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SKIN CARE SPECIALIST WORKING FOR A SKIN CARE COMPANY WITH A DISPLAY IN A BLOOMINGDALE’S STORE WAS AN EMPLOYEE OF THE SKIN CARE COMPANY AND WAS ENTITLED TO BENEFITS, LATE NOTICE EXCUSED, CLAIMANT FELL ON THE WAY TO THE RESTROOM (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board’s finding that claimant, a skin care specialist and spokesmodel, was an employee of Task Essential, who had a display in a Bloomingdale’s store. Claimant fell on the way to a restroom. The court rejected the argument that claimant was a special employee of Bloomingdale’s and that recovery was precluded by late notice of the injury:

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Claimant testified that his supervisor, who represented himself as an employee of Task Essential, set his schedule, which varied week to week and included working at two different stores. Claimant further explained that he received training for the position from his Task Essential supervisor and Task Essential informed him of a required dress code. Part of claimant’s job entailed meeting sales goals, he was paid an hourly rate and he would ask permission from a Task Essential supervisor before leaving his post to use the restroom. Claimant explained that, after he fell, a Task Essential supervisor informed him that he could not leave because there was no one to cover the skin care station. According to claimant, his Task Essential supervisor would occasionally spot check him to observe his performance. Matter of Colamaio-Kohl v Task Essential Corp., 2018 NY Slip Op 00213, Third Dept 1-11-18

WORKERS’ COMPENSATION (SKIN CARE SPECIALIST WORKING FOR A SKIN CARE COMPANY WITH A DISPLAY IN A BLOOMINGDALE’S STORE WAS AN EMPLOYEE OF THE SKIN CARE COMPANY AND WAS ENTITLED TO BENEFITS, LATE NOTICE EXCUSED, CLAIMANT FELL ON THE WAY TO THE RESTROOM (THIRD DEPT))

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CLAIMANT NOT ENTITLED TO PRESUMPTION OF AN EMPLOYER-EMPLOYEE RELATIONSHIP PURSUANT TO LABOR LAW 511 WHICH IS AFFORDED TO PERFORMING ARTISTS, CLAIMANT IS PAID TO PROMOTE CALL-IN RADIO SHOWS BY CALLING DURING THE SHOWS, AN ACTIVITY THAT REQUIRES NO ARTISTIC TALENT (THIRD DEPT).

The Third Department, reversing the appeal board, determined claimant was not entitled to the presumption of an employee-employer relationship afforded by Labor Law 511, which specifically applies to the performing arts. Claimant is a “caller” paid to participate in radio call-in shows to promote the shows. The caller need have no artistic skill or talent. Therefore the Labor Law 511 presumption did not apply:

In this case, as there is no dispute that the callers' services did not require artistic or technical skill or talent, we find that the statutory presumption for an employee in the performing arts has not been established. As such, we find that the Board's interpretation of the statute was erroneous and its decision must be reversed. Additionally, we note that only general information about the endeavors of the radio stations — which are not deemed to be the employers of the callers — was provided, which was insufficient to support the Board's finding that such endeavors required an artistic or technical skill or talent to produce. Inasmuch as the Board did not address whether United [the employer] exercised sufficient direction and control over claimant and those similarly situated to establish an employer-employee relationship, we remit the matter for the Board's consideration. Matter of Minefee (United Stas. Radio Networks, Inc.–Commissioner of Labor), 2018 NY Slip Op 00210, Third Dept 1-11-18

UNEMPLOYMENT INSURANCE (CALLERS, CLAIMANT NOT ENTITLED TO PRESUMPTION OF AN EMPLOYER-EMPLOYEE RELATIONSHIP PURSUANT TO LABOR LAW 511 WHICH IS AFFORDED TO PERFORMING ARTISTS, CLAIMANT IS PAID TO PROMOTE CALL-IN RADIO SHOWS BY CALLING DURING THE SHOWS, AN ACTIVITY THAT REQUIRES NO ARTISTIC TALENT (THIRD DEPT))/LABOR LAW (UNEMPLOYMENT INSURANCE, PERFORMING ARTISTS, CLAIMANT NOT ENTITLED TO PRESUMPTION OF AN EMPLOYER-EMPLOYEE RELATIONSHIP PURSUANT TO LABOR LAW 511 WHICH IS AFFORDED TO PERFORMING ARTISTS, CLAIMANT IS PAID TO PROMOTE CALL-IN RADIO SHOWS BY CALLING DURING THE SHOWS, AN ACTIVITY THAT REQUIRES NO ARTISTIC TALENT (THIRD DEPT))/PERFORMING ARTISTS (UNEMPLOYMENT INSURANCE, LABOR LAW, CALLERS, CLAIMANT NOT ENTITLED TO PRESUMPTION OF AN EMPLOYER-EMPLOYEE RELATIONSHIP PURSUANT TO LABOR LAW 511 WHICH IS AFFORDED TO PERFORMING ARTISTS, CLAIMANT IS PAID TO PROMOTE CALL-IN RADIO SHOWS BY CALLING DURING THE SHOWS, AN ACTIVITY THAT REQUIRES NO ARTISTIC TALENT (THIRD DEPT))/CALLERS (UNEMPLOYMENT INSURANCE, LABOR LAW, CLAIMANT NOT ENTITLED TO PRESUMPTION OF AN EMPLOYER-EMPLOYEE RELATIONSHIP PURSUANT TO LABOR LAW 511 WHICH IS AFFORDED TO PERFORMING ARTISTS, CLAIMANT IS PAID TO PROMOTE CALL-IN RADIO SHOWS BY CALLING DURING THE SHOWS, AN ACTIVITY THAT REQUIRES NO ARTISTIC TALENT (THIRD DEPT))

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PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF’S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT).

The Third Department, affirming Supreme Court's preclusion of plaintiff's (Colucci's) expert evidence and the grant of summary judgment to defendant, determined the failure of plaintiff to meet the deadline for expert disclosure warranted preclusion. Plaintiff had leased business space from defendant and alleged that exposure to sewage and mold at the premises caused health problems. Plaintiff did not disclose her expert, one of her treating physicians (Johanning), until a year after the discovery deadline imposed by Supreme Court. Defendant had timely submitted expert evidence opining there was no causal relationship between plaintiff's exposure to sewage and mold at the leased premises and plaintiff's health problems:

… [T]his Court has interpreted CPLR 3101 (d) (1) (i) as “requiring disclosure of any medical professional, even a treating physician or nurse, who is expected to give expert testimony” … . Thus, while Johanning was listed in Colucci's responses to defendant's bill of particulars as one of 28 treating physicians or medical providers, and medical treatment records for her were disclosed, this at most indicated to defendant that Johanning might have been called as an expert by plaintiffs; it did not obviate the need for plaintiffs to comply with CPLR 3101 (d) (1) (i) and Supreme Court's order by disclosing their intent to rely on him as an expert, as well as the substance of the facts and opinions to which he was expected to testify… . To that end, the expert disclosure statute requires, in relevant part, “reasonable detail [of] the subject matter on which [the] expert is expected to testify, the substance of the facts and opinions . . . and a summary of the grounds for [the] expert's opinion” (CPLR 3101 [d] [1] [i]), none of which was timely disclosed to defendant … . Notably, “the burden of providing expert witness disclosure and setting forth the particular details required by the statute lies with the party seeking to utilize the expert; it is not opposing counsel's responsibility to cull through [copious medical records] to ferret out the qualifications of the subject expert, the facts or opinions that will form the basis for his or her testimony at trial and/or the grounds upon which the resulting opinion will be based”… . Moreover, the record supports Supreme Court's conclusions that Johanning's expert affidavit, submitted for the first time in opposition to defendant's motion, offered substantially new medical and scientific theories not reflected in his medical records … . Thus, the court providently precluded Johanning's expert affidavit and testimony. Colucci v Stuyvesant Plaza, Inc., 2018 NY Slip Op 00211, Third Dept 1-11-18

NEGLIGENCE (EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/TOXIC TORTS  (EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/CIVIL PROCEDURE (TOXIC TORTS, EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/EVIDENCE (TOXIC TORTS, EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/EXPERT OPINION (TOXIC TORTS, EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/CPLR 3101 (TOXIC TORTS, EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))

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PORTION OF SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL WAS SUBJECT TO A SPECIAL USE BY DEFENDANT PARKING GARAGE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT).

The Second Department determined defendant parking garage's (New York Parking's) motion for summary judgment in this sidewalk slip and fall case was properly denied. Plaintiff alleged he tripped and fell on a portion of the sidewalk subject to a special use by the parking garage:

The record presents triable issues of fact as to whether New York Parking's use of the sidewalk was a special use, and whether that special use caused the defect in the sidewalk that caused plaintiff to fall… .  The duty to maintain the area of special use runs with the land and is not dependent upon a finding that New York Parking actually inspected the sidewalk or repaired it … . Boneventura v 60 W. 57 Realty LLC, 2018 NY Slip Op 00232, First Dept 1-11-18

NEGLIGENCE (SLIP AND FALL, SIDEWALKS, SPECIAL USE, PORTION OF SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL WAS SUBJECT TO A SPECIAL USE BY DEFENDANT PARKING GARAGE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT))/SLIP AND FALL (SIDEWALKS, SPECIAL USE, PORTION OF SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL WAS SUBJECT TO A SPECIAL USE BY DEFENDANT PARKING GARAGE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, SPECIAL USE, PORTION OF SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL WAS SUBJECT TO A SPECIAL USE BY DEFENDANT PARKING GARAGE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT))/SPECIAL USE (SIDEWALKS, SLIP AND FALL, ORTION OF SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL WAS SUBJECT TO A SPECIAL USE BY DEFENDANT PARKING GARAGE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT))

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QUESTION OF FACT WHETHER THERE HAD BEEN A SURRENDER OF THE LEASED PREMISES BY OPERATION OF LAW, THEREBY LIMITING TENANT’S LIABILITY FOR ABANDONMENT OF THE LEASE WITH TEN YEARS REMAINING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the tenant raised a trial issue of fact about whether there was a surrender of the leased premises (a parking garage with ground-floor subtenants) by operation of law. The tenant had abandoned the lease with ten years remaining:

…[T]the tenant raised a viable issue of fact as to whether the landlord took dominion and control of the building for its own benefit. The tenant submitted evidence that, after it returned the keys to the landlord and vacated the premises, the landlord took possession of the premises, and not only sent bills directly to the subtenants, but also entered into its own contract with Central Parking to operate the parking garage and to pay the landlord each month all the income received from the garage operations. The tenant submitted further evidence that the landlord placed the property for sale at some juncture. When viewed in the light most favorable to the tenant, as nonmoving party, and given the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence … , these facts support an inference that, upon the tenant's abandonment, the landlord intended to take dominion and control of the premises for its own benefit. 176 PM, LLC v Heights Stor. Garage, Inc., 2018 NY Slip Op 00223, First Dept 1-11-18

LANDLORD-TENANT (SURRENDER BY OPERATION OF LAW, QUESTION OF FACT WHETHER THERE HAD BEEN A SURRENDER OF THE LEASED PREMISES BY OPERATION OF LAW, THEREBY LIMITING TENANT'S LIABILITY FOR ABANDONMENT OF THE LEASE WITH TEN YEARS REMAINING (FIRST DEPT))/SURRENDER BY OPERATION OF LAW (LANDLORD-TENANT, QUESTION OF FACT WHETHER THERE HAD BEEN A SURRENDER OF THE LEASED PREMISES BY OPERATION OF LAW, THEREBY LIMITING TENANT'S LIABILITY FOR ABANDONMENT OF THE LEASE WITH TEN YEARS REMAINING (FIRST DEPT))/ABANDONMENT OF LEASE (LANDLORD-TENANT, QUESTION OF FACT WHETHER THERE HAD BEEN A SURRENDER OF THE LEASED PREMISES BY OPERATION OF LAW, THEREBY LIMITING TENANT'S LIABILITY FOR ABANDONMENT OF THE LEASE WITH TEN YEARS REMAINING (FIRST DEPT))

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2008 LETTER INFORMING DEFENDANT SHE WAS IN DEFAULT DID NOT ACCELERATE THE DEBT, THEREFORE THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN AND THE CURRENT FORECLOSURE PROCEEDING IS TIMELY (THIRD DEPT).

The Third Department determined a 2008 letter from the bank's counsel informing defendant she was in default did not expressly accelerate the debt. Therefore the statute of limitations did not begin to run in 2008 and the current proceeding is timely:

“The six-year statute of limitations in a mortgage foreclosure action begins to run from the due date for each unpaid installment unless the debt has been accelerated; once the debt has been accelerated by a demand or commencement of an action, the entire sum becomes due and the statute of limitations begins to run on the entire mortgage”  … . …

The August 2008 letter advised defendant and Luma that they had violated the terms of the note and mortgage by failing to make monthly payments and that counsel had been retained “to exercise all of [the loan servicer's] rights and remedies at law, and in equity, including, but not limited to, the right to sell the above captioned premises at a public sale.” The letter therefore left all legal and equitable avenues open, did not indicate that immediate payment was demanded and, indeed, went on to state that the debt's validity would not be assumed unless there was an absence of timely written objection to some or all of it. There was, moreover, neither an explicit demand for payment in the letter nor the use of the word “accelerate.” Bank of Am., Natl. Assn. v Luma, 2018 NY Slip Op 00214, Third Dept 1-11-18

FORECLOSURE (STATUTE OF LIMITATIONS, 2008 LETTER INFORMING DEFENDANT SHE WAS IN DEFAULT DID NOT ACCELERATE THE DEBT, THEREFORE THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN AND THE CURRENT FORECLOSURE PROCEEDING IS TIMELY (THIRD DEPT))/CIVIL PROCEDURE (FORECLOSURE, STATUTE OF LIMITATIONS,  2008 LETTER INFORMING DEFENDANT SHE WAS IN DEFAULT DID NOT ACCELERATE THE DEBT, THEREFORE THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN AND THE CURRENT FORECLOSURE PROCEEDING IS TIMELY (THIRD DEPT))/STATUTE OF LIMITATIONS (FORECLOSURE, 2008 LETTER INFORMING DEFENDANT SHE WAS IN DEFAULT DID NOT ACCELERATE THE DEBT, THEREFORE THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN AND THE CURRENT FORECLOSURE PROCEEDING IS TIMELY (THIRD DEPT))

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NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT).

The Second Department, reversing Family Court, determined that the appellant did not have an intimate relationship with petitioner and therefore Family Court did not have jurisdiction over the family offense proceeding against appellant and could not issue an order of protection. Even though the order of protection had expired, the continuing reputational consequences of the order of protection justified determining the appeal:

The petitioner is the live-in girlfriend of the appellant's brother. The petitioner and the appellant live in the same building, on different floors. The petitioner filed a family offense petition against the appellant, alleging that she had physically attacked and verbally threatened her. * * *

The Family Court is a court of limited jurisdiction, and “cannot exercise powers beyond those granted to it by statute”… . “Pursuant to Family Court Act § 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain prescribed criminal acts that occur between spouses or former spouses, or between parent and child or between members of the same family or household'” … . “[M]embers of the same family or household” include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . Expressly excluded from the ambit of “intimate relationship” are “casual acquaintance[s]” and “ordinary fraternization between two individuals in business or social contexts” … . Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis … . Relevant factors include “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … .

Here, the parties have no direct relationship and are only connected through a third party, who is the petitioner's live-in boyfriend and the appellant's brother. Additionally, the parties have never resided together and their contact with one another has been purely by happenstance, as they live in the same building. Accordingly, they do not have an intimate relationship within the meaning of Family Court Act § 812(1)(e). Matter of Royster v Murray, 2018 NY Slip Op 00151, Second Dept 1-10-18

FAMILY LAW (NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/FAMILY OFFENSES (FAMILY COURT, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/INTIMATE RELATIONSHIP (FAMILY COURT, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/CRIMINAL LAW (FAMILY OFFENSES, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/APPEALS (FAMILY LAW, FAMILY OFFENSES, ORDER OF PROTECTION, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/ORDER OF PROTECTION (APPEALS, FAMILY LAW, FAMILY OFFENSES, ORDER OF PROTECTION, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))

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PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-wife's motion to set aside the prenuptial agreement should have been granted:

“An agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse” …  “An agreement is unconscionable if it is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense'”… . An agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered … . The burden of proof as to unconscionability is on the party seeking to set aside the agreement … .

Here, contrary to the Supreme Court's determination, the defendant sustained her burden of establishing that the prenuptial agreement was, at the time this action was before the court, unconscionable. Enforcement of the agreement would result in the risk of the defendant's becoming a public charge. The defendant, who is unemployed, largely without assets, and the primary caregiver for the parties' young children, would, under the prenuptial agreement, receive only $20,000, in full satisfaction of all claims, even though the plaintiff earns approximately $300,000 annually as a physician … . Taha v Elzemity, 2018 NY Slip Op 00188, Second Dept 1-10-18

FAMILY LAW (PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT))/PRENUPTIAL AGREEMENT (FAMILY LAW, PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT))/UNCONSCIONABLE (FAMILY LAW, (PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT))/CONTRACT LAW (FAMILY LAW, PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT))

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PRIMA FACIE CASE OF NEGLECT BASED UPON MOTHER’S MENTAL CONDITION HAD BEEN MADE OUT, THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED, FACT THAT MOTHER HAD NOT BEEN DIAGNOSED AS SUFFERING FROM A MENTAL ILLNESS WAS NOT DISPOSITIVE (SECOND DEPT).

The Second Department, reversing Family Court, determined a prima facie showing of neglect based upon mother's mental condition had been made. Therefore mother's motion to dismiss the neglect petition should not have been granted. The court noted that the fact that mother had not been diagnosed as having a mental illness was not dispositive:

… [T]he petitioner presented a prima facie case of neglect. At the fact-finding hearing, the petitioner introduced into evidence a recording of two 911 calls made by the mother's stepdaughter, in which she reported, among other things, that the mother, while holding the child, was hitting and slapping the mother's sister. She further stated that the mother was manic, yelling, throwing things, and getting violent. Additionally, the petitioner presented the testimony of the attending psychiatrist in the emergency room at Queens Hospital Center who, based upon his assessment of the mother's mental condition, found that she was unable to care for the child and ordered her admission into a psychiatric emergency program that requires frequent observation for at least 24 hours. The mother's hospital records, which the petitioner also introduced into evidence, demonstrated that the mother's mental condition, which was described as paranoid, violent, and lacking in insight and impulse control, had not resolved within 24 hours and necessitated her admission into the extended observation unit. Moreover, “[t]he absence of a diagnosed condition does not preclude a finding of neglect” … . Therefore, although the petitioner did not show that the mother had a specific diagnosed mental illness, the petitioner was not required to make such a showing to avoid dismissal…. . Matter of Catalina A. (Evelyn C.), 2018 NY Slip Op 00135, Second Dept 1-10-18

FAMILY LAW (NEGLECT, PRIMA FACIE CASE OF NEGLECT BASED UPON MOTHER'S MENTAL CONDITION HAD BEEN MADE OUT, THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED, FACT THAT MOTHER HAD NOT BEEN DIAGNOSED AS SUFFERING FROM A MENTAL ILLNESS WAS NOT DISPOSITIVE (SECOND DEPT))/NEGLECT (FAMILY LAW, PRIMA FACIE CASE OF NEGLECT BASED UPON MOTHER'S MENTAL CONDITION HAD BEEN MADE OUT, THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED, FACT THAT MOTHER HAD NOT BEEN DIAGNOSED AS SUFFERING FROM A MENTAL ILLNESS WAS NOT DISPOSITIVE (SECOND DEPT))/MENTAL ILLNESS (FAMILY LAW, NEGLECT, PRIMA FACIE CASE OF NEGLECT BASED UPON MOTHER'S MENTAL CONDITION HAD BEEN MADE OUT, THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED, FACT THAT MOTHER HAD NOT BEEN DIAGNOSED AS SUFFERING FROM A MENTAL ILLNESS WAS NOT DISPOSITIVE (SECOND DEPT))

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ISSUING A PERMIT FOR THE WITHDRAWAL OF UP TO 1.5 BILLION GALLONS OF RIVER WATER PER DAY TO COOL A POWER PLANT IS NOT A MINISTERIAL, NON-DISCRETIONARY ACT, THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) APPLIES TO THE PERMITTING PROCESS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, reversing Supreme Court, determined that the Department of Environmental Conservation's (DEC's) issuance of a permit for the withdrawal of up to 1.5 billion gallons of river water (per day) to cool an electric power plant was not a ministerial, non-discretionary act. Therefore the permitting process was not exempt from the requirements of the State Environmental Quality Review Act (SEQRA), including the need for an environmental impact statement (EIS):

Here, while ECL [Environmental Conservation Law] 15-1501(9) states that the DEC “shall issue” an initial permit to an existing operator for its self-reported maximum water withdrawal capacity, the statute provides that such initial permit is “subject to appropriate terms and conditions as required under this article.” Notably, the WRPA [Water Resources Protection Act] specifically provides the DEC with the power “to grant or deny a permit or to grant a permit with conditions” … . The statutory factors that the DEC is required to consider when reviewing an application and imposing conditions on the permittee do not lend themselves to mechanical application. For instance, whether “the proposed water withdrawal will be implemented in a manner that incorporates environmentally sound and economically feasible water conservation measures” … will almost certainly vary from operator to operator, or from water source to water source. The DEC's own regulations state that an “initial permit” must include “environmentally sound and economically feasible water conservation measures to promote the efficient use of supplies” … . Whether a condition is “appropriate” for a given operator is a matter that falls within the DEC's expertise and involves the exercise of judgment, and, therefore, implicates matters of discretion … . Matter of Sierra Club v Martens, 2018 NY Slip Op 00153, Second Dept 1-10-18

ENVIRONMENTAL LAW (ISSUING A PERMIT FOR THE WITHDRAWAL OF UP TO 1.5 BILLION GALLONS OF RIVER WATER PER DAY TO COOL A POWER PLANT IS NOT A MINISTERIAL, NON-DISCRETIONARY ACT, THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) APPLIES TO THE PERMITTING PROCESS (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (RIVER WATER, ISSUING A PERMIT FOR THE WITHDRAWAL OF UP TO 1.5 BILLION GALLONS OF RIVER WATER PER DAY TO COOL A POWER PLANT IS NOT A MINISTERIAL, NON-DISCRETIONARY ACT, THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) APPLIES TO THE PERMITTING PROCESS (SECOND DEPT))/RIVERS (ENVIRONMENTAL LAW, ISSUING A PERMIT FOR THE WITHDRAWAL OF UP TO 1.5 BILLION GALLONS OF RIVER WATER PER DAY TO COOL A POWER PLANT IS NOT A MINISTERIAL, NON-DISCRETIONARY ACT, THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) APPLIES TO THE PERMITTING PROCESS (SECOND DEPT))/WATER RESOURCES PROTECTION ACT (WRPA)  (RIVER WATER, ISSUING A PERMIT FOR THE WITHDRAWAL OF UP TO 1.5 BILLION GALLONS OF RIVER WATER PER DAY TO COOL A POWER PLANT IS NOT A MINISTERIAL, NON-DISCRETIONARY ACT, THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) APPLIES TO THE PERMITTING PROCESS (SECOND DEPT))/ELECTRIC POWER PLANTS (RIVER WATER, ENVIRONMENTAL LAW, ISSUING A PERMIT FOR THE WITHDRAWAL OF UP TO 1.5 BILLION GALLONS OF RIVER WATER PER DAY TO COOL A POWER PLANT IS NOT A MINISTERIAL, NON-DISCRETIONARY ACT, THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) APPLIES TO THE PERMITTING PROCESS (SECOND DEPT))

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