You are here: / Evidence
,

EXPERT WITNESSES CORROBORATED THE CHILD’S OUT-OF-COURT STATEMENTS IN THIS CHILD SEXUAL ABUSE CASE; THE PETITION, DISMISSED BY FAMILY COURT, REINSTATED AND A FINDING OF ABUSE MADE BY THE APPELLATE COURT (SECOND DEPT).

The Second Department, reversing Family Court, determined that the child’s prior out-of-court statements should have been admitted in this child sexual abuse proceeding. The expert witnesses corroborated the child’s statements:

“A child’s prior out-of-court statements may provide the basis for a finding of abuse, provided that these hearsay statements are corroborated, so as to ensure their reliability'” . “Any other evidence tending to support the reliability of the previous statements . . . shall be sufficient corroboration” (Family Ct Act § 1046[a][vi]). ” The Family Court has considerable discretion in deciding whether a …  out-of-court statements alleging incidents of abuse have been reliably corroborated'” … . Although deference is to be given to the hearing court’s determinations as to credibility … , where that court’s credibility determination is not supported by the record, “this Court is free to make its own credibility assessments and overturn the determination of the hearing court” … .

Contrary to the Family Court’s determination, the testimony of the petitioner’s expert witnesses, including the validating expert witness … , provided sufficient corroboration of the subject child’s numerous and consistent out-of-court statements regarding the father’s sexual abuse of her, and together with the testimony of the petitioner’s caseworker, established by a preponderance of the evidence that the father sexually abused the child … . Further, the court failed to give sufficient consideration to the inconsistent and evasive nature of the father’s testimony … . Matter of Tazya B. (Curtis B.), 2020 NY Slip Op 01341, Second Dept 2-26-20

 

, ,

PROOF OF POSSESSION OF THE NOTE WHEN THE ACTION WAS COMMENCED WAS HEARSAY; PLAINTIFF BANK DID NOT DEMONSTRATE STANDING TO FORECLOSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to bring the foreclosure action. The assertions that the note was in plaintiff’s possession when the action was commenced were hearsay and were not supported by business records:

… [T]he plaintiff, to establish its standing to commence this mortgage foreclosure action, submitted an affirmation of Amber A. Jurek, a lawyer with Gross Polowy, LLC (hereinafter Gross Polowy), the plaintiff’s counsel. Jurek stated that she was familiar with Gross Polowy’s records and record-keeping practices. Jurek stated that on January 28, 2015, Gross Polowy received the plaintiff’s file, which included the original endorsed note. Gross Polowy commenced this action on the plaintiff’s behalf on February 26, 2015. According to Jurek, “[o]n that date, Gross Polowy, on behalf of Plaintiff, remained in physical possession of the collateral file, including the original endorsed Note dated March 20, 2012.” The plaintiff also submitted the note, which bore an undated endorsement to the plaintiff. However, Jurek did not set forth any facts based on her personal knowledge to support her statement that the note in the plaintiff’s file was the original endorsed note. Further, the plaintiff failed to attach the business records upon which Jurek relied in her affirmation, and since Jurek did not state that she personally witnessed Gross Polowy receive the plaintiff’s file, her statement is inadmissible hearsay … .

The plaintiff also submitted an affidavit of April H. Hatfield, vice president of loan documentation for the plaintiff. Hatfield stated that she was familiar with the plaintiff’s records and record-keeping practices. Although Hatfield attached the records upon which she relied, she did not state that the plaintiff had possession of the endorsed note at the time the action was commenced. Rather, she relied on Jurek’s affidavit for that fact. Accordingly, Hatfield’s affidavit was also insufficient to establish the plaintiff’s standing.

Finally, the plaintiff did not attach a copy of the note to the complaint when commencing this action. Therefore, the plaintiff failed to establish, prima facie, that it had standing to commence this action … . Wells Fargo Bank, N.A. v Bakth, 2020 NY Slip Op 01382, Second Dept 2-26-20

 

, ,

QUESTIONS OF FACT WHETHER WALKING ON THE REBAR GRID WAS AN INHERENT RISK OF THE JOB AND WHETHER THE GRID WAS A DANGEROUS CONDITION PRECLUDED A DIRECTED VERDICT IN THIS LABOR LAW 200 ACTION; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined questions of fact for the jury precluded the directed verdict (CPLR 4401) for the defendants in this Labor Law 200 action. Plaintiff was working as a surveyor at a construction site. He was walking across a rebar grid when one of his legs fell through. There were questions of fact whether walking on the rebar grid was an inherent risk of his job and whether the grid was a dangerous condition. Plaintiff’s motion to set aside the directed verdict (CPLR 4404) should have been granted:

Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work … . The duty, however, is subject to recognized exceptions … . It does not extend to hazards which are part of or inherent in the very work which the contractor is to perform, or where the contractor is engaged for the specific purpose of repairing the defect … .

Here, in directing a verdict in favor of the defendants on the issue of liability, the Supreme Court improperly decided the factual questions of whether traversing an uncovered rebar grid was an inherent risk in the injured plaintiff’s work as a surveyor, and whether the uncovered rebar grid was a dangerous condition under the circumstances presented. The record demonstrates that the plaintiffs’ evidence made out a prima facie case, and that disputed factual issues existed which should have been resolved by the jury. Since the court failed to draw “every favorable inference” in favor of the plaintiffs and because the court resolved disputed issues of fact … , the matter must be remitted to the Supreme Court, Queens County, for a new trial on the issue of liability. Vitale v Astoria Energy II, LLC, 2020 NY Slip Op 01381, Second Dept 2-26-20

 

, , ,

HOSPITAL DID NOT DEMONSTRATE THE TREATING EMERGENCY PHYSICIAN WAS NOT AN EMPLOYEE AND DID NOT DEMONSTRATE THE EMERGENCY PHYSICIAN DID NOT DEPART FROM ACCEPTED STANDARDS OF MEDICAL CARE; THE HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the medical malpractice action against the hospital (Mercy) should not have been dismissed. The hospital failed to demonstrate the emergency physician (Hughes) was not an employee and failed to demonstrate the emergency physician did not depart from the accepted standards of care:

… [T]he Mercy defendants failed to establish, prima facie, that they could not be held vicariously liable for the alleged malpractice of Hughes on the ground that he was not an employee. The medical records submitted by the Mercy defendants in support of the subject branches of the motion established that the plaintiff arrived at the hospital for treatment of her abdominal pain through the emergency department, and not as a patient of any particular physician … . In addition, the affidavit of a registered nurse employed by the defendant Mercy Medical Center as a Director Risk Management/Privacy Officer contained no evidentiary basis to support her conclusory assertion that Hughes was not an employee of the hospital … .

The Mercy defendants also failed to establish, prima facie, that Hughes did not depart from accepted community standards of medical care in the treatment of the plaintiff, or that any departure by Hughes was not a proximate cause of the plaintiff’s injuries … . Pinnock v Mercy Med. Ctr., 2020 NY Slip Op 01374, Second Dept 2-26-20

 

,

ANONYMOUS 911 CALL WAS NOT ADMISSIBLE AS AN EXCITED UTTERANCE OR AS A PRESENT SENSE IMPRESSION; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the recording of the 911 call was not admissible as an excited utterance or as a present sense impression:

… [T]he People did not present sufficient facts from which it could be inferred that the anonymous caller personally observed the incident … . The anonymous caller merely stated to the 911 operator that “[s]omebody just got shot on East 19th and Albemarle” and that it “was a guy with crutches. He started to shoot.” Nothing in these brief, conclusory statements, which were made at least five minutes after the shooting occurred, suggested that the caller was reporting something that he saw, as opposed to something he was told … . Moreover, although there was testimony that the call was made from a payphone located in the vicinity of the shooting, the People did not demonstrate that the payphone was situated outdoors or in a place where the actual site of the shooting would be visible. Accordingly, the statement did not qualify as an “excited utterance” … .

For similar reasons, the declarations of the 911 caller were not admissible under the “present sense impression” exception to the hearsay rule. ” Present sense impression’ declarations . . . are descriptions of events made by a person who is perceiving the event as it is unfolding” … . Here, as just explained, the People failed to demonstrate that the anonymous caller was describing events that he actually perceived. People v Thelismond, 2020 NY Slip Op 01368, Second Dept 2-26-20

 

, ,

THERE WAS EVIDENCE THE WATER ON THE FLOOR WAS A RECURRENT DANGEROUS CONDITION; PLAINTIFF SHOULD HAVE BEEN ALLOWED TO PRESENT AS A WITNESS DEFENDANT’S EMPLOYEE, THE BUILDING SUPERINTENDENT AT THE TIME OF THE SLIP AND FALL, DESPITE LATE NOTIFICATION; THE DIRECTED VERDICT WAS REVERSED (FIRST DEPT).

The First Department, reversing the directed verdict, determined the proof demonstrated water leaking from the ceiling onto the floor was a recurrent dangerous condition which was not addressed by the landlord. The First Department also held that a witness for the plaintiff, who was defendant’s employee at the time of the accident, should have been allowed to testify:

Plaintiff’s trial evidence established prima facie that defendant had constructive notice of the water on the floor of the lobby of its building on which plaintiff allegedly slipped and fell … . Plaintiff testified that at least four times before his accident, every few months, he observed water leaking from the ceiling onto the floor below in the area where he fell. His former girlfriend, with whom he lived in the building, testified that before the date of the accident “there were leaks and then afterward it was leaking again.” This testimony established that “an ongoing and recurrent dangerous condition existed in the area of the accident that was routinely left unaddressed by the landlord” … . Issues of credibility were for the jury.

The trial court improvidently exercised its discretion in precluding the testimony of Henry Soto, defendant’s building superintendent at the time of the accident, on the ground that it was prejudicial to defendant. Defendant could not have been prejudiced or surprised by plaintiff’s disclosure of Soto as a witness on the eve of trial, since Soto was defendant’s employee at the time of the accident … . Monzac v 1141 Elder Towers LLC, 2020 NY Slip Op 01243, First Dept 2-20-20

 

, , , ,

FAMILY COURT SHOULD NOT HAVE, SUA SPONTE, TERMINATED MOTHER’S PARENTAL RIGHTS ON MENTAL-ILLNESS GROUNDS IN THE ABSENCE OF THE STATUTORILY-REQUIRED PSYCHOLOGICAL EVALUATION (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have terminated mother’s parental right on mental-illness grounds without the results of the statutorily-required examination. The psychologist appointed to evaluate mother (Horenstein) did not do so and rendered his opinion based upon a review of records of her hospitalization:

Pursuant to Social Services Law § 384-b (6) (e), the court is required to order the parent, alleged to be mentally ill, to be examined by a qualified psychiatrist or psychologist and shall take testimony from the appointed expert … . Significantly, paragraph (c) of subdivision 6 prohibits a determination as to the legal sufficiency of the proof until such testimony is taken … . An exception exists “[i]f the parent refuses to submit to such court-ordered examination, or if the parent renders himself [or herself] unavailable . . . by departing from the state or by concealing himself [or herself] therein” … . In such instance, “the appointed psychologist or psychiatrist, upon the basis of other available information, . . . may testify without an examination of such parent, provided that such other information affords a reasonable basis for his [or her] opinion” … . * * *

… [W]e conclude that Family Court erred in proceeding with the termination of respondent’s parental rights without the statutorily-required examination. Horenstein pointed out that there was no basis to find that respondent refused to be evaluated. Nor did respondent make herself unavailable “by departing from the state or by concealing [herself] therein” … . To the contrary, her placement in CDPC was involuntary and, despite her release by December 1, 2017, no further attempt was made to schedule an evaluation. Because the statutory exception does not apply, Family Court lacked authority to determine the legal sufficiency of the proof without a contemporaneous evaluation … . Even though respondent raised no objection at the hearing, this statutory mandate requires that we remit the matter to Family Court for a new hearing and determination … . Matter of Rahsaan I. (Simone J.), 2020 NY Slip Op 01212, Third Dept 2-20-20

 

, ,

FATHER’S INCARCERATION CONSTITUTED A CHANGE IN CIRCUMSTANCES RE FATHER’S VISITATION/CONTACT PETITIONS; HEARING REQUIRED TO DETERMINE BEST INTERESTS OF THE CHILD; VISITATION PETITIONS NEED NOT BE VERIFIED (THIRD DEPT).

The Third Department, reversing Family Court, determined: (1) father’s incarceration constituted a change in circumstances; (2) father’s petition for visitation and contact triggered the need for a hearing to determine the best interests of the child; and (3) verification of a visitation petition is not required by CPLR 3020 or Family Ct Act article 6:

… [W]e find that the father demonstrated a change in circumstances arising from his incarceration … .

We note that “[v]isitation with a noncustodial parent, even one who is incarcerated, is presumed to be in the best interests of the child[]” . Further, “as a general matter, custody determinations …  be rendered only after a full and plenary hearing” … . This guideline applies to requests for visitation and contact, as presented here … . Accordingly, in the absence of sufficient information allowing a comprehensive review of the child’s best interests, Family Court erred in dismissing the petitions without a hearing … . Finally, it was not necessary for Family Court to dismiss the petitions because they were unsworn, given that verification of a visitation petition is not required by either CPLR 3020 or Family Ct Act article 6 … . Matter of Shawn MM. v Jasmine LL., 2020 NY Slip Op 01223, Third Dept 2-20-20

 

, , ,

PETITION ALLEGED MOTHER FAILED TO GIVE ADHD MEDICATION TO THE CHILDREN; THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING; BECAUSE FAMILY COURT ADDRESSED THE MERITS OF THE MOTION TO REARGUE THE MOTION WILL BE DEEMED TO HAVE BEEN GRANTED RENDERING THE ORDER APPEALABLE AS OF RIGHT (THIRD DEPT).

The Third Department, reversing Family Court, determined the neglect proceeding should not have been dismissed without a hearing. The petition alleged mother was not providing ADHD medication to the children and the children were unable to focus in school as a result. The Third Department noted that, although the denial of a motion to reargue is not appealable, here Family Court addressed the merits of the motion to reargue and will be deemed to have granted the motion:

Although, generally, no appeal lies from an order denying a motion to reargue, where “the court actually addresses the merits of the moving party’s motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied” … . Considering that Family Court scheduled and heard oral argument on the motion to reargue and, thereafter, issued a decision addressing the merits, we deem the court to have granted reargument, such that the December 2018 order adhering to the October 2018 order is appealable as of right … . …

“A parent’s unwillingness to follow a recommended course of psychiatric therapy and medication, resulting in the impairment of a child’s emotional health[,] may support a finding of neglect. However, what constitutes adequate medical care cannot be judged in a vacuum. The critical factor in this determination is whether the parent[ has] provided an acceptable course of medical treatment for [his or her] child in light of all the surrounding circumstances” … . Here, the petition and corresponding affidavit stated, among other things, that respondent failed to properly administer prescribed ADHD medication to the two oldest children and failed to bring them to scheduled doctor appointments, and that those children were struggling in school and were unable to focus because they were not receiving the proper dosage of medication. The petition states that these allegations are supported, in part, by information received from the children and their school. Petitioner further alleged its concern that respondent was either taking the children’s medication herself or selling it, along with the reasons for such concern. * * *

Despite the lack of allegations in the petition directly concerning the youngest child, the petition’s allegations could support a finding of derivative neglect of that child. Matter of Aydden OO. (Joni PP.), 2020 NY Slip Op 01232, Third Dept 2-20-20

 

, , ,

QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS CONSTRUCTIVE TRUST AND UNJUST ENRICHMENT ACTION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that summary judgment was not available in this dispute about ownership of land and personal property. Plaintiff alleged that land, personal property and the the proceeds of the timber business were his, despite the fact that the land, personal property and bank account, based upon the documentary evidence, appeared to belong to defendant. There were questions of fact whether a constructive trust had been created and whether defendant had been unjustly enriched:

“The elements of a constructive trust are a confidential relationship, a promise, a transfer in reliance on that promise and unjust enrichment. As a constructive trust is an equitable remedy, courts do not rigidly apply the elements but use them as flexible guidelines. In this flexible spirit, the promise need not be express, but may be implied based on the circumstances of the relationship and the nature of the transaction. Similarly, courts have extended the transfer element to include instances where funds, time and effort were contributed in reliance on a promise to share in some interest in property, even though no transfer actually occurred” … . Here, both parties concede that they had a confidential relationship. However, it is sharply disputed whether there was a promise, a transfer or unjust enrichment. * * *

“A person is unjustly enriched when his [or her] retention of the benefit received would be unjust considering the circumstances of the transfer and the relationship of the parties” … . Plaintiff claims this is his business, that he worked full time and utilized all funds earned in the business to purchase the equipment, personal property and the vacant land. On the other hand, defendant argues it was their business, she held title to all assets, paid for all assets and debts and paid for plaintiff’s services by paying his expenses, housing and cash. Baker v Harrison, 2020 NY Slip Op 01233, Third Dept 2-20-20

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy