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Visitation with Imprisoned Father Terminated

In affirming Family Court’s termination of visitation with the imprisoned father, the Fourth Department explained the operative principles:

“An order of visitation cannot be modified unless there has been a sufficient change in circumstances since the entry of the prior order [that], if not addressed, would have an adverse effect on the child[’s] best interests” … .“[W]hile not dispositive, the express wishes of older and more mature children can support the finding of a change in circumstances”… .. Here, the evidence establishes that, since the entry of the prior order and as the child has matured, she has developed a strong desire not to visit the father. Additionally, Family Court credited the mother’s testimony that the father was using visitation time to attempt to reconcile with the mother rather than to interact with their child. Thus, we conclude that there has been a sufficient change of circumstances to warrant “ ‘an inquiry into whether the best interests of the [child] warranted a change in custody’… .  * * * We recognize that “[v]isitation with a noncustodial parent is presumed to be in a child’s best interests even when the parent is incarcerated”….  In order to rebut the presumption, the party opposing visitation must establish by a preponderance of the evidence “that under all the circumstances visitation [with the incarcerated parent] would be harmful to the child’s welfare” … .  Matter of Rulinsky v West, 233, 4th Dept, 6-14-13

 

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“Negligent Ownership and Maintenance” vs “Negligent Abatement” Causes of Action in Lead-Paint Case

In a lead-paint damages case, the Fourth Department determined the landlord was entitled to summary judgment on the cause of action alleging negligent ownership and maintenance (lack of notice), but was not entitled to summary judgment on the cause of action alleging negligent abatement of the hazard:

To establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition” … .Defendant met his burden of establishing that he had no actual or constructive notice of the hazardous lead paint condition prior to an inspection conducted by the county department of health, and plaintiff failed to raise a triable issue of fact… .. Contrary to defendant’s contention, however, the court properly denied that part of his cross motion seeking summary judgment dismissing the second cause of action, which alleges negligent abatement of the lead-based paint hazard. Defendant failed to establish his prima facie entitlement to judgment as a matter of law with respect to that cause of action.  Pagan v Rafter, 210, 4th Dept, 6-14-13

 

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Late Notice of Claim Properly Allowed

In affirming the grant of a motion to serve a late notice of claim, the Fourth Department explained the relevant principles:

A notice of claim must be served within 90 days after the claim accrues, although a court may grant leave extending that time, provided that the application therefor is made before the expiration of the statute of limitations period of one year and 90 days (see General Municipal Law § 50-e [1] [a]; [5]).The decision whether to grant such leave “compels consideration of all relevant facts and circumstances,” including the “nonexhaustive list of factors” in section 50-e (5) ….The three main factors are “whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality” … “[T]he presence or absence of any one of the numerous relevant factors the court must consider is not determinative” …, and “[t]he court is vested with broad discretion to grant or deny the application”… .  Dalton v Akron Central Schools, 408, 4th Dept, 6-14-13

 

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Trial Court’s Questioning Jury Whether It Had Reached a Verdict on Any Counts and Its Acceptance of a Partial Verdict Okay

The First Department determined the trial court, after several days of deliberation, properly questioned the jury whether it had reached a verdict on any of the counts and properly accepted a partial verdict:

The court, which was aware of the travel plans and upcoming religious observance of some of the jurors, properly exercised its discretion when it inquired whether the jury, which had been deliberating for several days, had agreed upon a verdict as to any of the counts submitted, and then accepted a partial verdict…. In accordance with CPL 310.70(1)(b), the court properly instructed the jury to resume deliberations on the remaining counts. The court’s actions did not coerce a verdict as to any counts…, and defendant has not shown how he was prejudiced by any of these actions.  People v Campbell, 2013 NY Slip Op 04418, 1st Dept, 6-13-13

 

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People’s Expert Was Not Qualified to Testify About “Reverse Extrapolation” in DWI Prosecution/”Reverse Extrapolation” Is an Accepted Theory However

In this DWI prosecution, the Third Department determined the People’s expert was not qualified to offer testimony about “reverse extrapolation,” but that the theory itself was sound:

[We reject defendant’s generalized challenge to] the  theory  of  reverse extrapolation – the process by which an expert, taking into consideration, among other  things, an individual’s known  BAC at a particular point  in time, renders  an  opinion  as  to  the  individual’s BAC at an earlier point in time. Assuming the expert in question is qualified and a proper foundation has been laid for such opinion, reverse extrapolation testimony may be….  Here, however, the People failed to lay a proper factual foundation for [the expert’s] testimony and, therefore, defendant’s objection in this regard should have been sustained.  People v Menegan, 105337, 3rd Dept, 6-13-13

 

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Witness’ Offering Testimony About a “Jailhouse Confession” in Unrelated Case May Constitute Brady Material

In affirming the defendant’s conviction, the Third Department determined a witness’ [Henry’s] agreement to testify about a “jailhouse confession” in an unrelated case may have constituted Brady material in defendant’s case because she also entered an agreement to testify about defendant’s “jailhouse confession.”  The Court determined reversal was not required because the potential Brady error was harmless under the facts:

“….[A]ssuming, without deciding, that the full terms of Henry’s cooperation agreement – including those aspects pertaining to the other matter – were Brady material subject to disclosure, reversal is not required.   Where, as here, nondisclosure follows the defense’s specific request for materials, evidence is deemed material and reversal is required only “if there is a ‘reasonable possibility’ that, had that material been disclosed, the result would have been different”… . People v Johnson, 104919, 3rd Dept, 6-13-13

 

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Carrier’s Video Surveillance of Employee Disallowed Because It Was Not Disclosed

The Third Department affirmed the Workers’ Compensation Board’s determination that video surveillance of the employee was properly excluded from the hearing because the existence of the surveillance by the carrier had not been previously disclosed:

It is well established that an employer or carrier must disclose the existence of surveillance and investigation materials to a claimant prior to the claimant’s testimony … . This obligation serves “to  limit the gamesmanship which might otherwise occur”… . While routine questions …regarding claimant’s return to work may not trigger a carrier’s obligation to disclose the existence of these items…, we note that, here, the carrier specifically prompted this line of questioning …at the end of the hearing.  The surveillance materials were thus properly precluded, as the carrier had the opportunity to disclose their existence before prompting the [questioning] and before the claimant testified about returning to work… . Accordingly, contrary to the carrier’s argument, the Board’s decision to preclude the carrier’s surveillance materials did not deviate from its previous decisions and was  not arbitrary and capricious… .  Matter of Morelli, 515964, 3rd Dept, 6-13-13

 

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Collective Bargaining Agreement Did Not Allow Private Suit Against Employer

After a member of the Faculty Association (FA) decided not to continue with a college employee’s grievance, the employee sued the college directly.  In affirming the dismissal of the employee’s private suit (because the suit was not allowed by the collective bargaining agreement (CBA)), the Third Department wrote:

“As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract”….  Exceptions include where the collective bargaining agreement grants an employee a right to sue directly or where the union fails in its duty of fair representation … .  Plaintiff acknowledges that he is not alleging that FA breached its duty of representation.  He contends, however, that, under the CBA, decisions related to promotions are excepted  from the grievance procedure and, thus, he can pursue an action directly against defendants. The ultimate decision about a promotion is not subject to a grievance under the CBA. Nonetheless, the lengthy procedures an associate professor must follow over several years to become eligible for consideration of a promotion to full professor are set forth in the CBA and are not explicitly excepted  from  the grievance process. It is the purported failure by defendants to follow these promotion procedures that plaintiff challenges, and the CBA does not carve out a separate right regarding these procedures that can be enforced by an  employee directly against defendants … .  Altman v Rossi, 515888, 3rd Dept, 6-13-13

 

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Employee’s Submission of Amended Time Card Did Not Constitute Misconduct

In affirming the Unemployment Insurance Appeal Board’s finding the employee did not commit “misconduct” which justified the denial of benefits, the Third Department wrote:

“Whether a claimant lost his or her employment through disqualifying  misconduct  presents  a  factual  issue  for the  Board, and  its resolution thereof will not  be  disturbed if supported  by substantial  evidence”  ….   Significantly, “not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct”  ….   Here, contrary to the employer’s  argument,  the  Board  was  free  to  credit  claimant’s testimony that she performed work for the employer while waiting in the  parking  lot between  7:30  a.m. and  8:00  a.m…..   Inasmuch  as substantial evidence supports  the  Board’s  conclusion  that  claimant’s  isolated “submission  of the  corrected time  sheet  was  an  act of poor judgment,”  we  find no  basis to disturb the  Board’s ruling that claimant’s  conduct  did  not  rise to  the  level of  disqualifying misconduct… .  Matter of Nangreave…, 515686, 3rd Dept, 6-13-13

 

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Evidence of Loss Based Upon Interference with Property Owner’s Ability to Extract Gas by Hydrofracking Disallowed as Speculative

The Third Department affirmed Supreme Court’s determination that respondents’ expert would not be allowed to testify at trial in this condemnation proceeding.  Petitioner brought the condemnation proceedings to obtain perpetual easements for underground gas storage in the “Oriskany Sand” beneath the surface of the land owned by the respondents.  The respondents hired a geologist to testify that the easement will interfere with any future attempts to extract gas by hydrofracking and sought compensation for the claimed lost gas-development rights.  The Third Department wrote:

The  extent to which a  condemnation limits a  claimant’s property rights is determined  by  the language  used  in the appropriation and the underlying purpose of the taking, and  “[t]he quantum of the title to be taken will not be extended by implication”….Here, petitioner’s easement  explicitly reserves  to  respondents  “the right to grant oil, gas and other mineral rights to others in formations other than the Oriskany Sand” and limits that reservation of rights only by  precluding respondents  from “grant[ing] or convey[ing] gas  storage rights” (emphasis  added) that interfere with petitioner’s easement. * * *

If …hydrofracking in the Marcellus formation does eventually prove to pose an unacceptable risk to petitioner’s storage space – a claim that petitioner does not now make – it may choose at that time to undertake appropriate measures  to acquire whatever  additional rights may prove to be necessary, and, of course, to compensate the affected landowners   appropriately. As petitioner has not yet made any such acquisition, the court properly precluded respondents from presenting evidence on their claims relative to development rights in the Marcellus formation. Matter of Central N.Y. Oil & Gas Co., L.L.C. (LaDue), 515347, 3rd Dept, 6-13-13

 

 

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