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RESPONDENT WAIVED HIS RIGHT TO ARBITRATE HIS TERMINATION PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT BY BRINGING A BREACH OF CONTRACT ACTION SEEKING THE SAME RELIEF ON THE SAME GROUNDS, AS WELL AS DAMAGES (THIRD DEPT).

The Third Department, reversing Supreme Court, determined respondent (Ferreira) had waived his right to arbitrate his discharge from employment as a teacher pursuant to the collective bargaining agreement (CBA) because he sought an action at law seeking the same relief on the same grounds, as well as damages:

“Generally, when addressing waiver, courts should consider the amount of litigation that has occurred, the length of time between the start of the litigation and the arbitration request, and whether prejudice has been established” … . Moreover, the Court of Appeals has found no waiver where the ultimate objective of multiple procedures is the same, but the grounds urged for relief are discrete … .

Here, Ferreira waived his right to arbitrate because he chose to pursue an action at law asserting virtually the same grounds for relief and remedies sought in the arbitration. His notice of claim, alleging breach of contract, was filed approximately three months prior to his request for arbitration. An action was thereafter commenced, which was still pending at the time of oral argument, and, “[b]y commencing an action at law involving arbitrable issues, [Ferreira] waived whatever right [he] had to arbitration” … . Although use of litigation to preserve the status quo while awaiting arbitration does not effectuate waiver, Ferreira did not merely seek an equitable relief; rather, he sought monetary damages and other affirmative relief as a result of the termination of his employment and petitioner’s alleged violation of the CBA … . Matter of New Roots Charter Sch. (Ferreira), 2020 NY Slip Op 02223, Third Dept 4-9-20

 

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QUESTIONS OF FACT WHETHER DEFENDANT WAS THE OWNER OF THE SCOOTER, WHETHER DEFENDANT KNEW DECEDENT WAS NOT COMPETENT TO OPERATE THE SCOOTER, AND WHETHER DEFENDANT GAVE DECEDENT PERMISSION TO TEST DRIVE THE SCOOTER; THE NEGLIGENT ENTRUSTMENT ACTION SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court in this negligence entrustment action, determined there were questions of fact whether defendant had dominion and control over a scooter which was for sale at a car dealership and therefore “owned” the scooter, whether defendant knew decedent was not competent to operate the scooter, and whether defendant gave the decedent permission to take the scooter for a test drive. Decedent was killed in an accident when she was taking the test drive:

“An owner of a motor vehicle . . . may be liable for negligent entrustment if he or she was negligent in entrusting it to one who he or she knew, or in the exercise of ordinary care should have known, was incompetent to operate it” … . … The [dealership] owner stated in an affidavit that neither his father nor defendant [dealership] owned the scooter. Nevertheless, the scooter was displayed for sale on defendant’s front lot and the owner stated in his deposition testimony that he would push the scooter from the garage to the lot each morning. The keys for the scooter would be in the scooter when it was on display in the lot and then was kept in a separate box behind the owner’s desk when it was not on display. The helmet was likewise kept in the office of the owner’s father. Viewing the foregoing evidence in the light most favorable to plaintiff, we conclude that a question of fact exists as to whether defendant exerted dominion and control over the scooter so as to be its owner … . …

Defendant alternatively argues that it did not have knowledge that decedent was incompetent to operate the scooter. The owner stated that he thought decedent had a motorcycle permit, but he did not confirm this fact with decedent nor did he inquire as to whether she knew how to drive the scooter. The owner also did not check decedent’s driver’s permit or have her sign anything prior to when she drove the scooter. Other than knowing that decedent had ridden a two-wheel Yamaha Enduro road bike in the past, the owner had never seen decedent operate a scooter prior to the accident. In view of this evidence, we find that there is an issue of fact regarding whether the owner should have known that decedent was incompetent to ride the scooter … .

… The owner … admitted that, other than verbally telling decedent to wait for his father, he did not do anything else to try to stop decedent from taking the scooter. Indeed, when asked what he did when decedent walked into his father’s office and took the helmet for the scooter, the owner responded, “Nothing.” A customer who was with the owner when decedent arrived testified that it appeared that decedent did not take the scooter against the owner’s will and that “it look[ed] like . . . there was some sort of agreement because she did go.” Maguire v Upstate Auto, Inc., 2020 NY Slip Op 02226, Third Dept 4-9-20

 

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THE CARRIER’S APPLICATION FOR APPEAL SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO INCLUDE THE DATE WHEN THE OBJECTION WHICH IS THE BASIS OF THE APPEAL WAS MADE; THERE WAS ONLY ONE HEARING AND THE REGULATION IN EFFECT AT THE TIME ONLY ASKED “WHEN” THE OBJECTION WAS MADE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the appeal should not have been dismissed for failure to include the date when the objection upon which the appeal is based was made. Apparently there was only one hearing and the regulation in effect at the time of  the appeal application did not specifically require the date of the objection (only “when” the objection was made):

The Board found that the carrier’s response to question number 15 was not complete because it failed to specify “the date of the hearing” at which the carrier interposed its objection or exception to the ruling. “Although the Board has consistently found that listing the hearing date at which the objection or exception was made constitutes a complete response to [the temporal requirement of] question number 15” … , the regulation in effect at the time that the carrier submitted its application for review in June 2018 only required the applicant to state, as pertinent here, “when” the objection or exception was interposed; it did not then require that a date be specified … .

In reviewing the Board’s decision, we are guided by the fundamental principle of administrative law that “judicial review of an agency’s determination is limited to . . . the actual grounds that were relied upon by the agency in reaching its determination” … . Given that the carrier’s response to question number 15 provided temporal information, and in the absence of any finding by the Board that there were multiple hearings, we find that the Board’s denial of the carrier’s application for Board review on the ground it was incomplete — solely because it did not list a date of the hearing — was an abuse of discretion … . Matter of Mone v Deer Park Sand & Gravel Corp., 2020 NY Slip Op 02228, Third Dept 4-9-20

 

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A PART-TIME COLLEGE INSTRUCTOR SHOULD NOT HAVE BEEN AWARDED UNEMPLOYMENT BENEFITS BECAUSE HE HAD BEEN ASSURED OF EMPLOYMENT IN THE SEMESTER FOLLOWING THE SUMMER BREAK; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, over a two-justice dissent, determined claimant, a part-time community college instructor, should not have been awarded unemployment benefits because he had been notified he would be employed in the semester after the summer break. The dissenters argued his employment depended upon course-enrollment which was uncertain:

Pursuant to Labor Law § 590 (10), “professionals who are employed by educational institutions are precluded from receiving unemployment insurance benefits during the period between two successive academic periods if they have received a reasonable assurance of continued employment” … . “A reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period … . * * *

On the record before us, the Board’s decision was not supported by substantial evidence … . inasmuch as claimant received a reasonable assurance of continued employment for the 2018 fall semester such that he was ineligible to receive unemployment insurance benefits … . Matter of Barnett (Broome County Community Coll.–Commissioner of Labor), 2020 NY Slip Op 02229, Third Dept 4-9-20

 

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THE “FALSELY REPORTING AN INCIDENT” STATUTE IS UNCONSTITUTIONAL AS APPLIED TO DEFENDANT’S FALSE TWEETS ALLEGING A RACIALLY-MOTIVATED ASSAULT (THIRD DEPT).

The Third Department, reversing defendant’s “falsely reporting an incident” conviction, in a full-fledged opinion by Justice Pritzker, determined defendant’s tweets were protected by the First Amendment. Defendant was accused of falsely tweeting she was the victim of a racially-motivated assault:

… [A]lthough it was “not unlikely” that defendant’s false tweets about a racial assault at a state university would cause public alarm (Penal Law § 240.50 [1]), what level of public alarm rises to the level of criminal liability? Indeed, United States v Alvarez (567 US at 734 [Breyer, J., concurring]) informs us that criminalizing false speech requires either proof of specific harm to identifiable victims or a great likelihood of harm. Certainly, general concern by those reading defendant’s tweets does not rise to that level, nor does the proof adduced at trial, which established that defendant’s tweets were “retweeted” a significant number of times. In fact, because these “retweets” led to nothing more than a charged online discussion about whether a racially motivated assault did in fact occur, which falls far short of meeting the standard set forth in United States v Alvarez (567 US at 734 [Breyer, J., concurring]), we reach the inescapable conclusion that Penal Law § 240.50 (1), as applied to defendant’s conduct, is unconstitutional. …

… “[T]he remedy for speech that is false is speech that is true” (United States v Alvarez, 567 US at 727) and “social media platforms are information-disseminating fora. By the very nature of social media, falsehoods can quickly and effectively be countered by truth, making the criminalizing of false speech on social media not ‘actually necessary’ to prevent alarm and inconvenience” … . This could not be more apparent here, where defendant’s false tweets were largely debunked through counter speech; thus, criminalizing her speech by way of Penal Law § 240.50 (1) was not actually necessary to prevent public alarm and inconvenience … . People v Burwell, 2020 NY Slip Op 02205, Third Dept 4-9-20

 

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EVIDENCE OF DOMESTIC VIOLENCE AND MARIJUANA USE WAS NOT SUFFICIENT TO FIND THAT FATHER NEGLECTED THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support the neglect finding against father based upon domestic violence and marijuana use:

… ” [A] finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence'”… . However, “exposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment” … . Here, we agree with the father’s contention that, with respect to that allegation, the preponderance of the evidence did not establish that he neglected the child … .

The father contends, and ACS [Administration of Children’s Services] concedes, that the evidence of the father’s use of marijuana was insufficient to establish that the child was neglected. We agree. The evidence failed to demonstrate that the father’s marijuana use caused impairment, or an imminent danger of impairment, to the physical, mental, or emotional well-being of the child … . Matter of Simone C.P. (Jeffry F.P.), 2020 NY Slip Op 02270, Second Dept 4-9-20

 

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PETITIONER HAD THE BURDEN TO PROVE RESPONDENT WAS SERVED; THE SUPPORT MAGISTRATE REVERSED THE BURDEN OF PROOF; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, ordering a new hearing, determined the Support Magistrate did not apply the correct standard to whether respondent (father) was served with the petition seeking an order of filiation and child support. The burden of proof of proper service was on mother:

The Support Magistrate did not apply the correct standard in weighing the evidence adduced at the hearing. “It is well established that it is the plaintiff [or the petitioner] who bears the ultimate burden of proving by preponderating evidence that jurisdiction over the defendant [or the respondent] was obtained” … . The plaintiff or the petitioner may sustain that burden, inter alia, by introducing the affidavit of service and the testimony of the process server, or evidence demonstrating that the process server is unavailable or that diligent efforts were made to locate the process server to no avail … . Here, the mother, as the party who commenced this proceeding, was the party who bore the burden of proving that jurisdiction was obtained over the father. At the conclusion of the hearing, however, the Support Magistrate denied that branch of the father’s motion which was pursuant to CPLR 5015(a)(4) to vacate the order of support, finding that he failed to credibly meet his burden of proving that he was not served with the petition … . Matter of Kathleen T.K. v Eric C.S., 2020 NY Slip Op 02266, Second Dept 4-9-20

 

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FAMILY COURT SHOULD HAVE REOPENED THE NEGLECT HEARING WHEN MOTHER ARRIVED AT COURT SHORTLY AFTER SUMMATIONS (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have reopened the neglect hearing when mother arrived just after summations:

The Family Court conducted a fact-finding hearing over the course of several days, during which the mother was present, and the maternal grandmother and a DSS caseworker testified. On the fifth day of the hearing, the mother was late in arriving to court because she allegedly was traveling by bus from Georgia to New York, and the bus was delayed. The mother’s counsel notified the court of the mother’s transportation issue, and of her intention to testify, and requested an adjournment. The court denied the adjournment request and directed that the hearing proceed as scheduled. The mother arrived shortly after summations, but the court did not reopen the hearing to afford the mother the opportunity to testify.

Following the hearing, the Family Court found that the mother neglected the child. …

A finding of neglect constitutes “a permanent and significant stigma” which might indirectly affect the mother’s status in future proceedings … . The Family Court has the authority to reopen a Family Court Act article 10 proceeding to allow a party to present additional testimony at a fact-finding hearing … .

Under the circumstances of this case, the Family Court should have exercised its discretion to reopen the fact-finding hearing to afford the mother the opportunity to present her case. Matter of Katie P.H. (Latoya M.), 2020 NY Slip Op 02265, Second Dept 4-9-20

 

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BECAUSE MOTHER’S ATTORNEY APPEARED MOTHER WAS NOT IN DEFAULT; FAMILY COURT’S REFUSAL TO ADMIT DOCUMENTARY EVIDENCE OFFERED BY MOTHER’S ATTORNEY DEPRIVED MOTHER OF DUE PROCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined mother was not in default because her attorney appeared and the court’s refusing to admit documentary evidence offered by mother’s attorney deprived mother of her right to due process of law:

The mother failed to appear … when continued fact-finding on the permanent neglect petition was scheduled, and an adjournment was granted. When the mother failed to appear on the next hearing date, … the mother’s counsel stated that she would be participating in the proceeding on the mother’s behalf and sought to admit into evidence certain documents. … [T]he mother was, therefore, not in default with respect to the fact-finding hearing … .

The Family Court’s refusal to permit the mother’s counsel to admit into evidence the documentary evidence on behalf of the mother based upon the mother’s failure to appear … , violated the mother’s right to due process. ” A parent has a right to be heard on matters concerning her [or his] child and the parent’s rights are not to be disregarded absent a convincing showing of waiver'” … . Matter of Amira W.H. (Tamara T.H.), 2020 NY Slip Op 02264, Second Dept 4-9-20

 

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FATHER SHOULD NOT HAVE BEEN DIRECTED TO COMPLY WITH THE ‘CULTURAL NORMS’ OF HASIDIC JUDAISM WHEN THE CHILDREN STAY WITH HIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined father should not have been directed to comply with the “cultural norms” of Hasidic Judaism when the children stay with him:

We agree with the father that, by directing him to comply with the “cultural norms” of Hasidic Judaism during his periods of parental access, the Supreme Court ran afoul of constitutional limitations by compelling the father to himself practice a religion, rather than merely directing him to provide the children with a religious upbringing (see Cohen v Cohen, 177 AD3d at 852; Weisberger v Weisberger, 154 AD3d at 53). While the court referred to the “cultural norms” by which the children were raised, the testimony at the hearing made clear that the “cultural norms” referenced were that each parent would comply with the religious requirements of Hasidic Judaism. Under this Court’s decisions in Weisberger and on the prior appeal, the court’s directive that the father himself comply with these religious practices was an unconstitutional modification of the religious upbringing provision in the judgment of divorce, which must be reversed … . Cohen v Cohen, 2020 NY Slip Op 02263, First Dept 4-9-20

 

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