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OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant out-of-possession landlords’ motion for summary judgment should have been granted in this sidewalk slip and fall case:

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Defendants cannot be held liable for injuries allegedly sustained by plaintiff when he slipped on snow and ice on the sidewalk adjacent to their property, because they were out-of-possession landlords with no contractual obligation to keep the sidewalks clear of snow and ice, and the presence of snow and ice does not constitute a significant structural or design defect … . Xiang Fu He v Troon Mgt., Inc., 2018 NY Slip Op 00382, First Dept 1-23-18

NEGLIGENCE (OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))/SLIP AND FALL (OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))/OUT OF POSSESSION LANDLORD (NEGLIGENCE, SLIP AND FALL, OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))

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THE BOARD’S CONCLUSION, BASED UPON EXPERT TESTIMONY, THAT CLAIMANT’S STROKE WAS CAUSED BY PRE-EXISTING MEDICAL CONDITIONS AND NOT THE WORK CONDITIONS AT THE TIME OF THE STROKE WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND THEREFORE CANNOT BE DISTURBED ON APPEAL (THIRD DEPT).

The Third Department determined there was substantial evidence, in the form of expert testimony, that claimant’s stroke was caused by pre-existing medical conditions and not the particular conditions of work on the day the stroke happened. Because there existed substantial evidence to support the Workers’ Compensation Board’s ruling, the court cannot disturb it:

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Claimant’s medical expert, Lester Ploss, opined that claimant’s stroke was causally-related to his employment given that, on the day of his stroke, claimant had a prolonged lack of sleep, was under time constraints to drive to Pennsylvania and performed very arduous labor while teaching a class. The record, however, establishes that on a regular work day, claimant awoke around 2:00 a.m., drove to work in the Bronx and worked from approximately 4:00 a.m. until 1:30 p.m. cutting meat. Although claimant drove to Pennsylvania on the day in question, the record establishes that he worked substantially the same hours as a normal work day. In addition, the general manager testified that the drive to Pennsylvania was divided and included stops along the way. Furthermore, although claimant did not typically teach, the manner of cutting meat was substantially similar to his regular duties in the Bronx, where he did assist others in their technique of cutting meat. Naunihal Singh, a neurologist who reviewed claimant’s medical records, opined that claimant’s stroke was not related to any aspect of employment but was a direct result of claimant’s preexisting medical conditions, including hypertension, cognitive heart failure, cardiomegaly and an irregular heart. The Board’s decision was based upon the credibility, or lack thereof, of the medical testimony with regard to the events leading to claimant’s stroke. Inasmuch as this Court defers to the credibility determinations of the Board with regard to medical evidence and witness testimony, we find that there is substantial evidence in the record to support the Board’s decision that claimant’s stroke did not arise out of or in the course of his employment … . Matter of Devis v Mountain States Rosen LLC, 2018 NY Slip Op 00370, Third Dept 1-18-18

WORKERS’ COMPENSATION LAW (THE BOARD’S CONCLUSION, BASED UPON EXPERT TESTIMONY, THAT CLAIMANT’S STROKE WAS CAUSED BY PRE-EXISTING MEDICAL CONDITIONS AND NOT THE WORK CONDITIONS AT THE TIME OF THE STROKE WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND THEREFORE CANNOT BE DISTURBED ON APPEAL (THIRD DEPT))

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EVEN THOUGH THE INJURED EMPLOYEE WORKED ONLY SPORADICALLY AND AS NEEDED AND WORKED ONLY 16 DAYS IN THE RELEVANT 52 WEEK PERIOD, HIS BENEFITS MUST STILL BE CALCULATED BY MULTIPLYING HIS DAILY WAGE BY 200 (THIRD DEPT).

The Third Department determined the mandated technique for computing lost wages applied even though the employee worked only sporadically as needed. The employee had worked only 16 days during the 52-week period but was entitled to benefits calculated at 200 times his daily wage:

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Where, as here, Workers’ Compensation Law § 14 (3) applies, an employee’s annual average earnings must be computed based on “such sum as . . . shall reasonably represent the annual earning capacity of the injured [claimant] in the employment in which he [or she] was working at the time of [his or her] accident [and] consist of not less than two hundred times the average daily wage or salary which he [or she] shall have earned in such employment during the days when so employed.” That total is then divided by 52 weeks to reach the average weekly wage … . “However, the 200 multiple method is properly used to compute the average weekly wage of a part-time or intermittent [claimant] only where there has been a finding that the [claimant] was fully available for the employment at issue, and should not be applied if a claimant has voluntarily limited his or her availability for work”… .

Here, the record establishes that claimant worked for the employer sporadically and on an as-needed basis in the 52-week period before the accident. Although the employer submitted checks that related to additional earnings by claimant during the 52-week period, no evidence was presented to demonstrate that claimant voluntarily limited his availability for work with the employer. Absent such evidence, the Board’s use of the 200 multiplier in determining claimant’s average weekly wage is supported by substantial evidence and will not be disturbed … . “While the result [herein] appears to be contrary to [Workers’ Compensation Law § 15 (6) (a),] which provides that compensation when combined with decreased earnings or earning capacity shall not exceed the wages the employee was receiving at the time of the accident, it is the result reached by using the formula set forth in [Workers’ Compensation Law § 14 (3)] which has been considered a legislative mandate” … . Matter of Bain v New Caps, LLC, 2018 NY Slip Op 00369, Third Dept 1-18-18

WORKERS’ COMPENSATION LAW EVEN THOUGH EMPLOYEE WORKED ONLY SPORADICALLY AND AS NEEDED AND WORKED ONLY 16 DAYS IN THE RELEVANT 52 WEEK PERIOD, HIS BENEFITS MUST STILL BE CALCULATED BY MULTIPLYING HIS DAILY WAGE BY 200 (THIRD DEPT))

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ALTHOUGH CLAIMANT RETURNED TO WORK AT FULL PAY, SHOULD SHE STOP WORK IN THE FUTURE SHE IS ENTITLED TO 375 WEEKS OF BENEFITS FOR PERMANENT PARTIAL DISABILITY WHICH RESULTED IN A 70% LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT).

The Third Department determined claimant was entitled to 375 weeks of benefits for a permanent partial disability which resulted in a 70% loss of wage-earning capacity (should she stop working), even though she returned to work at full pay:

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Following a hearing, a Workers’ Compensation Law Judge (hereinafter WCLJ) classified claimant with a permanent partial disability and found that she had a 70% loss of wage-earning capacity and would be entitled to wage loss benefits for 375 weeks should she stop working … .The employer appealed from the decision and argued that claimant could not be found to have a loss of wage-earning capacity given that she had returned to work and was earning her preaccident wages. The Workers’ Compensation Board disagreed and affirmed, prompting this appeal.

We affirm. Loss of wage-earning capacity is set at the time of classification and refers to “the maximum number of weeks over which a claimant with a permanent partial disability is entitled to receive benefits” … .. As such, “despite the fact that [a] claimant [is] working at full wages, the Board [is] entitled to establish . . . loss of wage-earning capacity, which sets a fixed durational limit on potential benefits in the event that [a] claimant incurs a subsequent reduction of wages as the result of his [or her] work-related injuries” … . The Board’s decision falls squarely within this rule, and the employer’s argument that this Court has left any ambiguity on the issue is without merit … . Matter of Oyola v New York City Dept. of Sch. Food & Nutrition Servs., 2018 NY Slip Op 00368, Third Dept 1-18-18

WORKERS’ COMPENSATION LAW (ALTHOUGH CLAIMANT RETURNED TO WORK AT FULL PAY, SHOULD SHE STOP WORK SHE WAS ENTITLED TO 375 WEEKS OF BENEFITS FOR PERMANENT PARTIAL DISABILITY WHICH RESULTED IN A 70% LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT))/WAGE-EARNING CAPACITY (WORKERS’ COMPENSATION LAW, (ALTHOUGH CLAIMANT RETURNED TO WORK AT FULL PAY, SHOULD SHE STOP WORK SHE WAS ENTITLED TO 375 WEEKS OF BENEFITS FOR PERMANENT PARTIAL DISABILITY WHICH RESULTED IN A 70% LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT))

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QUESTION OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS IN THIS SLIP AND FALL CASE, AND QUESTION OF FACT WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT).

The First Department, over an extensive, substantive, two-justice partial dissent, determined there were questions of fact whether an opening in the floor constituted an open and obvious condition and whether the contractor (Harbour) which removed an obsolete tank, exposing the opening, was liable to plaintiff for “launching an instrument of harm.” Plaintiff was working near the opening, facing away from it, when he stepped back into the opening and fell. Plaintiff had taken a picture of the opening months before and shown it to the property owner’s manager. The dissenting justices argued that the contract between Harbour and the property owner did not obligate it to repair the opening which was revealed when the tank was removed and, therefore, Harbour did not breach a duty of care owed to plaintiff:

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Even if Harbour’s contract did not require that it cover, remediate, fill in or repair any of the floor openings resulting from its work, Harbour did not take even minimal corrective measures to protect the exposed opening in the floor after it removed the obsolete oil tank. Thus, while its removal of the tank was in fulfillment of its contractual obligation, a reasonable jury could find that Harbour’s leaving an exposed and unprotected opening in the floor exposed, caused or created a dangerous condition even if previously the metal plate containing the opening was not unsafe. The dissent’s view relies on cases where the defendant did not owe a duty of care because the condition the plaintiff complained of was precisely what was called for in the defendant’s contract … .  … There is a view of the facts that Harbour, by leaving the exposed opening without any kind of warning or minimal protection, created or caused an unsafe condition, or made the previously obscured opening in the metal plate “less safe” than before Harbour did its work … . Thus the issue is not whether Harbour had a contractual obligation to protect the opening, but whether by leaving the opening in the metal plate exposed it created an unreasonable risk of harm to the plaintiff. Farrugia v 1440 Broadway Assoc., 2018 NY Slip Op 00347, First Dept 1-18-18

NEGLIGENCE (SLIP AND FALL, QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/SLIP AND FALL (QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/CONTRACT LAW (ESPINAL, TORT LIABILITY TO THIRD PARTY,  QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/LAUNCH INSTRUMENT OF HARM (TORT LIABILITY TO THIRD PARTY BASED UPON CONTRACT, ESPINAL EXCEPTIONS, QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/ESPINAL EXCEPTIONS  (TORT LIABILITY TO THIRD PARTY BASED UPON CONTRACT, QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))

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APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs’ apartments, which received tax benefits pursuant to Real Property Tax Law 421-g are subject to the luxury vacancy decontrol provisions of the NYC Rent Stabilization Law. Therefore plaintiffs’ apartments were properly deregulated and were not subject to rent stabilization:

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Except for condominiums and cooperatives, dwellings in buildings that receive tax benefits pursuant to Real Property Tax Law § 421-g are subject to rent stabilization for the entire period the building is receiving 421-g benefits (Real Property Tax Law § 421-g[6]). However, 421-g buildings are subject to the luxury vacancy decontrol provisions of Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-504.2(a), unlike buildings that receive tax benefits pursuant to Real Property Tax Law §§ 421-a and 489.

Real Property Tax Law § 421-g does not create another exemption to Rent Stabilization Law § 26-504.2(a). Supreme Court essentially interpreted Real Property Tax Law § 421-g(6)’s prefatory phrase “Notwithstanding the provisions of any local law for [rent stabilization]” to mean “Notwithstanding [the luxury decontrol] provisions of any local law.” However, “[a] statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent”… .Accordingly, the prefatory phrase, which also appears identically in RPTL 421-a(2)(f), must be read in tandem with the coverage clause of that section. The prefatory phrase and the coverage clause were both necessary to extend rent stabilization to certain dwellings in buildings receiving 421-g benefits. Kuzmich v 50 Murray St. Acquisition LLC, 2018 NY Slip Op 00336, First Dept 1-18-18

MUNICIPAL LAW (NYC) (RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/LANDLORD-TENANT (NYC, RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/REAL PROPERTY TAX LAW  (NYC, RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/RENT STABILIZATION LAW (NYC) (APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/APARTMENTS (NYC) (RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/LUXURY VACANCY DECONTROL (NYC, RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))

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PLANKS AND CRIBBING COVERING AN OPENING WERE SAFETY DEVICES WITHIN THE MEANING OF LABOR LAW 240 (1), FAILURE TO SECURE THE CRIBBING WAS A PROXIMATE CAUSE OF THE ACCIDENT (FIRST DEPT).

The First Department determined defendants’ motion for summary judgment in this Labor Law 240 (1) action was properly denied. Plaintiff was attempting to remove planks covering an opening over an elevator shaft. His foot slipped on oil and he was injured trying to maintain control of a blank. Cribbing under the planks should have been secured but was not. The court held that the planks and cribbing were safety devices within the meaning of the Labor Law. And even if slipping on the oil was a proximate cause of the injury, there can be more than one proximate cause:

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… [T]he cribbing and planking together constituted a safety device designed to protect the workers on the project from falling into the opening in the construction floor … . Further, it is undisputed that the cribbing was not secured at the time of plaintiff’s accident, which allowed the plank plaintiff was holding to fall into the opening, dragging plaintiff toward the opening, causing his injuries.

To the extent defendants assert that they cannot be held liable under Labor Law § 240(1), on the ground that plaintiff’s accident was not caused by the inadequacy of a safety device but rather by him slipping on an oily substance, this does not support granting summary judgment to the defendants. Although plaintiff testified that he slipped due to the oily substance on the floor, the safety device comprised of the cribbing and planking, which was installed to prevent workers from falling into the opening in the floor, could be found by a trier of fact to be a proximate cause of plaintiff’s injuries. Even if the oily substance on the floor was a proximate cause of plaintiff’s accident, “[t]here may be more than one proximate cause of a workplace accident” … . Wiscovitch v Lend Lease (U.S.) Constr. LMB Inc., 2018 NY Slip Op 00350, First Dept 1-18-18

LABOR LAW-CONSTRUCTION LAW (PLANKS AND CRIBBING COVERING AN OPENING WERE SAFETY DEVICES WITHIN THE MEANING OF LABOR LAW 240 (1), FAILURE TO SECURE THE CRIBBING WAS A PROXIMATE CAUSE OF THE ACCIDENT (FIRST DEPT))/SAFETY DEVICES (LABOR LAW-CONSTRUCTION LAW, , PLANKS AND CRIBBING COVERING AN OPENING WERE SAFETY DEVICES WITHIN THE MEANING OF LABOR LAW 240 (1), FAILURE TO SECURE THE CRIBBING WAS A PROXIMATE CAUSE OF THE ACCIDENT (FIRST DEPT))

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CLAIM AGAINST THE BANKRUPT’S INSURER IS NOT BARRED BY THE INSURED’S DISCHARGE IN BANKRUPTCY (FIRST DEPT).

The First Department determined that a claim against the bankrupt’s (Daffy’s) insurer is not barred by the insured’s (Daffy’s) discharge in bankruptcy:

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The court correctly determined that this third-party action against Daffy’s Inc. is not barred by the “Stipulated Order” in Daffy’s bankruptcy proceeding, in which third-party plaintiff [property owner] , waived and released any claims or causes of action relating to or arising under its lease with Daffy’s, and the lease was “rejected and terminated.” The motion papers make it clear that [the property owner] seeks to establish Daffy’s liability in the underlying personal injury action for the sole purpose of recovering under Daffy’s insurance policy in effect at the time of the accident. Because the policy would not inure to Daffy’s pecuniary benefit, it was not part of the bankruptcy estate, and thus it is not covered by the Stipulated Order … . Moreover, this Court has recognized that “a claim asserted for the sole purpose of establishing the liability of a party’s insurer is not barred by that party’s discharge in bankruptcy” … . Calleja v AI 229 W. 42nd St. Prop. Owner, LLC, 2018 NY Slip Op 00338, First Dept 1-18-18

INSURANCE LAW (CLAIM AGAINST THE BANKRUPT’S INSURER IS NOT BARRED BY THE INSURED’S DISCHARGE IN BANKRUPTCY (FIRST DEPT))/BANKRUPTCY (INSURANCE LAW, CLAIM AGAINST THE BANKRUPT’S INSURER IS NOT BARRED BY THE INSURED’S DISCHARGE IN BANKRUPTCY (FIRST DEPT))

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FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT).

The Third Department, reversing Family Court, in a full-fledged opinion by Justice Lynch, determined the child was entitled to findings which would enable him to apply for special immigrant juvenile status. The court explained the relevant steps in the immigration process:

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In November 2015, Family Court granted the petition of Ericza K. and appointed her as the permanent guardian of her brother, Jose YY., born in 2000 (hereinafter the child). In April 2016, the child moved for a threshold order that would enable him to petition the United States Citizenship and Immigration Services (hereinafter USCIS) for special immigrant juvenile status (hereinafter SIJS) which, in turn, would enable him to obtain lawful permanent residency in the United States … . A child seeking SIJS from USCIS must first obtain a special findings order from a state court with jurisdiction over the juvenile, which must determine that (1) the child is under 21 years of age, (2) the child is unmarried, (3) the child is dependent upon a juvenile court or legally committed to an individual appointed by that court, (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment or a similar basis under state law, and (5) it would not be in the child’s best interests to be returned to his or her native country … . Upon such an application, the role of Family Court is to render specific findings as to the above criteria, with the ultimate determination as to whether to grant SIJS to a child to be made by USCIS and its parent agency, the Department of Homeland Security … . Correspondingly, it is not Family Court’s role to render an immigration determination … . * * *

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.. .[W]e conclude, upon our independent review of the record, that returning the child to Honduras would not be in his best interests … . The child testified that his father died in 2003 and his mother in 2012, and their death certificates are consistent with such testimony. After his mother’s death, he lived with an older sister who operated a billiards business, where the child was fearful and exposed to people smoking, drinking and using cocaine in his presence. That sister has since relocated to Virginia, and the child no longer has family residing in Honduras. In sharp contrast, his guardian has provided a stable home for the child where he feels safe and is attending school … . Matter of Jose YY. (Ericza K.), 2018 NY Slip Op 00375, Third Dept 1-18-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY LAW, FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT))

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THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s false arrest, false imprisonment and malicious prosecution causes of action should have been dismissed. Drugs were found in her apartment when a search warrant was executed in her absence. Her children’s father pleaded guilt to possession of the drugs. The First Department determined there was probable cause for her arrest under the theory of constructive possession of the drugs:

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The evidence shows that plaintiff resided in and was the leaseholder of an apartment where contraband was discovered pursuant to a search warrant. Plaintiff’s residence and tenancy established her dominion and control over the apartment, and thus placed her in constructive possession of the contraband found therein … . This is so despite the fact that her children’s father had access to the apartment and also admitted and was charged with possession of the same contraband, since “[p]ossession if joint is no less possession” … . This is also true despite the fact that plaintiff was not in the apartment when the search warrant was executed and the contraband discovered … . Plaintiff’s possession of the contraband, in turn, gave rise to probable cause for her arrest. Nor does the record show that there were any material changes in fact to undermine the probable cause between her arrest and the filing of charges against her … . There is no evidence in the record sufficient to overcome the presumption of validity in the search warrant which led to the discovery of the contraband … .

The existence of probable cause constitutes a complete defense to plaintiff’s state claims …  and federal claims for false arrest, false imprisonment, and malicious prosecution … . Phin v City of New York, 2018 NY Slip Op 00333, First Dept 1-18-18

FALSE ARREST (THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/FALSE IMPRISONMENT  (THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/MALICIOUS PROSECUTION (THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/MUNICIPAL LAW (FALSE ARREST, FALSE IMPRISONMENT, MALICIOUS PROSECUTION  (THERE WAS PROBABLE CAUSE TO ARREST PLAINTIFF FOR CONSTRUCTIVE POSSESSION OF DRUGS, FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))

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