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COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT’S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT).

The First Department determined the college adequately addressed petitioner-Ph.D-student's learning disability and petitioner was properly terminated from the program after failing an exam:

The record establishes that respondents reasonably accommodated the known aspects of petitioner's learning disability by granting him, among other accommodations, double the amount of time (six hours) for a certification exam, with an additional hour for lunch to be used at his discretion. There is no record that respondents were ever apprised, until months after petitioner had twice unsuccessfully sat for the exam, that the resulting length of the test could exacerbate petitioner's disability through fatigue. Petitioner thus failed to meet his burden, under the Americans with Disabilities Act (ADA), of showing that the additional accommodations he sought (i.e., to take the exam home or split the six hours over two days) were facially reasonable… . Moreover, the record establishes that respondents met their duty, in advance of both administrations of the exam, to engage in an interactive dialogue with petitioner … .

Petitioner's claim for breach of implied contract also fails, as respondents' determination that petitioner did not pass the exam (and the resulting termination from the program) was rationally based in the record and, as an academic evaluation, is beyond further review … . Matter of De Jesus v Teachers Coll., 2018 NY Slip Op 06186, First Dept 9-25-18

EDUCATION-SCHOOL LAW (COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT'S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT))/AMERICANS WITH DISABILITIES ACT (EDUCATION-SCHOOL LAW, COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT'S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT))/LEARNING DISABILITIES (ACCOMMODATIONS, COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT'S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT))/ACCOMMODATIONS (EDUCATION-SCHOOL LAW, COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT'S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT))

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OFFICE OF CHILDREN AND FAMILY SERVICES’ CHILD-MALTREATMENT FINDING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT).

The First Department found that the child maltreatment determination by the NYS Office of Children and Family Services (OCFS) was not indicated:

OCFS's determination that child maltreatment by petitioners was “indicated” is not supported by substantial evidence… . Petitioners were in compliance with the recommendations of the child's pediatrician during the period in question, and there is no evidence that their failure to seek regular visits with a hematologist or to administer a daily dose of penicillin to the child as a prophylaxis either impaired or risked imminently impairing the child's physical condition… . Medical records show that the child's hospitalizations in 2014 and a year later in 2015 were the result of a viral infection, which would not have been prevented by his seeing a hematologist regularly or taking penicillin, an antibiotic. After the 2015 hospitalization, the child's treating physician ratified a course of treatment that did not include a daily antibiotic. Further, petitioners' decision not to further vaccinate the child did not violate the pediatrician's directive … . Matter of Charles v Poole, 2018 NY Slip Op 06185, First Dept 9-25-18

FAMILY LAW (OFFICE OF CHILDREN AND FAMILY SERVICES' CHILD-MALTREATMENT FINDING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT))/CHILD MALTREATMENT (OFFICE OF CHILDREN AND FAMILY SERVICES' CHILD-MALTREATMENT FINDING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT))/OFFICE OF CHILDREN AND FAMILY SERVICES (OFFICE OF CHILDREN AND FAMILY SERVICES' CHILD-MALTREATMENT FINDING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT))

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2015 MOTION TO REINSTATE THE APPEAL OF A 1986 CONVICTION DENIED (FIRST DEPT).

The First Department determined defendant's appeal should be dismissed because more than 30 had passed between his conviction and the motion to reinstate the appeal. The defendant had absconded from his 1986 trial and then served a long sentence in North Carolina:

In 1984 defendant absconded during trial, and was tried and convicted in absentia. His attorney filed a notice of appeal, but defendant did nothing to perfect his appeal, which was dismissed in 1998, on the People's motion, for failure to prosecute.

Meanwhile, in 1986, defendant was convicted of serious charges in North Carolina, and he served a lengthy sentence there. Commencing in 2003, nearly 20 years after his conviction, when the New York Department of Correctional Services lodged a detainer in North Carolina based on the instant conviction, defendant filed various pro se motions in connection with his New York conviction. However, defendant did not move to reinstate his appeal until 2015, more than 30 years after his conviction. …

The People seek to dismiss defendant's appeal based on the “failure of timely prosecution or perfection thereof” pursuant to CPL 470.60(1). Where an absconding defendant's appeal remains pending for a long time, whether the appeal should be ultimately be permitted to proceed is “subject to the broad discretion of the Appellate Division” … . In exercising its discretion, this Court may consider factors including whether defendant's flight caused “a significant interference with the operation of [the] appellate process”; whether defendant's absence “so delayed the administration of justice that the People would be prejudiced in locating witnesses and presenting evidence at any retrial should the defendant be successful on appeal”; the length of the defendant's absence; whether the defendant “voluntarily surrendered”; and the merits of the appeal … . People v Williams, 2018 NY Slip Op 06182, First Dept 9-25-18

CRIMINAL LAW (APPEALS, 2015 MOTION TO REINSTATE THE APPEAL OF A 1986 CONVICTION DENIED (FIRST DEPT))/APPEALS (CRIMINAL LAW, 2015 MOTION TO REINSTATE THE APPEAL OF A 1986 CONVICTION DENIED (FIRST DEPT))

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QUESTION OF FACT WHETHER ICE WAS PRESENT ON THE SIDEWALK IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact whether ice was present on the sidewalk in this slip and fall case:

Moreover, the parties sharply dispute whether there was an accumulation of old ice in the area of the accident. Defendants presented testimony from their superintendent that he did not see anything out of the ordinary regarding the condition of the sidewalk, and testimony from an expert meteorologist that the ground was bare of snow and that ice could not have formed naturally from the meteorological conditions. In addition, defendants submitted photographs, however they do not clearly show whether or not there was ice in the sidewalk crack. In contrast, plaintiff testified that there was “dirty” ice on the sidewalk which caused her to fall, and submitted public meteorological records showing that there had been a significant snowfall 12 days before and intermittent freezing temperatures since that date. In light of this factual dispute, summary judgment is inappropriate.

Furthermore, defendants failed to make a prima facie showing that they did not have constructive notice of the allegedly dangerous condition. Defendants' superintendent testified that building porters inspected the sidewalk each morning, but failed to provide any specific testimony regarding the inspection on the accident date. Defendants' superintendent also could not recall whether there was ice on the ground, even though he examined the area after the incident. Plaintiff's testimony about “dirty” ice creates a triable issue of fact because it indicates that the icy condition had existed for some time … . The storm in progress doctrine has no application to this case because plaintiff does not allege that the storm on the accident date caused the dangerous condition … . ​Adario-Caine v 69th Tenants Corp., 2018 NY Slip Op 06180, First Dept 9-25-18

NEGLIGENCE (QUESTION OF FACT WHETHER ICE WAS PRESENT ON THE SIDEWALK IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED (FIRST DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER ICE WAS PRESENT ON THE SIDEWALK IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, QUESTION OF FACT WHETHER ICE WAS PRESENT ON THE SIDEWALK IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED (FIRST DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER ICE WAS PRESENT ON THE SIDEWALK IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED (FIRST DEPT))

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IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT DID NOT ELIMINATE ISSUES OF FACT ABOUT WHETHER THE PLAINTIFF CAN PROVE THE CAUSE OF PLAINTIFF’S DECEDENT’S FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this sidewalk slip and fall case did not eliminate triable issues of fact about whether the plaintiff can demonstrate the cause of plaintiff's decedent's fall:

“A plaintiff's inability to identify the cause of his or her fall is fatal to a cause of action to recover damages for personal injuries because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation” … . “Proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident. However, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action” … .

Here, the defendant failed to establish, prima facie, that the cause of Estelle's fall was not identifiable. In support of its motion, the defendant submitted the deposition testimony of nonparty witness Laura Acito, who saw the plaintiff fall. While a vehicle was in front of Acito, and she was only able to see Estelle from the waist up, Acito was able to identify the exact spot where the accident occurred. Acito worked in a strip mall which was located next to the defendant's vacant lot, and she was familiar with the area where the accident occurred. Using photographs which she authenticated, Acito stated that the accident occurred in that portion of the sidewalk which was broken up and in a state of disrepair for years. Under the circumstances, the defendant failed to eliminate triable issues of fact as to whether Estelle fell due to the alleged defective condition of the sidewalk …  Since the defendant failed to meet its initial burden, the sufficiency of the plaintiff's opposition papers need not be reviewed … . Eisenstein v Block 5298, Inc., 2018 NY Slip Op 06080, Second Dept 9-19-18

NEGLIGENCE (IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT DID NOT ELIMINATE ISSUES OF FACT ABOUT WHETHER THE PLAINTIFF CAN PROVE THE CAUSE OF PLAINTIFF'S DECEDENT'S FALL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (SLIP AND FALL, IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT DID NOT ELIMINATE ISSUES OF FACT ABOUT WHETHER THE PLAINTIFF CAN PROVE THE CAUSE OF PLAINTIFF'S DECEDENT'S FALL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL  (IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT DID NOT ELIMINATE ISSUES OF FACT ABOUT WHETHER THE PLAINTIFF CAN PROVE THE CAUSE OF PLAINTIFF'S DECEDENT'S FALL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT DID NOT ELIMINATE ISSUES OF FACT ABOUT WHETHER THE PLAINTIFF CAN PROVE THE CAUSE OF PLAINTIFF'S DECEDENT'S FALL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE GAS COMPANY’S LIABILITY FOR A GAS EXPLOSION TRIGGERED BY A TREE UPROOTED DURING A HURRICANE, GAS COMPANY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant gas company's (appellant's) motion for summary judgment in this negligence action should have been granted. During a hurricane a tree in plaintiff's neighbor's yard uprooted and disturbed a gas line, causing the neighbor's home to explode. Plaintiff allegedly was injured by debris from the explosion. The Second Department held that plaintiff had not raised a question of fact about whether the gas line was negligently maintained or whether the dangerous condition was created by the gas company:

… [T]he appellant established, prima facie, that it was not negligent in the installation of the subject gas service line … . The appellant submitted evidence that the tree that uprooted was not present in 1936 when the gas service line was installed. This evidence included the deposition testimony of a former senior administrator for the appellant's predecessor, who testified that the presence of a tree would have rendered it impossible to install the line where it was placed in 1936. The appellant also submitted an affidavit of an arborist, who opined that the subject tree was a mature tree planted after the construction of the community was completed in 1938, based on the fact that nearly every other house on the subject block had alternating plantings of similar sized trees, thereby demonstrating that the trees were intentionally planted as part of the development of the community. …

Further, the appellant established, prima facie, that it was not negligent in maintaining the gas service line. The appellants' experts noted that the appellant complied with applicable regulations (see 49 CFR 192.723; 16 NYCRR 255.723) by performing a walking survey of the property on which the tree was located to detect leaks on July 28, 2010, within the three-year period prior to the explosion. The appellant submitted evidence demonstrating that no leaks were detected during that walking survey… . Deitrick v Long Is. Power Auth., 2018 NY Slip Op 06079, Second Dept 9-19-18

NEGLIGENCE (PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE GAS COMPANY'S LIABILITY FOR A GAS EXPLOSION TRIGGERED BY A TREE UPROOTED DURING A HURRICANE, GAS COMPANY'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/UTILITIES (GAS EXPLOSION, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE GAS COMPANY'S LIABILITY FOR A GAS EXPLOSION TRIGGERED BY A TREE UPROOTED DURING A HURRICANE, GAS COMPANY'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/GAS (UTILITIES, NEGLIGENCE, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE GAS COMPANY'S LIABILITY FOR A GAS EXPLOSION TRIGGERED BY A TREE UPROOTED DURING A HURRICANE, GAS COMPANY'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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PETITIONER, WHO WAS URINATING WHEN A FEMALE CORRECTION OFFICER PASSED HIS CELL, WAS NOT GUILTY OF LEWD CONDUCT (THIRD DEPT).

The Third Department, annulling the determination, held that the petitioner did not engage in lewd conduct merely by urinating in his cell:

… [T]he Attorney General concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of engaging in lewd conduct… . The female correction officer testified that, while petitioner continued to urinate when she passed his cell, he made no gestures and did not expose his genitals to her … . Matter of Burroughs v Annucci, 2018 NY Slip Op 06168, Third Dept 9-19-18

DISCIPLINARY HEARINGS (INMATES) (PETITIONER, WHO WAS URINATING WHEN A FEMALE CORRECTION OFFICER PASSED HIS CELL, WAS NOT GUILTY OF LEWD CONDUCT (THIRD DEPT))/LEWD CONDUCT (DISCIPLINARY HEARINGS (INMATES), PETITIONER, WHO WAS URINATING WHEN A FEMALE CORRECTION OFFICER PASSED HIS CELL, WAS NOT GUILTY OF LEWD CONDUCT (THIRD DEPT))

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QUESTION OF FACT WHETHER THE INADEQUATE HEIGHT OF A GUARDRAIL ALONG THE STAIRWELL WAS THE PROXIMATE CAUSE OF PLANTIFF’S FALL, HEIGHT WAS BELOW THAT MANDATED BY THE NATIONAL FIRE PROTECTION ASSOCIATION (FIRST DEPT).

The First Department determined defendant's motion for summary judgment in this slip and fall case was properly denied. The plaintiff presented evidence that the proximate cause of his stairway fall over the guardrail was the inadequate height of the guardrail:

… [P]laintiff raised an issue of fact by submitting an affidavit by an expert engineer who averred that the stairwell violated National Fire Protection Association (NFPA) No. 101. NFPA No. 101, which was listed in the “Generally Accepted Standards Applicable to the State Building Construction Code” in effect at the time of the hotel's construction, advocated the construction of a 42-inch-high guardrail along the stairwell. The record shows that the existing guardrail was no more than 32 inches high. A violation of NFPA No. 101, which was “applicable by reference in the [State] Building Construction Code – not incorporation – would constitute some evidence of negligence and may establish a standard of care” … . …

Defendants failed to establish prima facie that they did not have constructive notice of a dangerous or defective condition. They argue that the stairwell complied with applicable building codes and that they never received any violations regarding the stairwell. However, their claimed compliance with applicable building codes is not dispositive of whether they breached their common-law duty of care … . Moreover, the existence of a guardrail less than 42 inches high, although not in violation of a particular mandatory code, was obvious and had existed for a sufficient time for defendants to discover and remedy it. Contrary to defendants' argument, plaintiff's inability to identify the cause of his slip or trip on the stairs, which made him lose his balance and go over the rail, is not fatal to his claims, given the evidence supporting his contention that the proximate cause of his … injuries was the lack of a 42-inch guardrail. In any event, there can be more than one proximate cause of an accident. Sussman v MK LCP Rye LLC, 2018 NY Slip Op 06143, First Dept 9-19-18

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER THE INADEQUATE HEIGHT OF A GUARDRAIL ALONG THE STAIRWELL WAS THE PROXIMATE CAUSE OF PLANTIFF'S FALL, HEIGHT WAS BELOW THAT MANDATED BY THE NATIONAL FIRE PROTECTION ASSOCIATION (FIRST DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL, STAIRWELL, QUESTION OF FACT WHETHER THE INADEQUATE HEIGHT OF A GUARDRAIL ALONG THE STAIRWELL WAS THE PROXIMATE CAUSE OF PLANTIFF'S FALL, HEIGHT WAS BELOW THAT MANDATED BY THE NATIONAL FIRE PROTECTION ASSOCIATION (FIRST DEPT))/SLIP AND FALL ( STAIRWELL, QUESTION OF FACT WHETHER THE INADEQUATE HEIGHT OF A GUARDRAIL ALONG THE STAIRWELL WAS THE PROXIMATE CAUSE OF PLANTIFF'S FALL, HEIGHT WAS BELOW THAT MANDATED BY THE NATIONAL FIRE PROTECTION ASSOCIATION (FIRST DEPT))GUARDRAILS (STAIRWELL, SLIP AND FALL, QUESTION OF FACT WHETHER THE INADEQUATE HEIGHT OF A GUARDRAIL ALONG THE STAIRWELL WAS THE PROXIMATE CAUSE OF PLANTIFF'S FALL, HEIGHT WAS BELOW THAT MANDATED BY THE NATIONAL FIRE PROTECTION ASSOCIATION (FIRST DEPT))

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DEFENDANT COULD NOT BRING A SUMMARY JUDGMENT MOTION BEFORE ISSUE WAS JOINED BY SERVICE OF AN ANSWER (SECOND DEPT).

The Second Department noted that a defendant who has not yet served an answer cannot move for summary judgment:

A motion for summary judgment may only be made after joinder of issue (see CPLR 3212[a]). Where, as here, it is conceded that the defendant had not served an answer before moving for summary judgment, issue was not joined and the defendant was precluded from obtaining summary judgment … . The requirement that a motion for summary judgment may not be made before issue is joined (see CPLR 3212[a]) “is strictly adhered to” … . Cremosa Food Co., LLC v Amella, 2018 NY Slip Op 06077, Second Dept 9-19-18

CIVIL PROCEDURE (DEFENDANT COULD NOT BRING A SUMMARY JUDGMENT MOTION BEFORE ISSUE WAS JOINED BY SERVICE OF AN ANSWER (SECOND DEPT))/CPLR 3212 (DEFENDANT COULD NOT BRING A SUMMARY JUDGMENT MOTION BEFORE ISSUE WAS JOINED BY SERVICE OF AN ANSWER (SECOND DEPT))/SUMMARY JUDGMENT (CIVIL PROCEDURE, (DEFENDANT COULD NOT BRING A SUMMARY JUDGMENT MOTION BEFORE ISSUE WAS JOINED BY SERVICE OF AN ANSWER (SECOND DEPT))

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NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST A SPOUSE OR FORMER SPOUSE STEMMING FROM EVENTS DURING THE MARRIAGE (SECOND DEPT).

The Second Department noted that, in New York, an intentional infliction of emotional distress cause of action cannot be brought against a spouse or former spouse regarding event occurring during marriage:

New York does not recognize a cause of action alleging the intentional infliction of emotional distress between spouses or former spouses based upon allegations of events that occurred during the marriage … . In any event, the conduct complained of does not rise to the level of extreme and outrageous behavior required for a valid claim of intentional infliction of emotional distress … . Chen v Dehjung Deborah Wang, 2018 NY Slip Op 06076, Second Dept 9-19-18

FAMILY LAW (NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST A SPOUSE OR FORMER SPOUSE STEMMING FROM EVENTS DURING THE MARRIAGE (SECOND DEPT))/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (FAMILY LAW, NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST A SPOUSE OR FORMER SPOUSE STEMMING FROM EVENTS DURING THE MARRIAGE (SECOND DEPT))

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