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CLAIMANT’S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined the fact that the claimant was terminated from her employment as a city tax assessor because of two drunk-driving-related crimes did not preclude her from eligibility for unemployment insurance, The drunk driving incidents had nothing to do with her job and there was evidence she could have continued doing her job even though her license had been suspended for 90 days:

The disciplinary determination was founded, in part, upon claimant's two convictions for driving while under the influence of alcohol and her resulting license suspension. Whether this amounted to disqualifying misconduct posed a factual question for the Board, “and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct” … . …

The drunk driving incidents did not occur while claimant was working. Notably, possession of a valid driver's license was not listed among the qualifications necessary to hold the position of Sole Assessor and claimant testified that she was not advised that this was a requirement … . Claimant was not incarcerated as a result of her convictions and she testified that she was ready and able to fulfill her job duties notwithstanding the suspension of her driver's license … . Moreover, while claimant acknowledged that she occasionally did site visits, she testified that she could perform her duties while her license was temporarily suspended given that much of the data needed to compute the assessments had already been compiled and she could obtain a lot of the information online. Matter of Stack (City of Glens Falls–Commissioner of Labor), 2018 NY Slip Op 06840, Third Dept 10-11-18

UNEMPLOYMENT INSURANCE (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/EMPLOYMENT LAW (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/MUNICIPAL LAW  (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/CRIMINAL LAW (UNEMPLOYMENT INSURANCE, CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

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THE WORKERS’ COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS’ COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT).

The Third Department determined that claimant, a tractor trailer driver, was an employee of Eaton's Trucking Service and a special employee of Quality Carrier, with which Eaton had entered a contract. Therefore the Workers' Compensation Board properly found Eaton and Quality were each responsible for 50% of the workers' compensation awards:

… [W]e find that substantial evidence supports the Board's factual determination that claimant was a special employee of Quality … . Looking at “the underlying facts of the parties' relationship” … , the evidence established that Eaton and Quality had an arrangement whereby Eaton's drivers, including claimant, hauled products exclusively for Quality's customers and did so in furtherance of Quality's business, and that Eaton operated under Quality's logo and license without which Eaton could not have conducted its hauling operation. Their arrangement was the type of arrangement in which the “employee and equipment of [the] general employer were necessarily used and temporarily assigned to work for th[e] business” of the special employer, which has been recognized as creating a special employment relationship … . While Quality did not control the day-to-day oversight of claimant, this is not dispositive as Eaton and claimant operated entirely under Quality's authority and pursuant to its policies. As a result, Quality had sufficient control over the “details and ultimate result” of claimant's work, and Quality's working relationship with claimant was “sufficient in kind and degree so that [Quality] may be deemed [to be his] employer” … . Matter of Mitchell v Eaton's Trucking Serv., Inc., 2018 NY Slip Op 06839, Third Dept 10-11-18

WORKERS' COMPENSATION (THE WORKERS' COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS' COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT))/EMPLOYMENT LAW  (THE WORKERS' COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS' COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT))/SPECIAL EMPLOYEE (THE WORKERS' COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS' COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT))

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FIREFIGHTER’S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined that the firefighter's rule did not preclude a suit by a police officer (Stockbower) who allegedly was injured stepping out of his van into a depressed area around a sewer grate. The court further determined defendant city did not demonstrate it did not have constructive notice of the depressed area:

The negligence cause of action is not barred by the firefighters' rule, because the risk of injury was not increased by Slockbower's performance of his official duties … . Slockbower had parked the van in order to direct traffic, but was not actually doing so when he fell … . Although Slockbower admitted that he did not see the depressed sewer grate because he was “[l]ooking to see if there were any cars going by,” and not at the ground, it is clear from the context of this statement that he was not looking at the cars for the purpose of directing traffic, but in order to exit the van safely.

Defendants established prima facie that they neither caused nor had actual notice of the depressed sewer grate. However, they failed to establish as a matter of law that they had no constructive notice of it … . They submitted no evidence of any prior inspections … . Moreover, they submitted photographs of the grate taken within weeks after the accident that Slockbower testified fairly and accurately depicted the site as it appeared on the day of the accident … . Because the nature of the defect, as depicted in the photographs, is not latent, and the defect would not have developed overnight, constructive notice may be inferred from its existence … . Genova v City of New York, 2018 NY Slip Op 06813, First Dept 10-11-18

NEGLIGENCE (MUNICIPAL LAW, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))/MUNICIPAL LAW (NEGLIGENCE, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))/FIREFIGHTER'S RULE (NEGLIGENCE, MUNICIPAL LAW, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))/POLICE OFFICERS (NEGLIGENCE, MUNICIPAL LAW, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))

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PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT).

The First Department determined that defendants demonstrated they did not have notice of liquid on the stairs in this slip and fall case. But they did not meet their burden with respect to whether the handrail was loose:

Plaintiff alleges that she slipped and fell on a slippery liquid on the interior stairs of an apartment building … . Plaintiff testified that when she began to slip, she reached for the stairs' handrail, but it was loose, and she fell.

Defendants met their prima facie burden of showing that they neither created, nor had actual or constructive notice of, the alleged liquid on the stairway … . However, they failed to meet their burden with respect to plaintiff's alternative theory of liability, the allegedly defective handrail, given the superintendent's deposition testimony that he had previously repaired the handrail in the area where plaintiff fell by securing it with a clamp, but that one of the four screws needed to install the clamp was broken … . DeSuero v 1386 Assoc., LLC, 2018 NY Slip Op 06810, First Dept 10-11-18

NEGLIGENCE (SLIP AND FALL, PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT))/SLIP AND FALL (PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT))/HANDRAILS (SLIP AND FALL, PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT))/STAIRS (SLIP AND FALL, PLAINTIFF ALLEGED SHE SLIPPED ON LIQUID AND FELL AFTER REACHING FOR THE HANDRAIL, WHICH WAS LOOSE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE LIQUID BUT DID NOT MEET THEIR BURDEN ON THE ALLEGEDLY LOOSE HANDRAIL (FIRST DEPT))

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QUESTIONS OF FACT ABOUT ASSUMPTION OF THE RISK AND THE LOCATION OF AN UNPADDED SNOW MACHINE POLE PRECLUDED SUMMARY JUDGMENT IN THIS SKIING ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the ski resort defendants were not entitled to summary judgment in this skiing accident case. Infant plaintiff allegedly ran into a metal snow machine pole that was not padded:

The motion court dismissed the complaint on the ground that plaintiff assumed the risks associated with the sport of skiing.

Such risks include the risk of injury resulting from “other persons using the facilities” and from “man-made objects that are incidental to the provision or maintenance of a ski facility,” such as snowmaking equipment (General Obligations Law § 18-101; see also id. § 18-106). However, an individual “will not be deemed to have assumed … unreasonably increased risks”… .

If, as plaintiffs maintain, the unpadded pole was located on the ski trail or in an area where skiing was permitted, then defendants could be found to have failed to maintain their property in a reasonably safe condition. General Obligations Law § 18-107 provides that, “[u]nless otherwise specifically provided in this article, the duties of skiers, passengers, and ski operators shall be governed by common law” … . The common law applies where, as here, plaintiffs are alleging inadequate padding of defendant's snowmaking pole, a condition not specifically addressed by the statute (id.). On the record before us, we cannot conclude, as a matter of law, that the pole was off-trail and that the pole did not need to be padded. Thus, defendants are not entitled to summary judgment.

Nor are defendants entitled to summary judgment on the ground that the failure to pad the pole did not cause the subject collision, because that failure may have caused or enhanced the infant's injuries … . Madsen v Catamount Ski Resort, 2018 NY Slip Op 06794, First Dept 10-11-18

NEGLIGENCE (QUESTIONS OF FACT ABOUT ASSUMPTION OF THE RISK AND THE LOCATION OF AN UNPADDED SNOW MACHINE POLE PRECLUDED SUMMARY JUDGMENT IN THIS SKIING ACCIDENT CASE (FIRST DEPT))/ASSUMPTION OF RISK (SKIING, QUESTIONS OF FACT ABOUT ASSUMPTION OF THE RISK AND THE LOCATION OF AN UNPADDED SNOW MACHINE POLE PRECLUDED SUMMARY JUDGMENT IN THIS SKIING ACCIDENT CASE (FIRST DEPT))/SKIING (QUESTIONS OF FACT ABOUT ASSUMPTION OF THE RISK AND THE LOCATION OF AN UNPADDED SNOW MACHINE POLE PRECLUDED SUMMARY JUDGMENT IN THIS SKIING ACCIDENT CASE (FIRST DEPT))

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ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF’S DECEDENT’S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT).

The First Department determined that defendant's motion for summary judgment in this walkway slip and fall case was properly denied. Although there was evidence suggesting the storm-in-progress doctrine applied, defendants did not demonstrate the condition of the walkway before the storm. The court noted the plaintiff's decedent's testimony was contradictory and strained credulity:

Defendant established, through an expert report and meteorological records, that on January 5, 2014, a freezing rain storm occurred before the decedent's alleged accident and ended after or shortly before the accident, implicating the storm-in-progress doctrine … . However, defendant failed to establish the condition of the walkway on which the decedent fell before the storm began. The meteorological records show that a snow storm had occurred on January 2 and 3, causing between six and seven inches of snow to fall. They also show that the snow melted and re-froze on January 4. Thus, defendant failed to eliminate the issues of fact whether there was ice on the walkway before the freezing rain storm began and whether it had been there long enough for defendant to discover and remedy the situation… .

We agree with defendant that the decedent's own testimony appears to contradict itself on numerous occasions, and strains credulity on others. However, we do not find the testimony incredible as a matter of law, and leave it to the trier of fact to evaluate. Thomas v New York City Hous. Auth., 2018 NY Slip Op 06789, First Dept 10-11-18

NEGLIGENCE (ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))/SLIP AND FALL (ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))/STORM IN PROGRESS (ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))/EVIDENCE (SLIP AND FALL, ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))

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ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PATRONIZING A PROSTITUTE WAS NOT JURISDICTIONALLY DEFECTIVE BECAUSE A CLINICAL PHRASE WAS USED TO DESCRIBE SEXUAL ACTIVITY (CT APP).

The Court of Appeals, reversing the appellate term, determined that the accusatory instrument charging defendant with patronizing a prostitute was not jurisdictionally defective:

Giving the allegations “a fair and not overly restrictive or technical reading” … , and “drawing reasonable inferences from all the facts set forth in the accusatory instrument” … , the accusatory instrument contains sufficient facts to demonstrate “reasonable cause” to believe (CPL 100.40[4][b]) that defendant was guilty of patronizing a prostitute in the third degree (see Penal Law § 130.00[10]). The factual allegations that defendant requested “manual stimulation” from a woman on a street corner, for a specific sum of money, at 2:25 a.m., supplied “defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy”… . Defendant’s argument that “manual stimulation” could be indicative of nonsexual conduct ignores the inferences of sexual activity to be drawn from the factual context in which the statement was alleged to have been made—a late night solicitation of a physical personal service from an individual on a public street, in exchange for a sum of money. Any assertion that defendant was referring to a nonsexual activity “was a matter to be raised as an evidentiary defense not by insistence that this information was jurisdictionally defective” … . The fact that the instrument used a clinical phrase for the sexual activity alleged does not render the instrument jurisdictionally defective. People v Drelich, 2018 NY Slip Op 06785, CtApp 10-11-18

CRIMINAL LAW (ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PATRONIZING A PROSTITUTE WAS NOT JURISDICTIONALLY DEFECTIVE BECAUSE A CLINICAL PHRASE WAS USED TO DESCRIBE SEXUAL ACTIVITY (CT APP))/PATRONIZING A PROSTITUTE (CRIMINAL LAW, ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PATRONIZING A PROSTITUTE WAS NOT JURISDICTIONALLY DEFECTIVE BECAUSE A CLINICAL PHRASE WAS USED TO DESCRIBE SEXUAL ACTIVITY (CT APP))/ACCUSATORY INSTRUMENT (CRIMINAL LAW, ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PATRONIZING A PROSTITUTE WAS NOT JURISDICTIONALLY DEFECTIVE BECAUSE A CLINICAL PHRASE WAS USED TO DESCRIBE SEXUAL ACTIVITY (CT APP))

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LESSOR OF VEHICLE INVOLVED IN AN ACCIDENT DID NOT DEMONSTRATE IT WAS NOT LIABLE BASED UPON ITS MAINTENANCE OF THE VEHICLE, THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE GRAVES AMENDMENT APPLIED (SECOND DEPT).

The Second Department determined defendant lessor of a vehicle involved in an accident (BCL) did not demonstrate it could not be liable under the Graves Amendment for negligent maintenance of the vehicle:

Under the Graves Amendment, the owner of a leased vehicle will not be held vicariously liable for the negligent operation of that vehicle where the owner proves that it is engaged in the business of renting or leasing motor vehicles and it was not otherwise negligent… . However, “[t]he Graves Amendment does not apply where, as here, a plaintiff seeks to hold a vehicle owner liable for the alleged failure to maintain a rented vehicle”… . Accordingly, in order to establish its prima facie entitlement to judgment as a matter of law in this action, BCL was required to prove not only that it is in the business of leasing vehicles, but also, that it did not negligently maintain the BCL vehicle … .

BCL failed to sustain its prima facie burden, since the affidavit of its litigation specialist failed to address the plaintiff's negligent maintenance theory of liability, and the copy of the lease documents it submitted stated that Wesner was obligated to have the subject vehicle serviced “by a BCL partner dealer” according to a service schedule established by BCL. Casine v Wesner, 2018 NY Slip Op 06714, Second Dept 10-10-18

NEGLIGENCE (LESSOR OF VEHICLE INVOLVED IN AN ACCIDENT DID NOT DEMONSTRATE IT WAS NOT LIABLE BASED UPON ITS MAINTENANCE OF THE VEHICLE, THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE GRAVES AMENDMENT APPLIED (SECOND DEPT))/TRAFFIC ACCIDENTS (LESSOR OF VEHICLE INVOLVED IN AN ACCIDENT DID NOT DEMONSTRATE IT WAS NOT LIABLE BASED UPON ITS MAINTENANCE OF THE VEHICLE, THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE GRAVES AMENDMENT APPLIED (SECOND DEPT))/GRAVES AMENDMENT (LESSOR OF VEHICLE INVOLVED IN AN ACCIDENT DID NOT DEMONSTRATE IT WAS NOT LIABLE BASED UPON ITS MAINTENANCE OF THE VEHICLE, THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE GRAVES AMENDMENT APPLIED (SECOND DEPT))

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IT WAS IN THE BEST INTERESTS OF THE CHILD TO RESTRICT CONTACT WITH THE INCARCERATED FATHER TO TELEPHONE CALLS (SECOND DEPT).

The Second Department determined it was in the child's best interests to limit the incarcerated father's contact with the child to telephone calls:

The father had last seen the child in 2011 or 2012, when the mother and child visited the father in a detention facility in Brooklyn. The mother testified that the visit was “extremely stressful” for the child, the jail personnel asked the mother and the child to leave multiple times, and the child was unable to sit for any period of time. After the fact-finding hearing, the Family Court denied the father's petition, and, instead, directed that the father have telephone contact with the child. The father appeals.

The paramount concern in making a parental access determination is the best interests of the child, under the totality of the circumstances … . Parental access with a noncustodial parent is presumed to be in the best interests of a child, even when that parent is incarcerated … . However, that presumption may be rebutted by demonstrating, by a preponderance of the evidence, that under all the circumstances parental access would be harmful to the child's welfare, or that the right to parental access has been forfeited … . Here, there is a sound and substantial basis in the record for the Family Court's determination limiting the father's contact with the child to telephone communication. A preponderance of the evidence adduced at the fact-finding hearing demonstrated that in-person parental access at the prison would be harmful to the child's welfare … . Matter of Grimes v Pignalosa-Grimes, 2018 NY Slip Op 06740, Second Dept 10-10-18

FAMILY LAW (IT WAS IN THE BEST INTERESTS OF THE CHILD TO RESTRICT CONTACT WITH THE INCARCERATED FATHER TO TELEPHONE CALLS (SECOND DEPT))VISITATION (FAMILY LAW, IT WAS IN THE BEST INTERESTS OF THE CHILD TO RESTRICT CONTACT WITH THE INCARCERATED FATHER TO TELEPHONE CALLS (SECOND DEPT))

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SECOND MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON GROUNDS THAT COULD HAVE BEEN RAISED IN THE FIRST MOTION, SECOND MOTION SHOULD NOT HAVE BEEN TREATED AS A MOTION TO RENEW (SECOND DEPT).

The Second Department determined the motion to vacate a default judgment should not have been granted on grounds that could have been raised in the first motion (which was denied). The court further held that the second motion should not have been deemed a motion to renew, for essentially the same reason:

The Supreme Court should have denied that branch of the defendant's motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment, since that branch was premised on grounds that were apparent at the time that the defendant made the prior motion to vacate, but had not been asserted in that prior motion … .

To the extent that the Supreme Court treated the defendant's second motion as one for leave to renew, the court should not have granted leave to renew and, upon renewal, granted that branch of the defendant's prior motion which was to vacate the judgment. Pursuant to CPLR 2221, a motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” … and “shall contain reasonable justification for the failure to present such facts on the prior motion” … . “A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” … . The Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion … . Here, the defendant failed to proffer any justification for the failure to present the new facts on the original motion. Furthermore, the defendant failed to demonstrate that the new facts would have changed the prior determination … . A.G. Parker, Inc. v 246 Rochester Partners, LLC, 2018 NY Slip Op 06711, Second Dept 10-10-18

CIVIL PROCEDURE (SECOND MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON GROUNDS THAT COULD HAVE BEEN RAISED IN THE FIRST MOTION, SECOND MOTION SHOULD NOT HAVE BEEN TREATED AS A MOTION TO RENEW (SECOND DEPT))/VACATE DEFAULT, MOTION TO (SECOND MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON GROUNDS THAT COULD HAVE BEEN RAISED IN THE FIRST MOTION, SECOND MOTION SHOULD NOT HAVE BEEN TREATED AS A MOTION TO RENEW (SECOND DEPT))/RENEW, MOTION TO  (SECOND MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON GROUNDS THAT COULD HAVE BEEN RAISED IN THE FIRST MOTION, SECOND MOTION SHOULD NOT HAVE BEEN TREATED AS A MOTION TO RENEW (SECOND DEPT))/CPLR 5015 (SECOND MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON GROUNDS THAT COULD HAVE BEEN RAISED IN THE FIRST MOTION, SECOND MOTION SHOULD NOT HAVE BEEN TREATED AS A MOTION TO RENEW (SECOND DEPT))/CPLR 2221 (SECOND MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON GROUNDS THAT COULD HAVE BEEN RAISED IN THE FIRST MOTION, SECOND MOTION SHOULD NOT HAVE BEEN TREATED AS A MOTION TO RENEW (SECOND DEPT))

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