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THICKNESS OF THE ICE RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SIDEWALK SLIP AND FALL CASE, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT).

The Third Department determined defendant property maintenance company’s motion for summary judgment in this ice slip and fall case was properly denied. Plaintiff’s testimony about the thickness of the ice raised a question of fact whether defendant had constructive notice of it. The property owner’s motion for summary judgment on the breach of contract action against the property maintenance company was properly granted. In the contract, the property maintenance company agreed to purchase liability insurance, which it did not do. An agreement to purchase insurance is not the same as a promise to indemnify and an action on the agreement need not await a judgment in the slip and fall case:

… [T]he record … includes plaintiff’s testimony that there was no lighting in the sidewalk area and no witness was able to contradict her account that there was ice in the area at the time that she fell. Further, there was no proof that anyone had performed a routine inspection of the area after 7:00 a.m. on the day of her alleged fall, i.e., at any time within 10 hours of the fall, but also no proof that there had been further accumulation of snow after the snowfall the day before. … [I]t is clear that plaintiff raised a triable issue of fact with regard to whether defendant had constructive notice of any dangerous conditions… . The key question to be resolved by the trier of fact is whether, during this 10-hour lapse of time … there was further precipitation that created a dangerous or unsafe condition on the sidewalk and, if so, whether there was sufficient time for defendant[s] … “to reasonably have discovered and remedied it” … .Plaintiff’s description of the thickness and extent of ice on the sidewalk, if accepted, is relevant to the factual question of how long it was present and whether it was visible and apparent such that it would have been discovered upon routine inspection, with sufficient time to remedy it … . Calvitti v 40 Garden, LLC, 2017 NY Slip Op 08241, Third Dept 11-22-17

NEGLIGENCE (SLIP AND FALL, THICKNESS OF THE ICE RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SIDEWALK SLIP AND FALL CASE, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT))/SLIP AND FALL (THICKNESS OF THE ICE RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SIDEWALK SLIP AND FALL CASE, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT))/SIDEWALKS (SLIP AND FALL, THICKNESS OF THE ICE RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SIDEWALK SLIP AND FALL CASE, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT))/INSURANCE LAW (SLIP AND FALL, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT))

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TRANSMISSION REPAIR COMPANY OWED A DUTY TO PLAINTIFF’S DECEDENT AS A THIRD PARTY BENEFICIARY OF A TRUCK REPAIR CONTRACT WITH PLAINTIFF’S DECEDENT’S EMPLOYER, IF THE TRUCK HAD BEEN EQUIPPED WITH A FUNCTIONING NEUTRAL INTERLOCK SYSTEM IT WOULD NOT HAVE LURCHED BACK, KILLING PLAINTIFF’S DECEDENT (SECOND DEPT).

The Second Department determined plaintiff’s decedent could properly have been found to be a third-party beneficiary of a contract between a transmission repair company (Advanced) and plaintiff’s decedent’s employer (CCC).  CCC owned a garbage truck which was repaired by Advanced. There was no neutral interlock system on the truck. Such a system would have prevented the truck from lurching backward and pinning plaintiff’s decedent between the truck and a dumpster:

 

… [T]he record demonstrates that Advanced owed the decedent a duty as a third-party beneficiary of its contractual relationship between itself and CCC … . If the parties to the contract intended to confer a direct benefit on the decedent, a duty is owed to the decedent… . Although there was no written contract between the contracting parties, an intent to confer a direct benefit on the decedent may also be inferred from the circumstances …  including the parties’ oral agreement and course of conduct … .

An employee is not automatically a third-party beneficiary of a service contract between his or her employer and another party … . However, if the employer’s intent was to benefit its employees, third-party beneficiary status may be inferred …

At trial, the plaintiffs asserted that a proximate cause of the accident was the absence of a functioning neutral interlock system on the truck. The neutral interlock system would have prevented the truck from going backward while garbage was being loaded in the truck. CCC recognized that a neutral interlock system was an important safety feature of the truck. That system was part of the transmission system, which was serviced by Advanced. At trial, Advanced acknowledged that when the truck was road tested in November 2006, some six months prior to the accident, CCC should have been informed if a neutral interlock system was not working or not present, since this was one of the primary safety features of the truck.

The evidence indicated that Advance and CCC recognized that the neutral interlock system was an important safety feature. Further, it is clear from the record that Advance and CCC recognized that this safety feature’s primary benefit was to CCC’s employees who loaded the garbage trucks. Accordingly, it could be inferred that the decedent was a third-party beneficiary of the contractual relationship between CCC and Advanced. Vargas v Crown Container Co., Inc., 2017 NY Slip Op 08297, Second Dept 11-22-17

 

NEGLIGENCE (DUTY ARISING FROM CONTRACT, TRANSMISSION REPAIR COMPANY OWED A DUTY TO PLAINTIFF’S DECEDENT AS A THIRD PARTY BENEFICIARY OF A TRUCK REPAIR CONTRACT WITH PLAINTIFF’S DECEDENT’S EMPLOYER, IF THE TRUCK HAD BEEN EQUIPPED WITH A FUNCTIONING NEUTRAL INTERLOCK SYSTEM IT WOULD NOT HAVE LURCHED BACK, KILLING PLAINTIFF’S DECEDENT (SECOND DEPT))/CONTRACT LAW (NEGLIGENCE, DUTY ARISING FROM CONTRACT, TRANSMISSION REPAIR COMPANY OWED A DUTY TO PLAINTIFF’S DECEDENT AS A THIRD PARTY BENEFICIARY OF A TRUCK REPAIR CONTRACT WITH PLAINTIFF’S DECEDENT’S EMPLOYER, IF THE TRUCK HAD BEEN EQUIPPED WITH A FUNCTIONING NEUTRAL INTERLOCK SYSTEM IT WOULD NOT HAVE LURCHED BACK, KILLING PLAINTIFF’S DECEDENT (SECOND DEPT))/EMPLOYMENT LAW (DUTY TO EMPLOYEE ARISING FROM EMPLOYER’S CONTRACT FOR REPAIR, TRANSMISSION REPAIR COMPANY OWED A DUTY TO PLAINTIFF’S DECEDENT AS A THIRD PARTY BENEFICIARY OF A TRUCK REPAIR CONTRACT WITH PLAINTIFF’S DECEDENT’S EMPLOYER, IF THE TRUCK HAD BEEN EQUIPPED WITH A FUNCTIONING NEUTRAL INTERLOCK SYSTEM IT WOULD NOT HAVE LURCHED BACK, KILLING PLAINTIFF’S DECEDENT (SECOND DEPT))/THIRD PARTY BENEFICIARY (NEGLIGENCE, DUTY ARISING FROM CONTRACT, TRANSMISSION REPAIR COMPANY OWED A DUTY TO PLAINTIFF’S DECEDENT AS A THIRD PARTY BENEFICIARY OF A TRUCK REPAIR CONTRACT WITH PLAINTIFF’S DECEDENT’S EMPLOYER, IF THE TRUCK HAD BEEN EQUIPPED WITH A FUNCTIONING NEUTRAL INTERLOCK SYSTEM IT WOULD NOT HAVE LURCHED BACK, KILLING PLAINTIFF’S DECEDENT (SECOND DEPT))

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DESPITE PLAINTIFF’S APPARENT VIOLATION OF THE VEHICLE AND TRAFFIC LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this car accident case should not have been granted. Plaintiff apparently made a left turn in front of defendant’s car which was in the on-coming lane. Defendant struck plaintiff’s car:

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“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident”… . Pursuant to Vehicle and Traffic Law § 1141, the operator of a vehicle intending to turn left within an intersection must yield the right-of-way to any oncoming vehicle which is within the intersection or so close to it as to constitute an immediate hazard … . A violation of this statute constitutes negligence per se … .

The operator of an oncoming vehicle with the right-of-way is entitled to assume that the opposing operator will yield in compliance with the Vehicle and Traffic Law … . A driver is negligent where he or she failed to see that which, through proper use of his or her senses, he or she should have seen … . The driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident … .

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Here, in support of the motion, the defendant submitted, inter alia, the deposition testimony of the parties. The defendant attested that she never saw the front of the plaintiff’s vehicle and that when she first saw the plaintiff’s vehicle, which was “moving like a snail,” she saw the middle part of the vehicle directly ahead of her. Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party, the defendant failed to establish, prima facie, her freedom from comparative fault and that the plaintiff’s alleged violation of the Vehicle and Traffic Law was the sole proximate cause of the accident … . Aponte v Vani, 2017 NY Slip Op 08252, Second Dept 11-22-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, DESPITE PLAINTIFF’S APPARENT VIOLATION OF THE VEHICLE AND TRAFFIC LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS CAR ACCIDENT CASE (SECOND DEPT))/TRAFFIC ACCIDENTS ( DESPITE PLAINTIFF’S APPARENT VIOLATION OF THE VEHICLE AND TRAFFIC LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS CAR ACCIDENT CASE (SECOND DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, DESPITE PLAINTIFF’S APPARENT VIOLATION OF THE VEHICLE AND TRAFFIC LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS CAR ACCIDENT CASE (SECOND DEPT)

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PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATED ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff’s motion for leave to file a late notice of claim should have been ​granted. Plaintiff alleged defendant town caused water and debris to drain onto his property causing the foundation of his house to cave in. In finding plaintiff should have been allowed to file a late notice of claim, the court explained the factors that should be considered and the flaws in Supreme Court’s analysis, which focused on the excuse for the delay and the merits of the underlying action. The most important factors are the defendant’s actual notice of the facts of the case within the statutory period and the absence of prejudice:

While a reasonable excuse for the delay is a statutory factor … , it is well settled that “‘the failure to offer a reasonable excuse for the delay in filing a notice of claim is not fatal where actual [knowledge] was had and there is no compelling showing of prejudice'” … . Similarly, although Supreme Court was permitted to consider the merits of the underlying claim, leave should only be denied on this basis when the claim is “‘patently meritless'” … , which was not established here.

Upon our consideration of all of the pertinent statutory factors, we find that, although plaintiff did not provide a reasonable excuse for his delay, he adequately set forth proof of actual knowledge and lack of substantial prejudice such that his motion should have been granted. Daprile v Town of Copake, 2017 NY Slip Op 08243, Third Dept 11-22-17

 

MUNICIPAL LAW (NOTICE OF CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/REAL PROPERTY LAW (TRESPASS, NUISANCE, MUNICIPAL LAW, NOTICE OF CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/TRESPASS (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/NUISANCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))

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ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT).

The Second Department determined clear and convincing evidence supported the finding that the patient (Radcliffe M.) was unable to make treatment decisions for himself and that a particular medication for schizophrenia should be administered over the patient’s objection. However, the evidence did not support the findings that certain alternative drugs could be administered or that the order should be nondurational (no termination date):

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The State may administer a course of medical treatment against a patient’s will if it establishes, by clear and convincing evidence, that the patient lacks the capacity to make a reasoned decision with respect to proposed treatment … , and that “the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments”… . Whether a mentally ill patient has the capacity to make a reasoned decision with respect to treatment is a question of fact for the hearing court, the credibility findings of which are entitled to due deference… . Here, the petitioner established by clear and convincing evidence that Radcliffe M. lacks the capacity to make a reasoned decision with respect to continuing a course of treatment of Haldol Deconoate … . Further, the petitioner established by clear and convincing evidence that the proposed course of treatment with Haldol Deconoate was narrowly tailored to give substantive effect to Radcliffe M.’s liberty interest, taking into consideration all relevant circumstances, including his best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment, and any less intrusive alternative treatments … .

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However, the petitioner failed to offer any testimony or evidence at the hearing with respect to the additional medications included in the order as “Reasonable Alternatives” … . …

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A nondurational order is appropriate where it is established that treatment will allow the patient to become stabilized and restore the patient’s ability to make reasoned decisions regarding the management of his or her mental illness … . In such circumstances, “the order’s forcefulness will end as soon as [the patient] is no longer so incapacitated” … . The petitioner failed to establish that Radcliffe M.’s ability to make reasoned decisions regarding his own treatment will be restored with treatment and that a nondurational order would therefore be appropriate … . Matter of Radcliffe M., 2017 NY Slip Op 08270, Second Dept 11-22-17

 

MENTAL HYGIENE LAW (ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT))/SCHIZOPHRENIA (MENTAL HYGIENE LAW, CRIMINAL LAW, ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT))/CRIMINAL LAW (INMATES, ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT))/INMATES (MENTAL HYGIENE LAW, ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT))

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LESSEE DID NOT MOVE FOR A YELLOWSTONE INJUNCTION WITHIN THE CURE PERIOD ALLOWED BY THE LEASE, SUPREME COURT NO LONGER HAD JURISDICTION TO GRANT THE INJUNCTION (SECOND DEPT).

The Second Department determined the commercial lessee was not entitled to a Yellowstone injunction because the motion seeking the injunction was not made before the termination of the cure period set out in the lease:

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” A Yellowstone injunction maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture’ of the lease”… . ” To obtain a Yellowstone injunction, the tenant must demonstrate that (1) it holds a commercial lease, (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease, (3) it requested injunctive relief prior to both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord’s notice to cure, and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises'” … .

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“[A]n application for Yellowstone relief must be made not only before the termination of the subject lease . . . but must also be made prior to the expiration of the cure period set forth in the lease and the landlord’s notice to cure” … . “Where a tenant fails to make a timely request for a temporary restraining order, a court is divested of its power to grant a Yellowstone injunction” … . Riesenburger Props., LLLP v Pi Assoc., LLC, 2017 NY Slip Op 08294, Second Dept 11-22-17

 

LANDLORD-TENANT (LESSEE DID NOT MOVE FOR A YELLOWSTONE INJUNCTION WITHIN THE CURE PERIOD ALLOWED BY THE LEASE, SUPREME COURT NO LONGER HAD JURISDICTION TO GRANT THE INJUNCTION (SECOND DEPT))/YELLOWSTONE INJUNCTION (LANDLORD-TENANT, ESSEE DID NOT MOVE FOR A YELLOWSTONE INJUNCTION WITHIN THE CURE PERIOD ALLOWED BY THE LEASE, SUPREME COURT NO LONGER HAD JURISDICTION TO GRANT THE INJUNCTION (SECOND DEPT))

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EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME, INFORMATION FIRST LEARNED IN A LINCOLN HEARING CANNOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT).

The Third Department, reversing Family Court and remitting the case, determined the record did not support the awarding of sole custody to the maternal grandmother, in this appeal by the parents:

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While we accord considerable deference to Family Court’s credibility assessments and factual findings on appeal, we conclude from our review of the trial testimony, without factoring in the Lincoln hearing, that petitioner failed to meet her threshold burden of establishing extraordinary circumstances. The record indicates that the mother and the father were only briefly incarcerated, during which time the children resided with the paternal grandmother — not the maternal grandmother. Upon their release, the mother and the father soon moved into the paternal grandmother’s home and the father obtained full-time employment — a sequence that does not establish an extended disruption of the mother and the father’s custody … . Moreover, while DSS made a finding of neglect, a DSS representative informed Family Court … that DSS did not have any ongoing child protective concerns. In doing so, DSS recognized that the father’s brother, a level one sex offender, lived in the paternal grandmother’s home. There is no evidence that the brother ever mistreated the children… . The father testified that he trusts his brother to be around the children, but would not and does not leave the children alone with him. The mother is not employed and is at home with the children.

As for the maternal grandmother, the record shows that she has never spent more than a couple of hours with the children and would only see them a few times each year. …

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Family Court’s decision … raises an additional concern. Specifically, the court’s reference to “another male whose presence around children is questionable” — a person that the court then characterized as an undesirable — is not based on any testimony during the trial. As explained by the Court of Appeals in Matter of Lincoln v Lincoln (24 NY2d 270 [1969]), any new information adverse to the parents derived during a Lincoln hearing may not be considered by the court “without in some way checking on its accuracy during the course of the open hearing” … . Under the circumstances presented, we conclude that the matter must be remitted to Family Court for further proceedings to address the circumstances concerning the other male in the paternal grandmother’s home and to determine whether or not there has been a showing of extraordinary circumstances based on the totality of the evidence and, if so, what disposition is in the best interests of the children. Matter of Shaver v Bolster, 2017 NY Slip Op 08232, Third Dept 11-22-17

 

FAMILY LAW (CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/CUSTODY (FAMILY LAW, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/GRANDPARENTS (FAMILY LAW, CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/EVIDENCE (FAMILY LAW, MODIFICATION OF CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/EVIDENCE (FAMILY LAW, EVIDENCE FIRST LEARNED IN A LINCOLN HEARING MAY NOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT))/LINCOLN HEARING (FAMILY LAW, EVIDENCE FIRST LEARNED IN A LINCOLN HEARING MAY NOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT))

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EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence did not support child abuse and neglect findings against the respondent mother. Injuries to the child were caused by father. But the evidence did not support the finding that mother knew or should have known father had injured the child:

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Based upon our review of the evidence in this record, we cannot conclude that respondent knew or should reasonably have known that she was placing the younger child in danger by leaving him in the care of his father while she went to work. Respondent consistently maintained, in her testimony and in her various statements to law enforcement and a Child Protective Services caseworker, that she did not know how the fractures had occurred, that she did not think the father had caused them and that, prior to observing redness and swelling in the child’s leg … , she had not noticed anything unusual or concerning with respect to the younger child. …

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Nor do we find that respondent neglected the younger child by failing to seek medical care for the child when she observed redness and swelling in his leg … . Respondent testified that the child was not crying, that she thought the redness and swelling could be a reaction to vaccines that the child had a few days earlier and that she continually monitored the child’s condition that evening and throughout the next day. According to respondent, prior to leaving for work the following morning, she directed the father to monitor the child’s leg and let her know if it got worse. Respondent testified that she checked in with the father on her lunch break, scheduled an appointment with the child’s pediatrician for immediately after work and instructed the father to take the child to the doctor earlier if he determined that it could not wait. Under these circumstances, the record does not support a finding that respondent neglected the younger child by, as petitioner contends, failing to secure prompt medical attention … . Matter of Lucien HH. (Michelle PP.), 2017 NY Slip Op 08224, Third Dept 11-22-17

 

FAMILY LAW (CHILD ABUSE, NEGLECT, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/CHILD ABUSE (FAMILY LAW, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/NEGLECT (FAMILY LAW, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/EVIDENCE (FAMILY LAW, CHILD ABUSE, NEGLECT, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))

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FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT).

The Second Department, reversing Family Court, found that the charged family offenses of aggravated harassment and assault third were not supported by proof of physical injury:

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… [T]he petitioner failed to establish by a fair preponderance of the evidence that the appellant committed the family offenses of aggravated harassment and assault in the third degree. Both of those family offenses require proof of physical injury, which is defined as “impairment of physical condition or substantial pain” … . Contrary to the Family Court’s determination, the evidence presented at the fact-finding hearing failed to adequately demonstrate that the petitioner suffered a physical injury as a result of the conduct alleged in the petition … . Since the court’s factual determinations were not supported by the record, we vacate the finding that the appellant committed the family offenses of aggravated harassment and assault in the third degree … .. Inasmuch as the petitioner has not raised any alternative grounds for affirmance of the order of protection … , under the circumstances, we reverse the order of protection, deny the family offense petition, and dismiss the proceeding … . Matter of Stanislaus v Stanislaus, 2017 NY Slip Op 08274, Second Dept 11-22-17

 

FAMILY LAW (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/CRIMINAL LAW (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/AGGRAVATED HARASSMENT  (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/ASSAULT THIRD DEGREE  (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/FAMILY OFFENSES (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))

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STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT).

The Third Department, reversing Family Court, determined the child support provisions of a stipulation complied with the Child Support Standards Act (CSSA) and were enforceable. The Third Department further found that the proper standard for an upward modification of support was that which was agreed to in the stipulation:

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The stipulation, as well as the order of support, recite that the parties had been advised of and fully understood the child support provisions of the CSSA and that the application of the statute would result in the presumptively correct amount of child support to be awarded. The stipulation then sets forth the presumptive amount of child support that would be awarded under the CSSA and the agreed-upon figures used to calculate that amount, states that the parties are deviating from the presumptive amount and provides a detailed explanation of the reasons for the deviation therefrom. Thus, the opt out provisions of the stipulation fully comply with the CSSA … . That the judgment of divorce does not explicitly set forth the CSSA recitals is not determinative, as the statute only requires the inclusion of such recitals in the “agreement or stipulation . . . presented to the court for incorporation in an order or judgment” … .

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Generally, a party seeking modification of a child support provision derived from an agreement or stipulation incorporated but not merged into a judgment of divorce has the burden of proving, insofar as is relevant here, “that an unanticipated and unreasonable change of circumstances has occurred resulting in a concomitant increased need or that the needs of the children are not being adequately met”… . “The parties are free, however, to agree to different terms triggering a change in the obligations of the payor spouse, including the application of a standard other than substantial unanticipated and unreasonable change in circumstances as the basis for determining a modification application, provided that . . . the children’s personal right to receive adequate support is not adversely affected and public policy is not offended” … . Here, the parties’ 1999 stipulation expressly provides that either party may petition a court for a modification of child support based upon “a change of circumstances.” Through this clear and unqualified language, the parties plainly expressed an intent to dispense with the “unanticipated and unreasonable change of circumstances” standard in favor of a less burdensome “change of circumstances” standard … . Matter of Frederick-Kane v Potter, 2017 NY Slip Op 08219, Third Dept 11-22-17

 

FAMILY LAW (CHILD SUPPORT, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/CHILD SUPPORT (FAMILY LAW, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, STIPULATION, CHILD SUPPORT, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/STIPULATION (FAMILY LAW, CHILD SUPPORT, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/UPWARD MODIFICATION (FAMILY LAW, CHILD SUPPORT, , STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))

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