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FAMILY COURT CAN EXERCISE JURISDICTION OVER A NONRESIDENT PUTATIVE FATHER IN A PATERNITY ACTION AS LONG AS THE FACTS HAVE A CONNECTION WITH NEW YORK STATE; THE PETITION SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE (FOURTH DEPT).

The Fourth Department determined the paternity petition should not have been dismissed with prejudice because there are circumstances where the New York Family Court can obtain jurisdiction over an out-of-state respondent in the paternity action:

In a paternity proceeding, personal jurisdiction over a nonresident putative father may be established pursuant to Family Court Act § 580-201. Petitioner, however, admittedly failed to allege in her petition that respondent engaged in sexual intercourse with the mother in New York State at the time of conception, or that he had any other relevant ties to New York State, and no other grounds for jurisdiction apply (see Family Ct Act § 580-201 [6], [8]). Under the circumstances of this case, we conclude that the court should have granted the motion on the ground that petitioner failed to state a cause of action predicated upon respondent’s sexual intercourse with petitioner in New York State … . Inasmuch as such a dismissal is not on the merits, however, we further conclude that the petition should be dismissed without prejudice … . Matter of Joyce M.M. v Robert J.G., 2020 NY Slip Op 05616, Fourth Dept 10-9-20

 

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THE MUNICIPALITY DID NOT OWE A SPECIAL DUTY TO PLAINTIFF’S DECEDENT WHO CALLED 911 DURING A SNOW STORM AFTER HIS CAR HAD BECOME STUCK AND WAS FOUND DEAD IN HIS CAR THREE DAYS LATER (FOURTH DEPT).

The Fourth Department determined the municipality was entitled to summary judgment in this wrongful death action. Plaintiff’s decedent’s car was stuck in snow during a snow storm. He called 911 three times over the course of seven hours and was found dead in his car three days later:

Preliminarily, we conclude that, during the events that led to decedent’s unfortunate death, defendants were acting in a governmental capacity … . “Under the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, 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” … . … According to plaintiff, a special relationship was formed in this case by … the voluntary assumption of a duty of care by defendants. That method requires plaintiff to establish “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … . Here, only the first and fourth elements are at issue. We conclude that defendants met their burden on the motion by establishing as a matter of law that there was no voluntary assumption of a duty of care, and plaintiff failed to raise a triable issue of fact whether defendants assumed, through promise or action, any duty to act on decedent’s behalf … . … [D]efendants also met their initial burden by establishing that any alleged reliance upon representations made by defendants or their agents was not justifiable, and plaintiff failed to raise a triable issue of fact in that regard … . Bauer v County of Erie, 2020 NY Slip Op 05623, Fourth Dept 10-9-20

 

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PLAINTIFF DID NOT RAISE A QUESTION OF FACT WHETHER THE COUNTY WAS AFFIRMATIVELY NEGLIGENT IN THIS ICE AND SNOW SLIP AND FALL CASE; THEREFORE THE COUNTY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the county’s motion for summary judgment in this slip and fall case should have been granted. The county demonstrated it did not have written notice of the condition and was not affirmatively negligent:

The complaint alleged that a dangerous or defective condition existed as a result of defendant’s negligent snow and ice removal operations and procedures, and its failure to provide “a means of ingress/egress with a handrail.” …

Defendant established its entitlement to judgment as a matter of law by submitting evidence that it did not receive prior written notice of the allegedly dangerous or defective condition as required by Chautauqua County Local Law No. 4-09 … . In opposition, plaintiff failed to raise a triable issue of fact whether such prior written notice was given … . Further, plaintiff failed to raise an issue of fact regarding the applicability of an exception to the prior written notice requirement, i.e., as relevant here, that defendant “affirmatively created the defect through an act of negligence” … . A municipality” ‘may not be held liable for the mere passive failure to remove all snow and ice’ ” or to install a handrail because “[s]uch acts are acts of omission rather than affirmative acts of negligence” … . Here, plaintiff’s submissions establish only defendant’s alleged “nonfeasance, as opposed to affirmative negligence,” and the exception to the prior written notice requirement for affirmative acts of negligence therefore does not apply … . Brockway v County of Chautauqua, 2020 NY Slip Op 05659, Fourth Dept 10-9-20

 

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DEFENDANT WAS NOT PRESENT AT A SIDEBAR CONCERNING THE BIAS OF A PROSPECTIVE JUROR, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant was deprived of his right to be present at a side bar concerning the bias of a prospective juror:

A … prospective juror was peremptorily excused by defendant’s counsel, however, and, during a sidebar conference at which defendant was not present, that juror was questioned “to search out [her] bias, hostility or predisposition to believe or discredit the testimony of potential witnesses” (Antommarchi, 80 NY2d at 250). Consequently, we conclude that, “absent a knowing and voluntary waiver by defendant of his right to be present at that sidebar conference, his conviction cannot stand” … . The only evidence in the record concerning a waiver consists of a conversation between the court, defendant’s counsel and codefendant’s counsel that occurred after the prospective juror was excused, in which codefendant’s counsel indicated that he had just discussed with codefendant the right to approach the bench during such conferences, and defendant’s counsel merely assented. Inasmuch as the discussion was vague and prospective, and there is no indication that defendant or defendant’s counsel were waiving defendant’s Antommarchi rights retrospectively, that conversation is insufficient to establish that defendant waived those rights concerning the questioning of the prospective juror at issue here. We therefore reverse the judgment of conviction and grant a new trial. People v Mckenzie-Smith, 2020 NY Slip Op 05653, Fourth Dept 10-9-20

 

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DEFENDANT’S HOME WAS CONSTRUCTED ABOUT EIGHT FEET FROM THE PROPERTY LINE VIOLATING THE COVENANT OR RESTRICTION REQUIRING TEN FEET; PLAINTIFF, AFTER A BALANCING OF THE EQUITIES, WAS NOT, HOWEVER, ENTITLED TO EQUITABLE RELIEF (FOURTH DEPT).

The Fourth Department determined the defendant had violated a covenant or restriction imposed on property owners in a subdivision, but that plaintiff was not entitled to equitable relief. Defendant had constructed the home about eight feet from the property line and the covenant or restriction required ten feet:

… [D]efendant knew, or should have known, of the side setback violation on the right side, yet he chose to construct his house in disregard of the fourth paragraph of the covenants and restrictions, defendant did not act in good faith with respect to that violation, and the hardship was self imposed … . … [E]nforcement of the restriction would have little benefit to plaintiff inasmuch as the violation had no impact on the value of plaintiff’s home, the violation did not detract from any neighbor’s view of the lake, and the violation occurred on the side of defendant’s property that was not adjacent to another residential lot. A balancing of the equities under all the circumstances of the case established that plaintiff was not entitled to injunctive relief for the right side lot line violation … . Kleist v Stern, 2020 NY Slip Op 05652, Fourth Dept 10-9-20

 

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FALL WHILE UNLOADING A FLATBED TRUCK CAN BE A COVERED ACTIVITY AND INVOLVED AN ELEVATION-RELATED RISK; INDUSTRIAL CODE VIOLATION FIRST ASSERTED IN OPPOSITION PAPERS SHOULD NOT HAVE BEEN REJECTED; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action should not have been granted. Plaintiff was unloading a man lift from a flatbed truck and was on the man lift when it rolled off the truck. The Fourth Department determined: (1) unloading a truck at an active construction site is a covered activity; (2) the fall involved an elevation-related risk; and (3), although an industrial code violation was first asserted in opposition paper, it should not have been rejected:

Delivery of equipment is a covered activity if the equipment is being delivered to an active construction site … or is being “readied for immediate use” … . Delivery of equipment is not a covered activity if it is being delivered to an inactive construction site and is merely being “stockpil[ed] for future use” … . …

Although a fall from a flatbed truck generally does not present the sort of elevation-related risk that Labor Law § 240 (1) is intended to cover … , we have distinguished those cases in which a falling object causes the injured worker to fall … . …

Although plaintiff alleged a violation of section 23-1.5 (c) (3) for the first time in opposition to the motion, a plaintiff may be entitled to leave to amend his or her bill of particulars where, as here, he or she makes a showing of merit, raises no new factual allegations or legal theories, and causes the defendant no prejudice … . Shaw v Scepter, Inc., 2020 NY Slip Op 05651, Fourth Dept 10-9-20

 

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NO NEED TO SHOW THE LADDER WAS DEFECTIVE IN THIS LABOR LAW 240 (1) ACTION; IT WAS SUFFICIENT TO SHOW THE LADDER WAS UNSECURED AND FELL WHEN PLAINTIFF WAS STRUCK BY DEBRIS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was using an unsecured ladder when he was struck by debris causing him and the ladder to fall. There was no need to show the ladder was defective. It was sufficient to show the ladder was not secured:

The undisputed facts show prima facie that defendants violated Labor Law § 240(1) by failing to provide adequate safety devices to plaintiff, who was injured doing demolition work when the unsecured ladder he was using to remove a ceiling was struck by a piece of falling metal debris, causing him and the ladder to fall to the ground … . The record lacks any conflicting evidence relevant to the issue of whether Labor Law 240 (1) was violated, sufficient to raise a material issue of fact. The issues of fact relied upon by the motion court in denying partial summary judgment are immaterial to the issue of whether defendants’ violation of section 240(1) was a proximate cause of plaintiff’s injuries. Plaintiff was not required to show that the ladder he was using was defective, where testimony established prima facie that defendant failed to provide a safety device to insure the ladder would remain upright while plaintiff used it … . Avila v Saint David’s Sch., 2020 NY Slip Op 05571, First Dept 10-8-20

 

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QUESTION OF FACT WHETHER THE PRESUMPTION A CERTIFICATE OF DEPOSIT (CD) HAS BEEN PAID OUT WITHIN 20 YEARS OF WHEN IT CAME DUE APPLIED TO CD’S IN PLAINTIFF’S DECEASED HUSBAND’S IRA WHICH WERE RENEWED AUTOMATICALLY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant bank’s motion for summary judgment in this action seeking the payment of certificates of deposit (CD’s) held in an independent retirement account (IRA) should not have been granted. The presumption that a CD has been paid out within 20 years of when it came due may not apply to these CD’s which were in plaintiff’s deceased husband’s IRA and were renewed automatically:

Defendant [bank] relied upon the common law rebuttable presumption of payment to establish its prima facie case. It presumes that payment on a CD has occurred within 20 years after the time it came due … . In opposition, plaintiff has raised issues of fact with respect to whether the presumption applies because the CD, held by an IRA, renewed automatically each year. Plaintiff has also provided an affidavit stating that she never presented the CD to defendant for payment and explaining the delay. Plaintiff’s affidavit was sufficient to warrant denial of summary judgment … . Friedfeld v Citibank, N.A., 2020 NY Slip Op 05575, First Dept 10-8-20

 

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HEARSAY STATEMENTS OF THE ALLEGED VICTIM WERE NOT CORROBORATED, NEGLECT FINDING REVERSED (FIRST DEPT).

The First Department, reversing the neglect finding, determined the hearsay statements of the alleged victim were not corroborated:

The finding of neglect was not supported by a preponderance of the evidence. “Unsworn out-of-court statements of the victim may be received and, if properly corroborated, will support a finding of abuse or neglect” … . Here, the child’s out-of-court statement made during his videotaped interview with an investigator from the the Child Advocacy Center, that respondent bit him on the right shoulder during a January 2017 incident, was not sufficiently corroborated … . Although medical findings confirmed that the child sustained injuries that were consistent with a bite mark, those findings in no way connected those marks to respondent. Further, there is no dispute that the child told respondent that he was going to make false allegations against her to the Administration for Children’s Services while the fact-finding hearing was pending, rendering his overall credibility quite impaired. Matter of Jaylin S. (Jasmine E.T.), 2020 NY Slip Op 05606, First Dept 10-8-20

 

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SUPREME COURT SHOULD NOT HAVE SEALED THE ENTIRE COURT RECORD, REDACTION IS APPROPRIATE FOR TRADE SECRETS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the entire court record should not have been sealed. The facts were not discussed, but the court noted redaction is appropriate to protect trade secrets, confidential business information or proprietary information:

We reverse the order of the motion court for two reasons. First, the motion court erred by sealing the entire court file. As we have previously explained, “We recognize that it may be easier for the parties and the motion court to seal an entire court record, rather than make a determination on a document by document basis about sealing, but administrative convenience is not a compelling reason to justify sealing” … . Indeed, “In camera review and appropriate redaction is a valid method of protecting trade secrets” …

Second, defendants failed to meet their burden of showing grounds for protecting from public access any or all of the information in Exhibit A to the complaint, let alone the entire court record. They failed to show that Exhibit A, or any other document likely to become part of the record, contains trade secrets, confidential business information, or proprietary information … . Vergara v Mission Capital Advisors, LLC, 2020 NY Slip Op 05610,First Dept 10-8-20

 

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