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RIDER ASSUMED THE RISK OF BEING THROWN FROM A HORSE.

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment should have been granted. Plaintiff was injured when thrown from a horse during a recreational ride at defendant’s stable. Plaintiff was deemed to have assumed the risk of being thrown from the horse:

The risk of a horse acting in an unintended manner resulting in the rider being thrown is a risk inherent in the sport of horseback riding … . There is no evidence that defendant stable was reckless, nor were there any concealed or unreasonably increased risks … . To the extent plaintiffs’ expert opined otherwise, such opinion was conclusory, since it did not rely on any rules, regulations, laws or industry standards, and therefore, it fails to raise a triable issue of fact … . Blumenthal v Bronx Equestrian Ctr., Inc., 2016 NY Slip Op 01545, 1st Dept 3-3-16

 

NEGLIGENCE (RIDER ASSUMED THE RISK OF BEING THROWN FROM A HORSE)/ASSUMPTION OF RISK (RIDER ASSUMED RISK OF BEING THROWN FROM A HORSE)/HORSES (RIDER ASSUMED RISK OF BEING THROWN FROM A HORSE)

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PUBLIC EMPLOYEE FAILED TO DEMONSTRATE ELIMINATION OF POSITION WAS DONE IN BAD FAITH; NEGLIGENT VIOLATION OF OPEN MEETINGS LAW DID NOT INVALIDATE TOWN’S ACTIONS.

The Third Department determined the petitioner did not demonstrate the elimination of his position with the parks maintenance department was done in bad faith or to circumvent the Civil Service Law. The Third Department concluded the town violated the Open Meetings Law when it eliminated petitioner’s position, but the nature of the violation (mere negligence) did not warrant invalidating the town’s actions:

“[A] public employer may, in the absence of bad faith, collusion or fraud, abolish positions for purposes of economy or efficiency” … . Respondent explained through the affidavits of its Supervisor and a member of its Town Board that because its parks maintenance department consisted of only petitioner and one part-time laborer, it could achieve greater economy and efficiency by abolishing the supervisory position in favor of hiring additional laborers. Petitioner’s managerial duties were shifted to the Supervisor and two full-time and one part-time laborer positions were created at an overall cost savings.

The burden was then on petitioner to demonstrate that his position was eliminated in bad faith or as a subterfuge to circumvent his rights under the Civil Service Law … . However, the mere reassignment of duties, in and of itself, does not constitute proof of bad faith … . Nor is there any indication in the record of any personal or political animosities that would suggest some deceitful purpose of ousting and replacing petitioner. Rather, petitioner’s conclusory and unsupported assertions fail to refute the Town Board’s showing that its actions were part of a good faith effort to reorganize a municipal department for the purposes of reducing costs and increasing efficiency … .

* * * “[T]he record does not suggest that the [Town Board’s] failure to comply with the precise requirements of the Open Meetings Law was anything more than mere negligence,” which does not constitute good cause to invalidate the Town Board’s otherwise permissible actions … . Matter of Cutler v Town of Mamakating, 2016 NY Slip Op 01543, 3rd Dept 3-3-16

MUNICIPAL LAW (ELIMINATION OF PUBLIC EMPLOYEE’S POSITION NOT DONE IN BAD FAITH)/EMPLOYMENT LAW (ELIMINATION OF PUBLIC EMPLOYEE’S POSITION NOT DONE IN BAD FAITH)/OPEN MEETINGS LAW (NEGLIGENT VIOLATION OF OPEN MEETINGS LAW DID NOT INVALIDATE TOWN’S ACTIONS)

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MOTHER ENTITLED TO HEARING ON HER PRO SE PETITION TO MODIFY A CUSTODY AWARD; FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER MOTHER’S VISITATION; ATTORNEY SHOULD HAVE BEEN APPOINTED FOR THE CHILDREN.

The Third Department, reversing Family Court, determined mother was entitled to a hearing on her pro se petition to modify the award of custody to father. The Third Department also noted that the court should not have delegated to father complete authority to control visitation with mother, and the court should have appointed an attorney for the children. With respect to the need for a custody-modification hearing and the visitation issue, the Third Department wrote:

As the party seeking to modify an existing custodial arrangement, the mother was required to demonstrate, as a threshold, that “there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children” … . The mother's petition, filed pro se, “should be construed liberally when considering whether she sufficiently alleged a change in circumstances” …, and she should be accorded “the benefit of every favorable inference” … . “While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, generally an evidentiary hearing is necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the [children's] best interests” … . * * *

With regard to the mother's request for visitation, there is a “presumption that visitation with the noncustodial parent is in the chil[ren]'s best interests” … and, “unless visitation is inimical to the [children's] welfare, Family Court is required to structure a schedule which results in frequent and regular access by the noncustodial parent” … . The record before us contains virtually no factual background information and, as such, does not disclose whether the denial of all visitation to the mother “was based [up]on compelling reasons” or if “visitation would be detrimental or harmful to the child[ren]'s welfare” … . While we express no opinion on the propriety of such visitation, we also note that the court should not have delegated to the father complete authority to determine whether there should be any visitation between the mother and children and under what conditions such contact should occur and, upon remittal, there must be a determination in this regard … . Matter of Harrell v Fox, 2016 NY Slip Op 01534, 3rd Dept 3-3-16

FAMILY LAW (MOTHER ENTITLED TO HEARING ON PRO SE PETITION TO MODIFY CUSTODY)/FAMILY LAW (FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER VISITATION WITH MOTHER)/FAMILY LAW (ATTORNEY SHOULD HAVE BEEN APPOINTED FOR CHILDREN IN MODIFICATION OF CUSTODY PROCEEDING)/CUSTODY (MOTHER ENTITLED TO HEARING ON PRO SE PETITION TO MODIFY CUSTODY)/VISITATION (FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER VISITATION WITH MOTHER)

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POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION BASED SOLELY UPON THE APPLICANT’S CRIMINAL RECORD WITHOUT APPLYING THE HIRING CRITERIA GENERALLY REQUIRED BY THE CORRECTIONS LAW.

The First Department, as a matter of first impression, determined the police department (NYPD) could refuse to hire petitioner as a civilian police communication technician (PCT) solely because petitioner had a criminal record, without regard to the criteria set out in Corrections Law article 23-a. The Corrections Law, in an effort to support the hiring of persons with a criminal record, generally requires employers to determine whether an applicant’s criminal record has a direct relationship with the responsibilities of the job and/or whether employment of the applicant would pose an unreasonable risk to the public.  The First Department concluded the Corrections Law excluded law enforcement from the reach of its hiring criteria:

Article 23-A broadly provides that employers, whether public or private, are prohibited from unfairly discriminating against persons previously convicted of one or more criminal offenses, unless after consideration of certain enumerated statutory factors, the employer determines that there is direct relationship between the offense(s) and the duties or responsibilities inherent in the license or employment sought or held by the individual, or such employment or license poses an unreasonable risk to the public, etc. (Correction Law §§ 752, 753). The statute defines the term “employment” as follows: “(5) Employment’ means any occupation, vocation or employment, or any form of vocational or educational training. Provided, however, that “employment” shall not, for the purposes of this article, include membership in any law enforcement agency” (Correction Law § 750[5] emphasis added). Matter of Belgrave v City of New York, 2016 NY Slip Op 01548, 1st Dept 3-3-16

EMPLOYMENT LAW (POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION SOLELY ON THE BASIS OF THE APPLICANT’S CRIMINAL RECORD)/CORRECTIONS LAW (POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION SOLELY ON THE BASIS OF THE APPLICANT’S CRIMINAL RECORD)/MUNICIPAL LAW  (POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION SOLELY ON THE BASIS OF THE APPLICANT’S CRIMINAL RECORD)

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HEARING OFFICER DID NOT ADDRESS PETITIONER’S MENTAL HEALTH STATUS, DETERMINATION ANNULLED.

The Third Department annulled the disciplinary determination because the hearing officer made no effort to ascertain the testimony of a mental health clinician or therapist (outside the presence of petitioner) after the therapist called by the petitioner refused to testify:

 

…[P]etitioner’s mental health status was at issue and the Hearing Officer erred in not taking testimony from Office of Mental Health (hereinafter OMH) personnel regarding petitioner’s mental condition (see 7 NYCRR 254.6 [c]). Although a therapist from OMH that petitioner had requested refused to testify, the Hearing Officer was obligated to interview, out of petitioner’s presence, an OMH clinician “as may be available” concerning petitioner’s mental condition (7 NYCRR 254.6 [c] [3]…). Here, the Hearing Officer made no effort to ascertain the testimony of the therapist, or any other clinician at OMH, outside the presence of petitioner. Under the circumstances presented herein, the proper remedy for the Hearing Officer’s failure to satisfy his obligations under 7 NYCRR 254.6 (b) is a new hearing to address petitioner’s mental health status… . Matter of Howard v Prack, 2016 NY Slip Op 01538, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER FAILED TO CONSIDER MEDICAL EVIDENCE SUPPORTING PETITIONER’S DEFENSE, DETERMINATION EXPUNGED)

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DENIAL OF PETITIONER’S REQUEST FOR TWO CORRECTIONAL-STAFF WITNESSES WAS ERROR, DETERMINATION ANNULLED.

The Third Department annulled the disciplinary determination because the hearing officer improperly denied petitioner’s request to call two witness who on the staff of the correctional facility and were trained in the identification of gang-related materials. Petitioner was charged possession of gang-related materials (photographs):

… [T]he Hearing Officer improperly denied petitioner’s request to call two witnesses, who were correctional facility staff trained at identifying gang-related materials, to support his claim that the pictures did not depict any gang-related signs. As petitioner sought such testimony in order to refute a correction officer’s testimony that the gestures in the pictures depict gang signs, the Hearing Officer erred in finding that such testimony would be redundant. Given that the Hearing Officer put forth a good faith reason for the denial, this violated petitioner’s regulatory right to call witnesses and the proper remedy is to remit the matter for a new hearing … . Matter of Williams v Annucci, 2016 NY Slip Op 01535, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (DENIAL OF REQUEST FOR STAFF WITNESSES REQUIRED ANNULMENT)

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NO EFFORT WAS MADE TO DETERMINE WHY PETITIONER’S WITNESS WOULD NOT TESTIFY, DETERMINATION ANNULLED.

The Third Department annulled the determination because no effort was made to determine why petitioner's cellmate refused to testify at the hearing:

Petitioner contends, among other things, that he was improperly denied the right to have his cellmate, who allegedly overheard the correction officer threaten him, testify at the hearing. Petitioner requested the cellmate as a witness at the hearing. A correction officer approached the cellmate about testifying, but he apparently refused and would neither sign a refusal form nor state the reason for his refusal. It does not appear that the Hearing Officer communicated directly with the cellmate, but rather related this information to petitioner based upon the contents of the refusal form. Notably, the correction officer who completed the refusal form did not testify at the hearing.

This Court has acknowledged that “[a] deprivation of the inmate's right to present witnesses will be found when there has been no inquiry at all into the reason for the witness's refusal, without regard to whether the inmate previously agreed to testify” … . No such inquiry was made by the Hearing Officer here, and respondent has essentially conceded this much. Thus, while respondent maintains that this is a regulatory violation for which remittal is appropriate, we find that the circumstances presented give rise to a constitutional violation for which expungement is the proper remedy … . Matter of Tevault v Prack, 2016 NY Slip Op 01533, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (NO EFFORT MADE TO DETERMINED WHY PETITIONER'S WITNESS WOULD NOT TESTIFY, DETERMINATION ANNULLED)

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HEARING OFFICER FAILED TO CONSIDER MEDICAL EVIDENCE SUPPORTING PETITIONER’S CLAIM HE WAS UNABLE TO PROVIDE A URINE SAMPLE, DETERMINATION EXPUNGED.

The Third Department expunged petitioner's disciplinary determination finding that the hearing officer improperly failed to consider medical evidence demonstrating petitioner was unable to provide a urine sample, and did not refuse to provide a sample:

[Petitioner] informed the Hearing Officer of his medical condition during the hearing and also provided medical documentation establishing that he had problems providing urine specimens in the past due to this condition. The Hearing Officer downplayed the significance of petitioner's medical condition and did not consider the medical documentation submitted even though it was sent prior to the conclusion of the hearing. The only evidence that the Hearing Officer considered was the misbehavior report and the request for urinalysis form. The request for urinalysis form indicated that petitioner did not willfully refuse to submit the specimen, but also stated that petitioner did not claim to be unable to submit the specimen in the presence of others. Given this inconsistency in the request for urinalysis form, the absence of any testimony concerning the administration of the urinalysis test or petitioner's medical condition and the Hearing Officer's failure to consider the medical documentation submitted, we find that the determination at issue is not supported by substantial evidence … . Matter of Katsanos v Prack, 2016 NY Slip Op 01531, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER FAILED TO CONSIDER MEDICAL EVIDENCE SUPPORTING PETITIONER'S DEFENSE, DETERMINATION EXPUNGED)

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PEOPLE DEMONSTRATED, IN A RODRIGUEZ HEARING, THE IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY; WADE HEARING NOT NECESSARY.

The Third Department determined the evidence presented at the Rodriguez hearing demonstrated the confidential informant's (CI's) identification of the defendant was confirmatory (i.e., based upon prior acquaintance with the defendant) and, therefore, a Wade hearing to determine the validity of the identification was not necessary. The court also noted that a two-hour discrepancy between when the drug sale took place as alleged in the indictment, and the testimony about the time of the sale at trial, did not deprive the defendant of the ability to defend against the allegations. With respect to the sufficiency of the identification of the defendant, the court wrote:

 

… “[A] Wade hearing is not required when the witness is so familiar with the defendant that there is little or no risk that police suggestion could lead to a misidentification” … . Where, as here, the People assert that the pretrial identification was merely confirmatory, the People bear the burden of “prov[ing] the witness's sufficient familiarity with the defendant at a Rodriguez hearing” … . “Although the People are not obligated to call the identifying witness at [the] Rodriguez hearing” … , they nonetheless must come forward with “sufficient details of the extent and degree of the protagonists' prior relationship” with one another … . Relevant factors to be considered in this regard include “the number of times the witness saw the defendant prior to the crime, the duration and nature of those encounters, time periods and setting of the viewings, time between the last viewing and the crime, and whether the two individuals had any conversations” … . People v Smith, 2016 NY Slip Op 01521, 3rd Dept 3-3-16

CRIMINAL LAW (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/CRIMINAL LAW (TWO-HOUR DISCREPANCY RE: TIME OF DRUG SALE DID NOT DEPRIVE DEFENDANT OF ABILITY TO DEFEND)/IDENTIFICATION (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/RODRIGUEZ HEARING (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/WADE HEARING (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)

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QUESTION OF FACT RAISED WHETHER DECEDENT REVOKED A LOST WILL.

The Second Department determined summary judgment should not have been granted in favor of objectants to the probate of a will. The original will could not be found, but copies were in a folder decedent told his home aide about. There was, therefore, a question of fact raised about whether the will had been revoked:

 

When a will previously executed and in the testator's possession cannot be found after the death of the testator, a presumption arises that the will was revoked by the testator … . This legal presumption may be overcome, and the lost will admitted to probate, if the will's proponent establishes that the will was not revoked by the testator during his or her lifetime (see SCPA 1407[1]…). * * *

… [E]vidence that, shortly before his death, the decedent showed the blue binder to the home health aide and stated that it contained his will and that it was kept in a certain location, which the decedent was thereafter unable to access due to his declining health, and where several copies of the will were later found after his death, was sufficient to raise an issue of fact regarding the presumption of revocation of his will, thereby precluding an award of summary judgment to the objectants on the issue of revocation … . Matter of Marotta, 2016 NY Slip Op 01491, 2nd Dept 3-2-16

TRUSTS AND ESTATES (QUESTION OF FACT RAISED WHETHER LOST WILL WAS REVOKED)/WILLS (QUESTION OF FACT RAISED WHETHER LOST WILL WAS REVOKED)

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