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THIS WAS NOT A CIRCUMSTANCE WHERE THE ACCUSATORY INSTRUMENTS, AS OPPOSED TO THE LANGUAGE OF THE FLORIDA STATUTE ALONE, CAN BE USED TO DETERMINE WHETHER THE FLORIDA CONVICTION ALLOWED DEFENDANT TO BE SENTENCED AS A SECOND CHILD SEXUAL ASSAULT FELONY OFFENDER; THE FLORIDA STATUTE SHOULD NOT HAVE BEEN DEEMED A PREDICATE FELONY (FOURTH DEPT). ​

The Fourth Department, reversing County Court, determined defendant’s Florida conviction could not serve as a predicate felony allowing defendant to be sentenced as a second child sexual assault felony offender. This was not a circumstance where the underlying accusatory instruments, as opposed to the language of the Florida statute, can be the basis of a predicate-felony analysis. The appellate division’s analysis is comprehensive and too detailed to fairly summarize here:

We agree with defendant that consideration of the facts and circumstances of the underlying Florida conviction is impermissible in this case … . “[U]nder a narrow exception to the [general] rule, the underlying allegations must be considered when ‘the foreign statute under which the defendant was convicted renders criminal several different acts, some of which would constitute felonies and others of which would constitute only misdemeanors [or no crime] if committed in New York’ ” … . “In those circumstances, the allegations will be considered in an effort to ‘isolate and identify’ the crime of which the defendant was accused, by establishing ‘which of those discrete, mutually exclusive acts formed the basis of the charged crime’ ” … . * * *

… [W]e conclude that “[b]ecause the [Florida] statute, itself, indicates that a person can be convicted of the [Florida] crime without committing an act that would qualify as a felony in New York (i.e., by [instead committing the misdemeanor of sexual misconduct]), defendant’s [Florida] conviction for [lewd or lascivious battery] was not a proper basis for a predicate felony offender adjudication” … . People v Gozdziak, 2022 NY Slip Op 07377, Fourth Dept 12-23-22

Practice Point: Here the Florida statute, and not the accusatory instruments in the Florida prosecution, is the only proper basis for the predicate-felony analysis. The Florida statute should not have served as a predicate felony to allow defendant to be sentenced as a second child sexual assault felony offender.

 

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THE STRICT LIABILITY STANDARD IN DOG-BITE CASES APPLIES HERE WHERE THE DOG WAS HARBORED BY THE DEFENDANT UNTIL THE ANIMAL SOCIETY COULD FIND SOMEONE TO ADOPT HIM; THE NEGLIGENCE STANDARD WHICH APPLIES TO A DOG-BITE IN A VETERINARIAN’S WAITING ROOM (WHERE THE VETERINARIAN IS THE DEFENDANT) IS NOT APPLICABLE (FOURTH DEPT).

The Fourth Department determined the plaintiff’s motion to amend the complaint in this dog-bite case by adding a negligence cause of action was properly denied. The Court of Appeals recently held that a veterinarian could be liable for a dog-bite under a negligence theory where a dog in the veterinarian’s waiting room bit a customer. Here the dog was owned by an animal society and had been placed with defendant O’Rourke until the society could find someone to adopt him:

Although O’Rourke does not own the dog that bit plaintiff, “[a]n owner’s strict liability for damages arising from the vicious propensities and vicious acts of a dog ‘extends to a person who harbors the animal although not its owner’ ” … . * * *

Even assuming, arguendo, … [plaintiff could assert] a negligence cause of action against O’Rourke, … plaintiff would still have to establish in support of her negligence cause of action that O’Rourke had knowledge of the dog’s alleged “vicious propensities” … . … “[T]he vicious propensity notice rule has been applied to animal owners who are held to a strict liability standard, as well as to certain non-pet owners—such as landlords who rent to pet owners—under a negligence standard … .

… [P]laintiff’s proposed negligence cause of action against O’Rourke does not allege that O’Rourke had knowledge of the dog’s vicious propensities; instead, it alleges that O’Rourke was negligent because she did not “investigate the subject dog accepted from the foster care program . . . before introducing it to her property, thereby creating a dangerous condition on the property which she had a nondelegable duty to keep reasonably safe.” The proposed complaint therefore fails to state a viable negligence cause of action against O’Rourke. Cicero v O’Rourke, 2022 NY Slip Op 07316, Fourth Dept 12-23-22

Practice Point: The Court of Appeals recently held a veterinarian could be liable under a standard negligence theory for a dog-bite which occurs in the veterinarian’s waiting room because of the specialized knowledge of animal behavior attributed to a veterinarian. The negligence standard does not apply to a person who is harboring a dog for an animal society until someone adopts the dog. In that case, the strict liability (requiring knowledge of the dog’s vicious propensities) standard still applies.

 

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ALTHOUGH THE AGREEMENT BETWEEN PLAINTIFF COUNTRY CLUB AND DEFENDANT FOR THE CONSTRUCTION, MAINTENANCE AND USE OF A BOAT SLIP WAS A LICENSE, NOT A LEASE, THE LICENSE, BY THE TERMS OF THE AGREEMENT, WAS NOT TERMINABLE AT WILL BY THE COUNTRY CLUB; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the agreement between plaintiff country club and defendant concerning the construction, maintenance and use of a boat slip was a license, not a lease, but, under the terms of the agreement, the license was not terminable at will by the country club:

… [T]he terms of the agreement unambiguously state that defendant is required to pay the annual maintenance fee and to comply with plaintiff’s rules and policies, thereby establishing through implication that plaintiff may terminate the license only when defendant fails to comply with those specified terms … . Plaintiff’s interpretation of the agreement as permitting plaintiff to terminate the license at will, despite the aforementioned provisions governing defendant’s obligations, renders those specific provisions nugatory, contrary to the general approach to interpreting contracts …

… [T]he agreement expressly permits defendant to terminate it and receive a return of the monies contributed pursuant to the payment agreement, less any monies owed to plaintiff. We agree with defendant that the express inclusion of a right of termination for her compels the conclusion that the exclusion of any corresponding express right for plaintiff to terminate the agreement was intentional … . … [The] structure of the agreement establishes that the license is not terminable at will by plaintiff. Skaneateles Country Club v Cambs, 2022 NY Slip Op 07315, Fourth Dept 12-23-22

Practice Point: Licenses for the use of real property, here the construction, maintenance and use of a boat slip, are not automatically terminable at will. Here the terms of the underlying agreement were interpreted to mean the license was terminable only if defendant breached the agreement.

 

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EVEN THOUGH THERE WAS A PRIOR STIPULATED ORDER OF CUSTODY AND VISITATION GRANTING PRIMARY CUSTODY TO GRANDMOTHER, THE NONPARENT (GRANDMOTHER), NOT THE FATHER, HAS THE BURDEN TO SHOW EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE DENIAL OF FATHER’S SUPERIOR RIGHT TO CUSTODY BEFORE THE BEST INTERESTS OF THE CHILDREN CAN BE CONSIDERED PURSUANT TO FATHER’S PETITION TO MODIFY CUSTODY (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Family Court, determined, in a modification of custody case, the nonparent (grandmother here), not the father, has the burden to demonstrate extraordinary circumstances exist before the court can consider the best interests of the children:

Pursuant to the prior order, the parties share joint legal custody of the subject children, with the grandmother having primary physical custody and the mother and the father having visitation under separate visitation schedules. …

Petitioner father appeals from an order granting the motion of respondent Dawn M. Freeland (grandmother), made at the close of the father’s case at a hearing, to dismiss his petition seeking modification of a prior stipulated order of custody and visitation, and his petition alleging that the grandmother violated that prior order. …

… [T]he court erred in requiring the father to prove that there had been a change in circumstances prior to making a determination regarding extraordinary circumstances … . “It is well settled that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” … . “The nonparent has the burden of establishing that extraordinary circumstances exist,” and “it is only after a court has determined that extraordinary circumstances exist that the custody inquiry becomes ‘whether there has been a change [in] circumstances [warranting further inquiry into] the best interests of the child[ren]’ ” … . “The foregoing rule applies even if there is an existing order of custody concerning th[e] child[ren] unless there is a prior determination that extraordinary circumstances exist” … . Here, “there is no indication in the record that, in the history of the parties’ litigation, the court previously made a determination of extraordinary circumstances divesting the [father] of [his] superior right to custody” … . Matter of Wells v Freeland, 2022 NY Slip Op 07375, Fourth Dept 12-23-22

Practice Point: Here father brought a violation-of-visitation petition against grandmother and petitioned for a modification of custody which had been agreed to by a stipulated order. Family Court held the father had the burden to show extraordinary circumstances justifying modification of custody. The appellate division disagreed and held the nonparent (grandmother) had that burden because father still had the superior right to custody which could not be disturbed absent extraordinary circumstances. The prior stipulated order of custody and visitation was not a substitute for an extraordinary-circumstances finding.

 

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DEFENDANT IN THIS PERSONAL INJURY CASE DID NOT WAIVE THE PHYSICIAN-PATIENT PRIVILEGE BY SUBMITTING MENTAL HEALTH RECORDS TO THE SENTENCING COURT IN THE RELATED CRIMINAL CASE; THE RECORDS WERE SUBMITTED AS PART OF A MITIGATION REPORT WHICH IS DEEMED “CONFIDENTIAL” PURSUANT TO THE CRIMINAL PROCEDURE LAW; TWO-JUSTICE DISSENT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant in this pedestrian-vehicle-accident case was not required to disclose privileged medical (mental health) information which was provided to the sentencing court in the related criminal case as a “mitigation report:”

“CPLR 3121 (a) authorizes discovery of a party’s mental or physical condition when that party’s condition has been placed in controversy” … . Nevertheless, even where a defendant’s mental or physical condition is in controversy, discovery will be precluded if the information falls within the physician-patient privilege and the defendant has not waived that privilege … . Where the physician-patient privilege has not been waived, the party asserting the privilege may “avoid revealing the substance of confidential communications made to [his or] her physician, but may not refuse to testify as to relevant medical incidents or facts concerning [himself or] herself” … .

We agree with defendant that he did not waive the physician-patient privilege by disclosing his mental health information in the sentencing phase of the related criminal proceeding. Here, defendant submitted the mitigation report in the criminal proceeding for the court’s consideration in the determination of an appropriate sentence. Thus, this is not a case where a criminal defendant waived any privilege applicable to that defendant’s mental health records by raising a justification or other affirmative defense to be litigated in the criminal proceeding … . Instead, the mitigation report was prepared for and “submitted directly to the court[] in connection with the question of sentence” and, as a result, the mitigation report is “confidential and may not be made available to any person or public or private agency except where specifically required or permitted by statute or upon specific authorization of the court” (CPL 390.50 [1] …). Johnson v Amadorzabala,, 2022 NY Slip Op 07355, Fourth Dept 12-23-22

Practice Point: The defendant in this personal injury case did not waive the physician-patient privilege by submitting mental health records to the sentencing court in the related criminal case. Under the Criminal Procedure Law, the mitigation report was for the judge’s eyes only and was confidential.

 

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IN ORDER TO OBTAIN TITLE TO THE VACANT BUILDING AT A SHOPPING MALL UNDER THE EMINENT DOMAIN PROCEDURE LAW (EDPL), THE TOWN MUST SPECIFY THE PUBLIC PURPOSE FOR WHICH THE PROPERTY WILL BE USED; THE TOWN’S FAILURE TO SPECIFY THE PUBLIC PURPOSE WAS FATAL TO THE CONDEMNATION PROCEEDING (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Lindley, annulling the determination authorizing the condemnation of a vacant building at a shopping mall, held that the town’s acknowledgment that it did not know how the building would be used was fatal to condemnation proceeding:

Petitioner challenges the taking … contending … that neither the condemnation notice nor the Town’s determination and findings specifically identifies or describes a legitimate public project, as required by EDPL [Eminent Domain Procedure Law] 207 (C) (3). We agree. Indeed, the Town readily acknowledges that it has not yet decided what to do with the property after obtaining title, and the notice merely states that “[t]he proposed Acquisition is required for and is in connection with a certain project . . . consisting of facilitating the productive reuse and redevelopment of the vacant and underutilized Proposed Site through municipal and/or economic development projects . . . by attracting and accommodating new tenant(s) and/or end user(s).” In its determination and findings, the Town stated that “no specific future uses or actions have been formulated and/or specifically identified.”

Because the Town has not indicated what it intends to do with the property, we are unable to determine whether “the acquisition will serve a public use” … . Of course, “[t]he existence of a public use, benefit, or purpose underlying a condemnation is a sine qua non” to the government’s ability to exercise its powers to take private property through eminent domain … . Matter of HBC Victor LLC v Town of Victor, 2022 NY Slip Op 07313, Fourth Dept 12-23-22

Practice Point: In order for a municipality to obtain title to property pursuant to the Eminent Domain Procedure Law, the public purpose for the town’s use of the properly must be specified. Here the town sought ownership of a vacant building at a shopping mall but acknowledged it did not know how the property would be used. The determination authorizing condemnation of the property was annulled.

 

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PETITIONER, A FORMER CORRECTION OFFICER SEEKING REINSTATEMENT, WAS ENTITLED TO THE RECORDS OF THE PSYCHOLOGICAL EXAMINATION WHICH FOUND HIM UNFIT; THE WAIVER OF THE RIGHT TO REVIEW THOSE DOCUMENTS, SIGNED BY PETITIONER, WAS A NULLITY (THIRD DEPT).

​The Third Department, in a full-fledged opinion by Justice Pritzker, reversing Supreme Court, determined petitioner, a former correction officer seeking reinstatement, was entitled to discovery of the records of the psychological examination which found him unfit to serve as a correction officer. The court held that the waiver of the right to review such documents (signed by the petitioner at the outset) was a nullity:

… [W]e do not agree that the limited review procedures established in Correction Law § 8 can lawfully be used to side-step and effectively eviscerate the robust protections set forth in 4 NYCRR 5.9 (e) (3), which directly apply to those seeking reinstatement under Civil Service Law § 71 … . Nevertheless, although both statutes have different purposes — Correction Law § 8 is designed to eliminate applicants “who exhibit psychological disorders that would indicate their unsuitability for the job” … , whereas Civil Service Law § 71 was enacted for the “protection of an employee separated from the service by reason of a disability resulting from occupational injury or disease” … — both purposes can be achieved, and the statutes harmonized by permitting the use of Correction Law § 8 testing while preserving the review procedure set forth in 4 NYCRR 5.9 relative to employees falling within Civil Service Law § 71 … . Notably, despite the use of Correction Law § 8 testing, this matter remains distinctly a Civil Service Law § 71 reinstatement case.

… [P]etitioner is minimally entitled to receive the clandestine psychological report that formed the very basis for the disqualification for reinstatement, as well as all other rights attendant to a hearing held pursuant to article 3 of the State Administrative Procedure Act. … [T]o the extent that petitioner signed a waiver purporting to extinguish these rights, the waiver is a nullity inasmuch as respondent’s policy requiring all applicants to sign the consent and release form is an unpromulgated rule under the definition of “[r]ule” within State Administrative Procedure Act § 102 (2) (a) (i), and therefore is without effect … . Matter of Williams v New York State Dept. of Corr. & Community Supervision, 2022 NY Slip Op 07280, Third Dept 12-22-22

Practice Point: Petitioner, a former correction officer seeking reinstatement, was entitled to the records of the psychological exam which found him unfit. The waiver of the right to review the documents, signed by petitioner at the outset, was based upon an unpromulgated rule and therefore was of no effect.

 

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BOTH PLAINTIFF BUS DRIVER AND THE DRIVER OF THE CAR WHICH STRUCK PLAINTIFF’S BUS WERE DEEMED COUNTY EMPLOYEES IN A RELATED PROCEEDING; THEREFORE, PURSUANT TO THE COLLATERAL ESTOPPEL DOCTRINE, WORKERS’ COMPENSATION WAS PLAINTIFF’S EXCLUSIVE REMEDY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, determined the doctrine of collateral estoppel required the dismissal of plaintiff bus-driver’s causes of action against the estate of driver of the car which struck plaintiff’s county bus, and against Jewish Family Services (JFS) for whom the decedent-driver was volunteering at the time of the accident. JFS and the county collaborated on a program to drive senior citizens to medical appointments. Plaintiff sued JFS under a respondeat superior theory. Pursuant to the Workers’ Compensation Law, workers’ compensation benefits were plaintiff’s exclusive remedy because both she and the driver of the car had been deemed county employees in a related action:

A review of the papers supporting [the county’s] cross motion [in the related proceeding] establishes, however, that [the county] focused upon the provisions of Workers’ Compensation Law § 29 (6). Plaintiff thereafter had a full and fair opportunity to respond to that issue, which was discussed at length in the 2019 order. Indeed, Supreme Court … expressly held that the provisions of that statute applied because “both [plaintiff] and Hyde were within the same employ and acting within the scope of employment at the time the alleged injuries occurred, therefore rendering them co-employees which results in workers’ compensation being the exclusive remedy.” Accordingly, under the circumstances of this case, the issue of whether plaintiff and Hyde were coemployees was “actually litigated, squarely addressed and specifically decided” against plaintiff … .

Plaintiff’s claim against JFS is premised upon the theory that JFS exercised sufficient control over Hyde to render it vicariously liable for her negligence. The issue of whether plaintiff and Hyde are coemployees has been resolved against plaintiff with preclusive effect, however, and plaintiff’s exclusive remedy for the negligence of Hyde is therefore workers’ compensation benefits. As noted above, as Workers’ Compensation Law § 29 (6) “deprive[s] the injured employee of a right to maintain an action against a negligent coemployee, [it also] bars a derivative action which necessarily is dependent upon the same claim of negligence for which the exclusive remedy has been provided” … . Thus, as “plaintiff[] did not assert any allegation that [JFS] had committed an act constituting affirmative negligence,” the cross motion of JFS for summary judgment dismissing the complaint against it should have been granted … . Bryant v Gulnick, 2022 NY Slip Op 07284, Third Dept 12-22-22

Practice Point: In a related proceeding it was determined that both plaintiff bus driver and the driver of the car which struck plaintiff’s bus were county employees. Therefore, pursuant to the doctrine of collateral estoppel, Workers’ Compensation was plaintiff’s exclusive remedy.

 

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HYDE, THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, LOST CONTROL AND CROSSED INTO THE PATH OF AN ONCOMING COUNTY BUS; HYDE WAS FATALLY INJURED AND PLAINTIFF HAD NO MEMORY OF THE ACCIDENT; THE COUNTY’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE COMPLAINT AGAINST THE BUS DRIVER SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, reversing (modifying) Supreme Court in this traffic accident case, determined the complaint against Bryant, the driver of the county bus involved in the accident, should have been dismissed. The driver of the car in which plaintiff was a passenger, Hyde, lost control of the car and crossed into the path of the oncoming bus. Hyde was fatally injured and plaintiff had no memory of the accident:

Bryant stated in her affidavit and deposition testimony that a mixture of snow and ice was falling in the leadup to the accident and that, although the road was coated in snow, she was still able to see the center line and fog lines. Bryant added that she was travelling two to five miles below the speed limit and was comfortable driving the bus in the weather conditions. As for the accident itself, Bryant stated that Hyde’s vehicle entered her lane about 1½ car lengths in front of the bus and that she had a second to react before striking it, as well as that she had “nowhere to go” to evade Hyde’s vehicle and that she lightly applied her brakes in an effort to slow down without losing control of the bus. Plaintiff had no recollection of the accident, and nothing else in the record, including the police accident report, contradicted Bryant’s version of events. Bryant accordingly established that she reacted reasonably when Hyde’s vehicle entered her lane of traffic, and plaintiff’s speculation that Bryant might have been able to avoid the collision had she been driving even further below the speed limit or taken other evasive action despite having “at most, a few seconds to react,” did not raise a question of fact … . Northacker v County of Ulster, 2022 NY Slip Op 07285, Third dept 12-22-22

Practice Point: The only evidence of the accident was that the driver of the car in which plaintiff was a passenger crossed into the path of the oncoming county bus and the bus driver had only a second to react. The county’s motion for summary judgment dismissing the complaint against the bus driver should have been granted.

 

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THERE IS A QUESTION OF FACT WHETHER A PRIOR OWNER OF DEFENDANT’S PROPERTY WAS AWARE OF PLAINTIFF’S INSTALLATION OF A SEPTIC SYSTEM ON DEFENDANT’S PROPERTY GIVING RISE TO A PRESCRIPTIVE EASEMENT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there was a question of fact whether plaintiff was entitled to a prescriptive easement with respect to a septic system which encroached on defendant’s property:

Plaintiff represents in her complaint that the septic system was installed “[a]t least as early as the 1920s.” The septic system was ostensibly concealed until 1997, when plaintiff replaced part of the tank. Moreover, a June 2000 letter from defendants’ father, the prior owner of the property, to his attorney indicates that he was aware of a septic tank that had been installed too close to the well on plaintiff’s land … . Although the record is sparse on information concerning plaintiff’s septic tank, the first indication that defendants sought any information from plaintiff concerning permission for the installation of the septic tank came in September 2018. In this respect, there is evidence suggesting a triable issue of fact as to whether plaintiff can establish that the septic system was installed with defendants’ predecessors’ knowledge and hostile to their interests. Accordingly, we find that defendants are not entitled to judgment as a matter of law as to whether plaintiff can establish her cause of action for a prescriptive easement in relation to the presence of the septic tank … which will ultimately implicate whether or not the tank constitutes a trespass … . Sasscer v Vesey, 2022 NY Slip Op 07286, Third Dept 12-22-22

Practice Point: Here there was a question of fact whether the prior owner of defendant’s property was aware plaintiff’s installation of a septic system encroached on defendant’s land, giving rise to a prescriptive easement.

 

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