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Attempted Criminal Possession of a Weapon Third Degree Is Not a Violent Felony When It is the Top Count of an Indictment—It is a Violent Felony Only If It Is a “Lesser Included” Offense

The Second Department determined defendant was improperly sentenced as a second violent felony offender.  Attempted criminal possession of a weapon in the third degree is not a violent felony when it is the top count in an indictment (as it was in this case).  It is only considered a violent felony when it is a “lesser included” offense:

In People v Dickerson (85 NY2d 870, 871-872), the Court of Appeals determined that a plea of guilty to attempted criminal possession of a weapon in the third degree, when charged in “the top count” of a superior court information, did not constitute a violent felony pursuant to Penal Law § 70.02(1)(d). Under Penal Law § 70.02(1)(d), the crime of attempted criminal possession of a weapon in the third degree constitutes a class E violent felony offense only when the defendant is convicted of such charge as “a lesser included offense . . . as defined in section 220.20 of the criminal procedure law.” CPL 220.20(1) defines a “lesser included offense” as one where the defendant pleads “to an offense of lesser grade than one charged in a count of an indictment.” “Thus, according to the plain statutory language, a class E violent felony offense is reserved for accuseds who plead guilty to attempted criminal possession of a weapon in the third degree as a lesser included offense under an indictment charging a greater offense” (People v Dickerson, 85 NY2d at 872). Here, in 2005, the defendant entered a plea of guilty to attempted criminal possession of a weapon in the third degree as the sole count of a superior court information. Therefore, the defendant’s conviction of that crime, upon his plea of guilty, did not constitute a violent felony pursuant to Penal Law § 70.02 (1)(d) … . People v Millazzo, 2015 NY Slip Op 03569, 2nd Dept 4-29-15

 

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Court Has Discretion to Grant a Recess to Allow a Conference Between a Lawyer and a Testifying Witness

In a decision affirming Family Court’s findings in a juvenile delinquency proceeding, the Second Department noted that a judge has the discretion to recess the proceedings to allow a conference between a lawyer and the witness:

“[T]he decision to grant a recess and to allow a conference between a lawyer and a testifying witness falls within the broad discretion allowed a trial court in its management of a trial” … . Contrary to the appellant’s contention, the fact-finding court providently exercised its discretion in granting the presentment agency’s application for a mid-testimony conference with a testifying witness … . Matter of Isaiah D., 2015 NY Slip Op 03528, 2nd Dept 4-29-15

 

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Defects in On-the-Record Waiver of Appeal Not Cured by Written Waiver

The Second Department, in determining defendant’s waiver of appeal was insufficient, noted that signing a written waiver does not cure defects in the court’s on-the-record inquiry about the defendant’s understanding of the waiver:

The record fails to establish that the defendant’s purported waiver of his right to appeal was knowing, voluntary, and intelligent … . An appeal waiver is not valid unless the defendant’s understanding of the waiver is evident on the face of the record … . Here, the trial court’s statement to the defendant that he was giving up his right to appeal, followed by its inquiry as to whether his attorney had explained that right to him, was insufficient to demonstrate a valid waiver … . The defendant’s execution of a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … . People v Little, 2015 NY Slip Op 03567, 2nd Dept 4-29-15

 

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Denial of Special Use Permit Reversed As Arbitrary and Capricious/Difference Between Special Use Permit and Use Variance Explained

The Second Department determined that the denial of 7-Eleven’s petition for a special exception (also referred to as a special use permit) for operation of a convenience store was arbitrary and capricious.  The court explained the difference between a special use permit and a use variance. A special use permit gives a property owner permission to use property in a way that is consistent with the zoning ordinance but not necessarily allowed as of right. A use variance gives the owner permission to use the property in a manner inconsistent with the zoning ordinance.  The proof burden is much lighter for a special use permit, as opposed to a use variance.  The proponent of a special use permit need only show compliance with legislatively imposed conditions, while the proponent of a use variance must show undue hardship in complying with the ordinance. Here no evidence was presented to support the denial of the special use permit:

A special exception, commonly known as a special use permit, “gives [a property owner] permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right” … . By contrast, a use variance gives a property owner permission to use the property in a manner inconsistent with a local zoning ordinance. “The significance of this distinction is that the inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood” … . Accordingly, “the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a [use] variance, the former only being required to show compliance with any legislatively imposed conditions on an otherwise permitted use, while the latter must show an undue hardship in complying with the ordinance” … . Matter of 7-Eleven, Inc. v Incorporated Vil. of Mineola, 2015 NY Slip Op 03544, 2nd Dept 4-29-15

 

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Third-Party Beneficiary of an Indemnification Agreement May Enforce Obligations Owed to the Judgment Debtor by the Indemnifying Party

The Second Department determined the third-party beneficiary of an indemnification agreement could bring an action to collect a debt by suing the entity which entered the indemnification agreement with the judgment debtor. “Pursuant to CPLR 5227, a special proceeding may be commenced by a judgment creditor ‘against any person who it is shown is or will become indebted to the judgment debtor.’ Such a proceeding is properly asserted against one who agreed to indemnify the judgment debtor in the underlying proceeding … . The judgment creditor stands in the judgment debtor’s shoes, and may enforce the obligations owed to the judgment debtor by the indemnifying party… “. Matter of White Plains Plaza Realty, LLC v Cappelli Enters., Inc., 2015 NY Slip Op 03549, 2nd Dept 4-29-15

 

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Family Court Should Not Have Directed that Visitation With the Father Be Only to the Extent Agreed Upon by the Parties Without Holding a Hearing—There Is a Presumption Visitation with a Noncustodial Parent Is In the Best Interests of the Child, Even Where the Noncustodial Parent Is Incarcerated—Absent Exceptional Circumstances, Visitation with a Noncustodial Parent Is Always Appropriate

The Second Department determined Family Court should not have held that father’s visitation with the children should only be to the extent agreed upon by the parties without first conducting a hearing to determine what visitation arrangement was in the best interests of the children.  The Second Department noted that (1) absent exceptional circumstances visitation with a noncustodial parent is always appropriate, (2) visitation with a noncustodial parent is presumed to be in the best interests of the child, even when the father is incarcerated, and (3) the presumption must be rebutted by a preponderance of the evidence:

Family Court erred in, without a hearing, awarding the father visitation only to the extent as agreed upon by the parties. “Absent exceptional circumstances, some form of visitation with the noncustodial parent is always appropriate” … . Visitation with a noncustodial parent is presumed to be in the best interests of a child, even when that parent is incarcerated … . That presumption may be rebutted, however, by demonstrating, by a preponderance of the evidence, that “under all the circumstances visitation would be harmful to the child’s welfare, or that the right to visitation has been forfeited” … . Here, the Family Court did not possess adequate relevant information to enable it to make an informed determination as to the children’s best interests so as to render a hearing unnecessary on the issue of the father’s visitation. Matter of Bell v Mays, 2015 NY Slip Op 03524, 2nd Dept 4-29-15

 

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Family Court Did Not Follow Statutory Procedure Before Ruling the New York Court Did Not Have Subject Matter Jurisdiction in a Proceeding to Modify a New Jersey Custody and Visitation Order—A Proceeding to Modify the Custody and Visitation Order Was Pending In New Jersey at the Time the New York Proceeding Was Brought

The Second Department determined Family Court failed to follow statutory procedure when it determined the New York court did not have subject matter jurisdiction over a proceeding to modify a New Jersey custody and visitation order.  At the time the New York proceeding was brought there was a pending proceeding in New Jersey to modify the custody and visitation order. Before determining the jurisdiction issue, Family Court was required to (but did not) make a record of its communications with the New Jersey court, provide the record to the parties, and give the parties the opportunity to present facts and legal arguments (Domestic Relations Law 75-i, 76-b, 76-e). The case was remanded for that purpose:

A court of this state may not modify a child custody determination made by a court of another state “unless . . . [t]he court of the other state determines it no longer has exclusive, continuing jurisdiction . . . or that a court of this state would be a more convenient forum” (Domestic Relations Law § 76-b[1]…). ” Where a different state possesses exclusive, continuing jurisdiction, New York cannot take jurisdiction unless the foreign state declines, even [if] the parties clearly no longer have a significant connection with that state'” … .

Furthermore, “a court of this state may not exercise its jurisdiction . . . if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum” (Domestic Relations Law § 76-e[1]). “If the court [of this state] determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A], the court of this state shall stay its proceeding and communicate with the court of the other state” (Domestic Relations Law § 76-e[2]; see Domestic Relations Law § 75-i[1]). “If the court of the state having jurisdiction substantially in accordance with this article does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding” (Domestic Relations Law § 76-e[2]).

With limited exceptions not applicable here, “a record must be made” of the communication between the two courts and “[t]he parties must be informed promptly of the communication and granted access to the record” (Domestic Relations Law § 75-i[4]). Furthermore, “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made” (Domestic Relations Law § 75-i[2]). Matter of Frankel v Frankel, 2015 NY Slip Op 03530, 2nd Dept 4-29-15

 

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Family Court Should Not Have Denied Child’s Motion for the Issuance of an Order Making Specific Findings that Would Allow Her to Petition for Special Juvenile Immigrant Status

The Second Department determined Family Court should not have denied the juvenile’s motion for issuance of an order making specific findings that would allow her to petition the United State Citizenship and Immigration Service (USCIS) for special immigrant juvenile status (SIJS). The court determined the record supported the child’s motion and noted that the Federal government retains control of the immigration determination of whether the child receives SIJS, which cannot be decided by Family Court. The case was remitted to Family Court for a hearing to determine whether it is in the child’s best interests to be returned to El Salvador, and for a new determination on the child’s motion. The Second Department explained the relevant law:

A child may request that the Family Court issue an order making certain specific findings that will enable him or her to petition the USCIS, an agency within the United States Department of Homeland Security, for SIJS … . The findings required to support a petition for SIJS include: (1) the child is under 21 years of age; (2) the child is unmarried; (3) the child is dependent upon a juvenile court or legally committed to, or placed under the custody of, an agency or department of the State or an individual appointed by a State or juvenile court; (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis; and (5) it is not in the child’s best interests to be returned to his or her country of nationality or country of last habitual residence (see 8 USC § 1101[a][27][J][i], [ii]; 8 CFR 204.11[c]…). Once those specific findings have been issued, the eligible child may seek the consent of “the Secretary of Homeland Security” to receive special immigrant juvenile status (8 USC § 1101[a][27][J][iii]…).

Here, the child is under the age of 21 and unmarried, and has been “legally committed to, or placed under the custody of . . . an individual . . . appointed by a State or juvenile court” within the meaning of 8 USC § 1101(a)(27)(J)(i) … . Further, based upon our independent factual review, we find that the record, which includes a detailed affidavit from the child, fully supports her contention that reunification with her father is not a viable option, due to abandonment … . Matter of Pineda v Diaz, 2015 NY Slip Op 03540, 1st Dept 4-29-15

 

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Contractual-Indemnification Cross Claim by Building Owners Against the Elevator Maintenance Company Should Not Have Been Dismissed—Relevant Criteria Explained

The Second Department determined the building owners failed to demonstrate they did not have constructive notice of the defect in the elevator door which caused plaintiff’s injury. The denial of the owners’ motion for summary judgment was therefore proper.  Supreme Court erred, however, when it denied defendants’ motion for summary judgment on the owners’ contractual-indemnification cross claim.  The contract with the elevator maintenance company, Dunwell, provided the company would indemnify the building owners for damages that did not arise solely and directly out of the owners’ negligence. Dunwell failed to raise a question of fact about whether the owners had actual knowledge of the defect and whether the injury arose “solely and directly” from the owners’ negligence. With regard to indemnification, the court wrote:

A party’s right to contractual indemnification depends upon the specific language of the relevant contract … . The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances … . Under the full-service elevator maintenance contract at issue here, Dunwell assumed responsibility for the maintenance, repair, inspection, and servicing of the elevators, including the electrical systems or devices that operated the opening and closing of the elevator doors. Dunwell also agreed to indemnify the building defendants for any claim arising out of the performance of its work, regardless of whether it was negligent in its performance, unless the claim arose “solely and directly out of” the building defendants’ negligence. Goodlow v 724 Fifth Ave. Realty, LLC, 2015 NY Slip Op 03501, 1st Dept 4-29-15

 

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Questions of Fact Whether Hospital Liable for Independent Actions of Its Employees Under Respondeat Superior and Negligent Hiring/Retention Theories

In finding that the hospital’s motion for summary judgment in a medical malpractice case was properly denied, the Second Department explained that the hospital can be liable for the independent actions of its own employees, despite the involvement of a non-employee attending physician, under the doctrine of respondeat superior, as well as under a negligent hiring/retention theory.  The court explained the relevant law:

In general, under the doctrine of respondeat superior, a hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the scope of employment, but not for negligent treatment provided by an independent physician, as when the physician is retained by the patient himself … . Thus, “a hospital may not be held liable for injuries suffered by a patient who is under the care of a private attending physician chosen by the patient where the resident physicians and nurses employed by the hospital merely carry out the orders of the private attending physician, unless the hospital staff commits independent acts of negligence or the attending physician’s orders are contraindicated by normal practice” … . A hospital may also be liable on a negligent hiring and/or retention theory to the extent that its employee committed an independent act of negligence outside the scope of employment, where the hospital was aware of, or reasonably should have foreseen, the employee’s propensity to commit such an act… .  Seiden v Sonstein, 2015 NY Slip Op 03517, Second Dept 4-29-15

 

 

 

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