Page 1140 – New York Appellate Digest

/ Family Law

MOTHER’S PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING.

The Second Department, reversing Family Court, determined mother’s modification of custody petition should not have been denied without a hearing:

Here, the mother established her entitlement to a hearing on the basis of changed circumstances. Specifically, the mother made a sufficient evidentiary showing in support of her allegations that the father sexually abused the oldest child and that, as a result of the ensuing litigation, the mother’s relationship with the father had deteriorated to the point that they could no longer communicate, and the oldest child was no longer visiting with the father … . Moreover, the “narrow exception” to the general requirement that a hearing be held is inapplicable in this case … . The dismissal of the article 10 [alleging sexual abuse of the oldest child by father] proceeding pursuant to an adjournment in contemplation of dismissal was not a dismissal on the merits and it did not resolve the allegations of sexual abuse … . Indeed, no evidentiary hearing was held in the article 10 proceeding, and the Family Court never made any findings of fact in that proceeding regarding the allegations of sexual abuse. In sum, the court should not have dismissed the mother’s modification petition without a hearing … . Matter of Chess v Lichtman, 2017 NY Slip Op 00644, 2nd Dept 2-1-17

FAMILY LAW (MOTHER’S PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)/CUSTODY (MOTHER’S PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)

February 01, 2017

/ Criminal Law

MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIED.

The Second Department determined Supreme Court should have granted defendant’s motion for DNA testing of some, but not all, of the evidence admitted at his trial:

Here, the defendant established that if forensic DNA testing had been conducted on two blood samples, a bloody sweater, and fingernail scrapings of the decedent, if any, recovered by the police from the crime scene, and if the results of such testing had been admitted at trial, there exists a reasonable probability that the verdict would have been more favorable to him … . However, with respect to the defendant’s request for forensic DNA testing of hair and fibers, the defendant failed to demonstrate that there is a reasonable probability that the verdict would have been more favorable to him had DNA testing results of those items been admitted into evidence … .

In opposition to the motion, the People failed to come forward with evidence demonstrating the existence or nonexistence of the materials sought, and whether such materials are available for testing. “[T]he defendant does not bear the burden of showing that the specified DNA evidence exists and is available in suitable quantities to make testing feasible. To the contrary, it is the People, as the gatekeeper of the evidence, who must show what evidence exists and whether the evidence is available for testing” … . “[A] conclusory assertion that the evidence no longer exists is legally insufficient” … . People v Robinson, 2017 NY Slip Op 00665, 2nd Dept 2-1-17

CRIMINAL LAW (MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIED)/EVIDENCE (CRIMINAL LAW, MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIED)/DNA (CRMINAL LAW, MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIED)

February 01, 2017

/ Criminal Law

NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED.

The Second Department determined defendant was entitled to a new trial on the criminal possession of a weapon counts. The People requested a jury instruction for constructive possession and the instruction was given. The evidence at trial did not provide a basis for the instruction:

After the gunpoint robbery of the supermarket, committed by a single perpetrator, the defendant was arrested when he was found hiding in an attic of a nearby house. Shortly thereafter, police officers recovered a gun from the attic. The People sought to prove at trial, among other things, that the defendant was the individual who committed the robbery with the gun recovered from the attic. In the bill of particulars and throughout the trial, the People’s theory on the counts of criminal possession of a weapon in the second degree was that the defendant possessed the subject gun in the supermarket. Even at the charge conference, at which the People requested a charge of constructive possession, the People maintained that the basis of those counts was the defendant’s possession of the gun in the supermarket. Since there was no evidence from which the jury could conclude that the defendant constructively possessed the gun in the supermarket, that charge should not have been given … . People v Golden, 2017 NY Slip Op 00661, 2nd Dept 2-1-17

CRIMINAL LAW (NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED)/JURY INSTRUCTIONS (CRIMINAL LAW, NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED)/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED)/EVIDENCE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED)

February 01, 2017

/ Negligence

SPEED OF PLAINTIFF BICYCLIST RAISED A QUESTION OF FACT RE HIS COMPARATIVE NEGLIGENCE.

The First Department determined the allegation plaintiff bicyclist was going fast in the bike lane raised a question of fact about the plaintiff’s comparative negligence. Plaintiff was injured when he stopped fast after defendant taxi driver turned into the bike lane:

Plaintiff, a cyclist, made a prima facie showing of his entitlement to partial summary judgment based on his evidence, including averments of a nonparty witness, that he was lawfully traveling in a designated bicycle lane, with a yield sign in his favor, when defendant taxi driver attempted to make a left turn and, in the process, crossed over the bicycle lane just moments before plaintiff arrived at the same spot, causing plaintiff to brake sharply and be pitched over his handlebars in order to avoid a collision with the taxi (see 34 RCNY 4-12[p][2]…).

In opposition, defendant taxi driver’s observations that plaintiff was riding his bicycle very fast raised factual issues as to plaintiff’s potential comparative negligence … . An accident may have more than one proximate cause … . Bell v Angah, 2017 NY Slip Op 00613, 1st Dept 1-31-17

NEGLIGENCE (SPEED OF PLAINTIFF BICYCLIST RAISED A QUESTION OF FACT RE HIS COMPARATIVE NEGLIGENCE)/BICYCLISTS (TRAFFIC ACCIDENT, SPEED OF PLAINTIFF BICYCLIST RAISED A QUESTION OF FACT RE HIS COMPARATIVE NEGLIGENCE)/TRAFFIC ACCIDENTS (BICYCLISTS, SPEED OF PLAINTIFF BICYCLIST RAISED A QUESTION OF FACT RE HIS COMPARATIVE NEGLIGENCE)

January 31, 2017

/ Negligence

QUESTION OF FACT WHETHER OPTICAL CONFUSION OBSCURED A STEP, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined plaintiff had raised a question of fact in this slip and fall case. Plaintiff tripped on a step defendant claimed was open and obvious. Plaintiff raised a question of fact about optical confusion with photographs and an affidavit from an expert:

Plaintiff tripped and fell on a step on a walkway on defendant’s premises while crossing the campus during her lunch break. Assuming that defendant established prima facie that the step was open and obvious and not inherently dangerous … , plaintiff raised a triable issue of fact whether the condition was open and obvious by demonstrating through an expert’s affidavit and photographs that the color and position of the step created optical confusion, i.e., “the illusion of a flat surface, visually obscuring … [the] step[]” … . Buonchristiano v Fordham Univ., 2017 NY Slip Op 00586, 1st Dept 1-31-17

NEGLIGENCE (QUESTION OF FACT WHETHER OPTICAL CONFUSION OBSCURED A STEP, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (QUESTION OF FACT WHETHER OPTICAL CONFUSION OBSCURED A STEP, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/OPEN AND OBVIOUS (STEP, SLIP AND FALL, QUESTION OF FACT WHETHER OPTICAL CONFUSION OBSCURED A STEP, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/OPTICAL CONFUSION (STEP, SLIP AND FALL, QUESTION OF FACT WHETHER OPTICAL CONFUSION OBSCURED A STEP, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)

January 31, 2017

/ Family Law

REQUEST FOR DNA PATERNITY TEST PROPERLY DENIED, NOT IN THE CHILD’S BEST INTEREST.

The First Department determined it was in the child’s best interest to deny respondent’s request for a DNA paternity test:

Family Court properly determined that it is in the child’s best interest to equitably estop respondent from having a DNA test to establish paternity (see Family Ct Act § 532[a]). Clear and convincing evidence demonstrates that respondent held himself out as the father of the child and that the now 10-year-old child considers respondent to be his father … . The child lived with respondent, his mother and siblings for about two years, calls respondent “dad” and spends time with him on birthdays and holidays, including Father’s Day. Respondent introduced the child to his family and friends as his son, and allowed the child to spend time and develop relationships with his family. Issues of credibility were for Family Court to resolve and its determination to credit the testimony of the mother and the child and to reject that of respondent is supported by the record … . Matter of Commissioner of Social Servs. v Dwayne W., 2017 NY Slip Op 00595, 1st Dept 1-31-17

FAMILY LAW (REQUEST FOR DNA PATERNITY TEST PROPERLY DENIED, NOT IN THE CHILD’S BEST INTEREST)/PATERNITY (REQUEST FOR DNA PATERNITY TEST PROPERLY DENIED, NOT IN THE CHILD’S BEST INTEREST)/DNA (FAMILY LAW, PATERNITY, REQUEST FOR DNA PATERNITY TEST PROPERLY DENIED, NOT IN THE CHILD’S BEST INTEREST)/

January 31, 2017

/ Criminal Law

A MOVING CAR IS A PLACE WHERE THE VICTIM IS NOT LIKELY TO BE FOUND WITHIN THE MEANING OF THE KIDNAPPING STATUTE, UNDER THE FACTS, UNLAWFUL IMPRISONMENT WAS NOT A LESSER INCLUDED OFFENSE.

The First Department, in a full-fledged opinion by Justice Saxe, determined defendants were properly convicted of kidnapping and, under the facts, unlawful imprisonment was not a lesser included offense. The defendants taped the victim’s wrists behind his back, taped his arms to his body, and then transported the victim by car from New York to Philadelphia, where the victim was released at night in a deserted area:

We reject defendants’ argument that a car on a public thoroughfare may not, as a matter of law, be considered “a place where [the victim] is not likely to be found” [within the meaning of the kidnapping statute] (Penal Law § 135.00 [2]). …

Defendants suggest that a car may only be treated as a place where the victim is “not likely to be found” if (1) the defendant used or threatened to use a weapon to put or keep the victim in the vehicle, (2) the defendant used the vehicle to take the victim to a secluded place, or (3) the victim was not visible to the public within the car. However, neither Penal Law § 135.00(2) nor any case law imposes such requirements of proof. …

Unlawful imprisonment does not qualify here as a lesser included offense of the kidnapping charge, because there was no reasonable view of the evidence that defendants unlawfully imprisoned [the victim] but did not kidnap him. People v Grohoske, 2017 NY Slip Op 00617, 1st Dept 1-31-17

CRIMINAL LAW (A MOVING CAR IS A PLACE WHERE THE VICTIM IS NOT LIKELY TO BE FOUND WITHIN THE MEANING OF THE KIDNAPPING STATUTE, UNDER THE FACTS, UNLAWFUL IMPRISONMENT WAS NOT A LESSER INCLUDED OFFENSE)/KIDNAPPING (A MOVING CAR IS A PLACE WHERE THE VICTIM IS NOT LIKELY TO BE FOUND WITHIN THE MEANING OF THE KIDNAPPING STATUTE, UNDER THE FACTS, UNLAWFUL IMPRISONMENT WAS NOT A LESSER INCLUDED OFFENSE)/UNLAWFUL IMPRISONMENT (A MOVING CAR IS A PLACE WHERE THE VICTIM IS NOT LIKELY TO BE FOUND WITHIN THE MEANING OF THE KIDNAPPING STATUTE, UNDER THE FACTS, UNLAWFUL IMPRISONMENT WAS NOT A LESSER INCLUDED OFFENSE)

January 31, 2017

/ Appeals

ORDER DISMISSING COMPLAINT, ENTERED BY THE CLERK AT THE DIRECTION OF THE APPELLATE COURT AFTER REVERSAL, DOES NOT BRING UP TRIAL INTERLOCUTORY RULINGS FOR APPEAL.

The First Department rejected the plaintiff’s attempt to appeal evidentiary rulings made by the trial court. Plaintiff had successfully moved to set aside the defense verdict in this personal injury case. The First Department reversed and directed the clerk to enter a judgment dismissing the complaint. The plaintiff then appealed that order, raising trial evidentiary issues. The First Department held that the order appealed from was not the order of the trial court, therefore the interlocutory evidentiary rulings could not be raised:

Although an appeal from a final order or judgment of Supreme Court brings up for review, inter alia, certain evidentiary rulings made at trial (CPLR 5501[a][3] …), once this Court decides the issues raised on appeal and directs the Clerk of the court from which the appeal originated to enter judgment, such judgment finally disposes of all the issues in the action (CPLR 5701[a][1]…). The judgment that the Clerk entered … was entered in accordance with and pursuant to an order of this Court (the Appellate Division) which “dispose[d] of all the issues in the action” (CPLR 5701[a][1]). Stated differently, the … judgment is not a judgment of the trial court bringing up interlocutory issues for review … . …

Plaintiff did not move to set aside the verdict based upon erroneous evidentiary rulings. Although as plaintiff correctly argues, there is no interlocutory appeal as of right from an evidentiary ruling during trial (see CPLR 5701[a]…), plaintiff had the opportunity to raise legal arguments regarding the evidentiary rulings made by the trial court in support of her motion to set aside the jury’s verdict.

These issues could have also been raised to support her position in the prior appeal. Powell v City of New York, 2017 NY Slip Op 00576, 1st Dept 1-31-17

APPEALS (ORDER DISMISSING COMPLAINT, ENTERED BY THE CLERK AT THE DIRECTION OF THE APPELLATE COURT AFTER REVERSAL, DOES NOT BRING UP TRIAL INTERLOCUTORY RULINGS FOR APPEAL)/INTERLOCUTORY EVIDENTIARY RULINGS (APPEALS, ORDER DISMISSING COMPLAINT, ENTERED BY THE CLERK AT THE DIRECTION OF THE APPELLATE COURT AFTER REVERSAL, DOES NOT BRING UP TRIAL INTERLOCUTORY RULINGS FOR APPEAL)/REVERSAL (APPEALS, (ORDER DISMISSING COMPLAINT, ENTERED BY THE CLERK AT THE DIRECTION OF THE APPELLATE COURT AFTER REVERSAL, DOES NOT BRING UP TRIAL INTERLOCUTORY RULINGS FOR APPEAL)

January 31, 2017

/ Labor Law-Construction Law

LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, LIGHTING BAR FELL ON PLAINTIFF WHEN HE WAS DISMANTLING AN EXHIBITION BOOTH.

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor Law 240(1) and 241(6) claims should not have been granted. Plaintiff was dismantling an exhibition booth when a lighting bar fell on him:

Since [plaintiff’s] specific task at the moment the accident occurred was ancillary to and part of the larger demolition job of dismantling the booths, in which he was to participate, plaintiff was engaged in an activity within the purview of Labor Law §§ 240(1) and 241(6) … .

… The lighting bar was an object that required securing to prevent it from becoming dislodged or falling during the work … . Further, in view of the weight of the lighting bar, we cannot conclude as a matter of law that the distance it fell was de minimis … . Nor did defendants demonstrate that any securing device would have defeated the task of removing the lighting bar .. .

12 NYCRR 23-1.8(c)(1), which mandates approved safety hats for persons “required to work or pass within any area where there is a danger of being struck by falling objects or materials,” is sufficiently concrete to give rise to Labor Law § 241(6) liability … . Rutkowski v New York Convention Ctr. Dev. Corp., 2017 NY Slip Op 00555, 1st Dept 1-26-17

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, LIGHTING BAR FELL ON PLAINTIFF WHEN HE WAS DISMANTLING AN EXHIBITION BOOTH)/DEMOLITION (LABOR LAW, LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, LIGHTING BAR FELL ON PLAINTIFF WHEN HE WAS DISMANTLING AN EXHIBITION BOOTH)/HARD HATS (LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, LIGHTING BAR FELL ON PLAINTIFF WHEN HE WAS DISMANTLING AN EXHIBITION BOOTH)

January 26, 2017

/ Appeals, Family Law

FAMILY COURT’S REFUSAL TO ACKNOWLEDGE THE THIRD DEPT’S REVERSAL OF THE TERMINATION OF MOTHER’S PARENTAL RIGHTS REQUIRED NEW HEARING IN FRONT OF A DIFFERENT JUDGE.

The Third Department, in a decision too detailed to fairly summarize here, determined Family Court’s many mistakes, which have resulted in mother’s inability to visit with her children for years, required a new hearing in front of a different judge. The Third Department had reversed the termination of mother’s parental rights in 2013. Family Court, however, refused to reinstate her parental rights and mother has been fighting to be allowed supervised visitation ever since:

… [W]e must address Family Court’s flawed understanding of the legal effect of our October 2013 order reversing the orders that terminated the mother’s parental rights to the children. Inexplicably, Family Court incorrectly and repeatedly stated on the record that there was no declaration by this Court that the mother’s parental rights or any prior orders were reinstated and that the mother was mistaken that her parental rights had been restored.

It is fundamental that the reversal of an order upon appellate review restores the party who prevailed on appeal to the position that he or she enjoyed prior to entry of the order appealed from … . Contrary to Family Court’s statements, this Court’s October 2013 order did reinstate the mother’s parental rights and restored her to the position that she was in prior to the erroneous termination of her parental rights. It appears from the record that, at such time, the mother had been afforded supervised visitation with the children once a week. Accordingly, upon the reinstatement of her parental rights, the mother was, at a minimum, entitled to the restoration of the visitation that she was afforded prior to the termination, unless it could be demonstrated by respondent that there were “‘compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child[ren]’s welfare'” … . Matter of Angela F. v St. Lawrence County Dept. of Social Servs., 2017 NY Slip Op 00513, 3rd Dept 1-26-17

FAMILY LAW (FAMILY COURT’S REFUSAL TO ACKNOWLEDGE THE THIRD DEPARTMENT’S REVERSAL OF THE TERMINATION OF MOTHER’S PARENTAL RIGHTS REQUIRED NEW HEARING IN FRONT OF A DIFFERENT JUDGE)/JUDGES (FAMILY COURT’S REFUSAL TO ACKNOWLEDGE THE THIRD DEPARTMENT’S REVERSAL OF THE TERMINATION OF MOTHER’S PARENTAL RIGHTS REQUIRED NEW HEARING IN FRONT OF A DIFFERENT JUDGE)/APPEALS (FAMILY COURT’S REFUSAL TO ACKNOWLEDGE THE THIRD DEPARTMENT’S REVERSAL OF THE TERMINATION OF MOTHER’S PARENTAL RIGHTS REQUIRED NEW HEARING IN FRONT OF A DIFFERENT JUDGE)

January 26, 2017

Search Results

MOTHER’S PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING.

MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIED.

NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED.

SPEED OF PLAINTIFF BICYCLIST RAISED A QUESTION OF FACT RE HIS COMPARATIVE NEGLIGENCE.

QUESTION OF FACT WHETHER OPTICAL CONFUSION OBSCURED A STEP, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

REQUEST FOR DNA PATERNITY TEST PROPERLY DENIED, NOT IN THE CHILD’S BEST INTEREST.

A MOVING CAR IS A PLACE WHERE THE VICTIM IS NOT LIKELY TO BE FOUND WITHIN THE MEANING OF THE KIDNAPPING STATUTE, UNDER THE FACTS, UNLAWFUL IMPRISONMENT WAS NOT A LESSER INCLUDED OFFENSE.

ORDER DISMISSING COMPLAINT, ENTERED BY THE CLERK AT THE DIRECTION OF THE APPELLATE COURT AFTER REVERSAL, DOES NOT BRING UP TRIAL INTERLOCUTORY RULINGS FOR APPEAL.

LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, LIGHTING BAR FELL ON PLAINTIFF WHEN HE WAS DISMANTLING AN EXHIBITION BOOTH.

FAMILY COURT’S REFUSAL TO ACKNOWLEDGE THE THIRD DEPT’S REVERSAL OF THE TERMINATION OF MOTHER’S PARENTAL RIGHTS REQUIRED NEW HEARING IN FRONT OF A DIFFERENT JUDGE.

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