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DEFENDANT’S PAPERS SUFFICIENTLY RAISED A QUESTION WHETHER HE WAS DENIED HIS RIGHT TO EFFECTIVE COUNSEL BECAUSE OF COUNSEL’S CONFLICT OF INTEREST, DENIAL OF DEFENDANT’S MOTION TO VACATE HIS CONVICTION WITHOUT A HEARING WAS AN ABUSE OF DISCRETION (CT APP).

The Court of Appeals, over a dissenting opinion by Judge Stein, determined that defendant was entitled to a hearing on his motion to vacate his conviction on the ground his attorney (Chabrowe) was ineffective because of a conflict of interest. Defendant alleged a party (Salaam) who was present at the scene of the depraved indifference murder committed by defendant was represented by Chabrowe and had paid Chabrowe’s fees on defendant’s behalf:

Although defendant had informed the trial court during the Gomberg inquiry that he or his family had hired Chabrowe, he alleged that Salaam paid Chabrowe to represent defendant, resulting in an undisclosed and “unwaivable” conflict, and that Chabrowe failed to explain any possible conflict of interest related to Salaam’s payment of defendant’s legal fees. In addition to his own affidavit, defendant submitted an affirmation from his current appellate counsel, who relayed details of a conversation he affirmed he had with Chabrowe about the payment of defendant’s legal fees. Defendant also relied on recorded prison phone calls, which purportedly corroborate defendant’s allegation that Salaam hired and paid for his attorney. * * *

We review the summary denial of a CPL 440.10 motion under an abuse of discretion standard. On this record, we conclude that Supreme Court abused its discretion in determining that a hearing was not warranted to address the allegations contained in defendant’s CPL 440.10 motion regarding Chabrowe’s representation of defendant and whether any conflict of interest existed warranting reversal. People v Brown, 2019 NY Slip Op 03404, CtApp 5-2-19

 

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QUESTIONS OF FACT WHETHER THE EMPLOYEE WAS DRIVING THE EMPLOYER’S TRUCK WITH THE EMPLOYER’S PERMISSION AND WHETHER THE EMPLOYEE WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE TRAFFIC ACCIDENT OCCURRED (THIRD DEPT).

The Third Department determined plaintiff’s vicarious liability causes of action against the employer of the driver of a company truck which struck plaintiff’s car head-on properly survived summary judgment. The driver, Price, was intoxicated and was convicted of vehicular assault. The employer argued that, because of the company policy prohibiting employees from using drugs and alcohol, Price did not have permission to operate the truck within the meaning of Vehicle and Traffic Law 388. The employer further argued Price was not acting within the scope of his employment when the accident occurred. The court found there were questions of fact on both issues:

… [T]he requirement to drive sober relates more closely to the manner of operation, or how to drive, rather than a restriction on who may operate the vehicle and when and where they may do so … . As defendants did not establish, as a matter of law, that Price was driving without permission at the time of the accident, they were not entitled to summary judgment on the Vehicle and Traffic Law § 388 claim … . …

Price testified that [his employer] gave him a vehicle to use for business purposes, including traveling from home to work, and at the time of the accident he was driving to a job site to begin work for the day. [The employer] arguably derived a benefit from Price’s ability to take the vehicle home because the truck contained a tool box for work tools, he used the truck to transport supplies to job sites from home improvement stores, the truck advertised the business by displaying the company name and logo, and he worked at construction job sites rather than a main office, so permitting him to take the vehicle home saved him from having to use work time to pick the company truck up and drop it off at a central location each day … . Based on this evidence, defendants failed to establish their entitlement to summary judgment, as there was a factual question regarding whether Price was acting within the scope of his employment at the time of the accident … . Williams v J. Luke Constr. Co., LLC, 2019 NY Slip Op 03431, Third Dept 5-2-19

 

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CITY DID NOT HAVE NOTICE OF THE PROTRUDING SIGN ANCHOR IN THE SIDEWALK AND PLAINTIFF WAS UNABLE TO SHOW THE CONDITION WAS THE IMMEDIATE EFFECT OF ACTION TAKEN BY THE CITY, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant-city’s motion for summary judgment in this sidewalk slip and fall case should have been granted. Plaintiff alleged a sign which had been installed in the sidewalk was missing and she tripped over the protruding sign anchor. The city demonstrated it did not have written notice of the condition. And plaintiff was unable to show the condition was the immediate effect of action taken by the city:

… [P]laintiff claimed that defendant affirmatively created the defect by improperly installing the sign in 2006 and failing to routinely monitor its condition thereafter. “However, the affirmative negligence exception to prior written notice statutes applies only where the action of the municipality immediately results in the existence of a dangerous condition” … . Plaintiff failed to present any proof establishing that defendant engaged in an activity that immediately resulted in the detachment of the sign and sign pole from its anchor … . Harvish v City of Saratoga Springs, 2019 NY Slip Op 03428, Third Dept 5-2-19

 

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PLAINTIFF’S SON WAS INJURED WHEN A UTILITY VEHICLE DRIVEN ON PRIVATE PROPERTY BY DEFENDANTS’ 14-YEAR-OLD SON OVERTURNED, THE VEHICLE AND TRAFFIC LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE VEHICLE WAS NOT BEING DRIVEN ON A PUBLIC ROAD, HOWEVER THE NEGLIGENT ENTRUSTMENT CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the Vehicle and Traffic Law cause of action should have been dismissed, but the negligent entrustment cause of action properly survived summary judgment. Plaintiffs’ 16-year-old son was injured when defendants’ utility vehicle, driven on private property by defendants’ 14-year-old son, overturned:

We find merit in defendants’ claim that Supreme Court erroneously concluded that the utility vehicle is not excluded under Vehicle and Traffic Law § 125. Pursuant to Vehicle and Traffic Law § 388 (1), “[e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle . . . by any person using or operating the same with the permission, express or implied, of such owner.” For purposes of section 388, vehicle means a motor vehicle, which is defined as “[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power” … . A public highway is “[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way” (Vehicle and Traffic Law § 134).

At the time of the incident, the utility vehicle was being operated on defendants’ private property — not a public highway … . Accordingly, we find that the utility vehicle was not a motor vehicle within the meaning of Vehicle and Traffic Law § 125 …, and it was error for Supreme Court to conclude otherwise. …

Supreme Court did not err in denying summary judgment on the negligent entrustment cause of action. “[A] parent owes a duty to protect third parties from harm that is clearly foreseeable from the child’s improvident use or operation of a dangerous instrument, where such use is found to be subject to the parent’s control” … . …

[The] submissions reveal that [defendant] O’Leary’s son was not always required to ask for permission to operate the utility vehicle and fail to show that O’Leary had knowledge of how his son, when out of his presence, operated the vehicle. This proof, together with the clear warnings in the operator’s manual, fails to support a determination as a matter of law that defendants could not have “clearly foreseen” that their 14-year-old son’s recreational use of the utility could have exposed others to injury … . Wright v O’Leary, 2019 NY Slip Op 03424, Third Dept 5-2-19

 

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UNUSUAL INCIDENT REPORTS, USE OF FORCE REPORTS, AND MISBEHAVIOR REPORTS KEPT BY THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SERVICES (DOCCS) RE: INCIDENTS IN PRISONS ARE NOT PERSONNEL RECORDS PURSUANT TO CIVIL RIGHTS LAW 50-a, THEREFORE PETITIONER WAS ENTITLED TO UNREDACTED COPIES PURSUANT TO HIS FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, in a matter of first impression, determined that records kept by the Department of Corrections and Community Supervision (DOCCS) regarding incidents in prisons were not personnel records pursuant to Civil Rights Law 50-a. Therefore petitioner was entitled to unredacted copies pursuant to his Freedom of Information Law (FOIL) request:

… [U]nusual incident reports, use of force reports and misbehavior reports have distinct characteristics. However, they share several important commonalities. To begin with, each category of report is, at its core, a written memorialization of an event that occurred at a DOCCS facility. Additionally, and significantly, each type of report is authored, as a mandatory component of their job duties, by staff members with knowledge of the underlying event. The reports do not arise out of inmate allegations or grievances … . Nor are they written documentation of disciplinary proceedings or disciplinary action taken against a correction officer … . Given their factual nature and that each is written by a witness or witnesses with knowledge of the underlying facility event, we find unusual incident reports, use of force reports and misbehavior reports to be more akin to arrest reports, stop reports, summonses, accident reports and body-worn camera footage, none of which is quintessentially “personnel records” … . * * *

… [W]hile it is relevant that unusual incident reports and use of force reports may be used in employee performance evaluations, that factor alone is not determinative. Otherwise, any employee work product or record documenting an employee’s on-duty actions would classify as a personnel record with the justification that it could be used to evaluate work performance and would, thus, result in a situation in which the exception swallows the rule … .

… [W]ith regard to the legislative objective of Civil Rights Law § 50-a, respondents have not demonstrated a “substantial and realistic potential” for the unredacted reports to be used against the officers in a harassing or abusive manner … . Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 2019 NY Slip Op 03421, Third Dept 5-2-19

 

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PLAINTIFF’S VERIFIED COMPLAINT WAS NOT ‘DOCUMENTARY EVIDENCE’ WITHIN THE MEANING OF CPLR 3211, DEFENDANT’S MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED BASED UPON ALLEGATIONS IN PLAINTIFF’S VERIFIED COMPLAINT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff’s verified complaint in this prescriptive easement action was not “documentary evidence” within the meaning of CPLR 3211 (a)(1) and therefore could not be the basis for granting defendant’s motion to dismiss:

“A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint as barred by documentary evidence may be properly granted only if the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity” … . “Materials that clearly qualify as documentary evidence include documents reflecting out-of-court transactions such as mortgages, deed, contracts, and any other papers, the contents of which are essentially undeniable” … . Also, as relevant here, “[a] party claiming a prescriptive easement must show, by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years” … .

Supreme Court, in granting defendant’s motion to dismiss, relied solely on plaintiffs’ verified complaint in which they admitted that, during the period of time that the right-of-way has been used by their patrons, plaintiffs were aware that defendant owned the subject property … . Accordingly, the court found that this knowledge rebutted the element of hostility and, as such, voided a necessary element of establishing a prescriptive easement. Although a complaint serves the important purpose of setting forth the plaintiff’s allegations, we do not find that it is “so essentially undeniable as to qualify as documentary evidence that conclusively refutes any claim that [a] plaintiff might have” … . Further, in a motion to dismiss pursuant to CPLR 3211, a “court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide [the] plaintiff the benefit of every possible inference” … ; therefore, the complaint cannot also conclusively refute itself, which is what Supreme Court attempted to do here. Koziatek v SJB Dev. Inc., 2019 NY Slip Op 03419, Third Dept 5-2-19

 

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EVIDENCE OF MOTHER’S FAILURE TO COMPLY WITH CONDITIONS OF A SUSPENDED JUDGMENT WAS INCOMPLETE, AND, ALTHOUGH THE EVIDENCE OF FATHER’S FAILURE TO COMPLY WAS SUFFICIENT, FAMILY COURT DID NOT TAKE THE BEST INTERESTS OF THE CHILDREN INTO CONSIDERATION, TERMINATION OF PARENTAL RIGHTS REVERSED (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the evidence did not support the alleged violations of a suspended judgment by mother and the termination of father’s and mother’s parental rights. The decision is fact-specific and cannot be fairly summarized here. In a nutshell the evidence presented by the petitioner with regard to mother’s alleged non-compliance with the suspended judgment was incomplete, and Family Court failed to consider the best interests of the child:

With regard to the mother’s engagement in services, the caseworker testified that she had not received a return call from Trinity prior to the hearing and, as such, she was not aware whether the mother had engaged in any alcohol and drug treatment. The mother, however, testified that she made an appointment for an intake at Trinity prior to the filing of the subject motion and had thereafter commenced treatment on November 3, 2017. The caseworker also testified that, as she had also not heard back from the mother’s Family Services counselor, she had no information as to whether the mother was engaged in either the protective parenting or the domestic violence programs. With regard to mental health counseling, the mother alleged that she had called and made an appointment prior to the filing of the subject motion, and the caseworker confirmed that the mother did attend an initial intake on November 17, 2017; however, the caseworker was unaware if the mother was following up with any recommended treatment as she had not spoken with the mother’s Family Services counselor. * * *

With regard to the father, although we find that Family Court’s determination revoking the suspended judgment is supported by a sound and substantial basis in the record … , such noncompliance “does not automatically result in termination of his . . . parental rights” … . Rather, even at this stage of the proceedings, Family Court was required to consider the best interests of the children  … . Matter of Nahlaya MM. (Britian MM.), 2019 NY Slip Op 03418, Third Dept 5-2-19

 

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BY THE TIME OF SENTENCING FOR CONTEMPT FOR FATHER’S WILLFUL VIOLATION OF A SUPPORT ORDER, FATHER HAD PAID ALL THE ARREARS, FAMILY COURT SHOULD NOT HAVE ORDERED HIS INCARCERATION (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have ordered father incarcerated for 20 days for contempt for willful violation of a support order because, at the time of sentencing, father had paid all the arrears:

Upon finding that a respondent has willfully failed to obey a lawful order of support, Family Court may “commit the respondent to jail for a term not to exceed six months” (Family Ct Act § 454 [3] [a]). “Such a sentence is in the nature of a civil contempt, which ‘may only continue until such time as the offender, if it is within his or her power, complies with the support order'” ( … see Family Ct Act § 156 … ). Inasmuch as the father paid his child support arrears in full prior to the imposition of the sentence, Family Court abused its discretion by issuing the order of commitment … . Matter of Marotta v Casler, 2019 NY Slip Op 03417, Third Dept 5-2-19

 

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BECAUSE NO PETITION HAD BEEN FILED IN THIS SUPPORT ENFORCEMENT PROCEEDING, FAMILY COURT DID NOT HAVE SUBJECT MATTER JURISDICTION, A DEFECT THAT MAY BE BROUGHT UP AT ANY TIME (THIRD DEPT).

The Third Department determined Family Court did not have subject matter jurisdiction over the support enforcement proceeding because no petition had been filed. The support magistrate had erroneously treated a request by Florida to register the Florida support judgment in New York as an “enforcement petition:”

The Uniform Interstate Family Support Act (see Family Ct Act art 5-B) provides that “[a] registered support order issued in another state . . . is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state” (Family Ct Act § 580-603 [b]). In New York, proceedings for the violation of a support order “shall be originated by the filing of a petition containing an allegation that the respondent has failed to obey a lawful [support] order,” and Family Court lacks subject matter jurisdiction to determine a violation claim without that petition (Family Ct Act § 453 … ). DSS was free to, and eventually did, file a petition alleging that the father had failed to comply with the support provisions contained in the 2014 judgment (see Family Ct Act §§ 453 [a]; 580-603 [b]). This proceeding did not arise out of that petition, however, and was not rendered viable by its filing … . Family Court accordingly lacked subject matter jurisdiction to render the appealed-from order, and “the claim that a court lacked subject matter jurisdiction ‘may be raised at any time and may not be waived'” … . Matter of Pudvah v Pudvah, 2019 NY Slip Op 03414, Third Dept 5-2-19

 

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ORDER ENTERED UPON CONSENT IS NOT APPEALABLE, COERCION ARGUMENT MUST BE RAISED IN A MOTION TO VACATE THE ORDER (THIRD DEPT).

The Third Department, dismissing the appeal in this neglect proceeding, noted that an order entered upon consent is not appealable. The argument that the consent was coerced must be raised in a motion to vacate the order:

Following consultation with her counsel, respondent … consented on the record to a finding of neglect. Family Court then entered an order that adjudicated the children to be neglected and contained the agreed-upon terms of disposition. Respondent appeals.

It is well settled that an order entered upon consent is not appealable … . Respondent’s claim that her consent was involuntary because she was coerced into accepting the settlement offer should have been raised in Family Court by way of a motion to vacate the order (see Family Ct Act § 1051 [f] … ). As the record does not reveal that any such application was made, the appeal is not properly before this Court. Matter of Vicktoriya DD. (Sheryl EE.), 2019 NY Slip Op 03411, Third Dept 5-2-19

 

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