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CONDITIONS OF FATHER’S VISITATION CANNOT BE DETERMINED BY A THERAPIST.

The Second Department determined Family Court improperly left the conditions for father’s visitation with his child up to a therapist:

… [I]t is for the Family Court—not the child’s therapist—to exercise its own discretion to determine how, when, and under what terms and conditions the father’s visitation with the subject child … is to resume … . Matter of Rogan v Guida, 2016 NY Slip Op 06716, 2nd Dept 10-12-16

FAMILY LAW (CONDITIONS OF FATHER’S VISITATION CANNOT BE DETERMINED BY A THERAPIST)/VISITATION (FAMILY LAW, CONDITIONS OF FATHER’S VISITATION CANNOT BE DETERMINED BY A THERAPIST)

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DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES.

The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction based upon ineffective assistance of counsel. Defendant sufficiently alleged he was misinformed about the deportation consequences of his guilty plea and he would not have pled guilty if he had known of those consequences:

Here, the defendant alleged in an affidavit that his attorney advised him that there would be no immigration consequences to his plea of guilty if he was sentenced to not more than one year in jail, and that immigration authorities would not seek him out in Massachusetts, where he resided, since his case was in New York. * * * … [A]lthough the defendant’s claim of misadvice was based solely on his own sworn allegations, the defendant explained his failure to submit an affirmation from his former attorney and it is unlikely, as the People suggest, that there were witnesses to counsel’s provision of confidential advice or any documents created reflecting the content of that advice * * *

… [T]he defendant averred that he had been a lawful permanent resident for 24 years, that he had a 7-year-old son, that his parents and four siblings all lived in the United States, and that he was employed at the same job for 10 years. Further, if sentenced as a first felony drug offender, as he was in connection with his plea of guilty, the defendant’s sentencing exposure was a maximum of 5½ years of imprisonment (see Penal Law § 70.70[2][a][ii]). In light of these circumstances, there is a question of fact as to whether it is reasonably probable that the defendant would not have pleaded guilty had he been correctly advised as to the deportation consequences of the plea … . People v Roberts, 2016 NY Slip Op 06729, 2nd Dept 10-12-16

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)/VACATE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)/ATTORNEYS (INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)/INEFFECTIVE ASSISTANCE DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)/DEPORTATION (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)

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PENNSYLVANIA BURGLARY CONVICTION CANNOT SERVE AS A PREDICATE FELONY IN NEW YORK.

The Second Department determined a Pennsylvania burglary conviction could not serve as a predicate felony in New York because of the absence of the “knowingly” element:

… [T]here is no element in the Pennsylvania statute comparable to the element in the analogous New York statute that an intruder “knowingly” enter or remain unlawfully in the premises (Penal Law § 140.20). The absence of this scienter requirement from the Pennsylvania burglary statute renders improper the use of the Pennsylvania burglary conviction as the basis of the defendant’s predicate felony adjudication … . People v Flores, 2016 NY Slip Op 06723, 2nd Dept 10-12-16

CRIMINAL LAW (PENNSYLVANIA BURGLARY CONVICTION CANNOT SERVE AS A PREDICATE FELONY IN NEW YORK)/PREDICATE FELONY (PENNSYLVANIA BURGLARY CONVICTION CANNOT SERVE AS A PREDICATE FELONY IN NEW YORK)/SECOND FELONY OFFENDER (PENNSYLVANIA BURGLARY CONVICTION CANNOT SERVE AS A PREDICATE FELONY IN NEW YORK)

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QUESTION OF FACT WHETHER LANDLORD LIABLE FOR BITE BY TENANT’S DOG.

The Second Department determined Supreme Court properly denied the landlord’s (appellant’s) motion for summary judgment in this dog bite case. The plaintiff was bitten by a tenant’s dog. The court explained the relevant law:

… [To] “recover against a landlord for injuries caused by a tenant’s dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog'” … .

… [T]he appellant established his prima facie entitlement to judgment as a matter of law dismissing the third cause of action insofar as asserted against him … . In support of his motion, he submitted, inter alia, his deposition transcript and the deposition transcripts of the injured plaintiff and [the tenant]. This evidence demonstrated, prima facie, that the appellant was not aware, nor should have been aware, that the dog had any vicious propensities … . In opposition, however, the plaintiffs raised triable issues of fact as to whether the dog did indeed have vicious propensities and whether the appellant knew or should have known of them … . Kim v Hong, 2016 NY Slip Op 06698, 2nd Dept 10-12-16

ANIMAL LAW (QUESTION OF FACT WHETHER LANDLORD LIABLE FOR BITE BY TENANT’S DOG)/LANDLORD-TENANT (DOG BITE, QUESTION OF FACT WHETHER LANDLORD LIABLE FOR BITE BY TENANT’S DOG)/DOG BITE (QUESTION OF FACT WHETHER LANDLORD LIABLE FOR BITE BY TENANT’S DOG)

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DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD.

The Second Department, reversing Supreme Court, determined the doctrine of equitable estoppel should have been applied to deny the NYC Transit Authority’s (NYCTA’s) motion to dismiss for failure to timely serve a notice of claim. The notice of claim had been timely served on the Metropolitan Transit Authority (MTA) and a 50-h hearing had been held:

Although the MTA and NYCTA share an affiliation, they are separate entities … . Thus, service of a notice of claim upon the MTA does not satisfy the condition precedent of serving a notice of claim upon the NYCTA … . However, a municipal corporation may be equitably estopped from asserting lack of notice of claim when it has wrongfully or negligently engaged in conduct that misled or discouraged a party from serving a timely notice of claim or making a timely application for leave to serve a late notice of claim, and when that conduct was justifiably relied upon by that party … . “By applying the doctrine of equitable estoppel to notice of claim situations, the courts may insure that statutes like section 50-e of the General Municipal Law, do not become a trap to catch the unwary or the ignorant'” … .  Konner v New York City Tr. Auth., 2016 NY Slip Op 06683, 2nd Dept 10-12-16

MUNICIPAL LAW (DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)/NEGLIGENCE (MUNICIPLA LAW, NOTICE OF CLAIM, DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)/CIVIL PROCEDURE (EQUITABLE ESTOPPEL, DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)/NOTICE OF CLAIM (DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)/EQUITABLE ESTOPPEL (MUNICIPAL LAW, NOTICE OF CLAIM, DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD)

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VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined summary judgment in favor of the defendant village should not have been granted in this sidewalk slip and fall case.  Although the village demonstrated it did not have written notice of snow and ice on the sidewalk, it did not demonstrate its practice of piling snow did not create the hazard:

While the mere failure to remove all snow or ice from a sidewalk is an act of omission, rather than an affirmative act of negligence … , a municipality’s act in piling snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous icy condition, constitutes an affirmative act excepting the dangerous condition from the prior written notice requirement … . The defendant’s evidence demonstrated that the temperature rose and remained above freezing for an extended period of time on the day before the plaintiff’s accident, after the defendant created the snow piles. On the day of the plaintiff’s accident, however, the temperature dropped to below freezing. While the defendant submitted an affidavit of an employee who stated that he applied sand and salt to the area of the sidewalk where the plaintiff fell sometime between 7:30 a.m. and 4:00 p.m. on the day of plaintiff’s accident, the plaintiff testified at his hearing held pursuant to General Municipal Law § 50-h that there was no sand or salt on the sidewalk at the time of his fall. Evidence submitted by the defendant also indicates that the ice upon which the plaintiff fell was located on a portion of the sidewalk that sloped down from the snow piles. Larenas v Incorporated Vil. of Garden City, 2016 NY Slip Op 06684, 2nd Dept 10-12-16

MUNICIPAL LAW (NEGLIGENCE,VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (MUNICIPAL LAW, VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SIDEWALKS (MUNICIPAL LAW, VILLAGE FAILED TO DEMONSTRATE MELTING AND FREEZING OF A PILE OF SNOW DID NOT CREATE THE HAZARD, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

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PSYCHIATRIC CENTER DID NOT PRESENT SUFFICIENT EVIDENCE TO JUSTIFY CONTINUED RETENTION OF RESPONDENT.

The First Department affirmed the denial of the psychiatric center’s (petitioner’s) application for continued retention of respondent pursuant to Mental Hygiene Law 9.33. The need for continued supervision was not demonstrated by conclusory allegations that respondent posed a threat of harm or by unsupported allegations of sexual misconduct:

Although respondent’s treating psychiatrist stated in conclusory fashion that the requirements for continued involuntary retention were met, the court reasonably rejected these conclusions on the ground that they were not strongly supported by the evidence … . The psychiatrist indicated that respondent recognized his mental illness, that he had been compliant with his medication regimen, and that his treatment in the facility for more than two years had alleviated the manic symptoms he had initially presented upon admission. The psychiatrist acknowledged that respondent’s medications and therapy programs would remain readily available to him on an outpatient basis, and the psychiatrist provided no reason to doubt respondent’s claim that he would continue taking his medication once released … .

Respondent has a history of sexual preoccupation, sexual misconduct, and sexual impulsivity. However, the court gave little weight to the allegations of recent misconduct in the absence of any eyewitness testimony and in light of respondent’s denials, and there is no basis for disturbing the court’s weighing of the evidence. The remaining hearsay statements that respondent had acted inappropriately were unaccompanied by any detail, including when the incidents allegedly occurred. Matter of Gary F. 2016 NY Slip Op 06655, 1st Dept 10-11-16

 

MENTAL HYGIENE LAW (PSYCHIATRIC CENTER DID NOT PRESENT SUFFICIENT EVIDENCE TO JUSTIFY CONTINUED RETENTION OF RESPONDENT)/EVIDENCE (MENTAL HYGIENE LAW, PSYCHIATRIC CENTER DID NOT PRESENT SUFFICIENT EVIDENCE TO JUSTIFY CONTINUED RETENTION OF RESPONDENT)

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ACCIDENT CAUSED BY HIGH PRESSURE, NOT GRAVITY; INJURY NOT COVERED BY LABOR LAW 240(1).

The First Department, reversing Supreme Court, determined plaintiff’s injury was not the result of the force of gravity and was therefore not covered under Labor Law 240(1):

Plaintiff … was struck by a pipe while it was being flushed clean with a highly pressurized mixture of air, water, and a rubber “rabbit” device. The movement of this mixture through the pipe failed to bring the mechanism of plaintiff’s injury within the ambit of section 240(1) because it did not involve “the direct consequence of the application of the force of gravity to an object” … . The mixture in the pipe did not move through the exercise of the force of gravity, but was rather intentionally propelled through the pipe through the use of high pressure … . Joseph v City of New York, 2016 NY Slip Op 06649, 1st Dept 10-11-16

LABOR LAW-CONSTRUCTION LAW (ACCIDENT CAUSED BY HIGH PRESSURE, NOT GRAVITY; INJURY NOT COVERED BY LABOR LAW 240(1))/GRAVITY (LABOR LAW, ACCIDENT CAUSED BY HIGH PRESSURE, NOT GRAVITY; INJURY NOT COVERED BY LABOR LAW 240(1))

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NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY.

The First Department, in a full-fledged opinion by Justice Gische, determined a broad choice of law provision in a contract required the application of New York’s borrowing statute (CPLR 202). Plaintiff is a corporation incorporated under the law of the Province of Ontario Canada. The statute of limitations for breach of contract under Ontario law is two years. New York’s statute of limitations is six years. Because, under the facts, New York’s borrowing statute applies and therefore the Ontario statute of limitations controls, the action is untimely:

The borrowing statute is itself a part of New York’s procedural law and is a statute of limitations in its own right, existing as a separate procedural rule within the rules of our domestic civil practice, addressing limitations of time … . Thus, applying the borrowing statute is perfectly consistent with a broad choice-of-law contract clause that requires New York procedural rules to apply to the parties’ disputes. 2138747 Ontario, Inc. v Samsung C&T Corp., 2016 NY Slip Op 06671, 1st Dept 10-11-16

CIVIL PROCEDURE (NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/CONTRACT LAW (CHOICE OF LAW, NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/CORPORATION LAW (CHOICE OF LAW CONTRACTUAL PROVISION, NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/STATUTE OF LIMITATIONS (NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/BORROWING STATUTE (NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/CHOICE OF LAW (CONTRACT, NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)

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UNDER THE DEALER ACT, GENERAL MOTORS WAS NOT REQUIRED TO NOTIFY PLAINTIFF CHEVROLET DEALERSHIP OF GM’S APPROVAL OF THE RELOCATION OF ANOTHER CHEVROLET DEALERSHIP IN THE SAME AREA.

The Fourth Department, in a full-fledged opinion by Justice Centra, determined defendant General Motors (GM) did not violate the Dealer Act (Vehicle and Traffic Law 463(2)(ff)(1)) by failing to notify plaintiff Chevrolet dealership of GM’s approval of the relocation of another Chevrolet dealership to an area about four miles from plaintiff’s dealership. The opinion focuses on statutory interpretation principles, the terms of the plaintiff’s dealership agreement with GM, and the application of federal and Michigan law:

We reject plaintiff’s contention that GM’s approval of Sharon’s relocation request ipso facto results in a modification of plaintiff’s franchise for which notice may be required under section 463 (2) (ff) (1). To construe section 463 (2) (ff) (1) to require notice to a dealer when a franchisor approves a relocation request of another dealer would essentially render section 463 (2) (cc) (1), which requires notice to certain dealers of relocations of other dealers, superfluous. It is well settled that “[a] court must consider a statute as a whole, reading and construing all parts of an act together to determine legislative intent . . . , and, where possible, should harmonize[] [all parts of a statute] with each other . . . and [give] effect and meaning . . . to the entire statute and every part and word thereof’ “… . Courts should construe a statute “to avoid rendering any of its language superfluous” … . Van Wie Chevrolet, Inc. v General Motors, LLC, 2016 NY Slip Op 06583, 4th Dept 10-7-16

VEHICLE AND TRAFFIC LAW (DEALER ACT, UNDER THE DEALER ACT, GENERAL MOTORS WAS NOT REQUIRED TO NOTIFY PLAINTIFF CHEVROLET DEALERSHIP OF GM’S APPROVAL OF THE RELOCATION OF ANOTHER CHEVROLET DEALERSHIP IN THE SAME AREA)/DEALER ACT (DEALER ACT, UNDER THE DEALER ACT, GENERAL MOTORS WAS NOT REQUIRED TO NOTIFY PLAINTIFF CHEVROLET DEALERSHIP OF GM’S APPROVAL OF THE RELOCATION OF ANOTHER CHEVROLET DEALERSHIP IN THE SAME AREA)

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