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County Was Not Responsible for the Day to Day Operation of Community College and Did Not Own the Dormitory Where Plaintiff’s Decedent Suffered Cardiac Arrest and Died—County Owed No Duty of Care to Plaintiff’s Decedent

Plaintiff’s decedent died of cardiac arrest in a Sullivan County Community College (SCCC) dormitory.  Plaintiff sued the county, alleging the dormitory should have been equipped with a defibrillator and/or should have had an emergency medical response plan in effect.  The Court of Appeals determined the complaint against the county was properly dismissed.  Although the county was the “sponsor” of the community college, it did not own the dormitory and did not manage the day-to-day operation of the community college, which was handled by the board of trustees (Education Law 6306):

While the County exercises significant influence and control over SCCC’s finances, only the College’s board of trustees is authorized to manage SCCC’s facilities; therefore, it alone is charged with the duty of care … . And here, the County additionally established that it did not even own the dormitory where decedent’s accident occurred … . Branch v County of Sullivan, 2015 NY Slip Op 04756, CtApp 6-9-15

 

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There Is No Cause of Action for “Negligent Handling” of a Dog in New York

The Court of Appeals, in a memorandum decision addressing two dog-related personal injury cases, with two concurring opinions, and over three dissenting opinions, kept New York law as it was with respect to the available causes of action for injuries caused by dogs. Negligence theories are not available, and a strict liability theory requires proof the dog-owners were aware of the dog’s propensity to cause injury. In one case (Doerr v Goldsmith) the dog was called by one of its owners and ran across a bike path where plaintiff, a bicyclist, struck the dog and was injured.  In the other case (Dobinski v Lockhart), dogs were let out of the owners’ house and ran into the road where plaintiff-bicyclist struck one of the dogs and was injured. The court kept the existing distinction between domestic pets and farm animals.  The owner of a farm animal which wanders off the farm and causes injury may be liable for negligently allowing the farm animal to escape.  The same theory of owner-negligence was not extended to domestic animals (dogs here). The dog owners who allowed their dog to run across a bike path in response to a command could not be held liable for negligence in handling the dog.  And the dog owners whose dogs ran into the road after being let outside could not be liable for negligently handling the dogs and could not held strictly liable in the absence of proof they were aware of the dogs’ relevant propensity:

Under the circumstances of these cases and in light of the arguments advanced by the parties, Bard v Jahnke (6 NY3d 592 [2006]) constrains us to reject plaintiffs’ negligence causes of action against defendants arising from injuries caused by defendants’ dogs … . We decline to overrule our recently reaffirmed precedent (see Bloomer, 21 NY3d at 918; Petrone, 12 NY3d at 547-555). Furthermore, our holding in Hastings v Sauve (21 NY3d 122 [2013]) does not allow plaintiffs to recover based on defendants’ purported negligence in the handling of their dogs, which were not domestic farm animals subject to an owner’s duty to prevent such animals from wandering unsupervised off the farm (see Hastings, 21 NY3d at 124-126).

[In Dobinski v Lockhart] the Appellate Division properly granted summary judgment to defendants with respect to plaintiff’s strict liability cause of action. Defendants carried their initial burden on summary judgment of establishing that they did not know of any vicious propensities on the part of their dogs. In response, plaintiff failed to demonstrate the existence of a triable issue of fact as to whether defendants had notice of the animals’ harmful proclivities, and consequently, defendants were entitled to summary judgment on plaintiff’s strict liability claim … . Doerr v Goldsmith, 2015 NY Slip Op 04752, CtApp 6-9-15

 

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Termination of Teacher’s Probationary Employment and Teaching Licenses Was “Abitrary and Capricious” Because the Ruling Was Based In Part Upon an Issue, Absenteeism, of Which the Teacher Had Not Been Given Notice

The First Department found the school district’s termination of petitioner’s probationary employment as a teacher and termination of her teaching licenses was “arbitrary and capricious” because it was based in part on an issue, absenteeism, of which the teacher had not been given notice. Matter of Brower v New York City Dept. of Educ., 2015 NY Slip Op 04764, 1st Dept 6-9-15

 

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Potential Conflict of Interest Arising from Representation of Co-Guardians Required that the Co-Guardians Each Have Their Own Counsel

The First Department, over a dissent, determined a single attorney representing co-guardians of an incapacitated person created the appearance of representing conflicting interests. The court held there was a potential conflict of interest because the co-guardians were dependent upon the incapacitated person and had competing financial interests in the terms of a trust and as beneficiaries of the incapacitated person’s will:

It is well settled that an attorney “must avoid not only the fact, but even the appearance, of representing conflicting interests” … . “[W]ith rare and conditional exceptions, the lawyer may not place himself in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional relationship” … . Moreover, “doubts as to the existence of a conflict of interest must be resolved in favor of disqualification” … . Full disclosure and prior consent by the parties may, on occasion, obviate the objection to conflicting representation … .

Applying these principles to the facts of this case, we find that the motion court properly determined that joint representation of the co-guardians by a single counsel would be improper. While an actual conflict may not have arisen “at this time” and in this proceeding as the dissent posits, there is clearly a potential conflict of interest … . Matter of Strasser v Asher, 2015 NY Slip Op 04763, 1st Dept 6-9-15

 

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Alternating Custody on a Yearly Basis, Requiring the Child to Attend Two Schools, Was Not In the Child’s Best Interests

The Third Department determined that alternating physical custody between the parents on a yearly basis, requiring the child to attend two different schools, was not in the child’s best interests:

Here, based on the totality of the circumstances, we disagree with Family Court’s determination, and find that alternating physical custody on a yearly basis is not in the child’s best interests … . Although presenting differing arguments, both parents, as well as the attorney for the child, argue against this disposition on this appeal. As a result of the alternating school schedule in place previously, the child has missed activities and field trips at both schools, and this can only be expected to increase. The superintendent of the school district in Canada where the child’s school is located opined in a letter that the child’s social, emotional and academic development would best be served by attending only one school, and we agree. Despite the hardships and separation necessarily arising from the physical distance between the two parents, it is the child’s own stability that takes increasing precedence as he ages … . Matter of Nelson v Perea, 2014 NY Slip Op 04091, 3rd Dept 6-5-14

 

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Father’s Status as an Untreated Sex Offender, Together with Mother’s Willingness to Leave the Children with Father Unsupervised, Was Sufficient to Establish Neglect

The Third Department determined father’s status as an untreated sex offender, together with mother’s willingness to leave the children with father unsupervised, was sufficient to establish neglect:

Petitioner bore the burden of establishing, by a preponderance of the evidence, “first that the children’s ‘physical, mental or emotional condition [was]; impaired or [was]; in imminent danger of becoming impaired’ and, second, that such harm was directly attributable to a failure on the part of [the]; respondent ‘to exercise a minimum degree of care . . . in providing the [children]; with proper supervision or guardianship'” … . While actual harm is not required, the imminent danger of harm “must be near or impending, not merely possible” … . “[A];dditionally, there must be a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child’s impairment or imminent danger of impairment” … .

…[W]e agree with Family Court that the evidence submitted regarding the facts underlying the father’s convictions for abusing young children in his care is sufficient to distinguish this case from Matter of Afton C. (James C.) (17 NY3d at 11…)..

In addition, petitioner also introduced evidence that the father did not complete the sex offender treatment he had been ordered to undergo after his first conviction, that he did not participate in any sex offender treatment while in prison for his second conviction and that the individual counseling he received from a minister while in prison and upon his release did not qualify as appropriate sex offender treatment. Matter of Lillian SS, 2014 NY Slip Op 04101, 3rd Dept 6-5-14

 

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Child’s Out-of-Court Statements Alleging Sexual Touching Were Not Corroborated—the Child’s Repeating the Same Allegations to Several Persons Does Not Constitute Corroboration—Neglect and Derivative Neglect Findings Reversed

The Third Department determined that the child’s out-of-court stated alleged sexual touching (by Makenzie) were not sufficiently corroborated. The findings of neglect and derivative neglect based on the statements were reversed:

While the out-of-court statements made by a child relating to any allegations of abuse or neglect are admissible in Family Ct Act article 10 proceedings, they must be corroborated in order to “be sufficient to make a fact-finding of abuse or neglect” (Family Ct Act § 1046 [a]…). The purpose of this requirement is to establish the reliability of the hearsay statements, and Family Court has considerable discretion to determine the sufficiency of corroborative evidence … . Such a statement “may be corroborated by any evidence tending to support its reliability, and a relatively low degree of corroborative evidence is sufficient” … . Nevertheless, we conclude that petitioner failed to satisfy its burden here.

Family Court’s conclusion, based upon our decision in Matter of Brandon UU. (193 AD2d 835 [1993]), that sufficient corroboration existed because the child pointed to the area where she claimed respondent had pinched her, is misplaced. The determination in Matter of Brandon UU. (supra) was based on the child’s consistent account of sexual abuse coupled with the expert testimony that the child was being truthful (id. at 837). Here, there was no expert testimony and the child’s demonstration, without more, is part of the out-of-court statement itself and insufficient as corroboration … .

Likewise, there is no merit to petitioner’s argument that the child’s repetition of consistent accounts of the abuse to the grandmother, social worker and detective serve as sufficient corroboration. It is well settled that “repetition of an accusation by a child does not corroborate [that]; child’s prior account” … . The lack of any proof “validating the child’s account or relating any of her past or present conduct or characteristics to the alleged sexual abuse” requires reversal of the finding of neglect as to Makenzie on the ground that the out-of-court statements were not sufficiently corroborated … . Matter of Katrina CC, 2014 NY Slip Op 04094, 3rd Dept 6-5-14

 

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District Attorney’s Former Status as a Judge Hearing Cases Involving the Department of Social Services Did Not Preclude the District Attorney from Issuing Subpoenas for Department Records

The Third Department determined the district attorney’s former status as a judge in matters involving the county social services department did not require the quashing of subpoenas issued by the district attorney seeking records kept by the social services department, either under the Judiciary Law or on appearance-of-impropriety grounds:

The subpoena seeks records pertaining to business relationships between the Columbia County Department of Social Services (hereinafter DSS) and two contractors. The Commissioner first contends that, as the subpoena identifies the documents sought in part by reference to services provided to certain named children, Judiciary Law § 17 precludes the DA — who was formerly a Columbia County Judge — from issuing it. This statute prohibits a former judge from “act[ing]; as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him [or her]; in his [or her]; official character” (Judiciary Law § 17). The Commissioner asserts that, because the named children were allegedly the subjects of Family Court proceedings pending before the DA in his former role as a judge, the subpoena violates this provision. In this context, however, there is a relevant distinction between the object of the underlying court proceedings and the individuals involved in such proceedings. Notably, although the subpoena does reference named children, it does not appear to directly relate to any court proceedings involving those children; it appears instead, although little detail is provided, to relate to social services provided to the named children by the contractors. Similarly, although DSS was a party to many court proceedings over which the DA presided during his judicial tenure, disqualification is not mandated in the absence of an evidentiary showing that the subpoena addresses any action or court proceeding that was previously before him in his judicial capacity… . Matter of Columbia County Subpoena Duces Tecum…, 2014 NY Slip Op 04104, 3rd Dept 6-5-14

 

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Delay In Bringing Action Seeking to Stop a Development Project Which Had Been Proceeding for Years Precluded the Grant of a Preliminary Injunction, Despite the Apparent Legitimate Nature of the Allegations

The Third Department determined a preliminary injunction halting a development project which had been proceeding for years should not have been granted.  The development project started with the annexation of land by the village, for which no referendum had been held.  The action brought by the plaintiffs alleged the failure to hold the referendum violated local law and further alleged a conflict of interest arising from the mayor’s acquisition of project property  In spite of the apparently legitimate grounds for the action, the Third Department determined the plaintiffs were unlikely to succeed because the action was brought so late and the project, consequently, had progressed so far:

We are unpersuaded by plaintiffs’ assertion that, in essence, the failure to conduct a referendum leaves the annexation subject to being set aside at any time in the future without regard to any time limitation. Cases involving an alleged failure to adhere to a voting requirement during an annexation have generally been found to be subject to a pertinent limitations’ period … . A statute of limitations may apply even when conduct inconsistent with a statute or the state constitution is alleged … . Simply stated, “a [s];tatute of [l];imitations does not have the effect of curing the underlying wrong, but rather extinguishes the right to judicial relief” … . We need not decide the particular limitations’ period for challenging an annexation made without a referendum — whether four months (see CPLR 217), six years (see CPLR 213) or some time in between (see e.g. CPLR 9802). Plaintiffs failed to establish a likelihood that a challenge to the annexation based upon the failure to conduct a referendum would be viable where, as here, over seven years have passed since the annexation. …

Next, we consider the 2010 development agreement, which plaintiffs contend is void because [the mayor] had a conflict of interest arising from the 2009 acquisition of some project property by himself and his parents (see General Municipal Law § 804). The 2nd Department, in a case affirmed by the Court of Appeals, has held that the three-year statute of limitations of CPLR 214 (2) applies to such a claim … . The [Mayor’s] deeds had been a matter of public record since 2009, before the 2010 development agreement was executed. Any conflict was known or should have been known as of the execution in 2010 of the development agreement, which was also a public document. This action was not brought until 2014.

Long delays can be relevant to the issue of whether equitable injunctive relief should be granted … . Although plaintiffs allege some unsavory (or worse) conduct by certain people involved directly or indirectly in the project, it is not clear from this record whether they can successfully show that the project defendants engaged in such conduct so as to prevent them from relying on equitable defenses such as laches … . Rural Community Coalition Inc v Village of Bloomingbury, 2014 NY Slip Op 04110, 3rd Dept 6-5-14

 

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Claimant-Interpreter Properly Found to Be an Employee, Not an Independent Contractor

The Third Department determined claimant interpreter was properly determined to be an employee of LIS (not an independent contractor) and was therefore entitled to unemployment insurance benefits:

Here, the evidence established that claimant responded to an advertisement for interpreters posted online by LIS, was screened and approved by LIS, and executed a contract specifying the hourly rate of compensation and setting forth numerous rules of conduct [FN1]. Clients contact LIS to request interpreter services; LIS then selects one of its interpreters, contacts the interpreter and provides him or her with the details of the assignment. Once committed to an assignment, interpreters may not send a substitute without that substitute having been prescreened by LIS. LIS supplies its interpreters with time sheet forms that must be submitted within 24 hours of an assignment and pays the interpreters directly based upon an hourly rate of pay set forth in the interpreters’ contracts with LIS. LIS also reimburses interpreters for transportation costs associated with assignments. Notwithstanding record proof that could support a contrary result, the foregoing proof constitutes substantial evidence supporting the determination that claimant and others similarly situated are employees of LIS and not independent contractors… . Matter of Ruano …, 2014 NY Slip Op 04108, 3rd Dept 6-5-14

 

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