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SCHOOL NOT LIABLE FOR OFF-CAMPUS ASSAULT.

The Second Department, over a dissent, determined plaintiff-student’s complaint against the school was properly dismissed. Plaintiff was attacked by several alleged gang members shortly after leaving school grounds. The court held there was no evidence plaintiff was released by the school into a dangerous situation which the school had a hand in creating:

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the assault occurred at a time when the plaintiff was not on school property and no longer in the defendant’s custody or under its control and was, thus, outside of the orbit of its authority … . The defendant also demonstrated, prima facie, that the plaintiff was not released into a foreseeably hazardous setting that the defendant had a hand in creating … . Diaz v Brentwood Union Free Sch. Dist., 2016 NY Slip Op 05485, 2nd Dept 7-13-16

NEGLIGENCE (SCHOOL NOT LIABLE FOR OFF-CAMPUS ASSAULT)/EDUCATIOON-SCHOOL LAW (SCHOOL NOT LIABLE FOR OFF-CAMPUS ASSAULT)/ASSAULT  (SCHOOL NOT LIABLE FOR OFF-CAMPUS ASSAULT)

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SCHOOL NOT LIABLE FOR INJURY TO STUDENT DURING RECESS.

The Second Department, reversing Supreme Court, determined the defendant school could not be held liable for a student’s injury during recess. There was adequate supervision. The student, who had a medical condition and was standing in an area where students were not allowed to play sports, was struck by a ball kicked by another student:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another'” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they provided adequate supervision to the infant plaintiff during recess … , and, in any event, that any alleged lack of supervision was not a proximate cause of the infant plaintiff’s injuries … . Perez v Comsewogue School Dist., 2016 NY Slip Op 05488, 2nd Dept 7-13-16

 

NEGLIGENCE (SCHOOL NOT LIABLE FOR INJURY TO STUDENT DURING RECESS)/EDUCATION-SCHOOL LAW (SCHOOL NOT LIABLE FOR INJURY TO STUDENT DURING RECESS)/NEGLIGENT SUPERVISION (SCHOOL NOT LIABLE FOR INJURY TO STUDENT DURING RECESS)

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SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH.

The Second Department, in a full-fledged opinion by Justice Dillon, resolving a question of first impression in the Second Department, determined a snow-removal contractor could not be held liable for plaintiff’s slip and fall on ice without proof the icy condition was created or exacerbated by the contractor. Here, the contractor had plowed the snow on the same day as the slip and fall. Proof that the area was not salted was deemed insufficient:

We are called upon to determine, for the first time in this judicial department, whether a snow removal contractor may be found liable in a personal injury action under Espinal v Melville Snow Contrs. (98 NY2d 136) on the ground that the snow removal contractor’s passive omissions constituted the launch of a force or instrument of harm, where there is no evidence that the passive conduct created or exacerbated a dangerous condition. We find that liability cannot be imposed under such circumstances. * * *

The trial record is devoid of any evidence regarding the cause, creation, or exacerbation of the icy condition. No evidence was presented as to when the ice first materialized or how long it had been present before the accident. There were no climatology records admitted into evidence regarding the nature of the recent storm, the air temperature prior, during, and after the storm, or potential snowmelt and refreeze. There was no evidence as to when the bullpen was plowed in relation to the time of the plaintiff’s accident, and there was no expert testimony regarding the standard of care that may have been violated if, contractual language aside, no salt or sand/salt mixture were applied under the circumstances present. Moreover, there was no evidence that the icy condition at the bullpen worsened between when it arguably should have been salted and the time of the plaintiff’s accident.

Absent at least some of the foregoing evidence, a determination that the failure to salt created or exacerbated the icy condition … would be speculative. Indeed, a failure to apply salt would ordinarily neither create ice nor exacerbate an icy condition, as the absence of salt would merely prevent a pre-existing ice condition from improving … . Santos v Deanco Servs., Inc., 2016 NY Slip Op 05489, 2nd Dept 7-13-16

 

NEGLIGENCE (SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH)/CONTRACT LAW (NEGLIGENCE OF CONTRACTOR TO THIRD PARTY, SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH)/ESPINAL EXCEPTIONS (NEGLIGENCE OF CONTRACTOR TO THIRD PARTY, SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH)/SLIP AND FALL (SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH)

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WHEN CHILD TURNED 21 WHILE GUARDIANSHIP AND SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDINGS WERE PENDING, FAMILY COURT LOST JURISDICTION.

The Second Department, in a full-fledged opinion by Justice Sgroi, determined Family Court no longer had jurisdiction over a petition seeking guardianship and special findings to seek special immigrant juvenile status (SIJS) because the child turned 21 during the pendency of the proceedings:

… [O]nce the subject child turned 21 years old, the Family Court no longer possessed authority to determine the guardianship petition. Furthermore, since dependency upon a juvenile court is a prerequisite for the issuance of an order making the declaration and specific findings to enable a child to petition for SIJS, the Family Court also properly denied the petitioner’s SIJS motion. Matter of Maria C.R. v Rafael G., 2016 NY Slip Op 05503, 7-13-16

FAMILY LAW (WHEN CHILD TURNED 21 WHILE GUARDIANSHIP AND SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDINGS WERE PENDING, FAMILY COURT LOST JURISDICTION)/IMMIGRATION LAW (FAMILIY LAW, WHEN CHILD TURNED 21 WHILE GUARDIANSHIP AND SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDINGS WERE PENDING, FAMILY COURT LOST JURISDICTION)/SPECIAL IMMIGRANT JUVENILE STATUS (WHEN CHILD TURNED 21 WHILE GUARDIANSHIP AND SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDINGS WERE PENDING, FAMILY COURT LOST JURISDICTION)

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SUPPORT MAGISTRATE SHOULD NOT HAVE CONSIDERED MOTHER’S POST-HEARING SUBMISSION OF AFFIDAVITS AND EXHIBITS, FATHER DEPRIVED OF ABILITY TO CROSS-EXAMINE AND OBJECT TO EXHIBITS.

The Second Department determined father was entitled to a hearing on mother’s petition to enforce college expense provisions of a stipulation of settlement. The support magistrate considered affidavits and exhibits submitted after the hearing by mother, depriving father of his right to cross-examine and object:

Family Court Act § 433(a) requires that a respondent “shall be given opportunity to be heard and to present witnesses.” A hearing must consist of an adducement of proof coupled with an opportunity to rebut it … . Here, the Support Magistrate erred in considering the mother’s affidavits and unverified financial information, rather than testimony supported by appropriate documentary evidence, in determining the mother’s petition … . As the father was deprived of the opportunity to rebut the mother’s affidavits and exhibits, the matter must be remitted to the Family Court … for a new hearing and determination on the mother’s petition … . Matter of Hezi v Hezi, 2016 NY Slip Op 05498, 2nd Dept 7-13-16

 

FAMILY LAW (SUPPORT MAGISTRATE SHOULD NOT HAVE CONSIDERED MOTHER’S POST-HEARING SUBMISSION OF AFFIDAVITS AND EXHIBITS, FATHER DEPRIVED OF ABILITY TO CROSS-EXAMINE AND OBJECT TO EXHIBITS)/EVIDENCE (FAMILY COURT, SUPPORT MAGISTRATE SHOULD NOT HAVE CONSIDERED MOTHER’S POST-HEARING SUBMISSION OF AFFIDAVITS AND EXHIBITS, FATHER DEPRIVED OF ABILITY TO CROSS-EXAMINE AND OBJECT TO EXHIBITS)

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HEARING SHOULD HAVE BEEN HELD TO DETERMINE WHETHER INTIMATE RELATIONSHIP PROVIDED FAMILY COURT WITH JURISDICTION OVER PETITION SEEKING ORDER OF PROTECTION.

The Second Department determined Family Court should have held a hearing to determine whether the court had jurisdiction over a petition for an order of protection based upon an “intimate relationship” between the subject of the proposed order of protection and the petitioner:

Although the statute expressly excludes a “casual acquaintance” and “ordinary fraternization between two individuals in business or social contexts” from the definition of “intimate relationship” (Family Ct Act § 812[1][e]), “the legislature left it to the courts to determine on a case-by-case basis what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e), based upon consideration of factors such as the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship'” … . “[T]he determination as to whether persons are or have been in an intimate relationship’ within the meaning of Family Court Act § 812(1)(e) is a fact-specific determination which may require a hearing” … .

Here, in light of the parties’ conflicting allegations as to whether they had an “intimate relationship” within the meaning of Family Court Act § 812(1)(e), the Family Court, prior to determining the respondent’s motion, in effect, to dismiss, should have conducted a hearing on that issue … . Matter of Singh v DiFrancisco, 2016 NY Slip Op 05504, 2nd Dept 7-13-16

FAMILY LAW (HEARING SHOULD HAVE BEEN HELD TO DETERMINE WHETHER INTIMATE RELATIONSHIP PROVIDED FAMILY COURT WITH JURISDICTION OVER PETITION SEEKING ORDER OF PROTECTION)/INTIMATE RELATIONSHIP (FAMILY LAW, HEARING SHOULD HAVE BEEN HELD TO DETERMINE WHETHER INTIMATE RELATIONSHIP PROVIDED FAMILY COURT WITH JURISDICTION OVER PETITION SEEKING ORDER OF PROTECTION)

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NON-RELATIVE ALLEGED EXTRAORDINARY CIRCUMSTANCES REQUIRING A HEARING ON HER CUSTODY PETITION.

The Second Department, reversing Family Court, determined petitioner, a non-relative who regularly cared for the child, had made a showing of extraordinary circumstance sufficient to require a hearing on her petitioner for custody:

Although an individual who is unrelated to a child has no statutory right to seek custody … , a nonrelative may nevertheless be afforded standing to seek custody upon a showing of extraordinary factual circumstances … . We conclude that, contrary to the determination of the Family Court, the evidence presented at the hearing compels a finding of “extraordinary circumstances” … . The petitioner sustained her burden of demonstrating extraordinary circumstances based upon, inter alia, the prolonged separation of the grandfather and the step-grandmother from the subject child, their lack of significant involvement in the child’s life for a period of time, their failure to contribute to the child’s financial support, and the strong emotional bond between the child and the petitioner … . Matter of Cade v Roberts, 2016 NY Slip Op 05495, 2nd Dept 7-13-16

FAMILY LAW (NON-RELATIVE ALLEGED EXTRAORDINARY CIRCUMSTANCES REQUIRING A HEARING ON HER CUSTODY PETITION)/CUSTODY (NON-RELATIVE ALLEGED EXTRAORDINARY CIRCUMSTANCES REQUIRING A HEARING ON HER CUSTODY PETITION)

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POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE.

The Second Department reversed defendant’s conviction as against the weight of the evidence, essentially finding the police officer’s testimony incredible:

Here, an acquittal would not have been unreasonable, particularly in light of objective facts—including the arresting officer’s failure to record the arrest in his memo book, his failure to call in the arrest, his failure to voucher the bandanas or masks, and the loss of the case folder containing the original of the defendant’s written statement and signed Miranda waiver—all of which cast doubt on the arresting officer’s credibility … . Moreover, the defendant testified at trial to a completely different version of events, including that he and his companion were not wearing masks or bandanas and he did not possess a gun or any marihuana. The defendant’s credibility was supported by the testimony of three character witnesses regarding his propensity for truthfulness, and no evidence was elicited to undermine the defendant’s credibility. Notably, the defendant had no prior history of arrests and had been gainfully employed by the same employer for seven years. Further, the defendant’s companion, who also had no history of prior arrests and had been gainfully employed for six years, testified to the same version of events as the defendant. Upon the exercise of our factual review power (see CPL 470.15), we find that the rational inferences which can be drawn from the evidence presented at trial do not support the conviction beyond a reasonable doubt … . People v Oneill, 2016 NY Slip Op 05510, 2nd Dept 7-13-16

CRIMINAL LAW (POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE)/EVIDENCE (CRIMINAL LAW, POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE

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SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED.

The Second Department determined the show up identification 30 minutes after the crime was not unduly suggestive and should not have been suppressed:

Here, the People met their initial burden of establishing that the showup identification procedure, which was conducted within approximately 30 minutes of the crime and within three or four blocks of the crime scene, was reasonable under the circumstances and lacked undue suggestiveness … . The defendants, in turn, failed to satisfy their ultimate burden of proving that the showup identification procedure was unduly suggestive and subject to suppression. Under the circumstances of this case, the mere presence of police, patrol cars, headlights, or other lighting at the scene of the identifications did not render the procedure unduly suggestive … . People v Huerta, 2016 NY Slip Op 05508, 2nd Dept 7-13-16

CRIMINAL LAW (SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/IDENTIFICATION (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/SHOWUP (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)

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DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction because he was not informed his guilty plea would result in deportation should have been granted on “ineffective assistance” grounds. Defendant did not perfect an appeal. However the motion to vacate was a valid vehicle because it depended in part on non-record matters:

Since the defendant’s claim that he was deprived of the effective assistance of counsel involves a mixed claim that depends, in part, upon matter that would not appear on the record had there been a direct appeal from the judgment, his claims were properly presented in a motion pursuant to CPL 440.10 … .

Under the circumstances of this case, we find that the defendant established that he was deprived of the effective assistance of counsel, in that there was no “strategic reason” … for his attorney’s failure to advocate for a sentence that would result in the same overall aggregate prison time for the defendant, but which would have resulted in no mandatory immigration consequences … . People v Moore, 2016 NY Slip Op 05509, 2nd Dept 7-13-16

 

CRIMINAL LAW (DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED)/INEFFECTIVE ASSISTANCE (DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED)/ATTORNEYS (CRIMINAL LAW, DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED

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