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FAMILY COURT DID NOT FOLLOW THE PROCEDURE SET OUT IN THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) BEFORE DETERMINING IT DID NOT HAVE JURISDICTION OVER FATHER’S CUSTODY PROCEEDING, MOTHER HAD BROUGHT A CUSTODY PROCEEDING IN PENNSYLVANIA, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court did not follow the procedures required by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) before determining it did not have jurisdiction over the custody proceeding. Family Court had jurisdiction over father’s custody proceeding when it was commenced, and Pennsylvania had jurisdiction over the wife’s custody proceeding when she commenced it there:

Family Court erred in declining to exercise jurisdiction and dismissing the proceeding without following the procedures required by the UCCJEA … . The court, after determining that another child custody proceeding had been commenced in Pennsylvania, properly communicated with the Pennsylvania court … . The court erred, however, in failing either to allow the parties to participate in the communication … , or to give the parties “the opportunity to present facts and legal arguments before a decision on jurisdiction [was] made” … . The court also violated the requirements of the UCCJEA when it failed to create a record of its communication with the Pennsylvania court … . The summary and explanation of the court’s determination following the telephone conference with the Pennsylvania court did not comply with the statutory mandate to make a record of the communication between courts.

We also agree with the father that there are insufficient facts in the record to make a determination, based upon the eight factors set forth in the statute … , regarding which state is the more convenient forum to resolve the issue of custody. “Because Family Court did not articulate its consideration of each of the factors relevant to the . . . petition . . . and we are unable to glean the necessary information from the record, the court’s [implicit] finding that New York was an inconvenient forum to resolve the [custody] petition is not supported by a sound and substantial basis in the record” … . Matter of Beyer v Hofmann, 2018 NY Slip Op 03259, Fourth Dept 5-4-18

​FAMILY LAW (UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA), FAMILY COURT DID NOT FOLLOW THE PROCEDURE SET OUT IN THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) BEFORE DETERMINING IT DID NOT HAVE JURISDICTION OVER FATHER’S CUSTODY PROCEEDING, MOTHER HAD BROUGHT A CUSTODY PROCEEDING IN PENNSYLVANIA, MATTER REMITTED (FOURTH DEPT))/UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) (FAMILY COURT DID NOT FOLLOW THE PROCEDURE SET OUT IN THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) BEFORE DETERMINING IT DID NOT HAVE JURISDICTION OVER FATHER’S CUSTODY PROCEEDING, MOTHER HAD BROUGHT A CUSTODY PROCEEDING IN PENNSYLVANIA, MATTER REMITTED (FOURTH DEPT))/CUSTODY (FAMILY LAW, UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA), FAMILY COURT DID NOT FOLLOW THE PROCEDURE SET OUT IN THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) BEFORE DETERMINING IT DID NOT HAVE JURISDICTION OVER FATHER’S CUSTODY PROCEEDING, MOTHER HAD BROUGHT A CUSTODY PROCEEDING IN PENNSYLVANIA, MATTER REMITTED (FOURTH DEPT))/JURISDICTION (FAMILY LAW, UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA), FAMILY COURT DID NOT FOLLOW THE PROCEDURE SET OUT IN THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) BEFORE DETERMINING IT DID NOT HAVE JURISDICTION OVER FATHER’S CUSTODY PROCEEDING, MOTHER HAD BROUGHT A CUSTODY PROCEEDING IN PENNSYLVANIA, MATTER REMITTED (FOURTH DEPT))

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PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion to amend her complaint to add a battery cause of action against a teacher and a respondeat superior cause of action against the school should have been granted. Plaintiff alleged the defendant teacher struck her on the back of her head. The complaint alleged a negligence cause of action. Prior to trial plaintiff moved to amend the complaint to add the battery and respondeat superior causes of action. The motion was denied. The case went to trial and the jury rendered a defense verdict. Plaintiff will get a new trial on the two causes of action in the amended complaint:

It is well settled that, “[i]n the absence of prejudice or surprise, leave to amend a pleading should be freely granted” … . Plaintiff established that the relation-back doctrine applied for statute of limitations purposes with respect to the battery cause of action, which was based on the same facts and occurrence as the negligence cause of action and thus related back to the original complaint (see CPLR 203 [f]…). In opposition to the cross motion, defendants failed to establish that they would be prejudiced by plaintiff’s delay in seeking leave to amend the complaint … , inasmuch as the new causes of action were based upon the same facts as the negligence cause of action in the original complaint … .

Defendants argued in opposition to the cross motion that plaintiff failed to proffer any excuse for her delay in seeking leave to amend the complaint, but ” [m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side’ ” … . Therefore, although plaintiff provided no excuse for her delay in seeking leave to amend, that is of no moment because, as noted above, defendants have not shown that they were prejudiced by the delay … . Wojtalewski v Central Sq. Cent. Sch. Dist., 2018 NY Slip Op 03275, Fourth Dept 5-4-18

​EDUCATION-SCHOOL LAW (CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT))/EMPLOYMENT LAW (EDUCATION-SCHOOL LAW, CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT))/CIVIL PROCEDURE (AMEND COMPLAINT, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT))/COMPLAINTS (AMENDMENT, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT))/RELATION BACK DOCTRINE (AMENDMENT OF COMPLAINT, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT))/CPLR 203 (AMENDMENT OF COMPLAINT, RELATION-BACK, PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT))

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT).

The Fourth Department determined defendant’s motion to vacate his conviction based upon ineffective assistance and actual innocence should not have been denied without a hearing:

… [T]he court erred in denying without a hearing that part of his motion based upon ineffective assistance of counsel. Defendant’s specific claim is that defense counsel failed to secure the presence of a witness who had potentially exculpatory information, and we agree with defendant that such a failure may serve as the basis for a finding of ineffective assistance of counsel … . At trial, defense counsel stated on the record that the witness had been subpoenaed to testify on defendant’s behalf. The witness did not testify, however, and there is nothing in the trial record indicating why. According to defendant’s moving papers, when the witness did not appear to testify, defense counsel merely stated: “Oh, well.” There is no dispute that defense counsel did not attempt to utilize the procedure for securing the trial testimony of a material witness … , or to seek a continuance to obtain the witness’s voluntary compliance with the subpoena. Notably, the witness avers in her affidavit that she was never subpoenaed.

The court denied that part of the motion based on its determination that defendant could have raised his claim on his direct appeal or in his prior CPL 440.10 motions … . That was error. Because the witness resided in another state and went by a different surname, it was not until 2014—after defendant made his two prior CPL 440.10 motions—that defendant was able to obtain an affidavit from her. The affidavit contains information not contained in the trial record and substantially supports defendant’s claim of ineffective assistance. Significantly, it raises an issue of fact whether the witness was ever subpoenaed by defense counsel. That issue of fact is separate and distinct from the witness’s information about the murder itself, which was known to defendant through the 2004 police report. Defendant could not have discovered and raised the issue of fact until 2014, when he was able to identify, locate, and obtain an affidavit from the witness. People v Borcyk, 2018 NY Slip Op 03256, Fourth Dept 5-4-18

​CRIMINAL LAW (MOTION TO VACATE CONVICTION, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/ATTORNEYS (MOTION TO VACATE CONVICTION, INEFFECTIVE ASSISTANCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION,  DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/ACTUAL INNOCENCE (MOTION TO VACATE CONVICTION, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/VACATE CONVICTION, MOTION TO (DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))

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DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT).

The Fourth Department determined the evidence was legally sufficient to support the assault first conviction stemming from defendant’s allowing his dog to attack the victim. The court noted that the motion for a trial order of dismissal at the close of the People’s case was adequate to preserve the challenge to the legal sufficiency of the evidence of intent, even though the renewal of the motion at the close of evidence referred to the earlier motion:

The conviction arises from a dog attack that caused the victim to sustain injuries that included broken bones in his hands and the amputation of a portion of one of his fingers. The victim as well as witnesses to the attack testified that two pit bull terriers that had escaped their owner’s property attacked the victim, biting at his arms and legs, as the victim attempted to protect his dog from the pit bulls. Defendant, who was a friend of the owner of the pit bulls, arrived at the scene in a van driven by another man. Defendant exited the van, retrieved the two pit bulls and placed them in the van. After the pit bulls were secured in the van, the victim stood in front of the van and angrily told defendant that the police had been called and “you’re not going anywhere.” Defendant responded by asking the victim, “you coming at me? Are you going to stop me from leaving?” At that point defendant opened the van door and issued a command to the larger pit bull, who attacked the victim a second time, inflicting the injuries to the victim’s hands.

Defendant contends that the evidence is legally insufficient to support the conviction inasmuch as the People failed to prove that he intended to cause serious physical injury to the victim … . Viewing the evidence in the light most favorable to the People … , we conclude that the evidence is legally sufficient to establish such intent … . People v Bacon, 2018 NY Slip Op 03258, Fourth Dept 5-4-18

CRIMINAL LAW (DOG ATTACK, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))/ANIMAL LAW (CRIMINAL LAW, DOG ATTACK, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT/DOGS (CRIMINAL LAW, DOG ATTACK, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))/TRIAL ORDER OF DISMISSAL (CRIMINAL LAW, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, TRIAL ORDER OF DISMISSAL, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))

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WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT).

The Fourth Department determined the waiver of appeal was invalid and sent the matter back for a determination of youthful offender status:

Supreme Court did not elicit the waiver until after defendant had pleaded guilty and, in any event, “the record fails to establish that [the court] engaged him in an adequate colloquy to ensure that the waiver was a knowing and voluntary choice” … . Furthermore, “neither the written waiver of the right to appeal in the record nor the court’s brief mention of that waiver during the plea proceeding distinguished the waiver of the right to appeal from those rights automatically forfeited upon a plea of guilty” … .

We further agree with defendant that the court erred in failing to determine whether he should be afforded youthful offender status … . As the People correctly concede, defendant is an eligible youth, and the sentencing court must make “a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it” … . People v Willis, 2018 NY Slip Op 03291, Fourth Dept 5-4-18

​CRIMINAL LAW (WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT))/YOUTHFUL OFFENDER (WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT))

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MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE EVIDENCE DID NOT ALLOW THE CONCLUSION THAT THE WILL, WRITTEN BY DECEDENT’S CARETAKER THREE DAYS BEFORE DEATH, WAS DULY EXECUTED (THIRD DEPT).

The Third Department determined the jury verdict finding the will offered by petitioner had been duly executed was not supported by legally sufficient evidence and was against the weight of the evidence. The will was handwritten by petitioner, not decedent, three days before his death. The decedent, who was terminally ill, had moved to petitioner’s family-type adult home only three weeks before his death. One attesting witness had worked at the home for 28 years. The other attesting witness had lived at the home for seven years and was petitioner’s friend:

A verdict may be set aside as unsupported by legally sufficient evidence where “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” … .. A jury verdict may be found to be against the weight of the evidence “where the proof so preponderated in favor of the unsuccessful party that the verdict could not have been reached on any fair interpretation of the evidence” … . * * *

Upon this record, we cannot find legally sufficient evidence to support the jury’s verdict finding that the will had been duly executed … . Further, the jury’s verdict is against the weight of the evidence, as it could not have been reached on a fair interpretation of the evidence … . Matter of Fraccaro, 2018 NY Slip Op 03198, Third Dept 5-3-18

TRUSTS AND ESTATES (MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE EVIDENCE DID NOT ALLOW THE CONCLUSION THAT THE WILL, WRITTEN BY DECEDENT’S CARETAKER THREE DAYS BEFORE DEATH, WAS DULY EXECUTED (THIRD DEPT))/WILLS (MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE EVIDENCE DID NOT ALLOW THE CONCLUSION THAT THE WILL, WRITTEN BY DECEDENT’S CARETAKER THREE DAYS BEFORE DEATH, WAS DULY EXECUTED (THIRD DEPT))/VERDICT, MOTION TO SET ASIDE (MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE EVIDENCE DID NOT ALLOW THE CONCLUSION THAT THE WILL, WRITTEN BY DECEDENT’S CARETAKER THREE DAYS BEFORE DEATH, WAS DULY EXECUTED (THIRD DEPT))

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PETITIONER POLICE OFFICER SLIPPED ON WATER FROM A LEAKING WATER COOLER, THE HEARING OFFICER RULED THE INCIDENT WAS NOT A COMPENSABLE ACCIDENT BECAUSE THE WATER WAS READILY OBSERVABLE, THE COURT OF APPEALS RECENTLY HELD A PETITIONER IS NO LONGER REQUIRED TO DEMONSTRATE A CONDITION WAS NOT READILY OBSERVABLE, DETERMINATION ANNULLED (THIRD DEPT).

The Third Department annulled the finding that petitioner police officer, who slipped and fell on water which had leaked from a water cooler, was not entitled to accidental disability retirement benefits. The hearing officer had found that the incident constituted an accident within the meaning of the Retirement and Social Security Law, but the officer was not entitled to benefits because the water was readily observable. The Court of Appeals has recently ruled that a petitioner need not demonstrate a condition was not readily observable in order to demonstrate the incident was an accident:

Respondent [comptroller] adopted the findings and conclusions of the Hearing Officer, who found that slipping on the water “was a sudden, fortuitous mischance and undoubtably unexpected and out of the ordinary.” The Hearing Officer denied benefits, however, based solely upon petitioner’s failure to demonstrate that the water she had slipped on was not readily observable. In its recent decision in Matter of Kelly v DiNapoli (30 NY3d 674 [2018]), the Court of Appeals stated that “the requirement that a petitioner demonstrate that a condition was not readily observable in order to demonstrate an ‘accident’ is inconsistent with our prior case law” … . Inasmuch as respondent concluded that — but for the lack of proof that the water was readily observable — the incident satisfied the criteria to constitute an accident within the meaning of the Retirement and Social Security Law, substantial evidence does not support the determination that the incident was not an accident and it must be annulled … . Matter of Daquino v DiNapoli, 2018 NY Slip Op 03201, Third Dept 5-3-18

​RETIREMENT AND SOCIAL SECURITY LAW (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, PETITIONER POLICE OFFICER SLIPPED ON WATER FROM A LEAKING WATER COOLER, THE HEARING OFFICER RULED THE INCIDENT WAS NOT A COMPENSABLE ACCIDENT BECAUSE THE WATER WAS READILY OBSERVABLE, THE COURT OF APPEALS RECENTLY HELD A PETITIONER IS NO LONGER REQUIRED TO DEMONSTRATE A CONDITION WAS NOT READILY OBSERVABLE, DETERMINATION ANNULLED (THIRD DEPT))/POLICE OFFICERS (RETIREMENT AND SOCIAL SECURITY LAW, ACCIDENTAL DISABILITY RETIREMENT BENEFITS, PETITIONER POLICE OFFICER SLIPPED ON WATER FROM A LEAKING WATER COOLER, THE HEARING OFFICER RULED THE INCIDENT WAS NOT A COMPENSABLE ACCIDENT BECAUSE THE WATER WAS READILY OBSERVABLE, THE COURT OF APPEALS RECENTLY HELD A PETITIONER IS NO LONGER REQUIRED TO DEMONSTRATE A CONDITION WAS NOT READILY OBSERVABLE, DETERMINATION ANNULLED (THIRD DEPT))/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (RETIREMENT AND SOCIAL SECURITY LAW , PETITIONER POLICE OFFICER SLIPPED ON WATER FROM A LEAKING WATER COOLER, THE HEARING OFFICER RULED THE INCIDENT WAS NOT A COMPENSABLE ACCIDENT BECAUSE THE WATER WAS READILY OBSERVABLE, THE COURT OF APPEALS RECENTLY HELD A PETITIONER IS NO LONGER REQUIRED TO DEMONSTRATE A CONDITION WAS NOT READILY OBSERVABLE, DETERMINATION ANNULLED (THIRD DEPT))/ACCIDENTS (POLICE OFFICERS, ACCIDENTAL DISABILITY RETIREMENT BENEFITS, PETITIONER POLICE OFFICER SLIPPED ON WATER FROM A LEAKING WATER COOLER, THE HEARING OFFICER RULED THE INCIDENT WAS NOT A COMPENSABLE ACCIDENT BECAUSE THE WATER WAS READILY OBSERVABLE, THE COURT OF APPEALS RECENTLY HELD A PETITIONER IS NO LONGER REQUIRED TO DEMONSTRATE A CONDITION WAS NOT READILY OBSERVABLE, DETERMINATION ANNULLED (THIRD DEPT))/READILY OBSERVABLE CONDITION (ACCIDENTS, RETIREMENT AND SOCIAL SECURITY LAW (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, PETITIONER POLICE OFFICER SLIPPED ON WATER FROM A LEAKING WATER COOLER, THE HEARING OFFICER RULED THE INCIDENT WAS NOT A COMPENSABLE ACCIDENT BECAUSE THE WATER WAS READILY OBSERVABLE, THE COURT OF APPEALS RECENTLY HELD A PETITIONER IS NO LONGER REQUIRED TO DEMONSTRATE A CONDITION WAS NOT READILY OBSERVABLE, DETERMINATION ANNULLED (THIRD DEPT))

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PLAINTIFF BASKETBALL PLAYER WAS AWARE OF THE CRACK IN THE BASKETBALL COURT OVER WHICH HE TRIPPED AND FELL, SUIT WAS PRECLUDED BY THE DOCTRINE OF ASSUMPTION OF THE RISK, CONCURRING JUSTICE ARGUED THAT THE CRACK WAS NOT A RISK INHERENT IN THE SPORT, BUT WAS CONSTRAINED TO AGREE WITH THE MAJORITY BASED ON PRECEDENT (SECOND DEPT).

The Second Department, with an extensive two-justice concurrence not summarized here, reversing Supreme Court, determined that plaintiff assumed the risk of injury from playing basketball with knowledge of a crack on the court which caused him to trip and fall:

The plaintiff, who was 19 years old at the time of the accident and an experienced basketball player, testified that he “grew [up] playing on [the subject] court,” and that he was aware of the presence of cracks in the surface of the court prior to his accident. The plaintiff also indicated that he was previously aware of the particular crack over which he tripped. When the plaintiff was asked … if he ever saw “what [his] foot got caught in before this happened,” he responded, “[w]e knew where it was before when it happened.” …

Thus, [defendant] demonstrated that it did not violate its duty to exercise ordinary reasonable care to protect the plaintiff from unassumed, concealed, or unreasonably increased risks, and that the plaintiff assumed the risk of injury by voluntarily participating in a basketball game on the outdoor court despite his knowledge that doing so could bring him into contact with an open and obvious crack in the playing surface … . We note that this Court has consistently applied the primary assumption of risk doctrine in cases involving similar known or open and obvious conditions in the playing surfaces of various types of courts … .

From the concurrence:

While the plaintiff was casually performing a pre-game layup, his foot allegedly got caught in a deep crack, causing his foot to turn and fracture. The cracked condition of the basketball court was not a risk inherent in the sport of basketball and, in my view, under these circumstances, the doctrine of primary assumption of risk is not applicable.

However, this Court’s precedent compels dismissal of the complaint, since the plaintiff was aware of the cracks on the court and voluntarily chose to play basketball at this location … . Philius v City of New York, 2018 NY Slip Op 03161, Second Dept 5-2-18

​NEGLIGENCE (ASSUMPTION OF RISK, PLAINTIFF BASKETBALL PLAYER WAS AWARE OF THE CRACK IN THE BASKETBALL COURT OVER WHICH HE TRIPPED AND FELL, SUIT WAS PRECLUDED BY THE DOCTRINE OF ASSUMPTION OF THE RISK, CONCURRENCE ARGUED THAT THE CRACK WAS NOT A RISK INHERENT IN THE SPORT, BUT WAS CONSTRAINED TO AGREE WITH THE MAJORITY BASED ON PRECEDENT (SECOND DEPT))/ASSUMPTION OF RISK (PLAINTIFF BASKETBALL PLAYER WAS AWARE OF THE CRACK IN THE BASKETBALL COURT OVER WHICH HE TRIPPED AND FELL, SUIT WAS PRECLUDED BY THE DOCTRINE OF ASSUMPTION OF THE RISK, CONCURRENCE ARGUED THAT THE CRACK WAS NOT A RISK INHERENT IN THE SPORT, BUT WAS CONSTRAINED TO AGREE WITH THE MAJORITY BASED ON PRECEDENT (SECOND DEPT))

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STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED BASED UPON PROOF OF REGULAR MAINTENANCE AND INSPECTIONS AND NO REPORTS OF ACCIDENTS OR PROBLEMS (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant retail store’s (Macy’s) motion for summary judgment in this escalator slip and fall case should have been granted. Proof that the escalator was regularly maintained and inspected and there were no reports of accidents or problems warranted summary judgment and the plaintiff’s claims that the escalator was wet and the rubber handrail pulled up did not raise a question of fact:

Macy’s submitted, inter alia, deposition testimony of two of its employees, as well as the records of maintenance and inspections of the escalator by defendant Thyssenkrupp Corp. and the New York City Department of Buildings. Such evidence showed that the escalator was regularly maintained and inspected during the years prior to plaintiff’s accident, and there were never any reports of accidents or other problems with the escalator… .

In opposition, plaintiff failed to raise a triable of fact. Plaintiff’s wife’s hearsay statement that the stairs were wet does not indicate that they were wet long enough for Macy’s to have notice of the condition. Similarly, plaintiff’s testimony that the rubber handrail pulled up when he grasped at it as he slipped, does not raise an issue of fact that any such defect existed long enough for Macy’s to have notice, particularly since there were no prior complaints and in light of the evidence of regular maintenance and City inspections showing no problems .. . Furthermore, the opinion of plaintiff’s expert engineer that the wooden escalator treads were more slippery than industry safety standards permit does not raise an issue of fact. Ahmed v Macy’s Inc., 2018 NY Slip Op 03231, First Dept 5-3-18

​NEGLIGENCE (SLIP AND FALL, STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED BASED UPON PROOF OF REGULAR MAINTENANCE AND INSPECTIONS AND NO REPORTS OF ACCIDENTS OR PROBLEMS (FIRST DEPT))/SLIP AND FALL (ESCALATORS, STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED BASED UPON PROOF OF REGULAR MAINTENANCE AND INSPECTIONS AND NO REPORTS OF ACCIDENTS OR PROBLEMS (FIRST DEPT))/ESCALATORS (SLIP AND FALL,  STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED BASED UPON PROOF OF REGULAR MAINTENANCE AND INSPECTIONS AND NO REPORTS OF ACCIDENTS OR PROBLEMS (FIRST DEPT))

/ ,

INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT).

The Third Department determined that the inmate-petitioner’s motion for leave to file a late notice of claim, based upon an incident in the county jail, could not relate back to petitioner’s first (pro se) attempt to file a late notice of claim. Petitioner’s first attempt was sent to the court clerk as opposed to the county clerk. The court clerk returned the papers and instructed the petitioner to send them to the county clerk. Nothing further was done by the petitioner until an attorney was assigned and the statute of limitations had passed. The relation-back doctrine could not be applied because the failure to file the original papers with the county clerk was a jurisdictional defect:

… [W]here an action to enforce a claim has not yet been commenced, a party seeking to make an application for leave to serve a late notice of claim should commence a special proceeding in the Supreme Court or the County Court in a county where the action may be properly brought to trial (see General Municipal Law § 50-e [7]…). A special proceeding is commenced by the filing of initiatory papers with the County Clerk in the county in which the special proceeding is brought or with any other person designated by the County Clerk to accept filing… . While the Supreme Court or the County Court may convert an improperly brought motion for leave to serve a late notice of claim into a special proceeding … , the failure to file the application with the appropriate clerk — the County Clerk — is a fatal defect that may not be overlooked or corrected by the court pursuant to CPLR 2001… . Indeed, the filing of initiatory papers with the Clerk of the Supreme and County Courts, rather than the County Clerk, “has been equated to a nonfiling and, thus, ‘a nonwaivable jurisdictional defect rendering the proceeding a nullity'” … . Matter of Dougherty v County of Greene, 2018 NY Slip Op 03192, Third Dept 5-3-18

​MUNICIPAL LAW (NOTICE OF CLAIM, INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW,  INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))/CIVIL PROCEDURE (NOTICE OF CLAIM, RELATION BACK, INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))/STATUTE OF LIMITATIONS (NOTICE OF CLAIM, INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))/COUNTY CLERK (FILING LATE NOTICE OF CLAIM, INMATE-PETITIONER’S INITIAL PRO SE ATTEMPT TO FILE A LATE NOTICE OF CLAIM REGARDING AN INCIDENT IN THE COUNTY JAIL BY SENDING THE PAPERS TO THE COURT CLERK, NOT THE COUNTY COURT, WAS A NULLITY, PETITIONER’S SECOND ATTEMPT TO FILE A LATE NOTICE AFTER THE STATUTE OF LIMITATIONS HAD RUN COULD NOT, THEREFORE, RELATE BACK TO THE INITIAL ATTEMPT (THIRD DEPT))

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