Page 40 - WCBA Appellate Practice Committee CLE May 2024-Handout

Qosaj v Village of Sleepy Hollow, 223 AD3d 29 (December 2023) by Chambers, J.

In this action to recover damages for personal injuries, the plaintiff allegedly sustained injuries when the
vehicle he was operating was struck in the rear by a backhoe owned by the defendant. The defendant
driver allegedly had been using the backhoe to open a roadway that was collapsing; he left his jobsite to
obtain gravel for the work, and at the time of the collision, he was on route back to the jobsite with the
gravel. The plaintiff moved for summary judgment on the issue of liability, contending that the defendant
driver negligently struck the plaintiff’s vehicle in the rear. The defendants moved for summary judgment
dismissing the complaint, contending that the defendants’ vehicle was “actually engaged in work on a
highway” at the time of the accident within the meaning of Vehicle and Traffic Law § 1103(b), entitling
the defendants to the application of the reckless disregard standard of care, rather than that of ordinary
negligence. The Supreme Court found that the reckless disregard standard of care set forth in Vehicle and
Traffic Law § 1103(b) applied to the defendant driver’s actions, and denied both motions.

The Second Department held that, under the circumstances of this case, the defendant driver was not
“actually engaged in work on a highway” at the time of the accident, such that the driver would be exempt
from the ordinary rules of the road and held to the reckless disregard standard set forth in Vehicle and
Traffic Law § 1103(b). The exemption is limited to vehicles performing construction, repair, maintenance,
or similar work on a highway, and the act of transporting gravel to a highway worksite does not itself
constitute such work. Further, driving a work vehicle to or from a worksite does not constitute being
“actually engaged in work on a highway” within the meaning of Vehicle and Traffic Law § 1103(b), even
where, as here, the driver is traveling between worksites and has not completed his or her work for the
day.

People v Riche, 225 AD3d 30 (February 2024) by LaSalle, P.J.

The defendant was convicted, after a jury trial, of assault in the first degree in connection with the
repeated stabbing of his estranged wife’s boyfriend (the victim). During the criminal investigation, the
People applied, pursuant to CPL 690, for a warrant to search the historical cell site location information
(CSLI) and call information relating to both the defendant’s and his wife’s cell phone numbers. T-Mobile,
the service provider for both cell phone numbers, maintained the records sought by the People, and had
offices in New Jersey. In support of their application, the People submitted information indicating that the
records were relevant and material to the criminal investigation, as the phone numbers were in use by
each of the parties on the day of the incident and the days leading up to the incident. The Supreme Court,
Kings County, determined that there was probable cause for the records and data sought concerning the
two cell phone numbers, and granted the People’s application for the search warrant. The search warrant
provided, in relevant part, that it shall be executed by serving the warrant on T-Mobile at their office in
New Jersey. Consistent therewith, the warrant was served on T-Mobile via fax from the Kings County
District Attorney’s Office.

The defendant moved on several grounds to controvert the search warrant and to suppress the evidence
seized in the execution thereof. He argued, among other things, that the search warrant was
jurisdictionally defective because it authorized a search outside of New York State. The People argued
that the warrant was properly executed in New York when they sent the warrant using a fax machine
located in Kings County. The Supreme Court denied the defendant’s motion, finding, inter alia, that the
warrant was executed in New York and served in a manner which T-Mobile allows.

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