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Worker Taking Onsite Measurements for Offsite Fabrication Covered Under Labor Law 240 (1)

The Second Department determined that a worker who was injured while he was taking measurements at the worksite for stonework which was to be fabricated offsite was engaged in a covered activity under the Labor Law.  The court further found that the absence of safety equipment supported summary judgment in favor of the worker even though no one witnessed the accident. With respect to “covered activity,” the Second Department wrote:

To invoke the protections afforded by Labor Law § 240(1), a ” plaintiff must demonstrate that he [or she] was both permitted or suffered to work on a building or structure and that he [or she] was hired by someone, be it owner, contractor or their agent,'” to work at the site…. Moreover, the plaintiff must have, at the time of the accident, been engaged in a “covered activity” under the statute…. “Section 240 is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are scarcely in a position to protect themselves from accidents,” and it is to be liberally construed to achieve this purpose…. Here, [plaintiff] had been hired to fabricate sills, lintels, and coping stones to be used in the construction of the subject building. Part of that job included going to the work site and climbing to the roof of the building to take measurements in preparation for the fabrication. Thus, the injured plaintiff was performing a task ancillary to the construction work and was engaged in a “covered activity” within the meaning of Labor Law § 240(1) … .  Gallagher v Resnick, 2013 NY Slip Op 04774, 2nd Dept 6-26-13

 

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Worker Taking Onsite Measurements for Offsite Fabrication Covered Under Labor Law 240 (1)

The Second Department determined that a worker who was injured while he was taking measurements at the worksite for stonework which was to be fabricated offsite was engaged in a covered activity under the Labor Law.  The court further found that the absence of safety equipment supported summary judgment in favor of the worker even though no one witnessed the accident. With respect to “covered activity,” the Second Department wrote:

To invoke the protections afforded by Labor Law § 240(1), a ” plaintiff must demonstrate that he [or she] was both permitted or suffered to work on a building or structure and that he [or she] was hired by someone, be it owner, contractor or their agent,'” to work at the site…. Moreover, the plaintiff must have, at the time of the accident, been engaged in a “covered activity” under the statute…. “Section 240 is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are scarcely in a position to protect themselves from accidents,” and it is to be liberally construed to achieve this purpose…. Here, [plaintiff] had been hired to fabricate sills, lintels, and coping stones to be used in the construction of the subject building. Part of that job included going to the work site and climbing to the roof of the building to take measurements in preparation for the fabrication. Thus, the injured plaintiff was performing a task ancillary to the construction work and was engaged in a “covered activity” within the meaning of Labor Law § 240(1) … .  Gallagher v Resnick, 2013 NY Slip Op 04774, 2nd Dept 6-26-13

 

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Petition by Guardian to Transfer Assets of Incapacitated Person Properly Denied

In denying a petition by a guardian to transfer some of the assets of an incapacitated person, the Second Department explained the relevant criteria:

A court may grant a petition pursuant to Mental Hygiene Law § 81.21 to authorize a guardian to transfer a part of an incapacitated person’s assets to or for the benefit of another person if it is satisfied by clear and convincing evidence, inter alia, that “a competent, reasonable individual in the position of the incapacitated person would be likely to perform the act or acts under the same circumstances” (Mental Hygiene Law § 81.21[e][2];…. Here, given the limited information …in support of the petition, and the absence of any indication that the proposed asset transfer plan was approved by the guardian of the property …., the Supreme Court providently exercised its discretion in denying the petition.  Matter of Modesta V, 2013 NY Slip Op 04818, 2nd Dept 6-26-13

 

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Article 78 Petition in Nature of Prohibition Against Judge and District Attorney Granted

The Second Department explained the criteria for an Article 78 action (against a judge and district attorney) in the nature of prohibition.  In this case Supreme Court had ordered defendant to appear for resentencing after the Appellate Division had ruled without remitting the matter to Supreme Court for further proceedings.  The Second Department granted the petition and prohibited the resentencing:

The remedy of prohibition generally lies when a court or an officer acts or threatens to act without jurisdiction or exceeds its authorized powers in a proceeding over which it has jurisdiction (see CPLR 7803[2];…). To warrant the extraordinary remedy of prohibition, it is not enough that the court made a mere legal error. Rather, the court’s error must implicate its very powers and thereby be subject to correction by prohibition….  Matter of Dow v Tomei, 2013 NY Slip Op 04799, 2nd Dept 6-26-13

 

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Criteria for Derivative Neglect Finding Explained (Evidence Insufficient)

The Second Department, in reversing Family Court’s finding, explained the criteria for a finding of derivative neglect:

…[A] finding of sexual abuse of one child does not, by itself, establish that other children in the household have been derivatively abused or neglected …. The focus of the inquiry to determine whether derivative neglect is present is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood …. Here, a derivative finding of neglect as to the child Brandon J. was warranted since the abuse was perpetrated while he was in the home…. However, given the limited duration and nature of the sexual abuse, as well as the remoteness in time between when Monica C. M. was abused and when Joshua A., the appellant’s biological son, was born more than four years later, there was insufficient evidence to support the Family Court’s determination that Arnold A. derivatively neglected Joshua A…..  Matter of Monica CM, 2013 NY Slip Op 04808, 2nd Dept 6-26-13

 

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Standing Requirements for Grandparent Seeking Visitation Explained

The Second Department explained the standing requirements for a grandparent seeking visitation with a grandchild:

In a grandparent visitation proceeding, “the burden of establishing standing lies with the grandparent and it is conferred by the court, in its discretion, only after it has examined all the relevant facts'”…. In determining whether grandparents have standing or a right to be heard on a petition for visitation with a grandchild, the essential components to the inquiry are the “nature and extent of the grandparent-grandchild relationship” … and “the nature and basis of the parents’ objection to visitation” …. “The evidence necessary will vary in each case but what is required of grandparents must always be measured against what they could reasonably have done under the circumstances”…. A hearing to determine the issue of standing is not necessary where the submitted papers do not raise a triable issue of fact… .  Matter of Bender v Cendali, 2013 NY Slip Op 04796, 2nd Dept 6-26-13

 

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Criteria for Changing Custody Arrangement Entered Into by Agreement

In reversing Family Court’s denial of a modification of a custody arrangement, the Second Department explained the criteria for changing a custody arrangement entered into by agreement:

Where parents enter into an agreement concerning custody, that agreement will not be modified unless there is a sufficient change in circumstances since the time of when the agreement was entered into, and unless modification of the custody arrangement is in the best interests of the child…. “In order to determine whether modification of a custody arrangement is in the best interests of the child, the court must weigh several factors of varying degrees of importance, including, inter alia, (1) the original placement of the child, (2) the length of that placement, (3) the child’s desires, (4) the relative fitness of the parents, (5) the quality of the home environment, (6) the parental guidance given to the child, (7) the parent’s financial status, (8) his or her ability to provide for the child’s emotional and intellectual development, and (9) the willingness of the parent to assure meaningful contact between the child and the other parent”….  * * * Here, considering, inter alia, the acrimony between the parties, the Supreme Court’s determination to award legal custody to the father and residential custody to the mother lacked a sound and substantial basis in the record …. McAvoy v Hannigan, 2013 NY Slip Op 04785, 2nd Dept 6-26-13

 

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Late Notice of Claim Properly Allowed in Absence of Reasonable Excuse

The Second Department affirmed Supreme Court’s grant of leave to serve a late notice of claim against a school district, in the absence of a reasonable excuse:

Here …[t]he District…acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose. The District’s employee witnessed the infant petitioner’s accident, which occurred during supervised cheerleading practice, and a designated school authority prepared a medical claim form within a week after the accident…. Furthermore, the infant petitioner was transported from the school to the hospital to be treated for a broken arm…. Since the District acquired timely knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing a lack of prejudice…. The District’s conclusory assertions of prejudice, based solely on the petitioners’ two-month delay in serving the notice of claim, were insufficient to rebut the petitioners’ showing….  While the petitioners’ excuses for their failure to serve a timely notice of claim were not reasonable…, the absence of a reasonable excuse is not fatal to the petition where, as here, there was actual notice and an absence of prejudice … .  Matter of Viola v Ronkonkoma Middle Sch, 2013 NY Slip Op 04819, 2nd Dept 6-26-13

 

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Hospital Did Not Owe Intoxicated Patient a Duty to Prevent Him from Leaving Hospital

Over a dissent, the Court of Appeals, in a full-fledged opinion by Judge Smith, determined (under the facts of the case) a hospital and an emergency room doctor did not owe an intoxicated patient a duty to prevent him from leaving a hospital.  The patient was struck by a car an hour or two after leaving.

…Mental Hygiene Law § 22.09 specifically addresses the question of when a hospital may retain “a person whose mental or physical functioning is substantially impaired as a result of the presence of alcohol . . . in his or her body” (Mental Hygiene Law § 22.09 [a] [1]). The statute deals separately with the case of an intoxicated person “who comes voluntarily or is brought without his or her objection” to a hospital or other treatment facility (§ 22.09 [d]) and one “who is brought with his or her objection” (§ 22.09 [e]). In the latter case, the person “may be retained for emergency treatment” if he or she is examined by a doctor and found to be incapacitated to such a degree that “there is a likelihood to result in harm to the person or others” (§ 22.09 [e]); a “likelihood to result in harm” to oneself must be “manifested by threats of or attempts at suicide or serious bodily harm or other conduct” that demonstrates a danger of self-injury (Mental Hygiene Law § 22.09 [a] [3]). For the former category — people who, like plaintiff, come to the hospital voluntarily — the Mental Hygiene Law makes no provision for involuntary retention.

Plaintiff concedes that he could not have been retained under Mental Hygiene Law § 22.09. He argues that the Mental Hygiene Law is not the only possible source of a right to confine an intoxicated person. We need not decide that question: Plaintiff cites no other statute, and there is no principle of common law, that would permit the restraint of a patient on the facts of this case.  Kowalski v St Francis Hospital and Health Centers, et al, No 128, CtApp 6-26-13

 

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Foreclosure Proceeding Can Be Brought by Party Who Did Not Provide Consideration; Tenants By the Entirety Can Mortgage Their Interest in Property

In a mortgage foreclosure action, the Second Department explained that it was not necessary that the foreclosing party have provided the consideration and that, with respect to a tenancy by the entirety, each tenant can sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other:

“[T]he validity of the mortgage usually depends indirectly upon consideration, not for the mortgage itself, but for the obligation upon which it depends”…. It is not necessary, however, that the party seeking to foreclose provided the consideration. A mortgage may be valid as long as proper consideration exists for the underlying obligation; once a party has lawfully obtained both the mortgage and the underlying promissory note, that party has standing to foreclose on the mortgage in the event of the default on the borrower’s obligation. * * *

“As tenants by the entirety, both spouses enjoy an equal right to possession of and profits yielded by the property” …. However, “there is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy. To the contrary, each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other”…. Nevertheless, “a conveyance by one tenant, to which the other has not consented, cannot bind the entire fee”… .  Rose v Levine, 2013 NY Slip Op 04788, 2nd Dept 6-26-13

 

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