You are here: / PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO...

Search Results

/ ,

PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT).

The Third Department determined plaintiff’s motion to amend the complaint to add a cause of action for wrongful death was properly granted. Plaintiff’s daughter died after the lawsuit had begun. She had ingested a harmful substance at a festival and the complaint alleged the failure to prevent the use of drugs at the festival and the inadequacy of medical treatment facilities at the festival. Defendants argued there was insufficient evidence of a causal link between the ingestion of the harmful substance and plaintiff’s daughter’s death:

​

… [D]efendants failed to meet their burden of demonstrating either prejudice or hindrance and, on these facts, they cannot credibly claim surprise from the proposed amendment… . Moreover, we have previously recognized that plaintiff has a viable negligence cause of action based upon allegations that decedent’s injuries were caused by defendants’ failure to ensure that she received adequate and timely emergency medical care … . Defendants have not demonstrated that the amendment, which adds a cause of action for wrongful death based upon that negligence … , is “palpably insufficient or patently devoid of merit” … .

To the extent that defendants argue that the motion for leave to amend to add a cause of action for wrongful death must be supported by competent medical proof showing a causal connection between their alleged negligence and decedent’s death, they are incorrect. Prior decisions have held that, “[w]here a plaintiff seeks to amend a complaint alleging medical malpractice to add a cause of action for wrongful death, such motion must be accompanied by ‘competent medical proof showing a causal connection between the alleged negligence and the decedent’s death'” … . Matter of Bynum v Camp Bisco, LLC, 2017 NY Slip Op 08433, Third Dept 11-30-17

 

CIVIL PROCEDURE (NEGLIGENCE, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/COMPLAINT, AMENDMENT OF (NEGLIGENCE, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/NEGLIGENCE (CIVIL PROCEDURE, AMEND COMPLAINT, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/WRONGFUL DEATH (CIVIL PROCEDURE, AMEND COMPLAINT, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))

/ , ,

NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, over a two-justice dissent, determined the NYC Landmarks Preservation Commission’s (LPC’s) decision to allow the electrification of a landmark nineteenth century clocktower (similar in structure to Big Ben) was based upon an error of law and was irrational. The clocktower had been sold to a private party which planned to convert it to a residence. The LPC found, in effect, that the commission did not have authority over the now privately-owned clocktower:

 

We hold that the LPC has authority under the Landmarks Law to regulate the clock mechanism for two reasons.

First, this result effectuates the statutory purposes. The Landmarks Law, New York City’s first historic preservation statute, * * * declares that “the protection, enhancement, perpetuation and use of improvements . . . of special character or special historical or aesthetic interest or value is a public necessity and is required in the interest of the health, prosperity, safety and welfare of the people” (Landmarks Law § 25-301[b]). … * * *

Second, the Landmarks Law defines the term “interior architectural feature” to include the “components of an interior, including, but not limited to . . . the type and style of all . . . fixtures appurtenant to such interior” (Landmarks Law § 25-302[l]). Matter of Save America’s Clocks, Inc. v City of New York, 2017 NY Slip Op 08457, First Dept 11-30-17

 

ADMINISTRATIVE LAW (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))/MUNICIPAL LAW  (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))/ENVIRONMENTAL LAW (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))/LANDMARKS (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))/CLOCKTOWER  (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))

/ , , ,

ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT).

The Second Department determined the action seeking a declaration whether a proposed development was within the jurisdiction of the planning board was premature. Although the board found it had jurisdiction, it also indicated the landowner could obtain a hardship exemption which would allow development:

​

Here, the Planning Commission’s initial finding that the proposed subdivision constituted “development” within the meaning of the Act (see Environmental Conservation Law § 57-0107[13]; see also Central Pine Barrens Comprehensive Land Use Plan § 4.3.5) did not constitute a final determination prohibiting the petitioners from subdividing the property in accordance with their proposal. As the Planning Commission’s determination indicated, the petitioners may still obtain a hardship exemption, which would render the proposed residential use of the property authorized … . Since the petitioners failed to adequately allege that they suffered an actual concrete injury, the Supreme Court properly granted the respondents’ motion to dismiss the proceeding as premature … . Matter of Equine Facility, LLC v Pavacic, 2017 NY Slip Op 08371, Second Dept 11-29-17

 

ZONING (ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT))/CIVIL PROCEDURE (RIPENESS, ZONING, ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT))/ENVIRONMENTAL LAW (ZONING,  (ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT))

/

DEFENDANT ATTEMPTED A TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW WHICH CONSTITUTED NEGLIGENCE PER SE, CO-DEFENDANTS, WHOSE TRUCK COLLIDED WITH THE CAR DRIVEN BY THE DEFENDANT WHO VIOLATED THE VEHICLE AND TRAFFIC LAW, ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined the truck defendants’ (Crown and Kumar’s) motion for summary judgment in this traffic accident case should have been granted. Another defendant, Ferreira, had cut the truck off attempting to make a right turn from the left lane. Ferreira’s actions were the sole proximate cause of the accident:

​

Ferreira’s testimony indicated that she violated Vehicle and Traffic Law § 1128(a), which states that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” Therefore, she was negligent as a matter of law … . The appellants further established that Kumar was not negligent, since he took prompt evasive action by applying his brakes hard.

Thus, by demonstrating that Ferreira was negligent and that her negligence was the sole proximate cause of the accident, the appellants established their prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff and Ferreira failed to raise a triable issue of fact. Accordingly, the appellants’ motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them should have been granted. Pipinias v Ferreira, 2017 NY Slip Op 08400, Second Dept 11-29-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT ATTEMPTED A TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW WHICH CONSTITUTED NEGLIGENCE PER SE, CO-DEFENDANTS, WHOSE TRUCK COLLIDED WITH THE CAR DRIVEN BY THE DEFENDANT WHO VIOLATED THE VEHICLE AND TRAFFIC LAW, ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (DEFENDANT ATTEMPTED A TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW WHICH CONSTITUTED NEGLIGENCE PER SE, CO-DEFENDANTS, WHOSE TRUCK COLLIDED WITH THE CAR DRIVEN BY THE DEFENDANT WHO VIOLATED THE VEHICLE AND TRAFFIC LAW, ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (NEGLIGENCE PER SE,  DEFENDANT ATTEMPTED A TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW WHICH CONSTITUTED NEGLIGENCE PER SE, CO-DEFENDANTS, WHOSE TRUCK COLLIDED WITH THE CAR DRIVEN BY THE DEFENDANT WHO VIOLATED THE VEHICLE AND TRAFFIC LAW, ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))

/

DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a question of fact about the storm in progress proof precluded summary judgment in favor of the defendants in this slip and fall case. In support of the motion, defendants submitted plaintiff’s deposition testimony and climatological data. Because there was a conflict between those two sources of evidence, summary judgment was not available:

​

“Under the storm in progress rule,’ a landowner generally cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter'” … . Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint … based on the storm in progress rule. The climatological data submitted by the defendants in support of their motion contradicted the plaintiff’s deposition testimony, which the defendants also submitted, as to whether precipitation was falling at or near the time of the accident. Since the evidence submitted by the defendants was in conflict and, thus, could not establish, prima facie, that the storm in progress rule applied … , the court should have denied that branch of their motion which was for summary judgment dismissing the complaint … regardless of the sufficiency of the plaintiff’s opposition papers … . Pecoraro v Tribuzio, 2017 NY Slip Op 08386, Second Dept 11-29-17

 

NEGLIGENCE (SLIP AND FALL, STORM IN PROGRESS, DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (STORM IN PROGRESS, DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STORM IN PROGRESS (SLIP AND FALL, DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

/

DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this sidewalk slip and fall case should not have been granted. Defendants failed to show that they did not create the dangerous snow-ice condition or have notice of it:

​

Here, the defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law … . Their own submissions, which included, inter alia, the deposition testimony of the plaintiff and the defendants’ superintendent, in addition to a certified weather report for the month of February 2014, failed to eliminate all triable issues of fact as to the whether the defendants caused or exacerbated the alleged icy condition on the subject sidewalk or had notice of it. The plaintiff testified that, at the time of the accident, she slipped on ice on the path which had been shoveled through the snow on the sidewalk adjacent to her apartment building. She also testified that the path was slippery when she had used it the night before and that she did not observe any salt or sand on it. Although the building superintendent testified as to general snow removal procedures for the building, he could not remember what he did on the date of the accident and did not have an independent recollection of removing snow from the outside of the building at any time on either February 3, 2014, or February 4, 2014. His testimony conflicted with statements set forth in his affidavit, submitted in support of the motion, in which he stated that he personally checked the path at issue at the end of his shift at 5:00 p.m. on February 4, 2014, and did not observe any snowy and/or icy condition. Such contradictory statements raise an issue of credibility which cannot be resolved on a motion for summary judgment … . Further, the certified weather report demonstrated that there was an accumulation of 6.7 inches of snow as of 5:00 p.m. on February 3, 2014, approximately 26½ hours prior to the accident, and that no snow fell on the date of the accident. Consequently, the defendants did not establish, prima facie, that they neither created the alleged hazardous icy condition on the sidewalk nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . Michalska v Coney Is. Site 1824 Houses, Inc., 2017 NY Slip Op 08365, Second Dept 11-29-17

 

NEGLIGENCE (DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL  (DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ICE AND SNOW (SIDEWALKS, SLIP AND FALL, DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

/ ,

INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined the amount of interest and attorney’s fees in this foreclosure proceeding must be recalculated. There was a three-year delay (which was not plaintiff’s fault) for which interest should not have accrued. In addition there must be some showing the attorney’s fees reflect the work actually done:

​

“In an action of an equitable nature, the recovery of interest is within the court’s discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party” … . Here, in view of the lengthy delay by PE-NC’s [plaintiff’s] predecessors in interest in prosecuting this action, PE-NC should recover no interest for the roughly three-year period of time from when the action was commenced in 2005 to when the defendant filed a request for judicial intervention in 2008. While PE-NC did not cause this delay, it should not benefit financially, in the form of accrued interest, from this delay caused by its predecessors in interest. Furthermore, PE-NC should not recover interest on the counsel fees awarded to it. Paragraphs 7 and 21 of the mortgage are inconsistent regarding whether interest could be recovered on counsel fees. Since “ambiguities in a contractual instrument will be resolved contra proferentem, against the party who prepared or presented it” … , this ambiguity must be resolved against PE-NC, whose predecessors in interest presented the mortgage. Moreover, interest awarded under paragraph 7 of the mortgage, on money advanced to protect the lender’s rights in the property, should not have been awarded at the rate of 17%, but at the “Note rate,” which, in this case, was 7.25%.

“An award of an attorney’s fee pursuant to a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered. In determining reasonable compensation for an attorney, the court must consider such factors as the time, effort, and skill required; the difficulty of the questions presented; counsel’s experience, ability, and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation” … . In this case, a determination must be made on the reasonableness of the counsel fees, following a hearing on that issue, if necessary. Greenpoint Mtge. Corp. v Lamberti, 2017 NY Slip Op 08353, Second Dept 11-29-17

 

FORECLOSURE (INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT))/ATTORNEYS (FORECLOSURE, INTEREST, FEES, INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT))/INTEREST (FORECLOSURE, ATTORNEY’S FEES, INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT))

/ ,

FATHER WHO WAS EXCLUDED FROM THE HOME AFTER CHILD ABUSE ALLEGATIONS HAD A RIGHT TO AN EXPEDITED HEARING PURSUANT TO FAMILY COURT ACT 1028, BECAUSE THE ISSUE IS IMPORTANT AND LIKELY TO RECUR THE MOOTNESS DOCTRINE WAS NOT APPLIED TO PRECLUDE APPEAL (SECOND DEPT).

The Second Department, in a comprehensive, full-fledged opinion by Justice Mastro (not fully summarized here), reversing Family Court, determined father, who had been excluded from the home because of sexual abuse allegations involving a child, was entitled to an expedited hearing pursuant to Family Court Act 1028. Although the father had been returned to the home by the time the appeal was heard, the court deemed the issue important and likely to recur thereby warranting an exception to the mootness doctrine:

​

Since the removal of a child from the family home and the exclusion of a parent from that same home require equal showings of imminent risk, and both result in similar infringements on the constitutionally protected parent-child relationship, we conclude that both trigger the same due process protections. Accordingly, in cases such as the one before us, where no “imminent risk” hearing is held before the parent is excluded from the household and the parent-child relationship is thereby severed, the holding of an expedited hearing within three court days pursuant to Family Court Act § 1028, upon the parent’s request, is mandated so that the question of reunification of the parent and child pending resolution of the proceeding may be determined. Due process requires the parent’s prompt, full, and fair opportunity to contest his or her exclusion from daily interaction with his or her children in this manner. Matter of Elizabeth C. (Omar C.), 2017 NY Slip Op 08370, Second Dept 11-29-17

 

FAMILY LAW (FATHER WHO WAS EXCLUDED FROM THE HOME AFTER CHILD ABUSE ALLEGATIONS HAD A RIGHT TO AN EXPEDITED HEARING PURSUANT TO FAMILY COURT ACT 1028, BECAUSE THE ISSUE IS IMPORTANT AND LIKELY TO RECUR THE MOOTNESS DOCTRINE WAS NOT APPLIED TO PRECLUDE APPEAL (SECOND DEPT))/APPEALS (MOOTNESS DOCTRINE, FAMILY LAW, FATHER WHO WAS EXCLUDED FROM THE HOME AFTER CHILD ABUSE ALLEGATIONS HAD A RIGHT TO AN EXPEDITED HEARING PURSUANT TO FAMILY COURT ACT 1028, BECAUSE THE ISSUE IS IMPORTANT AND LIKELY TO RECUR THE MOOTNESS DOCTRINE WAS NOT APPLIED TO PRECLUDE APPEAL (SECOND DEPT))/MOOTNESS DOCTRINE (APPEALS, FAMILY LAW, FATHER WHO WAS EXCLUDED FROM THE HOME AFTER CHILD ABUSE ALLEGATIONS HAD A RIGHT TO AN EXPEDITED HEARING PURSUANT TO FAMILY COURT ACT 1028, BECAUSE THE ISSUE IS IMPORTANT AND LIKELY TO RECUR THE MOOTNESS DOCTRINE WAS NOT APPLIED TO PRECLUDE APPEAL (SECOND DEPT))

/

COURT IMPROPERLY DELEGATED ITS AUTHORITY BY ALLOWING MOTHER TO CANCEL VISITATION IF FATHER WAS MORE THAN 15 MINUTES LATE (SECOND DEPT).

The Second Department determined Family Court should not have given mother the power to cancel father’s visit with a child if the father was more than 15 minutes late:

​

The Family Court erred in granting the mother the authority to unilaterally cancel the father’s visitation if he were more than 15 minutes late to pick up or drop off the child. This provision did not give the father an opportunity to judicially challenge the mother’s determination, or to present a legitimate reason for his tardiness before having a visit canceled … . Thus, the court improperly delegated its authority to the mother to determine when the child would visit with the father … . Matter of Michael R. v Aliesha H., 2017 NY Slip Op 08377, Second Dept 11-29-17

 

FAMILY LAW (VISITATION, COURT IMPROPERLY DELEGATED ITS AUTHORITY BY ALLOWING MOTHER TO CANCEL VISITATION IF FATHER WAS MORE THAN 15 MINUTES LATE (SECOND DEPT))/VISITATION (FAMILY LAW, COURT IMPROPERLY DELEGATED ITS AUTHORITY BY ALLOWING MOTHER TO CANCEL VISITATION IF FATHER WAS MORE THAN 15 MINUTES LATE (SECOND DEPT))

/

DENIAL OF PAROLEE’S REQUEST TO LIVE IN HIS FAMILY HOME WAS APPARENTLY BASED UPON COMMUNITY PRESSURE AND WAS REVERSED AS ARBITRARY AND CAPRICIOUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Department of Corrections and Community Supervision (DOCCS) acted arbitrarily and capriciously when it denied petitioner permission to live in his family home (Telford home) after released on parole, apparently based upon community pressure:

​

“Pursuant to Executive Law § 259-c(2) and 9 NYCRR 8003.3, special conditions may be imposed upon a parolee’s right to release. The courts routinely uphold these conditions as long as they are rationally related to the inmate’s past conduct and future chance of recidivism. Acceptable parole restrictions have included geographical restrictions and restrictions requiring that parolees refrain from contact with certain individuals or classes of individuals”… .

Under the circumstances of this case, speculation by DOCCS about possible community efforts to exclude the petitioner from otherwise suitable housing and about the petitioner’s potential response to such efforts is not a rational basis for denial of otherwise suitable housing … . As the respondents have articulated no other basis for denying approval of the proposed residence, the respondents’ refusal to approve the Telford home as a suitable postrelease residence was arbitrary and capricious, as the determination bears no rational relation to the petitioner’s past conduct or likelihood that he will re-offend … . Matter of Telford v McCartney, 2017 NY Slip Op 08384,  Second Dept 11-29-17

 

CRIMINAL LAW (DENIAL OF PAROLEE’S REQUEST TO LIVE IN HIS FAMILY HOME WAS APPARENTLY BASED UPON COMMUNITY PRESSURE AND WAS REVERSED AS ARBITRARY AND CAPRICIOUS (SECOND DEPT))/PAROLE (DENIAL OF PAROLEE’S REQUEST TO LIVE IN HIS FAMILY HOME WAS APPARENTLY BASED UPON COMMUNITY PRESSURE AND WAS REVERSED AS ARBITRARY AND CAPRICIOUS (SECOND DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy