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Mother’s Actions and Mental Health Issues Did Not Warrant a Finding of Neglect

The Fourth Department determined mother's actions and mental health issues did not support Family Court's neglect-finding.  The mother had left her child with appropriate caregivers and kept in touch, although she was absent longer than expected:

“[A] party seeking to establish neglect must show, by a preponderance of the evidence . . . , first, that [the] child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care in providing the child with proper supervision or guardianship” (…see Family Ct Act §§ 1012 [f] [i]; 1046 [b] [i]). “Where a motion is made by the respondent at the close of the petitioner's case to dismiss a neglect petition, [the court] must determine whether the petitioner presented a prima facie case of neglect . . . , viewing the evidence in [the] light most favorable to the petitioner and affording it the benefit of every inference which could be reasonably drawn from the proof presented” … .

We conclude that, viewing the evidence in the light most favorable to petitioner, the evidence established that the mother left the child with appropriate caregivers, who agreed to care for the child for several days; however, she left the state for approximately 24 hours, and she failed to provide a medical authorization in case of an emergency. Further, although the male caregiver was unable to reach the mother during the confrontation with the mother's grandmother, petitioner's evidence established that the mother had borrowed a telephone and had remained in contact with the caregivers each day that she was away. The evidence also established that the mother was inexperienced as a parent and that the couple with whom she lived was assisting her with parenting skills and in obtaining appropriate housing, as well as medical and other benefits.

We conclude that petitioner failed to establish that, as a result of the mother's actions, the child was in imminent danger, i.e., “near or impending [danger], not merely possible” … . We further conclude that petitioner failed to present any evidence connecting the mother's alleged mental health condition to any actual or potential harm to the child … . We therefore conclude that petitioner failed to establish by a preponderance of the evidence that the child's physical, mental or emotional condition had been impaired or was in imminent danger of becoming impaired as a result of the mother's failure to exercise a minimum degree of care for the child … . Matter of Lacey-Sophia TR, 2015 NY Slip Op 01123, 4th Dept 2-6-15


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“Falling Objects” Protection Afforded by Labor Law 240 (1) Explained

In affirming the denial of defendant's motion for summary judgment on the Labor Law 240 (1) cause of action, the Fourth Department explained the law relating to “falling objects:”

Labor Law § 240 (1) “applies to both falling worker' and falling object' cases” …, and that section 240 (1) guards “workers against the special hazards' that arise when the work site either is itself elevated or is positioned below the level where materials or load [are] hoisted or secured' ” … . To recover under section 240 (1), a worker injured by a falling object must thus establish both (1) that the object was being hoisted or secured, or that it ” required securing for the purposes of the undertaking,' ” and (2) that the object fell because of the absence or inadequacy of a safety device to guard against a risk involving the application of the force of gravity over a physically significant elevation differential … . Floyd v New York State Thruway Auth, 2015 NY Slip Op 01131, 4th Dept 2-6-15


 

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Non-Supervising Property Owner Not Liable Under Common Law or Labor Law 200 for Injury Stemming from the Manner In Which the Work Is Done

The Fourth Department noted that no liability attaches to the non-supervising property owner under Labor Law 200 or common law negligence when the worker's injury stems from the manner in which the work was performed and not from the condition of the work site:

“It is settled law that where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law” … . Here, defendants met their initial burden by establishing that plaintiff's accident resulted from the manner in which the work was performed, not from any dangerous condition on the premises, and defendants exercised no supervisory control over the work… . Zimmer v Town of Lancaster Indus Dev Agency, 2015 NY Slip Op 01023, 4th Dept 2-6-15


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Regulation Properly Promulgated—Analytical Criteria Described in Some Depth

In finding that a regulation promulgated by the Department of Health (DOH) was a valid exercise of regulatory authority, the Fourth Department noted that an agency need not rely on empirical studies when it adopts a regulation, but rather can rely on the expertise and experience of the agency.  The challenged regulation limited a specific type of Medicaid-reimbursement to nursing homes pending an audit:

…DOH had statutory authority to promulgate 10 NYCRR 86-2.40 (m) (10) under Public Health Law § 2808 (2-c) (d) and … the regulation was not ” out of harmony' with an applicable statute” … . Although section 2808 (2-c) (d) does not explicitly authorize prepayment audits of residential health care facilities, “an agency can adopt regulations that go beyond the text of that legislation, provided that they are not inconsistent with the statutory language or its underlying purposes” … . Moreover, we reject petitioners' contention that DOH usurped the role of the legislature by adopting 10 NYCRR 86-2.40 (m) (10). DOH has “inherent authority to protect the quality and value of services rendered by [Medicaid] providers” … and, therefore, we conclude that DOH did not “stretch[ ] [the enabling statute] beyond its constitutionally valid reach” by adopting a regulation that allows a prepayment audit of Medicaid claims under certain circumstances … .

…10 NYCRR 86-2.40 (m) (10) “has a rational basis and is not unreasonable, arbitrary or capricious” … . Contrary to petitioners' contention, DOH is not required to rely upon empirical studies when it adopts a regulation. “Although documented studies often provide support for an agency's rule making, such studies are not the sine que non of a rational determination” … . Thus, “the commissioner [of DOH] . . . is not confined to factual data alone but also may apply broader judgmental considerations based upon the expertise and experience of the agency he [or she] heads” … . Here, DOH adopted 10 NYCRR 86-2.40 (m) (10) to “[e]nsure the accuracy and integrity of Medicaid rates that are adjusted for case mix data” (NY Reg, Jan. 2, 2013, at 16), and we conclude that adoption of the regulation was within DOH's authority in order to ” assure[] that the funds which have been set aside for (providing medical services to the needy) will not be fraudulently diverted into the hands of an untrustworthy provider of services' ” … . Matter of Adirondack Health-Uijlein Living Ctr v Shah, 2015 NY Slip Op 01073, 4th Dept 2-6-15


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“Case Management Fee” Imposed Upon Property Owners Who Do Not Correct a Code Violation Within One Year Is an Unconstitutional Penalty Which Requires Due Process Protections

The Fourth Department determined a so-called “case management fee” (CMF) authorized by City of Rochester Municipal Code 90-21 is an unconstitutional penalty imposed without adequate due process.  The code provisions allows the assessment of $100 against a property owner who fails to correct a code violation within one year:

Although “[t]he exceedingly strong presumption of constitutionality applies . . . to ordinances of municipalities[,] . . . [that] presumption is rebuttable” …, and we conclude that petitioners have rebutted the presumption of constitutionality.

A determination whether the CMF is a fee or a fine imposed as a penalty is critical to our analysis because “[p]rocedural due process rights do not apply to legislation of general applicability,” and thus the imposition of fees such as licensing fees are “not subject to attack on grounds of procedural due process. Fines [that are imposed as a penalty], however, can implicate procedural due process rights” … . * * *

Having concluded that the CMF is a fine imposed as a penalty on the property owner, we must determine whether the ordinance provides property owners with due process of law. As the Court of Appeals wrote in Morgenthau v Citisource, Inc. (68 NY2d 211), “[w]e have long recognized that due process is a flexible constitutional concept calling for such procedural protections as a particular situation may demand' . . . [,] and in determining whether [f]ederal due process standards have been met, we look to the three distinct factors that form the balancing test enunciated by the Supreme Court in Mathews v Eldridge (424 US 319, 335): First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail' ” (id. at 221).

While we agree with the court that the private interest at stake, i.e., $100, “is relatively insubstantial,” we conclude that there is a significant risk of erroneous deprivation of that interest through the procedures established by the ordinance. * * *

Although ” [d]ue process does not, of course, require that the defendant in every civil case actually have a hearing on the merits' ” …, we conclude that due process requires some type of hearing at which the City should be required to establish that property owners did not abate the violation within the one-year period. Matter of D'Alessandro v Kirkmire, 2015 NY Slip Op 01018, 4th Dept 2-6-15


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Order Granting a Motion In Limine Is Appealable If It Effectively Limits the Presentation of a Legal Theory at Trial

The Fourth Department determined the order granting defendant's motion in limine was appealable because the order limited the theories available for use at trial, not merely the admissibility of evidence (which would not be appealable).  The Fourth Department found that the motion in limine should not have been granted because it effectively precluded plaintiffs from introducing evidence of continuous representation which may have tolled the statute of limitations in this legal malpractice action:

In the order on appeal, the court granted defendants' motions to preclude plaintiffs from introducing evidence that any of the defendants represented plaintiffs with respect to any issue other than an issue in the context of a medical malpractice action against a physician. The effect of that order was to limit plaintiffs to introducing evidence that, in 1994, one of the defendants made a statement to Gary M. Dischiavi (plaintiff) indicating that the medical malpractice action was not viable.

We note at the outset that, although the parties do not address the appealability of this order determining a motion in limine, we conclude that plaintiffs may appeal from the order at issue … . “Generally, an order ruling [on a motion in limine], even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . This Court has noted, however, that “there is a distinction between an order that limits the admissibility of evidence,' which is not appealable . . . , and one that limits the legal theories of liability to be tried' or the scope of the issues at trial, which is appealable” … . Here, the order precluded the introduction of the vast majority of the evidence on the issue whether defendants continued to represent plaintiffs so as to toll the statute of limitations, and thus it is appealable because it limits the scope of the issues at trial … . Dischiavi v Calli, 2015 NY Slip Op 01116, 4th Dept 2-6-15

 

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No Statute of Limitations Applies to an Owner Seeking to Have an Apparent Encumbrance Struck from the Record

The Fourth Department determined the six-year statute of limitations did not apply to an owner in possession of land who seeks to have an apparent encumbrance discharged from the record.  Supreme Court erred when it determined a six-year statute began to run when a tax deed erroneously purported to transfer the property:

“It is well settled that an owner in possession has a right to invoke the aid of a court of equity at any time while he is so the owner and in possession, to have an apparent, though in fact not a real incumbrance discharged from the record and such right is never barred by the [s]tatute of [l]imitations. It is a continuing right which exists as long as there is an occasion for its exercise” … . Indeed, “[a] [s]tatute of [l]imitations is one of repose designed to put an end to stale claims and was never intended to compel resort to legal remedies by one who is in complete enjoyment of all he claims . . . The logic of such a view is inescapably correct, for otherwise, the recording of the deed resulting from such a proceeding would transform the owner's absolute title in fee simple into a right of action only, the exercise of which is subject to time limitation” … .

We conclude that, inasmuch as plaintiff and his predecessors in interest have always held title and have been in continuous possession of the disputed property, the tax deed to defendants' predecessor in interest was void with respect to the disputed property because the County of Onondaga could not convey an interest in land that it did not have … . Indeed, “[a] purchaser who fails to use due diligence in examining the title is chargeable, as a matter of law, with notice of the facts which a proper inquiry would have disclosed” … . Here, due diligence on the part of defendants would have disclosed the error in the 1959 transfer of the disputed property. Crain v Mannise, 2015 NY Slip Op 01109, 4th Dept 2-6-15


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Additional Information Constituted a “Supplemental” Bill of Particulars, Not an “Amended” Bill of Particulars—Motion In Limine Properly Denied

The Fourth Department determined Supreme Court properly denied defendant's motion in limine because the bill of particulars was merely supplemented, not amended, by the additional information. The court also noted that the motion to preclude expert testimony was properly denied because there was no showing of a willful or intentional failure to disclose and no showing of prejudice:

“Where the plaintiff[s] seek[] to allege continuing consequences of the injuries suffered and described in previous bills of particulars, rather than new and unrelated injuries, the contested bill of particulars is a supplemental bill of particulars, rather than an amended bill of particulars' ” … . Here, plaintiffs' second supplemental bill of particulars alleged that plaintiff may require surgery in the future, which could involve anterior C5-6 and C6-7 discectomy and fusion. In addition, plaintiffs alleged “future cumulative economic loss” of between approximately $1,299,555.00 and $1,699,464.00. Plaintiffs had alleged in their prior bills of particulars that plaintiff may require surgery and that there would be a claim for future lost earnings. Thus, the portions of the second supplemental bill of particulars at issue were “an anticipated sequelae” of the injuries and damages previously alleged and did not allege new claims … . Sisemore v Leffler, 2015 NY Slip Op 01076, 4th Dept 2-6-15

 

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Underwater Land Is Appurtenant to Adjacent Upland

The Fourth Department determined defendant had no ownership rights in underwater land appurtenant to plaintiffs’ upland property:

…[T]he court properly considered the deeds submitted by plaintiffs in support of their motion. All of those deeds, with the exception of defendant’s own quitclaim deed, are more than 10 years old and therefore are “prima facie evidence of their contents” (CPLR 4522…). With respect to defendant’s quitclaim deed, plaintiffs’ attorney swore to its authenticity …, and defendant herself relies on that deed in opposition to plaintiffs’ motion.

…[E]ven with navigable waterways, “when land under water has been conveyed by the state to the owner of the adjacent uplands, the lands under water so conveyed become appurtenant to the uplands, and will pass by a conveyance of the latter without specific description” … . Here, regardless of whether title to the underwater land merges and passes with title to adjacent uplands, or is conveyed separately, plaintiffs met their initial burden. Although the State initially conveyed uplands and underwater land to Charles Smyth by separate deeds, the underwater land thereafter passed appurtenant to Smyth’s uplands, including by deeds to plaintiffs and several other landowners on North Bay, but not to defendant. Even if the underwater land could be conveyed only separately, it would have passed to Smyth’s heirs and devisees, not directly to defendant. Kernan v Williams, 2015 NY Slip Op 01122, 4th Dept 2-6-15

 

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An Action by a Judgment Creditor Pursuant to CPLR 5225 and 5227 Seeks both Legal and Equitable Relief—a Jury Trial Is Therefore Not Available

The Fourth Department determined an action to enforce a judgment against a party other than the judgment debtor (here a judgment creditor) under CPLR 5225 and 5227 is a proceeding for both legal and equitable relief for which a jury trial is not available:

“[T]he right to trial by jury is zealously protected in our jurisprudence and yields only to the most compelling circumstances” … . “Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever” (NY Const, art 1, § 2). “That guarantee extends to all causes of action to which the right attached at the time of adoption of the 1894 Constitution . . . Historically, however, actions at law were tried by a jury, [and] matters cognizable in equity were tried by the Chancellor. Even though the two systems have merged, vestiges of the law-equity dichotomy remain in the area relating to trial by jury” … .

Thus, the right to a jury trial “depends upon the nature of the relief sought” … . Under the CPLR, a jury trial is available in an action “in which a party demands and sets forth facts which would permit a judgment for a sum of money only” (CPLR 4101 [1] [emphasis added]). Where a plaintiff joins legal and equitable causes of action in a complaint, it waives its right to a jury trial … . * * *

…[W]e conclude that enforcement of a judgment under CPLR 5225 and 5227 against a party other than the judgment debtor is an outgrowth of the “ancient creditor's bill in equity,” which was used after all remedies at law had been exhausted. We thus conclude that [the judgment creditor's] use of CPLR 5225 and 5227 in this case is in furtherance of both legal and equitable relief and, therefore, that [the judgment creditor] is not entitled to a jury trial on those combined legal and equitable claims … . Matter of Colonial Sur Co v  Lakeview Advisors LLC, 2015 NY Slip Op 01002, 4th Dept 2-6-15

 

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