You are here: / Family Court Should Have Inquired More Deeply Into Mother’s Finances...

Search Results

/ ,

Family Court Should Have Inquired More Deeply Into Mother’s Finances Before Ordering the Matter to Proceed Without Counsel for Mother

The Second Department determined Family Court should have inquired into mother's financial situation in more depth before finding that she was not eligible for assigned counsel and proceeding in the absence of counsel:

Given the mother's statements indicating that she lacked the funds to retain private counsel, the Family Court should have inquired further into the mother's financial circumstances, including, but not limited to, inquiring about her expenses, to determine whether she was eligible for assigned counsel … .

Furthermore, “[w]aiver of the right to counsel must be founded on an explicit and intentional relinquishment which is supported by knowledge and a clear understanding of the right” … . “In order to determine whether a party is validly waiving the right to counsel, the court must conduct a searching inquiry of the party who wishes to waive that right and thus proceed pro se. While there is no rigid formula to be followed in such an inquiry, and the approach is flexible, the record must demonstrate that the party was aware of the dangers and disadvantages of proceeding without counsel” … .

Here, the record is clear that the mother did not wish to proceed pro se, but was forced to do so in light of her alleged inability to retain counsel after numerous adjournments and a lengthy delay in the proceedings … . The deprivation of the mother's fundamental right to counsel requires reversal, without regard to the merits of her position …, especially where, as here, the record demonstrates that the mother did not have a basic understanding of court proceedings … . Matter of Pugh v Pugh, 2015 NY Slip Op 00887, 2nd Dept 2-4-15


/ ,

Criteria for Deceptive Business Practices Explained

The Fourth Department determined that the defendant's (One Source's) violation of General Business Law 349 had been proven. Defendant had misled car-purchasers by informing them they were required to purchase an extended service contract or warranty as a condition of a loan.  Only at the closing of loan were the purchasers informed they could waive the warranty.  The court explained the elements of a section 349 violation:

Pursuant to section 349, deceptive business acts or practices are unlawful, and a ” [petitioner] under section 349 must prove three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the [consumer] suffered injury as a result of the deceptive act' ” … . With respect to the second element, an act or practice that is deceptive or misleading in a material way is defined as a representation or omission “likely to mislead a reasonable consumer acting reasonably under the circumstances” … . Contrary to respondents' contention, we conclude that petitioner established that second element, i.e., that One Source's actions were likely to mislead a reasonable consumer. One Source's actions were misleading in a material way in light of the fact that the consumers at issue were dependent on One Source to find them the financing to purchase their vehicles, and they were willing to pay for a warranty in order to obtain their loans. People v One Source Networking Inc, 2015 NY Slip Op 01068, 4th Dept 2-4-15


/ ,

Evidence Did Not Support Finding of Neglect Based Upon Mother’s Mental Illness and Failure to Take Medication

The Second Department determined the evidence was not sufficient to demonstrate mother's neglect based upon her mental illness and her failure to take medication:

” A finding of neglect may be predicated upon proof that a child's physical, mental, or emotional condition is in imminent danger of becoming impaired as a result of a parent's mental illness'” (… see Family Ct Act § 1012[f][i]). “However, proof of mental illness alone will not support a finding of neglect'; the evidence must establish a causal connection between the parent's condition, and actual or potential harm to the children'” … .

Here, based on our evaluation of the record, and giving deference to the Family Court's credibility determinations …, we find that the petitioner failed to establish, by a preponderance of the evidence, the existence of a causal connection between the mother's mental illness and actual or potential harm to the subject child … . * * *

“Proof of ongoing mental illness and the failure to follow through with aftercare medication, which results in a parent's inability to care for her child in the foreseeable future, is a sufficient basis for a finding of neglect” … . Here, although there was evidence that the mother stopped taking medication after her discharge from Beth Israel, the evidence was insufficient to establish that the mother was unable to care for the child during that period. Matter of Nialani T, 2015 NY Slip Op 00894, 2nd Dept 2-4-15


/ ,

Requirements for Prima Facie Case Based Upon Circumstantial Evidence Explained (Re: Existence of Hazardous Condition)

The Second Department, reversing Supreme Court, determined the defendants were not entitled to summary judgment in a slip and fall case.  The court explained the plaintiff's standard of proof when the existence of a hazardous condition (here a slippery substance on stairs) is demonstrated by circumstantial evidence.  The court noted that a defendant's self-serving affidavit (claiming that nothing was spilled on the stairs) was not sufficient to warrant summary judgment in defendant's favor:

“To prove a prima facie case of negligence in a case based on a hazardous condition, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition” … . “To establish a prima facie case of negligence based wholly on circumstantial evidence, [i]t is enough that [the plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred'” … . “The law does not require that plaintiff's proof positively exclude every other possible cause of the accident but defendant's negligence” … . “Rather, [the plaintiff's] proof must render those other causes sufficiently remote' or technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” … . “A plaintiff need only prove that it was more likely or more reasonable that the alleged injury was caused by the defendant's negligence than by some other agency” … . Quiroz v 176 N Main LLC, 2015 NY Slip Op 00863, 2nd Dept 2-4-15


/ ,

“Big Apple” Map Provided City with Written Notice of a Tree-Well Defect in a Sidewalk/Notice of Claim Was Sufficient Even Though It Did Not Specifically Mention the Tree-Well Defect

The Second Department determined summary judgment should not have been granted to the city in a tree well/sidewalk slip and fall case.  The “Big Apple map” provided the city with notice of the defect alleged to be the cause of plaintiff's fall.  The notice of claim was sufficient to notify the city of the defect in question, even though the tree well was not specifically mentioned in the notice:

“Administrative Code of the City of New York § 7-201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects . . . [of] which its officials have been actually notified exist at a specified location” … . Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City … .  * * *

Here, the Big Apple map provided the City with notice that the subject tree well was unprotected and potentially hazardous. Indeed, the key to the Big Apple map, which has been in the City's possession since 2003, is entitled, in relevant part, “Survey Of Pavement Defects Sufficient To Cause A Hazard.” Moreover, it is the failure to “fence” or place a barrier around the tree well, which is shown on the Big Apple map, that formed the basis of the plaintiff's cause of action. Therefore, the City did not meet its burden of demonstrating, prima facie, that it did not have prior written notice of the alleged defective condition … .

Moreover, the Supreme Court erred in concluding that the plaintiff's notice of claim precluded her from asserting a theory of liability based on the absence of a fence or barrier around the tree well. The purpose of the notice of claim is “[t]o enable authorities to investigate, collect evidence and evaluate the merit of a claim” … . Here, the plaintiff's notice of claim alleged a defective condition located adjacent to P.S. 146 on 98th Street, between 158th and 159th Avenues, in Queens. The City does not argue that its investigation of the claim was prejudiced based on the description provided by the plaintiff in the notice of claim … . Nor has it articulated how investigating a defective sidewalk would differ from investigating an unsecured tree well at the same location. Moreover, any discrepancy as to the cause of the plaintiff's fall was remedied by the plaintiff's hearing testimony. Bartels v City of New York, 2015 NY Slip Op 00836, 2nd Dept 2-4-15


/ , ,

School’s Duty to Supervise the Child Had Ended When the Child Was Struck by a Car Just Outside the School Building/City Is Immune from Liability for Alleged Negligent Traffic Control—No “Special Relationship” with the Child

The Second Department determined the school's duty to supervise plaintiff's child had ended at the time the child was struck by a car outside the school building.  Plaintiff had already taken custody of the child at the time.  In addition, the court determined that the city was immune from liability for the alleged negligent traffic control because no special relationship between the city and the child existed:

A school's duty to supervise the students in its charge arises from its physical custody over them … . The rationale underlying this duty is that when a school takes custody of a child, it deprives the child of the protection of his or her parents or guardian, and thus must give the child the protection of which the child has been deprived .. . For this reason, a school's duty to supervise is generally viewed as being “coextensive with and concomitant to its physical custody of and control over the child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases” … . In support of their motion, the municipal defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they had released the infant to the plaintiff's custody and, thus, he was no longer in the custody of the municipal defendants when the accident occurred.

… A municipal defendant is immune from liability for negligence claims arising from the performance of its governmental functions … . However, there is a “narrow class of cases in which [the courts] have recognized an exception to this general rule and have upheld tort claims based upon a special relationship' between the municipality and the claimant” …. “A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … . Regulation and control of traffic and public transportation “is the exercise of an unquestioned governmental function” … . Here, the municipal defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they did not owe the infant a special duty and, in response, the plaintiff failed to raise a triable issue of fact. Giresi v City of New York, 2015 NY Slip Op 00844, 2nd Dept 2-4-15


/

Late Motion for Judicial Approval of a Settlement Properly Denied—Delay In Seeking Approval Was Due to Plaintiff’s Own Fault or Neglect

The Second Department determined plaintiff's late motion for judicial approval of a settlement was properly denied because the delay in making the motion was due to the plaintiff's own fault or neglect:

“Pursuant to Workers' Compensation Law § 29(5), an employee who is the recipient of workers' compensation benefits may compromise a third-party claim arising out of the same accident without prejudice to the continued payment of benefits upon obtaining either the written consent of the compensation carrier before the compromise, or judicial approval of the compromise within three months after it” … . “However, a judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even where the application for approval is sought more than three months after the date of settlement, provided that the employee can establish that (1) the amount of the settlement is reasonable, (2) the delay in applying for a judicial order of approval was not caused by the employee's fault or neglect, and (3) the insurance carrier was not prejudiced by the delay” … .

A proceeding for approval, nunc pro tunc, of the settlement of a third-party action pursuant to Workers' Compensation Law § 29(5) is directed to the discretion of the court … . Here, the delay in seeking judicial approval was due to the plaintiff's own fault or neglect. Under these circumstances, the Supreme Court providently exercised its discretion in denying the plaintiff's motion … . Lobban v Brown, 2015 NY Slip Op 00850, 2nd Dept 2-4-15


/ , ,

Whether Arbitrator Erred In Applying the Applicable Law Is Beyond the Courts’ Review Powers

In affirming the arbitrator's award re: no-fault benefits, the Second Department explained the courts' limited review powers (re: arbitration awards):

“Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied” … . Here, Allstate failed to demonstrate the existence of any of the statutory grounds for vacating the master arbitrator's award. In addition, the determination of the master arbitrator confirming the original arbitration award had evidentiary support and a rational basis … . “It is not for [the court] to decide whether [the master] arbitrator erred [in applying the applicable law]” … . Matter of Allstate Ins v Westchester Med Group, 2015 NY Slip Op 00876, 2nd Dept 2-4-15


/ ,

Proper Way to Handle an Inconsistent Verdict Explained

The Second Department explained the proper procedure when a verdict is inconsistent (either have the jury reconsider the verdict or order a new trial):

“When a jury’s verdict is internally inconsistent, the trial court must direct either reconsideration by the jury or a new trial” … . Here, the jury’s verdict was internally inconsistent, as the jury attributed 10% of the fault for the plaintiff’s accident to both the plaintiff and [one of the two defendants], despite having found that their negligence was not a substantial factor in causing the accident … . The Supreme Court should have resolved the substantial juror confusion, as demonstrated by the internally inconsistent verdict, by either resubmitting the case to the jury for reconsideration or directing a new trial on the issue of liability (see CPLR 4111[c]…). Kumar v PI Assoc LLC, 2015 NY Slip Op 00849, 2nd Dept 2-4-15

 

/

Party Moving for a Change of Venue Must Demonstrate the Change Will Better Serve the Convenience of Material Witnesses

In affirming the denial of a motion for a change of venue, the Second Department explained the criteria:

“The party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses would be better served by the change” … . In doing so, the moving party must set forth: (1) the names, addresses, and occupations of material witnesses, (2) the facts to which these witnesses will testify at trial, (3) a showing that those witnesses are willing to testify, and (4) a showing that those witnesses would be inconvenienced if the venue of the action was not changed … . MI v Trinity-Pawling School, 2015 NY Slip Op 00852, 2nd Dept 2-4-15


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