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DENIAL OF PAROLE MANIFESTED IRRATIONALITY BORDERING ON IMPROPRIETY (FIRST DEPT).

The First Department determined denying petitioner parole was “irrational.” The proper remedy is a new parole nearing, not granting parole in a court ruling (as Supreme Court did). Petitioner, now 51, was convicted of felony murder when she was very young. She had driven the car to where her husband was staying. A passenger in the car shot and killed her husband. The jury found petitioner did not intend that her husband be killed. Petitioner has been a model prisoner for decades:

The commissioners failed to appreciate that petitioner’s murder conviction was not for intentional murder, but rather for second-degree felony murder. The felony murder rule, of course, provides that a person is guilty of second-degree murder when, “[a]cting either alone or with one or more other persons, [she] commits or attempts to commit [violent crimes including] burglary, . . . and, in the course of and in furtherance of such crime or of immediate flight therefrom, [she], or another participant, . . . causes the death of a person other than one of the participants” … . In essence, and particularly in the context of a burglary conviction, the felony murder rule imposes strict and vicarious liability for a killing that one did not intend, provided that it was the result of an enumerated felony that one did intentionally commit. Intent to kill plays no role in a finding of felony murder … .

At the parole hearing, petitioner nonetheless accepted responsibility for her “choices and decisions that led to a chain of events that led to the death of [her] husband.” Far from showing any lack of insight into her crime, petitioner’s testimony at the parole hearing was truthful, accurate, and consistent with what the jury found happened in 1991.

Accordingly, respondent’s determination denying petitioner parole manifested “irrationality bordering on impropriety,” warranting granting the petition to vacate the denial of parole … . Matter of Kellogg v New York State Bd. of Parole, 2018 NY Slip Op 01425, First Dept 3-6-18

CRIMINAL LAW (DENIAL OF PAROLE MANIFESTED IRRATIONALITY BORDERING ON IMPROPRIETY (FIRST DEPT))/PAROLE (DENIAL OF PAROLE MANIFESTED IRRATIONALITY BORDERING ON IMPROPRIETY (FIRST DEPT))

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PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court, determined plaintiff’s Labor Law 241 (6) action should not have been dismissed. Plaintiff worked for a company hired to renovate building space leased by defendant (Cayre). Cayre’s space was on the 41st and 42nd floors. The space where plaintiff was injured was on the 16th floor in an area used by plaintiff’s employer for work related to the renovation of Cayre’s space. Plaintiff’s thumb was injured when he was using an unguarded saw on the 16th floor. The court noted that a lessee is deemed an owner within the meaning of Labor Law 241 (6):

We find that there are disputed issues of fact concerning whether the 16th floor space qualifies as a construction area. … . …”[G]enerally, the scope of a work site must be reviewed as a flexible concept, defined not only by the place but by the circumstances of the work to be done. Thus, Labor Law § 241(6) extends to areas where materials or equipment are being readied for use, as opposed to areas where they are merely stored for future use” … . Here, although defendants contend that the 16th floor space is [plaintiff’s employer’s] permanent workshop, in fact, the 16th floor work space where the accident occurred belonged to 1407 Broadway [the net operating lessee], and the 41st floor location of the executive bathroom being renovated was owned by 1407 Broadway, and leased to Cayre. * * *

We … reject Cayre’s argument that … plaintiff’s accident does not come within the ambit of Labor Law § 241(6) because he was engaged in the fabrication and transportation of materials to be used in connection with construction. As stated by the Court of Appeals, Labor Law § 241(6) covers industrial accidents that occur in the context of construction (Nagel v D & R Realty Corp., 99 NY2d 98). Indeed, Shields v General Elec. Co. (3 AD3d 715 [3d Dept 2004]) is instructive. There, the Court noted that “work that is an integral part of the construction contract’ and is necessitated by and incidental to the construction . . . and involve[s] materials being readied for use in connection therewith’ is construction work” … . Karwowski v 1407 Broadway Real Estate, LLC, 2018 NY Slip Op 01422, First Dept 3-2-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT))/LANDLORD-TENANT (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT))/CONSTRUCTION AREA (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT))

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QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT).

The Third Department reversed (modified) Supreme Court’s dismissal of products liability complaint against the distributor (At Last Sportswear) and seller (Walmart) of plaintiff’s clothing which caught fire. The court also determined the Enerco defendants (the manufacturer, designer, and distributor of the heater which ignited the clothes) were aggrieved by the order, based upon joint liability principles, and therefore could appeal it:

Although liability can be apportioned between any tortfeasors, whether they are codefendants or nonparties, if an alleged tortfeasor was a codefendant whom the court had dismissed from the case, the law of the case doctrine would preclude the remaining defendants from introducing at trial any evidence regarding the same type of defect or error by that alleged tortfeasor that was previously litigated … . Thus, the Enerco defendants were entitled to challenge motions by any codefendants seeking to be released from the action, they were aggrieved by any orders granting dismissal and they could, therefore, appeal any such orders. …

[At Last’s and Walmart’s] expert opined that the dress materials complied with and exceeded the requirements of the Federal Flammable Fabrics Act (15 USC § 1191 et seq. [hereinafter FFA]) and accompanying regulations (16 CFR part 1610) for general wearing apparel, as well as the industry standard, that the dress was reasonably safe and suitable for its intended use, that it was not defective in any manner and that this type of 100% cotton dress was a standard commodity.  …

… [T]he Enerco defendants submitted an affidavit from their own expert, who opined that the FFA standards are insufficient to determine whether a garment is safe because it addresses only some factors affecting flammability of the fabric but not the design of the garment itself … . He supported his opinion with literature in which industry professionals addressed the inadequacy of the FFA standards to protect consumers. These competing expert opinions present a triable issue of fact regarding whether a design defect exists … . …

The parties’ experts disagreed as to whether labels warning about the dress’s flammability and the need to be cautious around heat sources were appropriate for such general wearing apparel and existed in the United States market for this type of garment. Thus, factual issues remain regarding whether At Last Sportswear and the Wal-Mart defendants breached a duty to warn. Palmatier v Mr. Heater Corp., 2018 NY Slip Op 01368, Third Dept 3-1-18

PRODUCTS LIABILITY (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/CIVIL PROCEDURE (JOINT TORTFEASORS, (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/APPEALS (JOINT TORTFEASORS, (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/NEGLIGENCE (PRODUCTS LIABILITY, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/JOINT TORTFEASORS (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))

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PLAINTIFF WAS NOT ALTERING OR ERECTING A STRUCTURE WITHIN THE MEANING OF LABOR LAW 240 (1), DEFENDANT PROPERTY OWNER DID NOT EXERCISE SUPERVISORY CONTROL OVER THE METHOD OR MANNER OF PLAINTIFF’S WORK, PLAINTIFF’S LABOR LAW 240 (1) AND 200 CAUSES OF ACTION PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined plaintiff was not engaged in an activity protected by Labor Law 240 (1) when he was injured and the defendant owner of the property did not supervise or control the manner of plaintiff’s work, requiring dismissal of the Labor Law 200 cause of action as well. The plaintiff worked for a car crushing busing and was standing on a crushed car on a trailer when he was knocked into the air by a piece of heavy equipment:

… [E]ven if we were to agree with plaintiff that the open trailer was a structure as that term is used in Labor Law § 240 (1), the record provides us with no basis to conclude that the activity in which plaintiff was engaged was a protected activity or, as relevant here, that plaintiff was altering or erecting a structure. …

“When an alleged defect or dangerous condition arises from [a] contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200” … . Lopez v 6071 Enters., LLC, 2018 NY Slip Op 01372, Third Dept 3-1-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS NOT ALTERING OR ERECTING A STRUCTURE WITHIN THE MEANING OF LABOR LAW 240 (1), DEFENDANT PROPERTY OWNER DID NOT EXERCISE SUPERVISORY CONTROL OVER THE METHOD OR MANNER OF PLAINTIFF’S WORK, PLAINTIFF’S LABOR LAW 240 (1) AND 200 CAUSES OF ACTION PROPERLY DISMISSED (THIRD DEPT))/ALTERING OR ERECTING A STRUCTURE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS NOT ALTERING OR ERECTING A STRUCTURE WITHIN THE MEANING OF LABOR LAW 240 (1), DEFENDANT PROPERTY OWNER DID NOT EXERCISE SUPERVISORY CONTROL OVER THE METHOD OR MANNER OF PLAINTIFF’S WORK, PLAINTIFF’S LABOR LAW 240 (1) AND 200 CAUSES OF ACTION PROPERLY DISMISSED (THIRD DEPT))

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THE LAWSUIT ALLEGED ANTITRUST VIOLATIONS, WHICH ARE EXCLUDED FROM COVERAGE, THE PASSING REFERENCES TO PRODUCT DISPARAGEMENT, WHICH WOULD BE COVERED, DID NOT TRIGGER THE DUTY TO DEFEND (FIRST DEPT).

The First Department upheld the declaratory judgment finding that defendant insurer does not have a duty to defend based upon the exclusion of coverage for antitrust violations. Despite the allegations in the complaint which colored the action as one for product disparagement, which would be covered, the complaint alleged antitrust violations:

The underlying lawsuit alleges, broadly, that plaintiff acquired and maintained its 90% market share of VHR (vehicle history report) sales by engaging in an anticompetitive scheme. Plaintiff contends that defendant owes it a defense in the suit because the suit alleges disparagement. It relies on the following allegations: “By contractually committing these two websites to include hyperlinks to Carfax VHRs and to exclude VHRs of any other provider, Carfax has stigmatized any listing without such a link in the eyes of consumers who infer that the absence means that the car has a blemished history.” “Carfax also utilizes its inflated revenues to disparage and falsely malign dealers in order to mislead consumers into believing its VHRs are necessary and accurate.”

These passing references to disparagement do not allege a “Wrongful Act” [within the meaning of the policy language].” They were made “only in the context of the anti-trust claims, i.e. , as legal jargon pertinent to anti-trust and not as a means of even arguably alleging a separate claim for libel, slander or product disparagement” … . Carfax, Inc. v Illinois Natl. Ins. Co., 2018 NY Slip Op 01409, First Dept 3-1-18

INSURANCE LAW (THE LAWSUIT ALLEGED ANTITRUST VIOLATIONS, WHICH ARE EXCLUDED FROM COVERAGE, THE PASSING REFERENCES TO PRODUCT DISPARAGEMENT, WHICH WOULD BE COVERED, DID NOT TRIGGER THE DUTY TO DEFEND (FIRST DEPARTMENT))/DUTY TO DEFEND (INSURANCE LAW, THE LAWSUIT ALLEGED ANTITRUST VIOLATIONS, WHICH ARE EXCLUDED FROM COVERAGE, THE PASSING REFERENCES TO PRODUCT DISPARAGEMENT, WHICH WOULD BE COVERED, DID NOT TRIGGER THE DUTY TO DEFEND (FIRST DEPARTMENT))/ANTITRUST ((INSURANCE LAW, THE LAWSUIT ALLEGED ANTITRUST VIOLATIONS, WHICH ARE EXCLUDED FROM COVERAGE, THE PASSING REFERENCES TO PRODUCT DISPARAGEMENT, WHICH WOULD BE COVERED, DID NOT TRIGGER THE DUTY TO DEFEND (FIRST DEPARTMENT))

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SUIT SEEKING INDEMNIFICATION FOR A SETTLEMENT PAID TO DEFENDANT’S EMPLOYEE SHOULD NOT HAVE BEEN DISMISSED, RELEVANT LAW EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the suit by a general contractor (Aragon) and property lessee seeking indemnification for a settlement paid to defendant subcontractor’s (Port Richmond’s) injured employee (Brown), as well as the suit alleging the failure to procure insurance, should not have been dismissed. The court explained the relevant indemnification law:

It is well settled that “where an indemnitor does not receive notice of an action settled by the indemnitee, in order to recover reimbursement [for the settlement], [the indemnitee] must establish that [it] would have been liable and that there was no good defense to the liability”… . Conversely, “[w]here the indemnitor does receive notice of the claim against the indemnitee, . . . the general rule is that the indemnitor will be bound by any reasonable good faith settlement the indemnitee might thereafter make”… . As to notice, ” [i]t is sufficient that the party against whom ultimate liability is claimed is fully and fairly informed of the claim and that the action is pending with full opportunity to defend or to participate in the defense'” … . …

Applying these principles, we find that the motion court improperly dismissed the indemnification claim. The subcontract plainly requires indemnification for claims arising out of Port Richmond’s work on the construction project. On appeal, Port Richmond does not argue that Brown’s injuries did not arise from its work. Instead, Port Richmond contends that because the underlying action was dismissed against Aragon, plaintiffs cannot establish Aragon’s liability for those injuries. However, where notice is given, the indemnitee need not establish its own liability for the underlying claim … . There is no dispute that Port Richmond had notice of the underlying action as well as the settlement negotiations in this Court.  Zurich Am. Ins. Co. v Tower Natl. Ins. Co., 2018 NY Slip Op 01401, Second Dept 3-1-18

INSURANCE LAW (SUIT SEEKING INDEMNIFICATION FOR A SETTLEMENT PAID TO DEFENDANT’S EMPLOYEE SHOULD NOT HAVE BEEN DISMISSED, RELEVANT LAW EXPLAINED (FIRST DEPT))/INDEMNIFICATION (INSURANCE LAW, SUIT SEEKING INDEMNIFICATION FOR A SETTLEMENT PAID TO DEFENDANT’S EMPLOYEE SHOULD NOT HAVE BEEN DISMISSED, RELEVANT LAW EXPLAINED (FIRST DEPT))/SETTLEMENTS (INSURANCE LAW, INDEMNIFICATION, (SUIT SEEKING INDEMNIFICATION FOR A SETTLEMENT PAID TO DEFENDANT’S EMPLOYEE SHOULD NOT HAVE BEEN DISMISSED, RELEVANT LAW EXPLAINED (FIRST DEPT))

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COMPLIANCE WITH NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304 NOT DEMONSTRATED, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the bank’s motion for summary judgment should not have been granted because the papers did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304:

…[T]he complaint should be dismissed as against defendant, without prejudice, because plaintiff failed to prove that it mailed the notices required by Real Estate Property Actions and Proceedings Law § 1304 … . The affidavit by Diondra Doublin, submitted by plaintiff, failed to demonstrate a familiarity with plaintiff’s mailing practices and procedures … . The fact that some of the RPAPL 1304 notices bear a certified mail number is also insufficient … . We further note that defendant submitted an affidavit denying that he had received any RPAPL 1304 notice … .

Plaintiff’s motion should be denied for the additional reason that the affidavit by defendant’s wife creates an issue of fact as to whether plaintiff delivered the notice required by RPAPL 1303 with the summons and complaint … . Nationstar Mtge., LLC v Cogen, 2018 NY Slip Op 01413, First Dept 3-1-18

FORECLOSURE (COMPLIANCE WITH NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304 NOT DEMONSTRATED, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, COMPLIANCE WITH NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304 NOT DEMONSTRATED, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT).

The First Department determined plaintiff mother was entitled to the infant plaintiff’s foster care records in connection with her claim that SCO Family Services negligently certified the individual defendant as a foster parent, and failed to properly supervise the foster home:

Pursuant to Social Services Law § 372(1), SCO was required to maintain records while the children were in foster care. Those records are confidential, but are discoverable pursuant to article 31 of the CPLR (Social Services Law § 372[3]). The statutory confidentiality requirement is intended to protect the privacy of children in foster care and their natural parents … , not to prevent former foster children from obtaining access to their own records.

When a former foster child “seeks her own records, so she can further her own suit against the defendant custodian of those records, who would otherwise have unequal access to them”… , she is “presumptively entitled to her own records” and “only a powerfully compelling showing would justify the court in potentially restricting” her access to the records … .

In this case, the court properly undertook in camera review of the foster care records to ensure that no private information of nonparties would be disclosed. However, the court erred in determining that the identities of ACS caseworkers, mental health professionals and other professionals should be redacted. Plaintiffs sought access to those witnesses to determine whether they had any relevant knowledge, and SCO did not articulate any privacy interests of those professionals that would warrant redacting their names from the foster care records. K.B. v SCO Family of Serv., 2018 NY Slip Op 01400, Second Dept 3-1-18

FAMILY LAW (FOSTER CARE, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/CIVIL PROCEDURE (FAMILY LAW, FOSTER CARE, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/DISCOVERY (FAMILY LAW, FOSTER CARE,  ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/FOSTER CARE (DISCOVERY, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/NEGLIGENCE (DISCOVERY, FOSTER CARE RECORDS, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))

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DESPITE MOTHER’S FAILURE TO COMPLY WITH SEVERAL DIRECTIONS BY THE COURT THAT SHE RETURN TO NEW YORK WITH THE CHILDREN, FATHER SHOULD NOT HAVE BEEN AWARDED CUSTODY IN THE ABSENCE OF A FULL HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined that the court erred in awarding custody to the father without an evidentiary hearing. Mother had repeatedly promised to return with the children from New Mexico but did not. Although Family Court was justifiably irked by the mother’s behavior, a custody hearing was still required:

We do … agree with the mother that Family Court erred in granting the father’s custody petition without conducting an evidentiary hearing. “[C]ustody determinations should generally be made only after a full and plenary hearing and inquiry”… . A court’s final custody determination must be based on admissible evidence and not on, as relevant here, “information provided at court appearances by persons not under oath”… .

The record reveals that Family Court’s ultimate custody and visitation determination was made only after a few preliminary court appearances in which no witness gave sworn testimony or documentary evidence was received, and there is no indication that Family Court considered the various factors relative to the best interests of the children. While Family Court was justifiably irked at the mother’s actions in frustrating the purpose of the court’s prior orders, such actions, although certainly relevant, are not solely dispositive in this case on the issues of custody and visitation … . Because Family Court “did not possess sufficient information to render an informed determination that was consistent with the children’s best interests”… , the matter must be remitted for a full evidentiary hearing on the father’s custody petition. Matter of Richard T. v Victoria U., 2018 NY Slip Op 01364, Third Dept 3-1-18

FAMILY LAW (CUSTODY, DESPITE MOTHER’S FAILURE TO COMPLY WITH SEVERAL DIRECTIONS BY THE COURT THAT SHE RETURN TO NEW YORK WITH THE CHILDREN, FATHER SHOULD NOT HAVE BEEN AWARDED CUSTODY IN THE ABSENCE OF A FULL HEARING (THIRD DEPT))/CUSTODY (FAMILY LAW, DESPITE MOTHER’S FAILURE TO COMPLY WITH SEVERAL DIRECTIONS BY THE COURT THAT SHE RETURN TO NEW YORK WITH THE CHILDREN, FATHER SHOULD NOT HAVE BEEN AWARDED CUSTODY IN THE ABSENCE OF A FULL HEARING (THIRD DEPT))

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DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT).

The Third Department, affirming defendant’s depraved indifference murder conviction, noted the difference between a “legal sufficiency” analysis and a “weight of the evidence” analysis on appeal, and reiterated that criminally negligent homicide is not a lesser included offense within depraved indifference murder. Here the two-year old victim was subjected to severed physical abuse over a period of days or longer:

Defendant argues that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. A legal sufficiency challenge requires us to “view the evidence in the light most favorable to the People and evaluate whether ‘there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged'” … . A legally sufficient verdict may, however, be against the weight of the evidence … . The latter review requires us to assess whether acquittal was a reasonable possibility and, if so, to weigh “the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” in deciding whether the verdict was justified … . * * *

Criminally negligent homicide demands that a person act “with criminal negligence” and, in doing so, “causes the death of another person” (Penal Law § 125.10). Inasmuch as criminal negligence involves a person failing “to perceive [the] substantial and unjustifiable risk” of the result set forth by the statute (Penal Law § 15.05 [4]), a person does not commit criminally negligent homicide unless he or she fails to perceive a substantial and unjustifiable risk of death …  In contrast, Penal Law § 125.25 (4) demands that an adult person, “[u]nder circumstances evincing a depraved indifference to human life, . . . recklessly engage[] in conduct which creates a grave risk of serious physical injury or death to another person less than [11] years old” and that ends in the other person’s death (emphasis added).

The definition of serious physical injury encompasses injuries that do not create a substantial risk of death or cause death, such as those that cause “serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00 [10]). As we have previously held, it is therefore theoretically possible to commit depraved indifference murder of a child by “engag[ing] in conduct that creates and disregards a grave risk of serious physical injury, causing death, without . . . engaging in conduct that creates . . . a substantial risk of death, causing death” … . People v Stahli, 2018 NY Slip Op 01359, Third Dept 3-1-18

CRIMINAL LAW (DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, APPEALS, DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/APPEALS (CRIMINAL LAW, DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/LEGALLY INSUFFICIENT EVIDENCE (CRIMINAL LAW, APPEALS, DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/CRIMINALLY NEGLIGENT HOMICIDE (CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/DEPRAVED INDIFFERENCE MURDER (CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/LESSER INCLUDED OFFENSE (CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))

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