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JUDGE EXHIBITED BIAS AGAINST MOTHER AND INTERFERED EXCESSIVELY IN THE CUSTODY HEARING; NEW HEARING ORDERED BEFORE A DIFFERENT JUDGE (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge was biased against mother and excessively interfered in the custody hearing:

The record of the proceedings supports the mother’s contention that the Family Court was biased against her, depriving her of a fair and impartial hearing. Although the mother’s claim of bias is not preserved for appellate review … . Here, the record demonstrates that the court predetermined the outcome of the case during the hearing and took an adversarial stance against the mother by, among other things, interjecting itself into the proceedings by cross-examining the mother on matters irrelevant to a determination of custody, including referring to the mother as “emotionally excessive” and inquiring as to how many online dating web sites the mother utilized at the time she met the father and as to when the mother and the father became intimate. The court also asked the mother, “so you were looking to start a relationship with someone?” and then commented, “And so you were married at the time?” Although the father was also married to someone when he began his relationship with the mother, no such questions or comments were directed to him by the court. The court’s inquiry of the mother exceeded 30 pages of transcript over the course of the two-day hearing. Although the court also questioned the father, the first inquiry related to setting up a parental access schedule for the father while the hearing was pending and the second set of inquiries appeared designed to elicit testimony from the father that was unfavorable to the mother, including one instance where the court intimated that the mother was practicing “extortion” against the father in order to gain an advantage in the proceedings … . Matter of Siegell v Iqbal, 2020 NY Slip Op 02084, Second Dept 3-25-20

 

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AN ATTORNEY REPRESENTING A SCHOOL-EMPLOYEE-UNION-MEMBER IN DISCIPLINARY PROCEEDINGS PURSUANT TO A COLLECTIVE BARGAINING AGREEMENT CAN NOT BE LIABLE IN MALPRACTICE TO THE UNION MEMBER (SECOND DEPT).

The Second Department determined the attorney (Guerra) who represented a union can not be held liable in malpractice to individual union members in disciplinary proceedings:

Pursuant to CPLR 3211(a)(2), a party may move to dismiss a cause of action on the ground that the court lacks subject matter jurisdiction as the cause of action is preempted by federal law … . Here, we agree with the Supreme Court’s determination that the complaint insofar as asserted against Guerra is preempted by section 301 of the Federal Labor Management Relations Act, and that attorneys such as Guerra who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants such as the plaintiff where the services performed constitute part of the collective bargaining process … . Klingsberg v Council of Sch. Supervisors & Adm’rs-Local 1, 2020 NY Slip Op 02083, Second Dept 3-25-20

 

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DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD AND DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT ON THE DUTY OF CARE AND KNOWLEDGE ELEMENTS OF A SLIP AND FALL CASE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Defendant property owner did not demonstrate it was an out-of-possession landlord. And defendants failed to eliminate questions of fact re: several elements of a slip and fall action:

… [T]he defendants failed to eliminate triable issues of fact as to whether they had a duty to maintain in a reasonably safe condition the area of the parking lot where the plaintiff allegedly slipped … . They further failed to eliminate triable issues of fact as to whether they, or anyone on their behalf, caused, created, or exacerbated the ice condition upon which the plaintiff allegedly slipped and fell … , and whether they lacked constructive notice of the alleged ice condition … . Pinck-Jafri v Marsh Realty, LLC, 2020 NY Slip Op 02082, Second Dept 3-25-30

 

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CRIMINALLY NEGLIGENT HOMICIDE CONVICTION ARISING FROM A TRAFFIC ACCIDENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, over a two-justice dissent, determined the conviction for criminally negligence homicide was against the weight of the evidence. The passenger in defendant’s car was killed when defendant’s car went off the road, apparently after colliding with other cars defendant was attempting to pass. The decision described all of the witness’s testimony in detail and concluded the conflicting testimony was not a sufficient basis for a conviction:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he [or she] causes the death of another person” (Penal Law § 125.10). A person acts with criminal negligence when “he [or she] fails to perceive a substantial and unjustifiable risk that such result will occur or that such [a] circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation” (Penal Law § 15.05[4]).

The defendant’s conduct must rise to a level of carelessness where its “seriousness would be apparent to anyone who shares the community’s . . . sense of right and wrong” … . Moreover, the conduct must create the risk, rather than simply not perceive the risk … .

In cases concerning charges of criminally negligent homicide arising out of automobile accidents involving excess rates of speed, “it takes some additional affirmative act by the defendant to transform speeding into dangerous speeding” … .

Here, the People failed to establish, beyond a reasonable doubt, that the defendant “fail[ed] to perceive a substantial and unjustifiable risk” (Penal Law § 15.05[4]) which caused the death of his passenger. People v Derival, 2020 NY Slip Op 02072, Second Dept 3-25-20

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, APPOINTED A RECEIVER BECAUSE THAT RELIEF WAS NOT REQUESTED BY A PARTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, appointed a receiver and should not have referred an issue to a court attorney referee in this dispute between plaintiff condominium boards and homeowners association and their management company and attorney. The complaint alleged breach of contract and negligence:

The Supreme Court improvidently exercised its discretion in, sua sponte, appointing a receiver to manage the plaintiff entities, since the complaint did not seek the appointment of a receiver, no “person having an apparent interest” in the plaintiff entities sought such relief, and there is no evidence that such a drastic remedy was warranted (CPLR 6401[a] …).

The Supreme Court should not have referred the issue of which Board of Managers and/or which management company shall be implemented to manage the affairs of the plaintiffs to a court attorney referee to hear and report, since the defendants lack standing to challenge the alleged violations of the plaintiffs’ bylaws in the elections of new board members (see N-PCL 618 …). Further, the reference of the issue of attorney’s fees was premature … . Board of Mgrs. of Golfview Condominium I v Island Condo Mgt. Corp., 2020 NY Slip Op 02070, Second Dept 3-25-20

 

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DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL WAS LAST INSPECTED OR CLEANED; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant had constructive notice of the condition which allegedly caused plaintiff’s slip and fall:

“A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length to afford the defendant a reasonable opportunity to discover and remedy it” … . To meet its burden on the issue of lack of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or inspected before the accident … . “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice”… . Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition. While the affidavit of the building superintendent referenced general inspection and cleaning practices, the defendant failed to submit evidence regarding specific cleaning or inspection of the area in question relative to the time when the plaintiff’s accident occurred … . Griffin v PMV Realty, LLC, 2020 NY Slip Op 02068, Second Dept 3-25-20

 

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VILLAGE BOARD WAS NOT REQUIRED TO CONSIDER AN APPLICATION FOR THE AMENDMENT OF A ZONING ORDINANCE WHICH IS A LEGISLATIVE FUNCTION NOT SUBJECT TO AN ARTICLE 78 REVIEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village board properly declined to consider an application to rezone the subject property, which was an exercise of a legislative function:

“[T]he amendment of a zoning ordinance is a purely legislative function” … . The Village Board is vested with discretion to amend its zoning ordinance, and it is not required to consider and vote upon every application for a zoning change (see Village Law § 7-708 …). Thus, in the present case, the Village Board’s determinations not to consider the plaintiffs/petitioners’ applications were a legislative function not subject to review under CPLR article 78 … . Matter of Hampshire Recreation, LLC v Village of Mamaroneck, 2020 NY Slip Op 02062, Second Dept 3-25-20

 

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MOTHER PRESENTED SUFFICIENT EVIDENCE OF A CHANGE IN CIRCUMSTANCES TO JUSTIFY AWARDING HER SOLE CUSTODY OF THE CHILDREN (SECOND DEPT).

The Second Department, reversing Family Court, determined there was sufficient evidence of a change of circumstances to award mother sole custody of the children:

… [T]he Family Court’s determination, in effect, that there had been no change in circumstances requiring a transfer of legal custody to the mother and a modification of the father’s parental access lacks a sound and substantial basis in the record … . The record reflects that the children’s relationship with the father has deteriorated since the issuance of the custody order … , that the father had threatened to strike the children with a belt, and that the father denigrated the mother in the presence of the children … . Moreover, the children, who were 11 and 13 years old at the time of the hearing, indicated a strong preference to reside with the mother … . Matter of Georgiou-Ely v Ely, 2020 NY Slip Op 02049, Second Dept 3-25-20

 

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QUESTION OF FACT WHETHER FLOODING, AS OPPOSED TO WIND, CAUSED THE PROPERTY DAMAGE PRECLUDED SUMMARY JUDGMENT IN FAVOR OF THE INSURER BASED UPON POLICY EXCLUSIONS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the exclusions in the homeowner’s policy applied to damage caused during Superstorm Sandy. The expert opinion evidence did not demonstrate flooding, as opposed to wind, was the predominant cause of the damage:

The Homeowners Policy contains three exclusions which Allstate has raised here: the flood exclusion, the “weather conditions” exclusion, and the “predominant cause” exclusion. The Homeowners Policy states that Allstate does not cover losses caused by “[f]lood, including, but not limited to surface water, waves, tidal water or overflow of any body of water, or spray from any of these, whether or not driven by wind.” The “weather conditions” exclusion states that Allstate does not cover losses caused by “Weather Conditions that contribute in any way with a cause of loss excluded in this section to produce a loss.” The “predominant cause” exclusion states that Allstate will not cover loss to a covered property when “there are two or more causes of loss to the covered property” and “the predominant cause(s) of loss is (are) excluded” under other provisions of the Policy. Ain v Allstate Ins. Co., 2020 NY Slip Op 02042, Second Dept 3-25-20

 

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NON-MANDATORY STANDARDS FOR THE GAP BETWEEN A SUBWAY TRAIN AND THE PLATFORM PROPERLY ADMITTED IN THIS SLIP AND FALL CASE; HOWEVER THE EVIDENCE OF PRIOR GAP-RELATED ACCIDENTS SHOULD NOT HAVE BEEN ADMITTED; NEW TRIAL ORDERED (CT APP).

The Court of Appeals, ordering a new trial, in a brief memorandum with no description of the facts, determined evidence of prior accidents involving the gap between the subway train and the platform should not have been admitted because there was no showing the conditions were the same. However the evidence of the non-mandatory gap standards were properly admitted:

In these circumstances, the trial court properly admitted plaintiff’s expert testimony regarding non-mandatory gap standards promulgated by the American Public Transit Association and the Public Transportation Safety Board … . However, Supreme Court abused its discretion as a matter of law by admitting evidence of prior accidents at New York City subway stations involving the gap between the train car and platform in the absence of a showing that the relevant conditions of those accidents were substantially the same as plaintiff’s accident … . Daniels v New York City Tr. Auth., 2020 NY Slip Op 02027, CtApp 3-24-20

 

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