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RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, over a two-justice dissent, determined that the record of a retention hearing for an insanity acquittee need not be sealed:

Mental Hygiene Law § 33.13 does not, as respondent contends, require that the record of his retention proceeding be sealed. …

Respondent accepted a plea of not responsible by reason of mental disease or defect and, therefore, “avoid[ed] criminal penalties and . . . [became] subject to the CPL 330.20 scheme” … . As the Court of Appeals has consistently recognized, “[t]his places insanity acquittees in a significantly different posture than involuntarily committed civil patients” and, thus, justifies “rational differences between procedures for commitment and release applicable to defendants found not responsible and persons involuntarily committed under the Mental Hygiene Law” … . The distinction between an insanity acquittee, as we have here, and an involuntarily committed civil patient is apparent by the Legislature’s enactment of a separate statutory scheme — CPL 330.20 — to address the commitment and retention procedures for persons found not responsible for their crimes by reason of mental disease or defect. The detailed statutory framework of CPL 330.20 does not include a provision that requires, or even contemplates, the sealing of these commitment and retention proceedings. Nor does the relevant legislative history indicate that the Legislature intended for these proceedings — which arise only after a criminal defendant affirmatively places his or her mental competency in issue — to be sealed from the public … . Matter of James Q., 2017 NY Slip Op 06222, 3rd Dept 8-17-17

 

MENTAL HYGIENE LAW (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))/CRIMINAL LAW (INSANITY ACQUITTEE, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT)/INSANITY ACQUITTEE  (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))/RETENTION HEARING (INSANITY ACQUITTEE, (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))

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QUESTION OF FACT WHETHER PLAINTIFF’S ACTIONS CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS INJURIES IN THIS LABOR LAW 240(1) ACTION (SECOND DEPT).

The Second Department determined there was a question of fact whether plaintiff’s actions constituted the sole proximate cause of his injuries in this Labor Law 240(1) action. Plaintiff fell after he had stacked two Baker scaffolds and a closed a-frame ladder on top of one another to install sheetrock:

… [T]he defendant raised a triable issue of fact as to whether pipe scaffolds, which were available to the plaintiff, constituted adequate protection for the work that the plaintiff was performing and, if so, whether the plaintiff, based on his training, prior practice, and common sense, knew or should have known to use pipe scaffolds instead of Baker scaffolds … . The defendant also raised a triable issue of fact as to whether the scaffolds alone were adequate for the job, thereby negating any need for the plaintiff to place a closed ladder on top of the scaffolds … . Therefore, the defendant submitted evidence that would permit a jury to find that “the plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured” … . Nalvarte v Long Is. Univ., 2017 NY Slip Op 06183, Second Dept 8-16-17

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LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER PLAINTIFF’S ACTIONS CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS INJURIES IN THIS LABOR LAW 240(1) ACTION (SECOND DEPT))/SOLE PROXIMATE CASE (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER PLAINTIFF’S ACTIONS CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS INJURIES IN THIS LABOR LAW 240(1) ACTION (SECOND DEPT))

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PLAINTIFF’S STEPPING ON AN UNSECURED PLANK HE HAD JUST PLACED, RATHER THAN AN AVAILABLE SECURED PLANK, CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS FALL, DEFENDANTS’ PROPERLY GRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department determined defendants were entitled to summary judgment dismissing plaintiff’s Labor Law 240(1) cause of action. Plaintiff was constructing a scaffold floor by laying planks. He fell when he stepped on an unsecured plank he had just put down, instead of an available secured plank. Therefore plaintiff’s action was the sole proximate cause of his fall:

To succeed on a cause of action alleging a violation of Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute and that the violation was a proximate cause of the accident … . Where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1)… . Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action by demonstrating that the plaintiff was the sole proximate cause of the accident that caused his alleged injuries, since he chose to step upon an unsecured plank that he had just seconds before placed on a narrow steel beam, rather than standing upon the secured planking available to him, which he had used in the minutes leading up to the accident. Melendez v 778 Park Ave. Bldg. Corp., 2017 NY Slip Op 06175, Second Dept 8-16-17

LABOR LAW-CONSTRUCTION LAW (SOLE PROXIMATE CAUSE, PLAINTIFF’S STEPPING ON AN UNSECURED PLANK HE HAD JUST PLACED, RATHER THAN AN AVAILABLE SECURED PLANK, CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS FALL, DEFENDANTS’ PROPERLY GRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S STEPPING ON AN UNSECURED PLANK HE HAD JUST PLACED, RATHER THAN AN AVAILABLE SECURED PLANK, CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS FALL, DEFENDANTS’ PROPERLY GRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT))

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CONSTRUCTION MANAGER DID NOT EXERCISE SUFFICIENT CONTROL TO BE LIABLE UNDER LABOR LAW 240(1) (SECOND DEPT).

The Second Department determined plaintiff’s Labor Law 240(1) cause of action against the construction manager was properly dismissed. Plaintiff fell from a ten-foot-high stack of blasting mats. The construction manager demonstrated it did not exercise supervisory control over plaintiff’s work or site safety:

A construction manager of a work site is generally not responsible for injuries under Labor Law § 200, § 240(1), or § 241(6) unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about the injury …  “A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured”… . An agent’s liability is limited “to those areas and activities within the scope of the work delegated or, in other words, to the particular agency created” … .

Here, the construction management services contract … provided that the defendants were responsible for coordinating the work relating to the … project, namely liaising with contractors to ensure that the project was completed in accordance with cost, time, safety, and quality control requirements and reporting … . However, the contract did not confer upon the defendants the authority to control the methods used by the contractors, including the plaintiff’s employer, to complete their work. The defendants were authorized only to review and monitor safety programs and requirements and make recommendations, provide direction to contractors regarding corrective action to be taken if an unsafe condition was detected, and stop work only in the event of an emergency. The parties’ deposition testimony also demonstrated that the defendants did not have control or a supervisory role over the plaintiff’s day-to-day work and that they did not assume responsibility for the manner in which that work was conducted. Lamar v Hill Intl., Inc., 2017 NY Slip Op 06167, Second Dept 8-16-17

 

LABOR LAW-CONSTRUCTION LAW (CONSTRUCTION MANAGER DID NOT EXERCISE SUFFICIENT CONTROL TO BE LIABLE UNDER LABOR LAW 240(1) (SECOND DEPT))CONSTRUCTION MANAGER (LABOR LAW-CONSTRUCTION LAW, CONSTRUCTION MANAGER DID NOT EXERCISE SUFFICIENT CONTROL TO BE LIABLE UNDER LABOR LAW 240(1) (SECOND DEPT))

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LABOR LAW 240(1) NOT APPLICABLE TO INJURY FROM A PORTION OF A FENCE WHICH FELL ON PLAINTIFF (SECOND DEPT).

The Second Department determined defendant property owner was entitled to summary judgment dismissing the Labor Law 240(1) cause of action. Plaintiff alleged a portion of a plywood fence around the work site fell on him. The “falling object” provisions of the Labor Law 240(1) did not apply:

To prevail on a cause of action pursuant to section 240(1) in a ” falling object’ case, the injured worker must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein'”… . This requires a showing that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking … . Labor Law § 240(1) “does not automatically apply simply because an object fell and injured a worker” … . In support of their cross motion, the defendants made a prima facie showing of their entitlement to summary judgment dismissing the Labor Law § 240(1) cause of action by demonstrating that the plywood fence was not an object being hoisted or that required securing for the purpose of the undertaking, and that it did not fall because of the absence or inadequacy of an enumerated safety device … . Berman-Rey v Gomez, 2017 NY Slip Op 06151, 2nd Dept 8-16-17

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 240(1) NOT APPLICABLE TO INJURY FROM A PORTION OF A FENCE WHICH FELL ON PLAINTIFF (SECOND DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 240(1) NOT APPLICABLE TO INJURY FROM A PORTION OF A FENCE WHICH FELL ON PLAINTIFF (SECOND DEPT))

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COMMENCING A LAWSUIT, STANDING ALONE, DOES NOT CONSTITUTE ABUSE OF PROCESS (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment was properly granted, noting that commencing a lawsuit, standing alone, does not constitute abuse of process:

” Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective'” … . The mere commencement of a lawsuit cannot serve as the basis for a cause of action alleging abuse of process … . “[T]here must be an unlawful interference with one’s person or property under color of process in order that action for abuse of process may lie” … . Lynn v McCormick, 2017 NY Slip Op 06169, Second Dept 8-16-17

INTENTIONAL TORTS (ABUSE OF PROCESS, COMMENCING A LAWSUIT, STANDING ALONE, DOES NOT CONSTITUTE ABUSE OF PROCESS (SECOND DEPT))/ABUSE OF PROCESS (COMMENCING A LAWSUIT, STANDING ALONE, DOES NOT CONSTITUTE ABUSE OF PROCESS (SECOND DEPT))

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LAW OFFICE CONFUSION NOT A SUFFICIENT EXCUSE FOR BANK ATTORNEY’S FAILURE TO ATTEND A SETTLEMENT CONFERENCE, DEFAULT JUDGMENT DISMISSING THE COMPLAINT SHOULD NOT HAVE BEEN VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s (OneWest’s) motion to vacate a default judgment dismissing the complaint should not have been granted. One West’s attorney did not show up for a scheduled settlement conference:

OneWest moved pursuant to CPLR 5015(a)(1) to vacate the order entered upon its default in appearing at the conferences and to restore the action to the active calendar. In support of its motion, OneWest alleged that it was unaware of the scheduled conferences “due to law office confusion” following the substitution of counsel. The Supreme Court granted the motion. [Defendant] appeals.

A plaintiff seeking to vacate a default in appearing at a conference is required to demonstrate both a reasonable excuse for its default and a potentially meritorious cause of action… . Although “[a] motion to vacate a default is addressed to the sound discretion of the motion court” … , the defaulting party must submit evidence in admissible form establishing both a reasonable excuse and a potentially meritorious cause of action or defense … .

A court has the discretion to accept law office failure as a reasonable excuse for a party’s default … . However, “it was not the Legislature’s intent to routinely excuse such defaults” … , and mere neglect is not a reasonable excuse… .

Contrary to OneWest’s contention, it failed to provide a detailed and credible explanation of the default… . Rather, counsel’s affirmation in support of the motion contained only the conclusory and undetailed allegation of “law office confusion” after being substituted as counsel for OneWest, which does not constitute a reasonable excuse… . No other evidence was submitted to corroborate the allegation. OneWest, therefore, failed to demonstrate a reasonable excuse for its default … . OneWest Bank, FSB v Singer, 2017 NY Slip Op 06184, Second Dept 8-16-17

 

FORECLOSURE (LAW OFFICE CONFUSION NOT A SUFFICIENT EXCUSE FOR BANK ATTORNEY’S FAILURE TO ATTEND A SETTLEMENT CONFERENCE, DEFAULT JUDGMENT DISMISSING THE COMPLAINT SHOULD NOT HAVE BEEN VACATED (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, SETTLEMENT CONFERENCE, LAW OFFICE CONFUSION NOT A SUFFICIENT EXCUSE FOR BANK ATTORNEY’S FAILURE TO ATTEND A SETTLEMENT CONFERENCE, DEFAULT JUDGMENT DISMISSING THE COMPLAINT SHOULD NOT HAVE BEEN VACATED (SECOND DEPT))/ATTORNEYS (FORECLOSURE, LAW OFFICE CONFUSION NOT A SUFFICIENT EXCUSE FOR BANK ATTORNEY’S FAILURE TO ATTEND A SETTLEMENT CONFERENCE, DEFAULT JUDGMENT DISMISSING THE COMPLAINT SHOULD NOT HAVE BEEN VACATED (SECOND DEPT))/SETTLEMENT CONFERENCE LAW OFFICE CONFUSION NOT A SUFFICIENT EXCUSE FOR BANK ATTORNEY’S FAILURE TO ATTEND A SETTLEMENT CONFERENCE, DEFAULT JUDGMENT DISMISSING THE COMPLAINT SHOULD NOT HAVE BEEN VACATED (SECOND DEPT))(FORECLOSURE)

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RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT).

The Second Department, in a full-fledged per curiam opinion, determined that a change in circumstances warranted a modification of the stipulation of settlement of a divorce action. The opinion is too detailed to fairly summarize here. At issue was the extent of the religion-related requirements of the stipulation of settlement. Father objected to the lifestyle changes associated with mother’s open acknowledgment that she is gay and the presence of O, a transgender man, in the home. The court held that the religion-based restrictions placed upon mother’s lifestyle, stemming from Supreme Court’s finding that the religious aspects of the stipulation were paramount, violated her constitutional rights. Rather than the religious concerns, the analysis must focus on the best interests of the children. To that end, the Second Department determined certain aspects of the stipulation concerning the father’s desire to raise and educate the children in the Hasidic tradition were in the children’s best interests:

… [T]he Supreme Court improperly directed that enforcement of the parties’ stipulation of settlement required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools. Although the court accepted the father’s argument that the religious upbringing clause “forb[ids] [the mother from] living a secular way of life in front of the children or while at their schools,” the plain language of the parties’ agreement was “to give the children a Hasidic upbringing” … . The parties’ agreement does not require the mother to practice any type of religion, to dress in any particular way, or to hide her views or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle … . * * *

Contrary to the mother’s contention, the weight of the evidence demonstrates that it is in the children’s best interests to continue to permit the father to exercise final decision-making authority over the children’s education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices. Weisberger v Weisberger, 2017 NY Slip Op 06212, Second Dept 8-16-17

FAMILY LAW (RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/CUSTODY (FAMILY LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGION, FAMILY LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/RELIGION (FAMILY LAW, CUSTODY, CONSTITUTIONAL LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))

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LAW STUDENT FAILED TO COMPLY WITH SCHOOL RULES FOR MISSING EXAMS DUE TO ILLNESS, FAILING GRADES ALLOWED TO STAND (SECOND DEPT).

The Second Department determined a law student’s petition to contest failing grades issued after the student missed exams was properly dismissed. The student had not complied with the school’s rules with respect to missing exams because of illness:

Unlike disciplinary measures taken against a student, institutional assessments of a student’s academic performance, whether in the form of particular grades received or measures taken because a student has been judged to be scholastically deficient, necessarily involve academic determinations requiring the special expertise of educators… . Thus, to preserve the integrity of the credentials conferred by educational institutions, courts have long been reluctant to intervene in controversies involving purely academic determinations … . Although determinations made by educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review, that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith, or contrary to constitution or statute … .

Here, the petitioner did not submit any evidence establishing that he complied with BLS’s policy for missing an exam due to illness. Pursuant to BLS’s [Brooklyn Law School’s] policy, since the petitioner failed to take two final exams, failed to promptly notify the Registrar that he was unable to take those exams due to illness, and failed to submit medical documentation of his illness necessary to schedule make-up exams, he received a failing grade in each course. BLS’s determination to let the petitioner’s failing grades stand and to refuse to allow him to withdraw from those courses so as to avoid the failing grades was not arbitrary and capricious, irrational, made in bad faith, or contrary to constitution or statute … . Matter of Daniel v Brooklyn Law Sch., 2017 NY Slip Op 06181, Second Dept 8-16-17

 

EDUCATION-SCHOOL LAW (LAW STUDENT FAILED TO COMPLY WITH SCHOOL RULES FOR MISSING EXAMS DUE TO ILLNESS, FAILING GRADES ALLOWED TO STAND (SECOND DEPT))/LAW SCHOOL (LAW STUDENT FAILED TO COMPLY WITH SCHOOL RULES FOR MISSING EXAMS DUE TO ILLNESS, FAILING GRADES ALLOWED TO STAND (SECOND DEPT))/GRADES (LAW SCHOOL, LAW STUDENT FAILED TO COMPLY WITH SCHOOL RULES FOR MISSING EXAMS DUE TO ILLNESS, FAILING GRADES ALLOWED TO STAND (SECOND DEPT))/COLLEGES AND UNIVERSITIES (LAW STUDENT FAILED TO COMPLY WITH SCHOOL RULES FOR MISSING EXAMS DUE TO ILLNESS, FAILING GRADES ALLOWED TO STAND (SECOND DEPT))

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COMMON-INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR FACTUAL EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT).

The Second Department determined that, although the common interest privilege applied to the allegedly defamatory statements, the allegations of malice were sufficient to overcome the privilege in the context of a motion to dismiss. The court noted that no evidence of malice need be presented at the motion-to-dismiss stage:

“To state a cause of action to recover damages for defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se”…. . “A communication made by one person to another upon a subject in which both have an interest is protected by a qualified privilege”… . However, this “common-interest privilege” may be overcome by a showing of malice … . “To establish the malice’ necessary to defeat the privilege, the plaintiff may show either common-law malice, i.e., spite or ill will,’ or may show actual malice,’ i.e., knowledge of falsehood of the statement or reckless disregard for the truth” … .

Here, * * * the common-interest privilege applies to the allegedly defamatory communications… . However, accepting the facts as alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference …, the amended complaint sufficiently alleges malice to overcome the privilege… . “[A] plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211 (a) (7) … . Ferrara v Bank, 2017 NY Slip Op 06161, Second Dept 8-16-17

 

DEFAMATION (COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/PRIVILEGE (DEFAMATION, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/COMMON INTEREST PRIVILEGE (DEFAMATION, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/EVIDENCE (DEFAMATION, MALICE, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/MALICE (DEFAMATION, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))

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