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Denial of Visitation With Incarcerated Father Upheld

The Fourth Department affirmed Family Court’s denial of an incarcerated father’s petition for visitation with his children:

Although we recognize that the rebuttable presumption in favor of visitation applies when the parent seeking visitation is incarcerated…, we conclude that respondents rebutted the presumption by establishing by a preponderance of the evidence that visitation with petitioner would be harmful to the children …. A parent’s failure to seek visitation with a child for a prolonged period of time is a relevant factor when determining whether visitation is warranted…, and, here, petitioner has never met the daughter or the son.  In fact, before commencing these proceedings, petitioner did not seek visitation with either child.  Thus, petitioner is “essentially a stranger to the child[ren]”….  Matter of Brown v Terwilliger…, 576, 4th Dept 7-5-13

 

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Grandparents Had Standing to Seek Visitation

The Fourth Department noted that the grandparents had standing to seek visitation with their grandchildren, in addition to mother’s and father’s visitation:

…[W]e conclude that the grandparents established “a prima facie case of standing to seek visitation with the subject child[ren]” inasmuch as they demonstrated “the existence of a sufficient relationship with the child[ren] to warrant the intervention of equity”….  The record establishes that the grandparents regularly visited with the children before the mother ceased permitting such visits. In addition, the grandmother provided full-time daycare for the children before they reached school-age, took the children to pre- kindergarten, and engaged in activities with them after school, and the grandfather attended the children’s school activities. Matter of Dubiel v Schaefer, 672, 4th Dept 7-5-13

 

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Order to Compel Acceptance of Answer Upheld—Delay Caused by Insurance Carrier is Valid Excuse—Precedent to the Contrary Overruled

In a personal injury action, the Fourth Department affirmed Supreme Court’s order compelling plaintiff to accept the answer as timely.  In so finding, the Fourth Department noted that a prior decision holding that a delay caused by the defendant’s insurance carrier is not a reasonable excuse should no longer be followed:

It is well settled that “ ‘[p]ublic policy favors the resolution of a case on the merits, and a court has broad discretion to grant relief from a pleading default if there is a showing of merit to the defense, a reasonable excuse for the delay and it appears that the delay did not prejudice the other party’ ”….  Furthermore, “[t]he determination whether an excuse is reasonable lies within the sound discretion of the motion court”…. Here, defendant met her burden with respect to a meritorious defense by demonstrating that there is factual support for her defenses… .  * * *

Insofar as we indicated in our decision in Smolinski v Smolinski (13 AD3d 1188, 1189) that “ ‘an excuse that the delay in appearing or answering was caused by the defendant’s insurance carrier is insufficient’ ” to establish a reasonable excuse for a delay in answering, it is no longer to be followed. Rather, the determination whether delay caused by an insurer constitutes a reasonable excuse for a default in answering lies “in the discretion of the court in the interests of justice” (Castillo v Garzon-Ruiz, 290 AD2d 288, 290; see CPLR 2005).   Accetta v Simmons, 676, 4th Dept 7-5-13

 

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Law Office Failure Can Be a Valid Excuse Re: Vacating a Default Judgment

In reversing Supreme Court’s denial of a motion to vacate a default judgment, the Fourth Department explained that law office failure can be excused:

The court erred in rejecting that excuse on the ground that “law office failure is not an excuse that is accepted by the Court of Appeals.”    It is well established that law office failure may be excused, in the court’s discretion, when deciding a motion to vacate a default order (see CPLR 2005;…). With respect to other relevant factors, we note that defendants had contested plaintiff’s claims in federal court for more than a year before this action was recommenced in Supreme Court, and their attorneys had filed timely notices of appearances in Supreme Court and had been communicating with plaintiff’s attorney before the answer was due. We further note that plaintiff was not prejudiced by defendants’ inadvertent default, and that the extent of the delay was minimal. Calaci v Allied Interstate, Inc…, 750, 4th Dept 7-5-13

 

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Motion to Amend Answer Should Have Been Allowed—Prejudice in this Context Explained

In reversing Supreme Court in a case concerning whether an assault was covered under an insurance policy, the Fourth Department determined the defendant insurance company’s motion for leave to amend its answer should have been granted and plaintiffs’ motion for summary judgment should have been denied.  After finding that the amendment was meritorious, the Fourth Department explained how to analyze whether an amendment would “prejudice” the defendant:

“ ‘Prejudice may be found where a party has incurred some change in position or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment’ ”… . Here, the alleged prejudice would not have been avoided had the original answer contained the proposed amendment.    “[T]he fact that an amended pleading may defeat a party’s cause of action is not a sufficient basis for denying [a] motion to amend”….  Williams… v New York Central Fire Insurance Company, 705, 4th Dept 7-5-13

 

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Attorney’s Illness Was Adequate Excuse—Vacation of Preclusion Order Allowed

The Fourth Department affirmed Supreme Court’s allowing plaintiff in a medical malpractice action to respond to discovery demands, after the court had precluded plaintiff for not responding.  Plaintiff’s attorney’s illness provided a reasonable excuse, and the expert’s affirmation (later converted to an affidavit as directed by the court) demonstrated a meritorious action:

“It is well established that the illness of an attorney may constitute a reasonable excuse for a default… . In support of the motion, plaintiff’s counsel averred that, from early 2010 until shortly before his motion to vacate the default order, he was suffering from recurring health issues stemming from two heart attacks, a serious infection requiring hospitalization, and uncontrolled Type II diabetes. According to counsel, those medical issues “affected [his] health in an ongoing manner and prevented [him] from diligently and timely responding to [defendants’] demands in this case.” There is no evidence that counsel’s neglect in this case was “willful, contumacious or manifested bad faith” … . Particularly in light of New York’s “strong public policy . . . [in favor of] disposing of cases on their merits”…, we conclude that “[w]here, as here, there is no evidence of willfulness, deliberate default, or prejudice to the defendants, the interest of justice is best served by permitting the case to be decided on its merits” ….  Loucks v Klimek, 477, 4th Dept 7-5-13

 

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Legal Malpractice Action Accrues When Committed, Not When Client Learns of It

The Fourth Department explained when a legal malpractice action accrues (when it is committed, whether or not the aggrieved party is aware of it):

“ ‘A cause of action for legal malpractice accrues when the malpractice is committed’ ”….  “In most cases, this accrual time is measured from the day an actionable injury occurs, ‘even if the aggrieved party is then ignorant of the wrong or injury’ ”….“ ‘What is important is when the malpractice was committed, not when the client discovered it’ ” … .  Elstein v Phillips Lytle, LLP, 631, 4th Dept 7-5-13

 

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Exception to Written Notice of Defect Prerequisite Did Not Apply; Question of Fact Whether Municipality Created Dangerous Condition (Gap in Bridge-Roadway)

The Fourth Department, over a dissent, determined the exception to the written notice requirement (notice to a municipality re: a dangerous condition) did not apply, but there was a question of fact whether the municipality created the dangerous condition, a gap in the roadway on a bridge, which caused the infant plaintiff to fall off his bicycle.  The Fourth Department wrote:

Where the municipality establishes that it lacked prior written notice, the burden shifts to the plaintiff to demonstrate the applicability of an exception to the rule, i.e., that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the municipality …. The affirmative negligence exception is “limited to work by the [municipality] that immediately results in the existence of a dangerous condition” ….    An omission on the part of the municipality “does not constitute affirmative negligence excusing noncompliance with the prior written notice requirement”…. We conclude that defendant met its initial burden of establishing as a matter of law that it did not receive prior written notice of any defective or dangerous condition on or near the bridge as required by Local Law No. 1 …. Viewing the evidence in the light most favorable to plaintiff, as we must …, we conclude, however, that plaintiff raised an issue of fact whether defendant created a dangerous condition that caused the accident ….  Hawley v Town of Ovid, 450, 4th Dept 7-5-13

 

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Complaint Against Town for Sewage Backup in Home Dismissed

The Fourth Department affirmed the dismissal of a negligence complaint against a town arising from the backup of sewage in plaintiffs’ house.  The decision includes a concise but complete explanation of the issues relevant to municipal liability for negligence:

In an action against a municipality such as defendant, it is “the fundamental obligation of a plaintiff pursuing a negligence cause of action to prove that the putative defendant owed a duty of care.  Under the public duty rule, although a municipality owes a general duty to the public at large to [perform certain governmental functions], this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created.  This is an offshoot of the general proposition that ‘[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally’ ” … ..“The second principle relevant here relates not to an element of plaintiffs’ negligence claim but to a defense that [is] potentially available to [defendant]—the governmental function immunity defense . . . [T]he common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions . . . [pursuant to which] ‘[a] public employee’s discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality’s liability even when the conduct is negligent’ ” … ..  Middleton v Town of Salina, 604, 4th Dept 7-5-13

 

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