 reversed and sent the matter back for a new trial.
We're wondering why it's OK for someone to be driving with a suspended license.
 What's up that?
To download a copy of the Appellate Division's decision, please use this link: People v. Caban
 In People v. Rivera, undercover police officers followed Anthony Rivera's Chevy Lumina after recognizing it in from a prior narcotics operation. After witnessing Rivera involved in what appeared to be a drug transaction, the officers arrested him and acquired some physical evidence including drugs from his Lumina.
After trial, Rivera was convicted of criminal possession of narcotics, and was sentenced as a second felony offender to 4 to 8 years. On appeal, Rivera argued that the trial court erred when it denied his motion to suppress the evidence confiscated by officers, and that his sentence was "excessive."
On appeal, the Appellate Division, First Department concluded that the officers had probable cause to arrest the man since they were experienced in making narcotics related busts, and recognized Rivera's Lumina as a "drug courier car." The AD1 further found that Rivera's sentence was appropriate given his "extensive criminal history," including several narcotics convictions.
Maybe Rivera should have traded in for a Silverado?
 To download a copy of the Appellate Division's decision, please use this link: People v. Rivera
 In Matter of Progressive Northeastern Ins. Co. v. Scalamandre, Progressive wanted to stop the arbitration of an uninsured motorist claim.
Maria Scalamandre was injured when she was hit by the driver of an uninsured all-terrain vehicle or ATV. When Scalamandre submitted a demand for arbitration seeking uninsured motorist benefits from her insurer, Progressive countered with a lawsuit claiming that an ATV wasn't an "uninsured motor vehicle."
After the Suffolk County Supreme Court sided with the company's position, Scalamandre appealed to the Appellate Division, Second Department, which found that the policy excluded ATVs from the definition of "motor vehicles."
Had the ATV been a three wheeler, it might have been considered a "motorcycle" entitling Scalamandre to coverage. However, this particular ATV was a four-wheeled vehicle which didn't fit within the law's definition or the policy's coverage parameters.
No pay dirt there.
 To download a copy of the Appellate Division's decision, please use this link: Matter of Progressive Northeastern Ins. Co. v. Scalamandre
 In Summers v. Teddy Cab Corp., James Summers was injured when he was hit by a car owned by Teddy Cab Corp.
After colliding with Summers' motorcycle, Teddy's driver admitted he changed lanes without determining whether he could safely do so. When the Kings County Supreme Court found Teddy liable for the accident, the company appealed to the Appellate Division, Second Department. Since Teddy was unable to show that Summers was somehow at fault for the accident, the AD2 affirmed the lower court's finding of liability. Undeniably, this Teddy was exposed. For a copy of the Appellate Division’s decision, please use this link: Summers v. Teddy Cab Corp
 In Wosner v. Elrac Inc., Moshe Wosner was seriously injured in a vehicle rented by Joel Leibowitz under a long-term lease with Elrac Inc.
While the accident occurred in New Jersey, both occupants — Wosner and Leibowitz — lived in New York. Things got a bit more complicated because the other driver was a Pennsylvania resident, and Leibowitz’ rental car was registered and insured in New Jersey by Elrac (a Delaware Corporation with New Jersey headquarters). Yet, when litigation ensued, the New York County Supreme Court found that New York law governed, and Elrac’s request that Jersey law be applied was denied. On appeal, the Appellate Division, First Department, noted that “when the driver-host and the passenger-guest share a common domicile, the law of that state generally controls.” Interestingly, the AD1 viewed the fact that the accident occurred in Jersey as unavailing since the Wosner and Leibowitz “were traveling between two New York locations” and “happened to pass” into another state. Now how fortuitous was that? To download a copy of the Appellate Division’s decision, please use this link: Wosner v. Elrac Inc.
 In Burell v. City of New York, Dorian Burell sued the City of New York after he collided with a police cruiser.
Even though Burell alleged that the officer acted in “reckless disregard” for the safety of others, the Queens County Supreme Court dismissed the case. On appeal, the Appellate Division, Second Department, found that in order to establish “reckless disregard” a claimant must show that an officer "intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.” Since the City failed to establish that the police officer slowed down before proceeding past a red light, that emergency sirens and flashers had been activated, and, that his view of the intersection was unobstructed, the AD2 was of the opinion that “questions of fact” needed to be addressed at a formal hearing or trial. Seems like the City might have been reckless in presenting its case. To download a copy of the Appellate Division’s decision, please use this link: Burell v. City of New York
 In Lynch v. Dobler Chevrolet, Brenda Lynch was injured in a car accident involving James Schnitzer.
After a negligence suit was filed, Schnitzer asked the Queens County Supreme Court to dismiss the case since Lynch had violated the State’s Vehicle and Traffic Law when she made a left turn directly into the path of Schnitzer’s vehicle. Schnitzer testified that he was traveling no faster than 40 m.p.h., while a nonparty eyewitness claimed that Schnitzer was driving at least 85 m.p.h. immediately prior to the collision. Despite this conflicting evidence, the Supreme Court granted Schnitzer’s request to end the dispute and an appeal to the Appellate Division, Second Department, ensued. Since a lay witness is “ordinarily permitted to testify as to the estimated speed of an automobile based upon the prevalence of automobiles in our society and the frequency with which people view them at various speeds,” the AD2 concluded that Schnitzer’s rate of speed was an issue which should have been left for a formal hearing or trial. Now that the case is reinstated, is Schnitzer going get Lynched? To download a copy of the Appellate Division’s decision, please use this link: Lynch v. Dobler Chevrolet
 In Dinham v. Wagner, Gwendolyn Dinham was injured when the car in which she was riding collided with another vehicle, driven by Choung-Mi Kim.
When the New York County Supreme Court granted Kim’s motion to dismiss Dinham's personal injury case, an appeal to the Appellate Division, First Department, followed. In support of her motion, Kim submitted an accident report which contained Dinham’s admission that her car had run the red light. As a result, “[i]t [was] undisputed that Kim had the traffic light in her favor at the intersection,” and thus had the right of way. Since Dinham was unable to establish negligence, the AD1 concluded that Kim was entitled to the case’s dismissal. We're thinking Dinham was certainly seeing red after that decision. To download a copy of the Appellate Division’s decision, please use this link: Dinham v. Wagner
 At what point does an “illegal” search become a “legal” one? Apparently, the New York County Supreme Court and the Appellate Division, First Department, had some different perspectives on that issue.
In the case of People v. Packer, when Andrew Packer was frisked after his car was pulled over by the police, officers uncovered a small knife. Moments later, when Police Officer Jones asked Packer for identification, Packer reached for a backpack, but was stopped by the officer who then asked if he could retrieve the identification from the backpack. When Packer consented to the search, Jones discovered a second knife. The New York County Supreme Court concluded that the first knife had been illegally obtained by an unwarranted search and suppressed its introduction at trial. But, as to the second knife, the court held that Packer voluntarily, without coercion, gave his consent to a search. As a result, Packer was sentenced to one-and-a-half to three years in prison for attempted possession of a weapon in the third degree. On appeal, the Appellate Division, First Department, reversed. Because the vehicle had been blockaded by the police, and Packer was prevented from leaving the scene, the AD1 was of the opinion that Packer had been in constructive police custody. In order to convict Packer, prosecutors had to show that Packer’s consent to the backpack search was voluntary and not the result of coercion. Consent is not voluntary unless “it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice.” Here, the AD1 found that the initial frisk was “highly intrusive police conduct, the coercive effect of which could not have abated when, only moments later, [Packer] consented to the search of his [back]pack.” Accordingly, the judgment was reversed and the indictment dismissed. In a lengthy dissent, Justice Bernard J. Malone, Jr. advocated the application of a balancing test, “weighing the degree of intrusion entailed against the precipitating and attending circumstances out of which the encounter arose.” Here, Malone was of the opinion that the “search was not overly intrusive; nor was it an invasion of (Packer’s) privacy.” We’re wondering if Packer is still packing? To download a copy of the AD1’s decision, please use this link: People v. Packer
 After observing an erratically driven vehicle, State Trooper Jason Lewis triggered his emergency lights and directed the car to pull over. As he approached, Lewis noticed the driver, Dorian Hackett, leaning toward the passenger seat. When asked to explain those movements, Hackett indicated that he was merely reaching for his cell phone, which he displayed to the officer.
Dissatisfied with that explanation, Lewis ordered the driver to exit the vehicle and handcuffed him for “safety reasons.” The officer then placed Hackett into the police cruiser and ran a warrant check. Even though there were no outstanding warrants, Lewis returned to Hackett’s vehicle, opened the passenger side door and undertook a search which eventually led to the discovery of a loaded handgun and some cocaine. Hackett asked the County Court of Chemung County to suppress or prevent the introduction of the handgun, the ammunition, and the cocaine into evidence, but the Judge denied the request and convicted Hackett of criminal possession of a weapon in the third degree. On appeal, Hackett claimed that the officer had no legal basis -- or “probable cause” -- to do the search and the Appellate Division, Third Department, agreed. According to the AD3, Hackett’s conduct didn’t justify the officer’s conduct, particularly since the officer hadn't been presented with any actual or specific danger (nor had any other justification to conduct the search). Since the motion to suppress should have been granted, the AD3 ordered Hackett’s conviction reversed. Clearly, this is an example of a search which just didn’t hack it. To download a copy of the Appellate Division’s decision, please use this link: People v. Hackett
 New York State was one of only three states in the nation that had a statute imposing vicarious liability on all car owners, including companies that lease and rent vehicles to the general public. The statute -- Vehicle and Traffic Law § 338 -- sought to ensure that people injured in car accidents "have recourse to a financially responsible defendant.”
In 2005, President Bush signed a transportation bill into law, which included 49 USC § 30106, commonly known as the “Graves Amendment.” This Amendment prohibits states from imposing liability on vehicle owners “for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease.” In Graham v. Dunkley, after Sharon Graham was injured in a two-car collision, she filed suit against the other driver Rayon Dunkley, and the vehicle's lessor, NILT Inc. Graham sought damages from NILT under § 388, claiming vicarious liability for her injuries. NILT responded with a motion to dismiss and argued that the Graves Amendment overrode or "preempted" New York Law. The Queens County Supreme Court denied NILT’s motion, and found that the federal law was an unconstitutional exercise of congressional power under the United States Commerce Clause. The court believed that the link between “state vicarious liability and interstate commerce [was] too attenuated to support the legislation,” and therefore rejected the preemption argument. On appeal, the Appellate Division, Second Department, reversed. Since Congress has the constitutional power to regulate interstate commerce, its authority extends to “conditions under which motor vehicle lessors operate,” and those activities which “substantially affect interstate commerce.” Because vicarious liability statutes would discourage businesses from leasing vehicles in the state, and would impact insurance premiums nationwide, the AD2 found a rational basis for the federal law’s enactment. That left Graham without a case against NILT. Think we need a new lease on this? To download a copy of the Appellate Division’s decision, please use this link: Graham v. Dunkley
 In Rodriguez v. Central Parking System of New York, Inc., Adriano Rodriguez filed suit to recover the value of a car that had been stolen from one of Central Parking System’s parking garages.
Inexplicably, Rodriguez waited more than three years to start the litigation. As a result, Central Parking System filed a motion to dismiss the case, claiming Rodriguez was barred by a three-year “statute of limitations” -- a state law requiring such cases to be started within a delineated timeframe or the underlying claims are forever lost. Believing that Rodriguez had 6 years to sue, the Civil Court of the City of New York denied the motion. On appeal, the Appellate Term, First Department, agreed and found that “[a]n action for failure to exercise due care in the performance of a contract, where the plaintiff seeks damages for injury to property or pecuniary interests, is governed by the six-year” limitations period. While the AT1 conceded that it had previously applied a three-year period to cases of this type, it noted that the Court of Appeals -- our state’s highest court --“‘has refused to apply a shortened negligence statute of limitations to a claim seeking breach-of-contract damages on a claim for property damages.’” With that, the AT1 bailed out of this case … fast. To download a copy of the Appellate Term’s decision, please use this link: Rodriguez v. Central Parking System of New York, Inc.
 In Malik v. Nihar, Malik filed a case to recover the cost of car insurance premiums he had paid to Nihar, the owner of a livery cab company.
Malik, a cab driver with a poor driving record, was unable to obtain car insurance. In order to continue operating his cab, Malik came to agreement with Nihar where in exchange for insurance coverage through Nihar’s company, Malik sold his vehicle for $600 and paid $4,300 upfront for five and a half months of insurance payments. Ten days later, Malik was in an automobile accident and totaled the car. While the insurance company paid Nihar $8,248, he only gave Malik $4,000. After finding that Nihar had been “unjustly enriched” the Kings County Civil Court awarded Malik $4,316.50. On appeal, the Appellate Term, Second Department, reversed and dismissed the lawsuit. The AT2 refused to grant Malik relief because of his “unclean hands,” and offered the following quote from another case: “It is the settled law of this State (and probably every other State) that a party to an illegal contract cannot ask a court of law to help him carry out his illegal object … For no court should be required to serve as paymaster of the wages of crime, or referee between thieves. Therefore, the law will not extend its aid to either of the parties or listen to their complaints against each other, but will leave them where their own acts have placed them.” (Ford v. Henry, 155 Misc 2d 192, 193-194 [App Term, 2d & 11th Jud Dists 1993], quoting Stone v. Freeman, 298 NY 268, 271 [1948], citing Schermerhorn v. Talman, 14 NY 93, 141 [1856]).
Purell, anyone? To download a copy of the Appellate Term’s decision, please use this link: Malik v. Nihar
 In Watanabe v. Sherpa, Shiro Watanabe was hit by a taxicab, driven by Mingmar Sherpa.
Watanabe was standing in the street, on 3rd Avenue and 55th Street, talking to another cab driver and, even though he had been imbibing, “was able to testify about his state of mind and the nature of the accident.” When a jury determined that Watanabe was 80% liable for the accident, Watanabe argued that the jury’s decision ran contrary to the weight of the evidence and moved for a new trial. The New York County Supreme Court was unsympathetic to Watanabe’s plight, and denied his request. On appeal, the Appellate Division, First Department, could discern no irregularity as to the apportionment, “given that [Watanabe] admitted he had been drinking and was standing in the street without looking at oncoming traffic; [and] Sherpa testified that [Watanabe] suddenly moved into his lane of traffic just before impact.” And while the AD1 found that the award of $150,000 for past pain and suffering was reasonable, given that Watanabe had fractured his tibia, required surgery, and remained in the hospital for six days, it was of the opinion that $100,000 for future pain and suffering (for a 41.7 year life expectancy) was inadequate. As a result, the AD1 increased the award for future pain and suffering to $300,000, given that his “injuries are permanent and he suffers ongoing pain, that he is likely to develop degenerative arthritis that could possibly require knee replacement surgery, that a future operation to remove the rod and screws is recommended, and that his injury resulted in atrophy of the left thigh, laxity in the ligaments, and limitation of his physical activities.” If Sherpa didn't agree to the foregoing, the appellate court directed a new trial on Watanabe’s damages for “future pain and suffering only.” Will they be going for another ride? To view a copy of the Appellate Division’s decision, please use this link: Watanabe v. Sherpa
Who wouldn't love to own a Ferrari?  Fiat's Ferrari subdivision creates some of the sleekest (and sexiest) luxury automobiles in the world. But with prices for some of the models approaching $2,000,000 a pop, the cars are beyond the reach of most on the planet. And, apparently, these cars are an unhealthy obsession for some. A reader forwarded a portion of a video documentary on a guy who has devoted some 15 years -- about 20,000 hours of his life -- creating an "absolutely perfect scaled model of the Ferrari 312PB." The model's creator, Pierre Scerri of Avignon, France, notes in the video as follows: I wanted to make something like a dream. A Ferrari which we can have in the dining room. It could lost a lot of money to make such a car. For me it cost maybe 20,000 hours cause I have no money. It was my challenge ... to learn how to make everything in this car.
While some have called the 1:3 scale model, with an operating 12-cylinder engine, a piece of "masterful engineering," others view the entire endeavor as "downright freaky." (After all, who in their right mind would want a Ferrari in their dining room?) Pierre is reportedly searching for a 1:3 scale driver to operate the car. Any takers? To download a copy of the video, please use this link: "Look Ma, I made a Ferrari!" ---------------------------- By the way, you can find a 1:32 Ferrari 312PB on Ebay for about $39.00, plus $7.95 shipping. (You'd have an easier time fitting that in a New York City dining room ... for those that are fortunate enough to have a dining room.)
 On November 22, 2002, Louie was arrested for driving while intoxicated, and his vehicle was impounded. On December 2, 2002 and December 5, 2002, Louie made several attempts via telephone to recover his vehicle. (Among other things, he contacted a Staten Island police precinct’s commanding officer, as well as the New York City Police Department’s Property Clerk.) Even though he encountered considerable resistance, Louie persevered.
On December 11, 2002, the Richmond County District Attorney’s Office authorized the Property Clerk to release the vehicle to any person who could satisfactorily prove his right to possession. Yet, the vehicle was not returned to Louie. Continuing his pursuit of the matter, Louie wrote a letter to an NYPD official seeking the vehicle’s return and included “a copy of the lease, the DA’s release, and a copy of the Property Clerk’s acknowledgment of the December 11 demand.” On January 24, 2003, Ford reacquired the vehicle and signed an agreement with the City that it would not return the car to Louie or his family. Ford notified Louie that it intended to sell the vehicle, unless he obtained a statement from either NYPD or the Property Clerk that the seizure was in error and that Ford could return the car to Louie. Having failed to procure that statement, Ford sold the vehicle for $30,250. In Ford Motor Credit Co. v. Louie, Ford brought an action to recover the unpaid balance due under Louie’s car lease. Ford alleged that Louie breached his agreement when the vehicle was seized and not promptly returned to him. Louie asserted various affirmative defenses and counterclaims, which included that Ford had violated the lease by “wrongfully taking the vehicle, refusing to return it to him, and entering into an agreement with the City of New York to assume possession of the vehicle.” Although a New York County Civil Court Judge denied the parties’ requests for summary judgment, on appeal the Appellate Term, First Department, sided with Louie and found that Ford had thwarted Louie’s efforts to recover his car. The AT1 held that Louie made “‘immediate and diligent efforts to recover the vehicle; that the District Attorney’s office authorized the release of the vehicle to him; that notwithstanding such authorization, [the] NYPD did not return the vehicle to him nor commence forfeiture proceedings; and that [Ford], upon taking possession of the vehicle, declined to return it to him.’” When Ford appealed to a higher court, the Appellate Division, First Department, also went with Louie finding that “Louie did all that he could.” The law is clear that seized non-contraband property must be returned to the person “who produces proper identification and who submits a written district attorney’s release covering such property and the voucher issued at the time of arrest.” In view of Louie's compliance with those procedures, the AD1 was of the opinion that Ford had demonstrated bad faith when it impeded Louie’s ability to recover the auto. Louie Louie Louie, Louie!
Louie Louie Lou-I!
For a copy of the Appellate Division’s decision, please use this link: Ford Motor Credit Co. v. Louie
 In Guishard v. General Security Insurance Company, a party in an underlying negligence lawsuit alleged that he suffered severe eye injuries while using a rivet gun to convert a van owned by Guishard into a “Mr. Softee” ice cream truck. When litigation ensued, Guishard sought a judicial determination declaring that General Security Insurance Company (GSIC) was obligated to defend and indemnify her pursuant to the terms of her insurance policy.
Although GSIC moved the Kings County Supreme Court for summary judgment in its favor -- citing a policy exclusion that denied coverage for bodily injuries arising out of the “maintenance” of any “auto” owned or operated by the insured -- the Court entered judgment in Guishard’s favor, without a written opinion. On appeal, the Appellate Division, Second Department, affirmed after finding that GSIC had not supplied the definition of “auto” and thus had not shown that the relied upon exclusion had been stated in “clear and unmistakable language” or was applicable to the dispute. When the case reached the New York State Court of Appeals, that court focused on the policy’s definition of the word “maintenance,” and found that the term encompassed work relating to “an intrinsic part of the mechanism of the car and its overall function,” and cited the removal of a tire from a rim as an example. According to our state’s highest court, turning a van into a Mr. Softee truck was transformative of the auto’s function and thus did not fall within the policy’s “maintenance” definition. Undoubtedly, mothers everywhere are clucking and wagging their fingers. 
To download a copy of the Court of Appeals's decision, please use this link: Guishard v. General Security Insurance Company To download a copy of the Appellate Division's decision, please use this link: Guishard v. General Security Insurance Company (AD)
 We all know driving while intoxicated (DWI) can lead to fines, license revocation, higher insurance premiums, and possible imprisonment. But did you know that you can also get into a heap of trouble for "snoozing" while intoxicated?
In People v. Singh, Mr. Singh was found asleep in his car, slumped over the steering wheel, with the key in the ignition and engine running. When arrested by police, his blood alcohol concentration was ".219 of one percent" (well over the legal limit of .08%).* Even though Singh claimed that he did not intend to operate the vehicle, neither the Queens County Criminal Court nor the Appellate Term, Second Department, bought the argument and his DWI conviction was left undisturbed. What a bummer! To download a copy of the Appellate Term's decision, please use this link: People v. Singh To download a brochure on the topic distributed by the New York State Department of Motor Vehicles, please use this link: You and the Drinking Driving Laws -------------------------- *In the State of New York, if you are under 21, a "Zero Tolerance Law" imposes varying degrees of fines and penalties if your blood alcohol concentration (BAC) ranges from .02% and higher. All others face criminal prosecution at BAC levels of .05% and higher.
 One night, in the Town of Newburgh, New York, a State Trooper came upon a one-car accident scene. The officer observed an overturned car and a person walking towards him. The man, Dylan Peck, immediately identified himself as the vehicle’s driver.
The Trooper noted that Peck reeked of alcohol, had glassy eyes, and suffered from slurred speech. A blood test further showed a blood alcohol level of .16% -- twice the legal limit. On April 18, 2006, after a non-jury trial, Peck was convicted of driving while intoxicated (DWI) per se, driving while ability impaired, and leaving the scene of the accident. Peck appealed to the Appellate Term, 9th and 10th Judicial Districts Department, which overturned the “DWI per se” and “leaving the scene of the accident” convictions. The AT found that the evidence did not establish Peck attempted to flee the scene, particularly since he quickly identified himself to the Trooper. The Court also overturned his conviction of DWI per se -- which means that he was driving with a blood alcohol level of at least .08% -- because the blood test on which the prosecution relied was inadmissible. In violation of New York State Department of Health Regulations, the blood sample was not preserved with the proper amount of anticoagulants, thus rendering the test unreliable. Even though the blood test was unusable, the prosecution still offered sufficient evidence -- the scent of alcohol, slurred speech, glassy eyes, and the accident itself -- which established that Peck’s driving ability had been impaired. Two out of Three Ain’t Bad. For a copy of the Appellate Term's decision, please use this link: People v. Peck
 New York Mayor Michael R. Bloomberg has been fighting for the implementation of a "congestion pricing" plan, which would allow the City to charge drivers a "user fee" to traverse certain areas of Manhattan during peak traffic hours (weekdays, 6 AM to 6 PM).
In a Fact Sheet distributed by the City, the Mayor is proposing that drivers be assessed $8 to enter Manhattan (south of 86th street), while "large trucks" would be charged $21. (Those remaining within the "zone" would be charged $4.00 and $5.50, respectively.) Drivers using the FDR and West Side Highway would be "exempt," as would "taxis, livery cabs, buses, and emergency and handicap-licensed vehicles." Yesterday, State Senator Liz Krueger, an avid supporter of the proposal, circulated an e-mail providing an update as to the plan's status. Here's the text of that message: Last month, the legislature finally took action on legislation addressing Mayor Bloomberg’s congestion pricing proposals. While I had a number of concerns regarding implementation of the Mayor’s original proposal, I believe that passage of a congestion pricing bill is very good news for the City of New York, and that the final legislation (S.6432) we acted on provides the opportunity for those concerns and questions to be addressed. The commission we have created will consider all proposals to mitigate traffic, including the feasibility of the Mayor’s pricing proposal.
The commission must submit their recommendations on or before January 31st, and the State Legislature must vote on or before March 31st.
My district encompasses much of the proposed pricing zone, and the need to cut the number of vehicles on the streets is clear. Congestion is much more than just an annoyance for drivers—it has far-reaching negative consequences to New Yorkers' health and quality of life.
In my district, for a significant part of the day, senior citizens, the mobility-impaired, and families with young children do not feel safe crossing the street because of gridlock with traffic "blocking the box" at every corner. In addition, ambulances, fire trucks and other emergency vehicles have great difficulty getting to those who need their immediate help.
A plan to mitigate congestion in the City's core has the potential to fundamentally change the transportation practices of the entire region. The commission we have created will ensure that the plan ultimately implemented is comprehensive and allows for maximum results. And a very important part of this plan is allowing the proposal to be first approved by the City Council, the local legislative body, meaning that those who are actually affected by our transportation infrastructure have a direct oversight role.
However, the devil is in the details, and there are a number of pieces left to work out. In the coming months, I expect answers related to:
1.) Implementing a long-term strategy that increases access to, and the reliability of, regional mass transit options, including Bus Rapid Transit (BRT), the 2nd Avenue Subway, and expansion of alternatives to private-vehicles into and out of the City;
2.) Resolving serious concerns about the potential traffic and parking impacts on communities in and around the designated zone;
3.) Ensuring that concerns related to the use of cameras as a means to enforce a congestion zone are sufficiently addressed, and civil liberties protected; and
4.) Re-evaluating the City's flawed parking permit system for government workers and reducing the number of unnecessary vehicles through the confiscation of non-justifiable and fake permits.
I look forward to working with the commission, as well as the Mayor and my colleagues in the State Legislature and City Council to develop a reasonable and achievable plan for addressing the issue of congestion in New York City’s core.
Thanks, Liz, for fighting the fight!
 In Filiberto v. Herk’s Tavern, Inc., the Montgomery County Supreme Court found a bartender responsible for a friend’s death after Thomas R. Filiberto choked on a hot roast beef sandwich.
Prior to his death, Filiberto would frequent Herk’s Tavern every Thursday night after work. He often remained until closing and would then go out to eat with his friend Philip R. Bracchi -- the tavern's bartender, sole owner, officer and employee. On the night in question, Bracchi decided to drive the pair to a local diner. While at the establishment, both men ordered a hot roast beef sandwich. After the food arrived, Filberto choked on his sandwich and died. In a suit filed by the decedent's estate, the Supreme Court found Bracchi partly responsible for Filiberto’s death because he had voluntarily assumed a "duty of care" by agreeing to drive his intoxicated friend home. According to the trial court, “although there was no duty originally, once a person voluntarily agrees to take charge of someone who is not able to adequately protect himself, that person will be liable for harm caused by the failure to exercise reasonable care while in their charge.” The Appellate Division, Third Department, disagreed and reversed the lower court’s decision. The AD3 was of the opinion that no "duty" arose simply because Bracchi had offered to drive his friend to a diner. That, according to the AD3, neither amounted to "taking charge" of the decedent, nor triggered a duty of care to his then intoxicated friend. A negligence claim may be brought against a party if it can be established that the individual who allegedly perpetrated the wrong owed some reasonable duty of care to the injured person and that injury -- death in this case -- resulted from a foreseeable risk. The appellate court explained that even if Bracchi had owed Filiberto a duty of care, it was not foreseeable to anyone ("other than perhaps a medical professional") that Filiberto would choke on an unchewed piece of roast beef and die. Thus the negligence claim needed to be dismissed. Never was much of a roast beef fan. For a copy of the Appellate Division’s decision, please use this link: Filiberto v. Herk's Tavern, Inc.
 If you decide to engage police officers in a high-speed car chase, be prepared to die.
That is rule of law which was espoused by the United States Supreme Court -- our nation's highest court -- in the case of Scott v. Harris. It is well entrenched in the caselaw that our Constitution discourages the government's resort to the use of excessive or deadly force when in pursuit of a suspect, unless the following factors can be unequivocally established: there is "an immediate threat of serious physical harm" posed to officers or others; the resort to force is necessary to prevent escape; and some warning has been given.
Apparently, the suspect in Scott v. Harris, sought to avoid apprehension while driving in that state of Georgia and opted to flee down a two-lane highway at speeds exceeding 85 miles an hour. In the process, the suspect ran multiple red lights and swerved around a dozen cars in "Hollywood-style car chase of the most frightening sort, placing police officers and innocents bystanders alike at great risk of serious injury." In an effort to subdue the suspect, one officer employed a "Precision Intervention Technique" or "PIT" which causes vehicles to "spin to a stop." In this particular case, the maneuver caused the targeted vehicle to overturn and crash, causing severe bodily injury to the suspect and rendering him a quadriplegic. While the courts below had viewed the use of PIT as excessive and unlawful, the United States Supreme Court did not concur. Because the driver ignored flashing lights, sirens, and repeated warnings to stop, and placed the lives of pedestrians and other motorists in jeopardy, the Supremes concluded that the use of PIT was "reasonable" and appropriate under the given circumstances. The nation's highest court did not wish to be perceived as embracing a rule which would encourage suspects to evade capture by driving recklessly. Here's how the court phrased it: The Constitution assuredly does not impose this invitation to impunity-earned-by-recklessness. Instead, we lay down a more sensible rule: A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent by-standers does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.
How does that line go? "Logic clearly dictates that the needs of the many outweigh the needs of the few ... Or the one." Try spinning that! For a copy of the U.S. Supreme Court's decision in this case, please use this link: Scott v. Harris
 In The People of the State of New York v. Kahan, Michael Kahan was convicted of speeding by a Justice Court Judge of the Town of Deerpark (Orange County).
Kahan was allegedly clocked traveling at 51 miles per hour in a 30 mile per hour zone, but challenged the accuracy of the speed recorded by the officer's radar device. During the non-jury trial, the judge dertermined that Kahan had the "burden" of establishing that the results were inaccurate or that the device was not in working order. On appeal, the Appellate Term, 9th and 10th Judicial Districts, found that the trial court erred. According to scientific analysis, when a radar device is used within a moving vehicle there is a high probability of signal distortion or error. Additionally, when there is heavy traffic or obstructions (like large trucks, billboards or other roadside objects), an officer must take measures to ensure that those impediments are not triggering signal interference or a misidentification. Because of the great potential for error, the AT concluded that the government bears the responsibility of establishing that the device accurately recorded a driver's speed. To that end, a prosecutor is required to elicit testimony at trial that the radar "was in the proper working condition and that it was operated correctly by one who was qualified and experienced in the operation of traffic radar," and that the "police officer independently verified the speed of the patrol vehicle (e.g., by comparing the speed registered by the radar unit with the speed indicated by the patrol vehicle speedometer), and that the radar was used in an area posing a minimal risk of misidentification or distortion ...." In this particular instance, since the appellate court was unable to find testimony that satisfied those standards, the underlying evidence was deemed "legally insufficient," the conviction was reversed, and, the case was dismissed. Was that good lawyering or good luck? (Your call!) For a copy of the Appellate Term's decision, please use this link: The People of the State of New York v. Kahan
 If you get hit from behind while driving an automobile, the law assumes that the individual who slammed into you was "negligent," and responsible for any injuries and damage you have incurred, unless a "non-negligent explanation for the collision" can be supplied.
In Somers v. Condlin, the defendant conceded he hadn't been paying attention to what was happening ahead of him and was also unable to offer any evidence that the plaintiff -- the driver with whom he collided -- had caused the accident "by stopping suddenly or by veering in front" of him. Without proof of "comparative fault," the Bronx County Supreme Court and the Appellate Division, First Department, granted relief in the plaintiff's favor. So much for bringing up the rear.
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 Within the City of New York, police officers currently have the authority to seize vehicles purportedly utilized in furtherance of some criminal purpose. Once seized, the Police Department must begin a special proceeding to demonstrate its right to keep the confiscated property pending the outcome of a trial of a "civil forfeiture action."
At this preliminary "post-seizure retention hearing," the following three elements will be examined by an administrative tribunal known as the Office of Administrative Trials and Hearings (OATH): 1) whether probable cause existed for the vehicle operator's arrest;
2) whether the City is likely to prevail in an action to forfeit the vehicle; and
3) whether the vehicle must remain impounded in order to ensure its availability for a judgment of forfeiture.
If the police are unable to satisfy these elements to a hearing officer's satisfaction, the vehicle must be returned.* In Property Clerk of the Police Dept. of the City of New York v. Harris, Merv Harris was arrested on drug charges and the vehicle which he was driving seized. At a subsequently noticed "post-seizure vehicle retention hearing" it was established that Delores Newton Harris co-owned the vehicle with Mr. Harris. While an administrative law judge concluded that all the requisite elements had been established against Mr. Harris, the tribunal ordered the police to release the vehicle to Ms. Harris, based an an "innocent co-owner" defense. The City appealed OATH's determination to the New York County Supreme Court, which concluded that OATH had correctly applied the law. On appeal, the Appellate Division, First Department, reversed. Notwithstanding Ms. Harris's innocence, the appellate court concluded that the City was "entitled to the protection of its potential right to forfeiture of Mr. Harris's interest in the vehicle." As the AD observed: Granting the City such protection by allowing it to retain the vehicle pendente lite does not jeopardize Ms. Harris's interest, for which she will receive monetary compensation in the event forfeiture ultimately occurs. While we recognize that the loss of use of the vehicle may be a hardship to Ms. Harris, the result reached by OATH and Supreme Court would have the effect of making it virtually impossible for the City to enforce its right to forfeiture of a wrongdoer's interest in a vehicle used as an instrumentality of crime but co-owned by a person unaware of such use. 
For a copy of the Appellate Division's decision, please use this link: Property Clerk of the Police Dept. of the City of New York v. Harris For additional information about the forfeiture process, please click on the following link: OATH ------------------
*If the District Attorney advises that the vehicle is required as evidence in a criminal proceeding, this post-seizure hearing will not be held until the criminal proceeding's conclusion (including all appeals).
New York's "Lemon Law" compels car manufacturers to repair or replace vehicles which have warrantied defects during the first 18,000 miles or within the first two years of ownership (whichever first occurs). If, within those parameters, there have been a "reasonable number of attempts," or the vehicle has been out-of-service for a prolonged period of time, the consumer may request a replacement vehicle or refund of the purchase price. A consumer satisfies this "reasonable number of attempts" standard if the same defect has been subject to repair "four or more times" and "continues to exist," or if the vehicle has been out of service for a total of thirty or more days (also known as the "days-out-of-service presumption"). In response, the manufacturer may demonstrate that the defect "does not substantially impair" the car's value or that the problem was caused by "abuse, neglect or unauthorized modifications or alterations of the motor vehicle." In Matter of DaimlerChrysler Corp. v. Spitzer, DaimlerChrysler, General Motors, and Saturn objected to the State's interpretation of the law and argued that a purchaser was required to demonstrate that the defect was not corrected after the fourth repair attempt and that the problem continued up to the time the consumer's case was heard. Luckily, the state's highest court didn't buy that analysis: We do not read the repair presumption as requiring a consumer to establish that the vehicle defect continued to exist until the trial or hearing date. Rather, the plain language of the provision obligates a consumer to demonstrate that the vehicle was subject to repair at least four times and that the same defective condition remained unresolved after the fourth attempt. Therefore, once a consumer has met the four-repair threshold, the presumption arises regardless of whether the manufacturer later remedies the problem. After four attempts, it is presumed that the manufacturer has been given a reasonable number of opportunities to fix the vehicle. The determination of whether a reasonable number of attempts took place for a consumer to recover does not turn on whether the car was ultimately repaired. If the Legislature intended to condition recovery on such a requirement, it easily could have said so.
Clearly, the manufacturers' interpretation of the law would have crippled consumers by requirin | | |
