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THE PETITIONERS (THREE NYS LEGISLATORS AND AN ADVOCACY GROUP) DID NOT HAVE STANDING TO CHALLENGE THE DEPARTMENT OF HEALTH REGULATIONS ALLOWING ISOLATION AND QUARANTINE DURING THE COVID-19 PANDEMIC (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the three New York State legislators (the legislator petitioners) and the advocacy group (the organizational petitioner) challenging the Department of Health regulations allowing isolation and quarantine during the COVID pandemic did not have standing to bring the petition. Legislators have standing where there has been a usurpation of power by the challenged regulations, not the case here. Advocacy groups have standing if any of its members suffered an injury not suffered by the public at large, not the case here:

… “[C]ases considering legislator standing generally fall into one of three categories: lost political battles, nullification of votes and usurpation of power” … . … “in limited circumstances, legislators do have . . . standing to sue when conduct unlawfully interferes with or usurps their duties as legislators” … . Nonetheless, to confer legislator standing, the alleged action must have caused “a direct and personal injury [that] is . . . within a legislator’s zone of interest and . . . represents a concrete and particularized harm” … .  * * *

… [T]he organization petitioner failed to “articulate any direct injury to its [members], other than the injury every citizen allegedly suffers by reason of the challenged [action] of the . . . executive branch[ ]” … . … [W]e conclude … that the organization petitioner lacks standing to bring the challenge in its own name inasmuch as it “has failed to allege a personally concrete and demonstrable injury distinct from that suffered by the public at large” … . Matter of Borrello v Hochul, 2023 NY Slip Op 05834, Fourth Dept 11-17-23

Practice Point: Essentially, to have standing to challenge a regulation, a legislator and/or an advocacy group must be able to point to a harm separate and apart from harm suffered by other legislators (re: the legislator petitioners) or the public at large (re: the organizational petitioner). Here the legislators and the advocacy group challenging the COVID isolation and quarantine regulations were unable to demonstrate any unique harm.

 

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COUNTY COURT FOUND THAT DEFENDANT’S CONFESSION TO SEXUAL INTERCOURSE WITH THE VICTIM WAS NOT CORROBORATED AND DISMISSED THE RAPE COUNTS; THE THIRD DEPARTMENT EXPLAINED THE CRITERIA FOR CORROBORATION EVIDENCE AND FOUND IT SUFFICIENT TO SUPPORT THE RAPE CHARGES (THIRD DEPT).

The Third Department, reversing County Court, determined there was sufficient evidence to corroborate defendant’s confession to having sexual intercourse with the victim. The rape counts of the indictment, therefore, should not have been dismissed:

Where, as here, a defendant has confessed to a crime, he or she “may not be convicted of any offense solely upon evidence of a confession or admission . . . without additional proof that the offense charged has been committed” (CPL 60.50 … ). However, “the minimal statutory corroboration requirement” … “need not establish guilt or every detail of the crime or confession” … and “does not mandate submission of independent evidence of every component of the crime charged” … . Rather, the corroboration requirement is satisfied by “some proof, of whatever weight, that a crime was committed by someone” … . Such proof “may be either direct or circumstantial and does not even have to connect the defendant to the crime” … . “The confession itself provides the means for understanding the circumstances of the transaction” … , and the additional proof required “may be found in the presence of [the] defendant at the scene of the crime, his [or her] guilty appearance afterward, or other circumstances supporting an inference of guilt” … . * * *

… [V]iewing the evidence in the light most favorable to the People, as we must … , the People are entitled — at this juncture — to the inference of guilt that may be drawn from the victim’s physical injuries … . Stated differently, if the victim’s injuries could be consistent with sexual intercourse, then the People are entitled to the benefit of that inference. Further corroboration of defendant’s admission of sexual intercourse may, in our view, be found in his and the victim’s respective — yet consistent — timelines of the events. Although the victim admittedly did not testify that she and defendant engaged in sexual intercourse, defendant’s and the victim’s descriptions of the physical acts performed otherwise were consistent, and the brief period of time during which defendant admitted that he engaged in sexual intercourse with the victim — lasting for perhaps three minutes — was entirely consistent with the victim’s testimony that she lost consciousness for approximately 2 to 10 minutes, before awakening to again discover defendant performing oral sex on her. People v Hart, 2023 NY Slip Op 05763, Third Dept 11-16-23

Practice Point: Here the victim did not allege sexual intercourse but the defendant confessed to having sex with her. County Court dismissed the rape counts finding the confession was not corroborated. The Third Department explained the criteria for corroboration evidence and found it sufficient to support the rape counts.

 

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FATHER’S PETITION FOR MODIFICATION OF CUSTODY BASED PRIMARILY UPON INCREASED TRAVEL TIME BECAUSE OF MOTHER’S MOVE SHOULD NOT HAVE BEEN DISMISSED; THE MAJORITY NOTED MANY REASONING ERRORS AND ORDERED A NEW HEARING IN FRONT OF A DIFFERENT JUDGE; TWO-JUSTICE DISSENT (THIRD DEPT) ​

The Third Department, reversing Family Court, over a two-justice dissent, determined father’s petition for a modification of the custody arrangement based upon mother’s move and the consequent increase in travel times should not have been dismissed. The matter was sent back for a new fact-finding hearing before a different judge:

Applying the correct standard at this procedural stage — providing the father the benefit of every reasonable inference and resolving all credibility questions in his favor … — the father’s proof sufficiently established that, since the entry of the 2012 order, the mother had moved to a different county, which move significantly increased the time and distance required to effectuate custodial exchanges, and that, in the nine years since said order, the mother routinely refused to agree to holiday parenting time for the father. Consequently, the father demonstrated a change in circumstances sufficient to overcome a motion to dismiss … . Matter of Shayne FF. v Julie GG., 2023 NY Slip Op 05767, Third Dept 11-16-23

Practice Point: Increased travel time because of mother’s move supported father’s petition for a modification of custody. The majority found many reasoning errors and ordered a new hearing before a different judge. A two-justice dissent argued the petition was properly dismissed.

 

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THERE WAS A QUESTION OF FACT WHETHER THE STORM-IN-PROGRESS DOCTRINE APPLIED IN THIS SIDEWALK SLIP AND FALL CASE; THEREFORE PLAINTIFFS DID NOT NEED TO DEMONSTRATE THE ICE WAS PREEXISTING (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined there was a question of fact whether the storm-in-progress doctrine applied in this slip and fall case. 

… [I]n this case a trier of fact should be charged with determining whether there was a lull or ongoing storm in progress that supports the continued delay of defendants’ obligation to remedy their premises from hazardous conditions … .

Inasmuch as defendants did not establish that there was a storm in progress, plaintiffs did not need to demonstrate that the ice was preexisting … . To that end, defendants also failed to establish as a matter of law the absence of a hazardous icy condition or whether they had notice and a reasonable period of time to correct such condition. We reach this conclusion particularly in light of the reply affidavit from Altschule [defendants’ meteorologist], who “generally agree[d]” with plaintiffs’ opposing meteorologist that ice may have formed as early as approximately 14 hours prior to the incident — therefore both acknowledging the presence of ice and confirming the maximum duration that it may have existed … . Gagne v MJ Props. Realty, LLC, 2023 NY Slip Op 05769, Third Dept 11-16-23

Practice Point: The jury must decide whether the storm-in-progress doctrine applied in this sidewalk slip and fall. Because the defendants did not demonstrate the doctrine applied, plaintiffs did not need to demonstrate the ice was preexisting.

 

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THE MOTIONS BEFORE THE COURT IN THIS TRAFFIC ACCIDENT CASE DID NOT ADDRESS WHETHER THE EMPLOYER OF THE DRIVER WHO REAR-ENDED PLAINTIFF WAS LIABLE TO PLAINTIFF; THE COURT SHOULD NOT HAVE, SUA SPONTE, SEARCHED THE RECORD AND AWARDED PLAINTIFF SUMMARY JUDGMENT AGAINST THE EMPLOYER OF THE DRIVER (FIRST DEPT).

The First Department, reversing Supreme Court in this traffic-accident case, determined Supreme Court should not have, sua sponte, searched the record to award plaintiff summary judgment. The motion before the court was brought by the owner of the car which rear-ended plaintiff, Piard, against the employer of the driver of Piard’s car, Y & H. Piard alleged she did not give Y & H permission to drive the car outside of Y & H’s garage and sought summary judgment on that ground. The court improperly searched the record and awarded plaintiff summary judgment against Y & H:

… [T]he motion court erred in searching the record and granting summary judgment to plaintiff on plaintiff’s claim against Y&H. A motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense … . Here, the only issues raised with respect to defendant Piard’s motion and plaintiff’s cross-motion were defendant Piard’s liability and plaintiff’s comparative fault. The court therefore erred in granting summary judgment to plaintiff based on co-defendant’s Y&H’s liability. Christopher v Piard, 2023 NY Slip Op 05787, First Dept 11-16-23

Practice Point: There are limits on a court’s power to search the record and, sua sponte, award summary judgment. Here the motions before the court did not address whether the employer of the driver of the car which rear-ended plaintiff was liable to plaintiff. Rather the motions addressed whether the owner of the car had given permission to the employer of the driver to use her car. The motion court should not have searched the record and awarded summary judgment to plaintiff against the employer of the driver of the car.

 

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IN A PROCEEDING INTERRUPTED BY COVID THE JUDGE RULED ON FATHER’S PETITION TO RELOCATE WITH THE CHILD AND MOTHER’S CROSS-PETITION FOR SOLE CUSTODY WITHOUT COMPLETING THE HEARING; REVERSED (SECOND DEPT).

The Second Department, reversing Family Court in this custody proceeding, determined the judge should not have ruled on father’s petition to locate with the child to New Jersey and mother’s cross-petition for sole custody without completing the hearing:

“Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry'” … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “[W]here . . . facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required” … . Here, the Family Court erred in making a final custody determination without completing the hearing on the father’s petition and the mother’s cross-petition in order to determine what arrangement was in the best interests of the child … . Matter of Janvier v Santana-Jackson, 2023 NY Slip Op 05732 Second Dept 11-15-23

Practice Point: In the midst of COVID the judge ruled on father’s petition to relocate with the child and mother’s cross-petition for sole custody without completing the related hearing. Reversed.

 

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THE JUDGE GRANTED FATHER’S MOTION FOR SANCTIONS (ATTORNEY’S FEES) WITHOUT AFFORDING MOTHER AN OPPORTUNITY TO BE HEARD; THE JUDGE RULED ON FATHER’S MOTION AFTER DECIDING TO GRANT MOTHER’S MOTION FOR RECUSAL; REVERSED (SECOND DEPT). ​

The Second Department, reversing Family Court in this custody proceeding, determined the judge should not have awarded attorneys fees to father as sanctions for mother’s actions without affording mother an opportunity to be heard. In addition, the judge should not have ruled on  father’s motion for sanctions after deciding to grant mother’s motion for recusal:

… [T]he mother contends that the Family Court improvidently exercised its discretion in awarding the father reasonable attorneys’ fees without affording her a reasonable opportunity to be heard. We agree. Notably, the court never set a briefing schedule for the sanctions motion, and the court, in effect, denied the mother’s new counsel’s request to file opposition papers thereto. Under these circumstances, the mother did not receive a “reasonable opportunity to be heard” on the allegations in the sanctions motion … .

Additionally, the Family Court improvidently exercised its discretion by deciding the sanctions motion after indicating to the parties … that it intended to grant the mother’s motion for recusal. Matter of Hunte v Jones, 2023 NY Slip Op 05731, Second Dept 11-15-23

Practice Point: Here, after deciding to grant mother’s motion for recusal, the judge granted father’s motion for sanctions (attorney’s fees) without affording mother an opportunity to be heard. Reversed.

 

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A CHALLENGE TO THE FINAL TAX ASSESSMENT OF REAL PROPERTY BROUGHT BEFORE THE COMPLETION AND FILING OF THE ASSESSMENT MUST BE DISMIISSED AS UNTIMELY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, disagreeing with the Third Department, determined that an action challenging a real property tax assessment cannot be brought before the completion and filing of the assessment. Here the action was brought before the filing of the assessment and was therefore properly dismissed as untimely:

The time period within which a proceeding challenging a final assessment of real property may be commenced is set forth in section 702(2) of the Real Property Tax Law. Section 702(2) provides, in relevant part, that a proceeding to review the assessment of real property:

“shall be commenced within thirty days after the final completion and filing of the assessment roll containing such assessment. For the purposes of this section[,] an assessment roll shall not be considered finally completed and filed until the last day set by law for the filing of such assessment roll or until notice thereof has been given as required by law, whichever is later” … . * * *

The provision requires a petitioner to commence a proceeding within the 30-day period between the finalization of the tax assessment roll and the expiration of that statute of limitation or face dismissal. * * *

Thus, the failure to timely commence a Real Property Tax Law article 7 proceeding is “a complete defense to the petition” which “must be dismissed” … . Matter of Coscia v Town of Greenburgh, 2023 NY Slip Op 05729, Second Dept 11-15-23

Practice Point: Here the challenge to the real property tax assessment was brought in September 2016 but the completion and filing of the assessment was not until November 2016. The challenge was properly dismissed as untimely.

 

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ALTHOUGH DEFENDANT, A DOCTOR, USED A PORTION OF THE TWO-FAMILY HOUSE AS A STUDY OR HOME OFFICE, THE EXCLUSION OF OWNER-OCCUPIED TWO-FAMILY RESIDENCES FROM LIABILITY FOR SIDEWALK DEFECTS APPLIED; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant in this sidewalk slip and fall case was entitled to summary judgment pursuant to the exclusion of one, two, and three- family residences from liability for sidewalk defects. Although defendant was a doctor and used space in the basement as a study, the residential character of the building was controlling:

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner … . “However, this liability-shifting provision does not apply to ‘one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes'” … . …

… [T]he defendant established … that the premises abutting the public sidewalk was a two-family, owner-occupied residence, and thus, that she is entitled to the exemption from liability for owner-occupied residential property. Contrary to the Supreme Court’s determination, the defendant’s partial use of the basement as an office space was merely incidental to her residential use of the property … . While the defendant testified at her deposition that she was a doctor and used a portion of the basement apartment as a study or home office and that it held office equipment, no evidence indicated that she used the space with regularity or that she claimed the premises as her business address or as a tax deduction. McCalla v Piris-Fraser, 2023 NY Slip Op 05722, Second Dept 11-15-23

Practice Point: Here the owner of the two-family residence abutting the sidewalk where plaintiff slipped and fell was a doctor who had a study or home office in the basement. The home office or study did not transform the property to a business and the doctor was entitled to the “owner-occupied, two-family-residence” exclusion from liability in the NYC Administrative Code re: sidewalk defects.

 

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THE RELIGIOUS CEREMONY IN THIS SAME-SEX MARRIAGE TOOK PLACE IN 2005 BEFORE NEW YORK RECOGNIZED SAME SEX MARRIAGE; THE CIVIL MARRIAGE TOOK PLACE IN 2011 JUST AFTER ENACTMENT OF THE MARRIAGE EQUALITY ACT (MEA); DEFENDANT SHOULD HAVE BEEN ALLOWED TO AMEND HER ANSWER TO ALLEGE THE MARRIAGE TOOK PLACE IN 2005 (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ford, reversing Supreme Court, determined defendant’s motion amend the answer in this divorce proceeding to allege the date of this same-sex marriage to have been when the religious ceremony took place in 2005, as opposed the date of the subsequent civil marriage in 2011, should have been granted. In 2005 same sex marriage was not recognized in New York. The Marriage Equality Act (MEA) recognizing same sex marriage was enacted in 2011 and the parties civil marriage took place shortly after the enactment. There has been no determination the MEA cannot apply retroactively. So defendant’s motion to amend is not palpably improper and does not prejudice the plaintiff:

At this stage in the litigation, we are tasked only with determining whether the defendant should be permitted to amend her answer to make the claim that the date of the parties’ marriage was July 21, 2005, not July 28, 2011. “In the absence of prejudice or surprise to the opposing party, a motion for leave to amend the [pleadings] pursuant to CPLR 3025(b) should be freely granted unless the proposed amendment is ‘palpably insufficient’ to state a cause of action or is patently devoid of merit” … . * * *

… [T]he plaintiff failed to establish that the defendant’s proposed amendment was prejudicial to her in such a way that the defendant’s motion for leave to amend her answer should be denied. Neither the length of time between the defendant’s original answer and her motion for leave to amend, nor the fact that the amendment may affect the plaintiff’s maintenance and equitable distribution obligations, are sufficient to establish prejudice to the plaintiff … . Mackoff v Bluemke-Mackoff, 2023 NY Slip Op 05721, Second Dept 11-15-23

Practice Point: In this divorce case, the same-sex couple was married in a 2005 religious ceremony before the Marriage Equality Act (MEA). The couple was married again in a civil ceremony in 2011 shortly after the MEA was enacted. Defendant should have been allowed to amend her answer to state the marriage took place in 2005, not 2011.

 

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