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ATTORNEY FOR THE CHILD PROPERLY ALLOWED TO ADOPT THE NEGLECT PETITION AFTER THE PETITIONER REQUESTED THE WITHDRAWAL OF THE PETITION (THIRD DEPT).

The Third Department, reversing Family Court, determined the attorney for the child (AFC) was properly allowed to proceed with the neglect petition after the petitioner requested to withdraw the petition. However the evidence of educational and medical neglect was insufficient:

… [W]e perceive no error or abuse of discretion in Family Court declining to dismiss the petitions and allowing the attorney for the children to adopt the petitions and proceed on them (see Family Ct Act § 1032 [b] …). Turning to the merits, as relevant here, a party seeking to establish neglect must prove, by a preponderance of the evidence, that a child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in supplying [him or her] with adequate . . . education in accordance with the provisions of part one of article [65] of the [E]ducation [L]aw, or medical . . . care, though financially able to do so or offered financial or other reasonable means to do so” … . Matter of Abel XX. (Jennifer XX.), 2020 NY Slip Op 02129, Third Dept 4-2-20

 

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THE PEOPLE DID NOT DEMONSTRATE THE IMPOUNDMENT OF DEFENDANT’S CAR AND THE INVENTORY SEARCH WERE LAWFUL; SEIZED EVIDENCE SUPPRESSED AND INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and dismissing the indictment, determined the People did not demonstrate the impoundment of defendant’s car and the inventory search which turned up a weapon and a marijuana cigarette were lawful. Therefore the seized items should have been suppressed. The defendant parked in a visitor’s space and went into the police station to pick up a friend’s property. After presenting his ID, the police discovered a bench warrant, arrested him, impounded his car and conducted an inventory search:

The People failed to establish the lawfulness of the impoundment of the defendant’s car and subsequent inventory search … . The arresting officer testified that the defendant’s vehicle was legally parked in a visitor’s parking space, and the officer was unaware of posted time limits pertaining to the visitor parking spaces. Although the officer testified that he impounded the defendant’s vehicle to safeguard the defendant’s property against a potential burglary, the People presented no evidence demonstrating any history of burglary or vandalism in the area where the defendant had parked his vehicle. Thus, the People failed to establish that the impoundment of the defendant’s vehicle was in the interests of public safety or part of the police’s community caretaking function … . Moreover, the People failed to present any evidence as to whether the New York City Police Department had a policy regarding impoundment of vehicles, what that policy required, or whether the arresting officer complied with that policy when he impounded the defendant’s vehicle … . People v Weeks, 2020 NY Slip Op 02198, Second Dept 4-2-20

 

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DENYING VISITATION TO MOTHER WHO HAD NOT SEEN THE CHILD IN NINE YEARS BUT HAD GAINED EMPLOYMENT AND STOPPED ABUSING DRUGS WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE; FAMILY COURT GAVE UNDUE WEIGHT TO THE FORENSIC EVALUATOR’S FINDINGS AND TO MOTHER’S EMOTIONAL OUTBURSTS AT THE HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined the denial of visitation to mother in this modification-of-visitation proceeding was not supported by the evidence. Mother had not seen the child in nine years but demonstrated she was employed and had stopped abusing drugs. Family Court gave undue weight to the findings of a forensic evaluator and to mother’s emotional state during the hearing:

In our view, the forensic evaluator essentially acquiesced to the father’s preferences that the child have no contact with the mother and, in effect, gave them a higher priority over any court directive. Any unwillingness by the father to facilitate visitation does not demonstrate that the child’s welfare would be placed in harm if visitation between the mother and the child occurred and in no way rebuts the presumption that visitation with the mother is in the best interests of the child. In view of the flaws in the forensic evaluator’s report, it should have been given minimal consideration.In our view, the forensic evaluator essentially acquiesced to the father’s preferences that the child have no contact with the mother and, in effect, gave them a higher priority over any court directive. Any unwillingness by the father to facilitate visitation does not demonstrate that the child’s welfare would be placed in harm if visitation between the mother and the child occurred and in no way rebuts the presumption that visitation with the mother is in the best interests of the child. In view of the flaws in the forensic evaluator’s report, it should have been given minimal consideration.

Family Court also found that the mother could not control her emotions during the trial. Although we do not discount a parent’s emotional stability as one factor in the best interests analysis, there was little evidence, if any, indicating that the mother displayed the same emotional outbursts either with the children that she had just regained custody of or outside the courtroom setting. Accordingly, under the circumstances of this case, any inability of the mother to control her emotions at the hearing has little relevance … . Matter of Jessica D. v Michael E., 2020 NY Slip Op 02133, Third Dept 4-2-20

 

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DISCLOSURE OF WITNESS CONTACT INFORMATION SHOULD HAVE BEEN DELAYED UNTIL 15 DAYS BEFORE TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined disclosure of contact information re: the complainant’s mother and two 911 callers must be delayed until 15 days before trial:

Where, as here, “the issue involves balancing the defendant’s interest in obtaining information for defense purposes against concerns for witness safety and protection, the question is appropriately framed as whether the determination made by the trial court was a provident exercise of discretion” … .

Applying the factors set forth in CPL 245.70(4), including concerns for witness safety and protection, I conclude that the Supreme Court improvidently exercised its discretion in directing immediate disclosure of the subject materials to counsel for the defendant, counsel’s investigator, and the defendant. Under the particular facts and circumstances of this case, the Supreme Court should have delayed disclosure of the address and contact information of the complainant, and of the name, address, and contact information of the complainant’s mother and the individuals identified as the first and second 911 callers … . People v Harper. 2020 NY Slip Op 02193, Second Dept 4-2-20

 

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THE TORTIOUS INTERFERENCE WITH CONTRACT AND DEFAMATION CAUSES OF ACTION WERE NOT REFUTED BY DOCUMENTARY EVIDENCE AND WERE ADEQUATELY PLED (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined that plaintiff had stated causes of action for tortious interference with contract and defamation and the actions should not have been dismissed on either the “documentary evidence” or “failure to state a cause of action” ground:

Turning first to CPLR 3211 (a) (1), a motion to dismiss pursuant to this provision “will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” … . What may be deemed “documentary evidence” for purposes of this subsection is quite limited. “Materials that clearly qualify as documentary evidence include documents . . . such as mortgages, deed[s], contracts, and any other papers, the contents of which are essentially undeniable” … . Here, Supreme Court relied upon the statements taken during defendant’s investigation, as well as its non-harassment policy. As plaintiff argues, even sworn affidavits have been held inadequate to meet this statutory standard, and defendant’s submissions here do not qualify as documentary evidence … . …

The grounds for dismissal under CPLR 3211 (a) (7) are also strictly limited; the court is not allowed to render a determination upon a thorough review of the relevant facts adduced by both parties, but rather is substantially more constrained in its review, examining only the plaintiff’s pleadings and affidavits … . …

To establish a claim for tortious interference with a contract, the plaintiff must allege “the existence of [his or her] valid contract with a third party, [the] defendant’s knowledge of that contract, [the] defendant’s intentional and improper procuring of a breach, and damages” … . Here, plaintiff’s complaint alleged that a valid contract existed between plaintiff and the distributor, that defendant intentionally spread “false, specious and salacious accusations against [p]laintiff,” and that such conduct “had no good faith or justifiable cause” and did not “protect an economic interest.” Liberally construing these allegations, as we must, taking all of the alleged facts as true, and giving plaintiff every favorable inference … , they do not fail to state a claim.

The defamation claim will ultimately require “proof that the defendant made ‘a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se'” … . Here, the complaint sets forth the particular words complained of and the damages plaintiff allegedly sustained … . Carr v Wegmans Food Mkts., Inc., 2020 NY Slip Op 02141, Third Dept 4-2-20

 

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A FRYE HEARING SHOULD HAVE BEEN HELD TO DETERMINE THE ADMISSIBILITY OF THE LOW COPY NUMBER (LCN) DNA EVIDENCE AND THE EFFICACY OF A FORENSIC STATISTICAL TOOL (FST); THE ERROR WAS HARMLESS HOWEVER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge concurrence, ruled a Frye hearing should have been held to the determine admissibility of low copy number (LCN) DNA evidence and the efficacy of the forensic statistical tool (FST) used to conduct the statistical analysis. The abuse of discretion was deemed harmless however:

At the time this motion practice was initiated no court had completed a Frye hearing with respect to the FST, and only one court—namely, the Megnath (27 Misc 3d 405) court …—had conducted such a hearing with respect to LCN testing.  * * *

… [T]here was “marked conflict” with respect to the reliability of LCN DNA within the relevant scientific community at the time the LCN issue was litigated in this case … . * * *

… FST is a proprietary program exclusively developed and controlled by [the New York City Office of Chief Medical Examiner (OCME)]. The sole developer and the sole user are the same. That is not “an appropriate substitute for the thoughtful exchange of ideas . . . envisioned by Frye” … . It is an invitation to bias. People v Williams, 2020 NY Slip Op 02123, CtApp 3-31-20

Similar issues and result in People v Foster-Bey, 2020 NY Slip Op 02124, CtApp 3-31-20

 

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IN THIS DESIGN DEFECT PRODUCTS LIABILITY CASE, THE LOSS OF THE SPECIFIC PRODUCT WHICH CAUSED THE INJURY DID NOT PREVENT DEFENDANT-MANUFACTURER FROM PRESENTING A DEFENSE; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON SPOLIATION GROUNDS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant-manufacturer (Doka) of an allegedly defective ratchet was not entitled to dismissal of the complaint on the ground that plaintiff could not produce the ratchet (spoliation). The ratchet was used to move heavy concrete forms into place along a track. Allegedly the ratchets broke when extra pressure was placed on them when the forms became “bound” on the track. Plaintiff alleged he was injured when he used his foot to increase the pressure on the ratchet when the form became bound. Because this was a design-defect case, and because the ratchets allegedly had broken before under similar circumstance, the defendant-manufacturer could present a defense and, therefore, the loss of the ratchet did not warrant dismissal of the complaint:

In cases like this, where the claim is based on a design defect (as opposed to a manufacturing defect), the absence of the product is not necessarily fatal to the defendant. As this Court has observed, a product’s design “possibly might be evaluated and the defect proved circumstantially” … . Circumstantial evidence could, one would imagine, be the testimony of someone involved in the design process, and plans or photographs of the product before it entered the stream of commerce. It could also, assuming that the missing product was one of multiple units manufactured using the same design, be another one of those units. * * *

Doka does not, in any meaningful way, argue why its inability to inspect the exact ratchet that plaintiff was using would prevent it from defending against the products liability claim. Rossi v Doka USA, Ltd., 2020 NY Slip Op 02098, First Dept 3-26-20

 

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PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 AND DID NOT PRESENT NON-HEARSAY EVIDENCE OF STANDING IN THIS FORECLOSURE ACTION, CRITERIA EXPLAINED IN SOME DETAIL (SECOND DEPT).

The Second Department, in an extensive decision explaining the relevant issues and analysis in some depth, determined plaintiff bank did not demonstrate compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304  did not demonstrate standing to bring the foreclosure action:

… [T]he plaintiff failed to submit an affidavit of mailing or proof of mailing by the United States Postal Service evidencing that it properly mailed notice to the defendant pursuant to RPAPL 1304. Instead, the plaintiff relied on an affidavit of Rashad Blanchard, who was employed as a loan analyst by the parent company of the plaintiff’s loan servicer, and copies of the purported notices. The plaintiff submitted only one letter that purported to constitute the statutorily required 90-day notice of default … . Although the letter contained the statement “sent via certified mail,” with a 20-digit number below it, no receipt or corresponding document issued by the United States Postal Service was submitted proving that the letter was actually sent by certified mail more than 90 days prior to commencement of the action. The plaintiff also failed to submit any documentary evidence that notice was sent by first-class mail. Further, Blanchard did not aver that the notice was sent in the manner required pursuant to RPAPL 1304, i.e., by certified mail and first-class mail. Moreover, since he did not aver that he personally mailed the notice, or that he was familiar with the mailing practices and procedures of American Home Mortgage Servicing, Inc., the entity that purportedly sent the notices, he did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . * * *

[Vice President] Reyes’s affidavit failed to establish a sufficient foundation for the admission of a business record pursuant to CPLR 4518(a) because, although he recited that the records upon which he relied were “regularly maintained by [the plaintiff] in the ordinary course of its business,” he “did not indicate that they were made by their author (or authors, whoever they might be) pursuant to an established procedure for the routine, habitual, systematic making of records that would qualify them as trustworthy accounts,” or that they “were the records regularly relied on in the business” … . Reyes also failed to indicate “that the record [was] made at or about the time of the event being recorded—essentially, that recollection [was] fairly accurate and the habit or routine of making the entries assured” … . …

… .[T]o the extent that Reyes’s purported knowledge of the date the plaintiff received the original note was based upon his review of unidentified business records maintained by the plaintiff, “[his] affidavit constituted inadmissible hearsay and lacked probative value” … . Deutsche Bank Natl. Trust Co. v Dennis, 2020 NY Slip Op 02039, Second Dept 3-25-20

 

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PLAINTIFF’S MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for a directed verdict should not have been granted and explained the criteria:

” A motion for judgment as a matter of law pursuant to CPLR 4401 may be granted where the trial court determines that, upon the evidence presented, there is no rational process by which the [trier of fact] could base a finding in favor of the nonmoving party'” … . “In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in light most favorable to the nonmovant'” … .

Here, the Supreme Court, in announcing its decision, stated that it expressly considered and relied on the defendants’ evidence. This was error, as it was improper for the court to consider, on a motion for a directed verdict made before the moving party had rested and the opposing party had an opportunity to present rebuttal evidence, the evidence introduced by the moving party … .

Thus, in the context of a motion for a directed verdict, the Supreme Court should not have accorded the defendants’ expert’s testimony more weight than that of the plaintiff’s expert. In determining a motion for a directed verdict, the trial court “must not engage in a weighing of the evidence, nor may it direct a verdict where the facts are in dispute, or where different inferences may be drawn or the credibility of witnesses is in question” … . Boriello v Loconte, 2020 NY Slip Op 02035, Second Dept 3-25-20

 

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DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD AND DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT ON THE DUTY OF CARE AND KNOWLEDGE ELEMENTS OF A SLIP AND FALL CASE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Defendant property owner did not demonstrate it was an out-of-possession landlord. And defendants failed to eliminate questions of fact re: several elements of a slip and fall action:

… [T]he defendants failed to eliminate triable issues of fact as to whether they had a duty to maintain in a reasonably safe condition the area of the parking lot where the plaintiff allegedly slipped … . They further failed to eliminate triable issues of fact as to whether they, or anyone on their behalf, caused, created, or exacerbated the ice condition upon which the plaintiff allegedly slipped and fell … , and whether they lacked constructive notice of the alleged ice condition … . Pinck-Jafri v Marsh Realty, LLC, 2020 NY Slip Op 02082, Second Dept 3-25-30

 

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