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THE RECORD SUPPORTED A NEGLECT FINDING BASED UPON FATHER’S ABUSE OF MOTHER, FAMILY COURT REVERSED.

The Second Department, reversing Family Court, determined the record supported a neglect finding based upon domestic abuse witnessed or overheard by the children:

At the conclusion of the hearing, the Family Court credited the witnesses’ testimony, which the court found established that the father hit and choked the mother in the presence of two of the children, the eldest child was pushed by the father when he attempted to intervene, a third child was not in the room when the incident occurred but heard noise, and the three oldest children reported that they had witnessed the father engage in acts of domestic violence against their mother and had also witnessed the father under the influence of drugs. Nevertheless, the court dismissed the petitions on the ground that no physical impairment or risk of physical impairment of the children was established, nor was the mental state of the children explored. The petitioner appeals. * * *

Contrary to the Family Court’s conclusion, impairment or an imminent danger of impairment to the physical, mental, or emotional condition of the subject children could be inferred from the father’s conduct … . A single act of domestic violence in the presence of a child … , or within the hearing of a child … , may be sufficient for a neglect finding. In this case, there was evidence of repeated acts of domestic violence while the children were present in the household … , which the eldest child attributed to the father’s drug use. Furthermore, the father did not testify, warranting the “strongest negative inference” against him … .

Under these circumstances, the Family Court’s findings that the subject children were not neglected are not supported by the record. Accordingly, we reverse the order, reinstate the petitions, find that the children are neglected within the meaning of Family Court Act § 1012(f), and remit the matter to the Family Court, Kings County, for a dispositional hearing and determinations thereafter. Matter of Jihad H. (Fawaz H.), 2017 NY Slip Op 05224, 2nd Dept 6-28-17

 

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REVIEW OF PLAINTIFF’S WORK POSTED ON YELP WAS OPINION, NOT ACTIONABLE LIBEL.

The Second Department determined that a review of plaintiff’s work at defendant’s home posted on Yelp was not actionable as libel per se. The review was an expression of opinion by a dissatisfied customer:

After the plaintiff installed a custom home theater system in the defendant’s home, the defendant posted a review of the services she received from the plaintiff on the Internet website Yelp.com. The plaintiff commenced this action, alleging, among other things, that the review constituted libel per se. The defendant moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss that cause of action. The Supreme Court granted that branch of the defendant’s motion.

A “libel action cannot be maintained unless it is premised on published assertions of fact” … . Whether an allegedly defamatory statement constitutes actionable fact or nonactionable opinion is a question of law to be resolved by the courts … . In resolving that question, “[r]ather than sifting through a communication for the purpose of isolating and identifying assertions of fact,” the courts should “consider the content of the communication as a whole,” and “look to the over-all context in which the assertions were made” to determine ” whether the reasonable reader would have believed that the challenged statements were conveying facts about the libel plaintiff'”… .

Here, given the context in which the challenged statements were made and viewing the content of the review as a whole, a reasonable reader would have believed that the writer of the review was a dissatisfied customer who utilized the Yelp website to express an opinion … . Crescendo Designs, Ltd. v Reses, 2017 NY Slip Op 05198, 2nd Dept 6-28-17

 

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SUPREME COURT DID NOT ERR IN HOLDING THE SORA HEARING IN DEFENDANT’S ABSENCE WITHOUT MAKING A DETERMINATION OF DEFENDANT’S COMPETENCE, THERE WERE CLEAR SIGNS DEFENDANT DID NOT UNDERSTAND THE PROCEEDINGS.

The Second Department, in a full-fledged opinion by Justice Roman, held Supreme Court did not err in excluding defendant from the SORA proceeding because of unruly behavior and proceeding with the hearing without a determination of defendant’s competency. Defendant’s competency had been called into question by defendant’s past behavior, his behavior at the SORA hearing, and defense counsel’s statements to the court. The opinion is comprehensive and includes an extensive discussion of the due process rights afforded defendants in SORA proceedings, parole revocation proceeding, and proceedings under the Mental Hygiene Law:

While the absence of a provision in SORA for a proceeding involving a defendant who is incapacitated is an issue which the Legislature may wish to address, we hold that if, and when, the defendant is mentally competent to understand the nature of the SORA proceeding, a de novo SORA risk assessment hearing may be held. Correction Law § 168-o(2) permits a sex offender required to register pursuant to SORA to petition the court annually for modification of his or her risk level classification … . Although the statute places the burden on a defendant seeking modification to prove the facts supporting the requested modification by clear and convincing evidence … , in light of the fact that an incompetent defendant is not “present” at the original hearing, the burden should remain with the People at the subsequent hearing at which the defendant is, for the first time, present. This approach fulfills the court’s mandatory obligations under SORA and ensures the statute’s goal of protecting the public, while, at the same time, affording the defendant the opportunity to be present and heard on the issue of his risk level designation when he is competent to do so. People v Parris, 2017 NY Slip Op 05252, 2nd Dept 6-28-17

 

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UPWARD DEPARTURE FROM THE PRESUMPTIVE RISK LEVEL NOT AUTHORIZED, CRITERIA EXPLAINED.

The Second Department, reversing County Court, determined the upward departure from the presumptive risk level was not authorized. The facts were not discussed but the applicable law was clearly explained:

Once the presumptive risk level has been established at a risk level hearing, the court is permitted to depart from it if “special circumstances” warrant a departure … . An upward departure is permitted only if the court concludes, upon clear and convincing evidence, that there exists an aggravating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines … .

“Under SORA, a court must follow three analytical steps to determine whether or not to order a departure from the presumptive risk level indicated by the offender’s guidelines factor score. At the first step, the court must decide whether the aggravating or mitigating circumstances alleged by a party seeking a departure are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines” … . “At the second step, the court must decide whether the party requesting the departure has adduced sufficient evidence to meet its burden of proof in establishing that the alleged aggravating or mitigating circumstances actually exist in the case at hand. If the party applying for a departure surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure” (id. [citations omitted]). If, however, the People do not satisfy the first two requirements, the court does not have the discretion to upwardly depart from the presumptive risk level … .

Under the circumstances presented, the People did not meet their burden of proof with respect to the first two requirements. Therefore, an upward departure was not authorized … . People v Cassarly, 2017 NY Slip Op 05251, 2nd Dept 6-28-17

 

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TWO OF THE COUNTS TO WHICH DEFENDANT PLED GUILTY WERE NOT SUPPORTED BY THE FACTS ALLEGED, THE ISSUE WAS NOT RAISED ON APPEAL, THEREFORE THE MOTION TO VACATE THE CONVICTION WAS PROCEDURALLY BARRED, STRONG DISSENT.

The Second Department, over a dissent, determined defendant’s motion to vacate his conviction on ineffective assistance grounds was properly denied because the issue could have been appealed. Defendant pled guilty to three counts charging robbery second. However the underlying factual allegations for two of the counts only supported robbery third. Defendant was sentenced to consecutive five year terms of imprisonment, one for each robbery second count. The issue was not raised on appeal and a writ of error coram nobis was denied:

FROM THE DISSENT:

I understand that we are constrained by CPL 440.10(2)(2), which provides that a court must deny a motion to vacate a judgment of conviction where the ground or issue raised upon the motion could have been raised on a direct appeal from the judgment of conviction and the defendant unjustifiably failed to do so … . Here, the defendant, although represented by appellate counsel, failed to raise, on his direct appeal, the meritorious issues he now raises on his CPL 440.10 motion … . The defendant filed an application for a writ of error coram nobis, claiming that his appellate counsel was ineffective for failing to raise these issues. However, that application was summarily denied … . Under these unique circumstances, where the defendant has no other apparent avenue of relief in the New York State court system, it would be fundamentally unfair and unjust to apply the procedural bar set forth in CPL 440.10 to his claims.

Accordingly, while I understand the reasoning the majority applies in reaching its determination, I cannot join it, and must respectfully dissent. People v McKenzie, 2017 NY Slip Op 05243, 2nd Dept 6-28-17

 

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ALTHOUGH PLAINTIFF’S COUNSEL HAD NOTIFIED ALL PARTIES HE WAS NO LONGER REPRESENTING PLAINTIFF, THE PROPER PROCEDURE FOR WITHDRAWAL OF AN ATTORNEY OF RECORD HAD NOT BEEN FOLLOWED, THEREFORE THE STIPULATION OF DISCONTINUANCE SIGNED BY PLAINTIFF PRO SE WAS NOT VALID.

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate a stipulation of discontinuance should not have been denied. At the time plaintiff signed the discontinuance pro se, his attorney (Mulhern) had notified all parties he was no longer representing plaintiff, but the proper procedure for withdrawing as counsel had not been followed. Therefore the stipulation of discontinuance was not valid:

“Although a client may, as a matter of public policy, discharge an attorney at any time, with or without cause…,  an attorney of record in an action may only withdraw or be changed or discharged in the manner prescribed by statute”… . “Until an attorney of record withdraws or is changed or discharged in the manner prescribed by CPLR 321, his [or her] authority as attorney of record for his [or her] client continues, as to adverse parties, unabated” … .

Here, at the time that the plaintiff executed the stipulation of discontinuance, he and Mulhern had not signed and filed a consent to change attorney form or sought a court order permitting Mulhern to withdraw as the plaintiff’s counsel. Thus, as to the defendants, Mulhern still was the plaintiff’s attorney … , and the plaintiff was not permitted to act pro se without consent of the court … . Accordingly, the plaintiff’s motion to vacate the stipulation of discontinuance should have been granted. Garafalo v Mayoka, 2017 NY Slip Op 05201, 2nd Dept 6-28-17

 

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DEFENDANTS, OPERATORS OF A VIRGINIA HOTEL WHERE PLAINTIFF WAS INJURED IN A SHOWER, DEMONSTRATED THE ABSENCE OF BUSINESS TIES TO NEW YORK, THE FACT THAT NEW YORKERS CAN MAKE RESERVATIONS THROUGH A WEBSITE IS NOT ENOUGH.

The Second Department determined defendants’ hotel’s motion to dismiss based upon the lack of business ties to New York was properly granted. Plaintiff was injured in a shower in the hotel, which is located in Virginia. The defendants demonstrated they did not do business in New York. The fact that reservations could be made through a website (accessed in New York) was not enough. There was no showing the injury was linked to the use of the website:

… [T]he plaintiffs failed to demonstrate that the defendants purposefully availed themselves of the privilege of conducting business in New York. Moreover, accepting as true the plaintiffs’ allegation that the defendants were involved in maintaining or operating a website that permitted consumers in New York to make reservations at the subject hotel in Virginia, they failed to make a prima facie showing that there was a substantial relationship between the causes of action asserted in the complaint and any alleged transaction of business through that website … .

The plaintiffs also failed to make a prima facie showing that personal jurisdiction exists under CPLR 302(a)(4) based on ownership, use, or possession of any real property within the state … .

Furthermore, contrary to their contention, the plaintiffs have not made ” a sufficient start'” to warrant holding this branch of the defendants’ motion in abeyance while discovery is conducted on the issue of jurisdiction … . The plaintiffs have not alleged facts which would support personal jurisdiction under either CPLR 302(a)(1) or CPLR 302(a)(4), and thus have failed to indicate how further discovery might lead to evidence showing that personal jurisdiction exists here … . Leuthner v Homewood Suites by Hilton, 2017 NY Slip Op 05212, 2nd Dept 6-28-17

 

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SPRINT IS NOT A UTILITY AND THEREFORE IS NOT EXEMPT FROM THE UNINCORPORATED BUSINESS INCOME TAX.

The First Department, in a full-fledged opinion by Justice Sweeney, determined plaintiff (Sprint) was not a “utility” within the meaning of the relevant statutes and therefore was required to pay both the Utility Tax and the Unincorporated Business Income Tax (UBT). If Sprint were deemed a utility, as opposed to a vendor of utility services, it would have been exempt from the UBT:

The question in Cable & Wireless [Cable & Wireless v City of N.Y. Dept. of Fin. (190 Misc 2d 410, 416 [Sup Ct, NY County 2001])], as it is here, was whether the plaintiff telecommunications firm was a utility or a vendor of utility services. The plaintiff there argued, as plaintiff does here, that, under the plain statutory language, it was “supervised” by the PSC [Public Service Commission] and thus must be classified as a utility. In rejecting plaintiff’s argument, the court conducted an extensive review of the legislative history of the statutes and their amendments, including the history of the circumstances surrounding the statutes’ initial passage in 1933 and their amendments through the 1940s to more recent times. After holding that plaintiff had the burden of proving that it was a supervised utility and thus exempt from the tax at issue, the court held that “in using the words subject to the supervision of the [PSC],’ the City Council did not envision imposing the Utility Tax on gross income on entities such as [the plaintiff] which exhibit none of the characteristics of the monopolies to which the tax was intended to apply” … . The plaintiff was therefore not a utility and was not entitled to an exemption from the UBT.

We find the reasoning in Astoria [Matter of Astoria Gas Turbine Power, LLC v Tax Commn. of City of N.Y. (7 NY3d 451 [2006])] and Cable & Wireless to be equally applicable to the present case. By its own admission, plaintiff is “a competitive entity” that does not enjoy monopoly status. As a result, the “light regulation” by the PSC to which it is subject does not rise to the level of “supervision” necessary to classify it as a utility and thus warrant an exemption from the UBT. Sprint Communications Co., L.P. v City of N.Y. Dept. of Fin., 2017 NY Slip Op 05194, 1st Dept 6-27-17

 

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MOTION TO SET ASIDE THE VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, PHOTOGRAPHS TAKEN TWO WEEKS AFTER THE ACCIDENT SHOULD NOT HAVE BEEN EXCLUDED, CONTRACT SPECIFICATIONS FOR WORK ON THE AREA OF THE FALL SHOULD NOT HAVE BEEN EXCLUDED, SUBPOENAS FOR WITNESSES WHO HAD NOT BEEN DEPOSED SHOULD NOT HAVE BEEN QUASHED.

The First Department determined the defendants’ motion to set aside the verdict in this slip and fall case should not have been granted. The First Department further held that photographs of the sinkhole where plaintiff fell (taken two weeks after the injury) and the contract specifications for repair of the sinkhole should not have been excluded from evidence. In addition plaintiff’s subpoenas for a city inspector and a principal of the contractor (Halcyon) which repaired the sinkhole should not have been quashed. The fact that those witnesses were not deposed did not preclude plaintiff’s calling them at trial:

… [T]he trial court erred in precluding pictures of the accident site … . Plaintiff authenticated the photographs at his deposition, and further testimony at trial could have explained how and why the scene depicted in the photos did or did not differed from the scene on the day of the accident … . Exclusion of the photographs meant that plaintiff was unable to show the jury the hole into which he allegedly fell.

Nor should the court have precluded the City’s specifications incorporated into its contract with Halcyon. The specifications were expressly incorporated into the contract between Halcyon and the City; thus, they applied not only to the City itself, but also to third parties. Therefore, they were admissible as potential evidence of defendants’ negligence… , and indeed, the City failed to show how the specifications transcended the duty of reasonable care. The trial court’s exclusion of this evidence regarding the specifications hobbled plaintiff’s ability to prove that the City had engaged in affirmative negligence — the very basis upon which the trial court granted the directed verdict.

Likewise, the court erred in quashing the subpoenas directed to the City’s onsite inspector and a principal of Halcyon … . Although plaintiff did not formally name the City’s onsite inspector and the principal of Halcyon as witnesses, nothing in the CPLR requires a party to generate a trial witness list, nor does the record indicate that the individual court rules required him to do so … . Indeed, there is no requirement that a party depose a witness in order to call him or her as a witness at trial. Gonzalez v City of New York, 2017 NY Slip Op 05180, 1st Dept 6-27-17

 

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INSURERS’ RESPONSES TO INSUREDS’ CLAIMS UNDER THE INSURANCE CONTRACTS AMOUNTED TO A DENIAL OF LIABILITY, INSUREDS NOT OBLIGATED TO COOPERATE OR OBTAIN CONSENT TO SETTLE. ​

The First Department determined the insurer’s responses to the insureds’ claims amounted to a denial of coverage. Therefore the insureds were not obligated to cooperate with the insurers or obtain the insurers’ consent to settle:

Defendants’ [insurers’] unreasonable delay in dealing with plaintiffs’ claims under the insurance contracts, consistently stated position that the various regulatory investigations and civil actions concerning plaintiffs’ alleged late trading and marketing-timing transactions did not constitute claims under the contracts, and insistence that in any event disgorgement payments such as those demanded by the regulators were not insurable as a matter of law constitute a denial of liability under the contracts that justifies plaintiffs’ settlement of those claims without defendants’ consent… . The record does not support defendants’ contention that plaintiffs breached their obligation to cooperate, but in any event defendants’ repudiation of liability for plaintiffs’ claims also excuses plaintiffs from performance of that obligation … . The “reservation of rights” language in defendants’ letters to plaintiffs does not change this result … .  J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 2017 NY Slip Op 05181, 1st Dept 6-27-17

 

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