You are here: / Motions for Findings Allowing Child to Petition for Special Immigrant Juvenile...

Search Results

/ ,

Motions for Findings Allowing Child to Petition for Special Immigrant Juvenile Status Should Have Been Granted

The Second Department, reversing Family Court, determined mother’s motions for the issuance of special findings to enable the child [Jose] to petition for special immigrant juvenile status should have been granted:

… [I]t is declared that Jose … has been legally committed to, or placed under the custody of, an individual appointed by a State or juvenile court, and it is found that Jose …  is unmarried and under 21 years of age, that reunification with one of his parents is not viable due to parental abandonment, and that it would not be in his best interests to return to Honduras, his previous country of nationality or last habitual residence. Matter of Gomez v Sibrian, 2015 NY Slip Op 08165, 2nd Dept 11-12-15

 

/

Injury Caused by Lifting a Heavy Beam Not Covered by Labor Law 240(1), Despite the Fact the Beam Was Resting on an Elevated Scaffold

The Second Department determined that plaintiff’s injury was not related to the type of hazard covered by Labor Law 240(1). Plaintiff injured his back when he lifted a beam which was resting on an elevated scaffold. The court explained:

“[T]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity'” … . Rather, the statute was designed to prevent accidents in which a protective device, ” proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'” … .

Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of [the defendant’s] motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). *  *  * … [T]he plaintiff failed to raise a triable issue of fact as to whether his injury arose from an elevation-related risk contemplated by the statute, rather than from the usual and ordinary dangers of the construction site … . The fact that the plaintiff was injured while lifting a heavy object does not give rise to liability pursuant to Labor Law § 240(1) … . Cardenas v BBM Constr. Corp., 2015 NY Slip Op 08142, 2nd Dept 11-12-15

 

/

Payment of Rent Does Not Waive the Tenant’s Right to Recover Rent Paid Based Upon the Landlord’s Breach of the Covenant of Quiet Enjoyment

The Third Department noted that the tenant’s paying of rent did not waive the tenant’s right to recover rent payments made during the time an elevator was not yet installed. The lease agreement called for the installation of an elevator by March and it was not installed until November. The tenant was entitled to a return of the rent paid before the elevator was functioning based upon the landlord’s breach of the covenant of quiet enjoyment:

The case law makes clear that a tenant’s “payment of all required rent is a condition precedent to the maintenance of . . . an action” for breach of the covenant of quiet enjoyment … . Hence, plaintiff’s payment of rent during the months in question cannot be deemed to be a waiver of its rights under this portion of the lease. City of Troy, N.Y. v 1776 Sixth Ave., Troy, LLC, 2015 NY Slip Op 08236, 3rd Dept 11-12-15

 

/ , , ,

Frye Hearing to Determine Acceptance of Paraphilia NOS Diagnosis Required

The Second Department determined defendant sex offender’s request for a Frye hearing in Mental Hygiene Law proceedings for civil commitment should have been granted. Defendant questioned the general acceptance in the psychiatric community of a “paraphilia NOS” diagnosis:

“[E]xpert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance in its specified field” … . Recently, in Matter of State of New York v Donald DD. (24 NY3d 174), the Court of Appeals noted that paraphilia NOS “is a controversial diagnosis,” and that it had not yet decided “the question that would be decided at a Frye hearing: whether the diagnosis of paraphilia NOS . . . has gained general acceptance in the psychiatric community'” (id. at 186-187). However, the Court of Appeals declined to reach this issue in Matter of Donald DD. because no Frye hearing had been requested or held (id. at 187). Here, however, a Frye hearing was requested and the appellant supported his request with scientific literature. Under these circumstances, a Frye hearing should be conducted to resolve the question of whether the diagnosis of paraphilia NOS has achieved general acceptance in the psychiatric and psychological communities. Matter of State of New York v Richard S., 2015 NY Slip Op 08179, 2nd Dept 11-12-15

 

/ ,

Post-Accident Surveillance Videos Properly Excluded from Trial, Videos Did Not Demonstrate “Habit” or “Routine Procedure” Which Rose to the Level of Admissible Circumstantial Evidence of the Cause of Ice Formation

The Second Department determined surveillance videos of defendant’s employee dumping a bucket of water in a parking lot were properly excluded from the trial in this slip and fall case. The videos were made after plaintiff’s fall. Plaintiff argued that the surveillance demonstrated a “habit” or “routine practice” which led to the forming of the ice which caused plaintiff to fall. The court explained the relevant criteria:

A party in a negligence case is permitted to introduce evidence of a habit or routine practice “to allow the inference of its persistence, and hence negligence on a particular occasion” … . Nonetheless, to justify introduction of habit or regular usage, a party must be able to show on voir dire, to the satisfaction of the court, that the party expects to prove a sufficient number of instances of the conduct in question … . Here, as the Supreme Court pointed out, the earliest proffered instance of the purported “habit” occurred more than two months after the date on which the appellant was injured, and was observed on only seven occasions over the next six weeks. We agree with the court’s determination that the proffered evidence did not establish a habit or regular usage relevant to what occurred on the date the appellant allegedly was injured … . Accordingly, the court did not improvidently exercise its discretion in precluding the proffered evidence. Gucciardi v New Chopsticks House, Inc., 2015 NY Slip Op 08146, 2nd Dept 11-12-15

 

/ ,

Constructive Trust Properly Imposed on Real Property, Criteria Explained

The Second Department determined the defendant (Chen) was entitled to impose a constructive trust on real property for which she contributed money. The court explained the criteria:

“Generally, a constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest'” … . “The elements of a constructive trust are (1) a fiduciary or confidential relationship; (2) an express or implied promise; (3) a transfer in reliance on the promise; and (4) unjust enrichment” … . While these factors are useful in many cases, the constructive trust doctrine is not rigidly limited … . Thus, although the elements of a constructive trust must be proved by clear and convincing evidence …, “[t]he constructive trust doctrine is given broad scope to respond to all human implications of a transaction in order to give expression to the conscience of equity and to satisfy the demands of justice” … .

Here, the Supreme Court properly awarded judgment in favor of the defendant Al Ming Chen on her counterclaim to impose a constructive trust on the subject real property. Contrary to the plaintiff’s contention, Chen offered evidence satisfying the elements generally needed for the imposition of a constructive trust. The plaintiff’s contention that Chen never had any interest in the subject property, and therefore is not entitled to the imposition of a constructive trust, is without merit. Chen showed that she contributed money for the purchase of the subject property and for paying down the mortgage in reliance on an implied promise by the plaintiff that she shared an interest in the property … . Moreover, Chen demonstrated that a constructive trust is necessary in this case to satisfy the demands of justice … . Liu v Chen, 2015 NY Slip Op 08152, 2nd Dept 11-12-15

 

/

Criteria for a Motion to Dismiss Based Upon Documentary Evidence and a Motion to Dismiss Supported by Submitted Evidence Explained (Not Met Here)

In finding defendant’s motion to dismiss the complaint was properly denied, the Second Department explained the criteria for a motion to dismiss based upon documentary evidence, and for a motion to dismiss accompanied by the submission of evidence. The court noted that affidavits, deposition testimony and letters do not constitute “documentary evidence” in this context:

A party may move for judgment dismissing one or more causes of action asserted against it under CPLR 3211(a)(1) “on the ground that . . . a defense is founded upon documentary evidence.” A motion on this ground, however, “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . “Neither affidavits, deposition testimony, nor letters are considered documentary evidence’ within the intendment of CPLR 3211(a)(1)” … . …

… A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) … . Nonetheless, it must be kept in mind that a CPLR 3211(a)(7) motion is not a motion for summary judgment unless the court elects to so treat it under CPLR 3211(c), after giving adequate notice to the parties … . Moreover, “[w]here evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” … . Shofel v DaGrossa, 2015 NY Slip Op 08156, 2nd Dept 11-12-15

 

/ , ,

Pedophilia Diagnosis, in Combination with Anti-Social Personality Disorder (ASPD), Substance Abuse Disorders, Failed Treatment and History of Sexual Misconduct, Constituted Sufficient Proof Respondent Had Serious Difficulty Controlling His Behavior Warranting Civil Commitment

The First Department, in a full-fledged opinion by Justice Richter, reversed Supreme Court (which had set aside the jury verdict) and determined civil commitment of respondent sex offender was supported by the evidence. The case is another attempt to interpret and implement the criteria for civil commitment laid out by the Court of Appeals in Matter of State of New York v Donald DD. (Kenneth T.), 24 NY 3d 174 (2014). The respondent here was diagnosed with pedophilia, which, combined with anti-social personality disorder (ASPD), substance abuse disorders, respondent’s history of sexual misconduct, and his failure to benefit from treatment programs, was deemed sufficient proof respondent had difficulty controlling his behavior:

In Kenneth T., the State’s expert testified that Kenneth T. suffered from paraphilia not otherwise specified (paraphilia NOS) and ASPD, and that, together, these disorders predisposed him to committing sexual misconduct and resulted in his having serious difficulty controlling that conduct. In concluding that Kenneth T. had the requisite serious difficulty, the expert identified two factors: the fact that Kenneth T. had carried out two rapes under circumstances allowing for identification by his victims, and the fact that he committed the second rape despite having spent significant time in prison for the earlier rape. In finding this evidence legally insufficient, the Court stated that the serious difficulty prong could rarely, if ever, be satisfied from the facts of a sex offense alone … .

Here, in contrast, [the State’s expert] did not solely rely on the facts of respondent’s sex offenses in concluding that he had serious difficulty controlling his urges. Instead, Dr. [the expert] based his opinion on respondent’s triple diagnosis (pedophilia, ASPD and substance abuse disorders), his pattern of sexual misconduct, and his abject failure to satisfactorily progress in treatment. Notably, the underlying sexual disorder in Kenneth T. was paraphilia NOS, not pedophilia. The distinction is critical because, unlike paraphilia, pedophilia can only be diagnosed where the individual has actually acted upon sexual urges towards prepubescent children (or has experienced significant distress at those urges) for more than six months. Thus, pedophilia, by definition, involves an element of difficulty in control. Further, the DSM-5 explicitly recognizes that the dangerous combination of respondent’s ASPD and pedophilia increases the likelihood that he will act out sexually with children (see DSM-5 at 699). In addition, the diagnosis of respondent’s substance abuse disorders, not present in Kenneth T., provides a further basis for the jury’s finding of serious difficulty. * * *

By this decision, we do not hold that all offenders who suffer from pedophilia are automatically, by virtue of that diagnosis alone, subject to mandatory civil management. We simply hold that the State’s evidence in this case — including respondent’s multiple diagnoses, his history of sexual misconduct, his admitted inability to control his pedophilic urges, his lack of satisfactory progress in sex offender treatment and his failure to have a viable relapse prevention plan — was legally sufficient to uphold the jury’s conclusion that respondent has difficulty controlling his sexually offending behavior. Matter of State of New York v Floyd Y., 2015 NY Slip Op 08102, 1st Dept 11-10-15

 

/ ,

Due Diligence Requirements for Nail and Mail Service Do Not Apply Under the New York City Charter, One Attempt at Personal Service and Use of Nail and Mail Method for a Notice of Violation (by the NYC Department of Buildings) Sufficient

The First Department determined that, although the New York City Charter refers to CPLR article 3, the “due diligence” requirements for “nail and mail” service in article 3 do not apply to service of a notice of violation (NOV) by the Department of Buildings (DOB). Therefore, one attempt at personal service followed by use of the “nail and mail” method was sufficient service:

The reference to CPLR article 3 in the City Charter’s affix and mail provision merely prescribes the class of individuals whom respondents must try to personally serve, and does not import the “due diligence” requirement of CPLR article 3 … . This interpretation of the City Charter is supported by the statutory language as a whole, and by the legislative history showing a legislative intent to make service under section 1049-a(d)(2) of the City Charter less onerous than service under CPLR article 3 (see id.; see also Governor’s Mem approving L 1979, ch 623, 1979 McKinney’s Session Laws of NY at 1816-1817). Matter of Mestecky v City of New York, 2015 NY Slip Op 08077, 1st Dept 11-5-15

 

/ , ,

Transfer of Assets to Qualify for Medicaid Constituted a Breach of the Defendants’ Contract with Plaintiff Continuing Care Retirement Community

The Third Department, in a full-fledged opinion by Justice Lynch, determined the defendants’ (the Yezzis’) transfer of funds in order to qualify for Medicaid constituted a breach of the contract with the plaintiff (GSV), a continuing care retirement community (CCRC), as well as a fraudulent transfer under the Debtor-Creditor Law:

… [T]he essence of the CCRC financial model requires a tradeoff between the resident and the facility, in which the resident must disclose and spend his or her assets for the services provided, while the facility must continue to provide those services for the duration of the resident’s lifetime even after private funds are exhausted and Medicaid becomes the only source of payment. With this long-term commitment, the facility necessarily must evaluate the financial feasibility of accepting a resident in the first instance.

Pertinent here, the contract provided that the Yezzis could “not transfer assets represented as available in [their] application to be a [r]esident of [GSV] for less than fair market value, unless the transfer [would] not impair [their] ability to pay [their] financial obligations to [GSV].” The contract further required the Yezzis to “make every reasonable effort to meet [their] financial obligations” to GSV and prohibited them from making “any transfers or gifts after actual occupancy, which would substantially impair [their] ability or the ability of [their] estate to satisfy [their] financial obligations to [GSV].” Further, the contract specifies that the financial information disclosed with their application was “a material part of this [contract], . . . [that was] incorporated as a part of this [contract].” Although, as defendants correctly contend, the contract does not affirmatively state that the Yezzis must expend the private resources identified with their application, it does expressly preclude the transfer of such resources without fair consideration.

Given the long-term nature of the contract, which expressly embraced the prospect of nursing facility care, we agree with Supreme Court that the admission agreement is supplemental to, and does not supercede, the contract. We recognize that, under the admission agreement, the Yezzis were required to “pay for, or arrange to have paid for by Medicaid, . . . all services provided by [GSV]” (emphasis added). We are not, however, persuaded by defendants’ interpretation that this disjunctive provision required plaintiff to accept Medicaid as an alternative payment source. Construed together, the contract and admission agreement are actually compatible in that the CCRC financial model anticipates that, upon depletion of a resident’s personal resources, Medicaid will be the ultimate source of payment — and plaintiff is contractually obligated to accept Medicaid while continuing to provide the same services. Consistently, addendum X to the admission agreement specifies that, “[i]t is the responsibility of residents, and those who assist them, to use the residents’ assets and income to pay the costs associated with their residency and health care.” Good Shepherd Vil. at Endwell, Inc. v Yezzi, 2015 NY Slip Op 08031, 3rd Dept 11-5-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy