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FAMILY COURT, IN THE WIFE’S ABSENCE, SUA SPONTE, RAISED ALLEGATIONS NOT INCLUDED IN THE FAMILY OFFENSE PETITION BEFORE THE COURT, FAMILY COURT THEN ALLOWED THE ALLEGATIONS TO BE ADDED TO THE PETITION, AND THE COURT WENT ON TO FIND THAT THE WIFE HAD COMMITTED THE FAMILY OFFENSES OF HARASSMENT AND MENACING, BECAUSE THE WIFE WAS NOT GIVEN NOTICE OF THE ADDED ALLEGATIONS, REVERSAL WAS REQUIRED (THIRD DEPT).

The Third Department, reversing Family Court, determined the wife was not given notice of the allegations which led to the court’s finding she had committed the family offenses of harassment and menacing .  The wife did not appear in court and her attorney told the court she was not authorized to represent her in the proceeding. Certain allegations were added to the family offense petition in the wife’s absence and without prior notice to her:

The court … , sua sponte, addressed a new subject, inquiring about allegations that had apparently been raised on some other occasion. When the court asked whether the alleged events had occurred, the husband responded, “Yes, ma’am,” without specifically describing those factual allegations. Upon this basis, the court then granted a request by the husband’s counsel to amend the petition to add certain offenses; notably, counsel made no request to amend the petition’s substantive allegations. The court then found the wife had committed the family offenses of harassment in the second degree, assault in the third degree, and menacing in the third degree, and directed the entry of a two-year order of protection.

Nothing in the record indicates that the wife was given any notice that the matters raised by Family Court would be addressed at the hearing. The allegations described by the court were not set forth within the husband’s July 2016 petition. …

“[N]otice is a fundamental component of due process” … . In the absence of notice to the wife, Family Court’s sua sponte consideration of extraneous allegations violated the wife’s due process rights … . Matter of King v King, 2018 NY Slip Op 08724, Third Dept 12-20-18

 

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FAILURE TO HOLD A LINCOLN HEARING WAS NOT AN ABUSE OF DISCRETION (THIRD DEPT).

The Third Department, over a two-justice dissent, determined that Family Court’s custody and parenting time rulings were supported by the evidence. The dissenting justices argued a Lincoln hearing should have been held to learn the preferences of the older child. The majority ruled Family Court did not abuse its discretion in not holding a Lincoln hearing:

We … do not share Family Court’s view that “[c]ourts are rarely only supposed to have Lincoln [h]earings.” To the contrary, conducting such hearings is the “preferred practice” … . That said, whether to conduct a Lincoln hearing rests in the discretion of Family Court … . Family Court noted that the testimony from the fact-finding hearing was “not remarkable nor extremely disturbing” and did not raise “any red flags.” In our view, the record was sufficiently developed for the court to make a custody and visitation determination. Furthermore, although the wishes of the older child, who was nearly 11 years old at the time of the hearing, were “entitled to consideration” … , this is just one factor in the best interests analysis and is not dispositive … . As such, under the [*3]circumstances of this case, we find no abuse of discretion … . Matter of Lorimer v Lorimer, 2018 NY Slip Op 08721, Third Dept 12-20-18

 

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DEFENSE COUNSEL’S FAILURE TO OBTAIN EXPERT OPINION EVIDENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, THE CASE TURNED ON WHETHER DEFENDANT WAS INTOXICATED, THE INTOXILYZER RESULTS WERE INCONSISTENT, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate the judgment of conviction on ineffective assistance grounds should have been granted:

This case turned on whether defendant was intoxicated at the time of the vehicular accident at issue, and there was a serious issue about the accuracy of the final Intoxilyzer reading, which conflicted with an earlier reading showing no intoxication. Defense counsel failed to take steps to consult with and produce an appropriate expert on breath and blood alcohol analysis to rebut the People’s proof … .

At the 440.10 hearing, trial counsel conceded that his only reason for not calling an expert was the inability of his client, who was also unable to pay counsel’s fee, to pay for an expert. He also conceded that he took no steps to obtain a court-appointed expert, and was unaware that this remedy might be available. This constituted constitutionally deficient performance … . As for the prejudice prong of an ineffective assistance claim, we find that there is a reasonable probability that calling an expert would have affected the outcome of the trial, and that the absence of expert testimony rendered the proceeding unfair under the facts of the case. People v Carter, 2018 NY Slip Op 08745, First Dept 12-20-18

 

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UNLIKE IN FAMILY COURT ACT ARTICLE 10 AND 6 PROCEEDINGS, CHILDREN’S HEARSAY STATEMENTS ARE NOT ADMISSIBLE IN FAMILY COURT ACT ARTICLE 8 (FAMILY OFFENSE) PROCEEDINGS (THIRD DEPT).

The Third Department, reversing Family Court in this family offense proceeding, in a full-fledged opinion by Justice McCarthy, determined the hearsay statements of the children should not have been admitted in evidence. Family Court had found that father committed harassment by grabbing one of the children. Although children’s hearsay has been deemed admissible in Family Court Act article 10 and 6 proceedings, such hearsay is not admissible in Family Court Act article 8 (family offense) proceedings:

Despite the extension of the exception from Family Ct Act articles 10 and 10-A to article 6, this Court has never directly addressed whether Family Ct Act § 1046 (a) (vi) can be applied in a proceeding pursuant to Family Ct Act article 8 … . The 1st and 2nd Departments have concluded that even though the exception has been applied in custody proceedings under article 6 that are founded on abuse or neglect, because Family Ct Act § 1046 (a) (vi) “is explicitly limited to child protective proceedings under articles 10 and 10-A, [it] has no application to family offense proceedings under article 8” … . This conclusion comports with the language of the statute. …

Having determined that Family Court should not have relied upon the children’s hearsay statements, we must consider whether the remaining evidence at the fact-finding hearing was sufficient to establish that the father committed a family offense. Setting aside the children’s statements to the detectives, to the mother and on the videotape, the evidence directly related to the incident is extremely limited. It includes a photograph showing a barely visible bruise on the middle child’s arm, the detectives’ evaluation of the children’s body language and the father’s testimony that he grabbed the middle child while removing him from a situation where he was misbehaving. The father testified that his intention in taking hold of the child was not to alarm him, but to get him and the situation under control. This testimony contradicts the intent required to prove harassment in the second degree and supports the father’s defense of justification, which permits a parent to use physical force to the extent that he or she deems reasonably necessary to maintain discipline … . Although the court could have disbelieved the father’s testimony and inferred his state of mind from the circumstances … , without the hearsay testimony, there was not a sufficient basis for the court to find that the father committed a family offense. Matter of Kristie GG. v Sean GG., 2018 NY Slip Op 08718, Third Dept 12-20-18

 

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PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF’S LADDER SHIFTED AND HE FELL, HEARSAY IN A REPORT WHICH CONSTITUTED A MISTRANSLATION OF THE PLAINTIFF’S STATEMENT DID NOT RAISE A TRIABLE ISSUE OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action based upon his fall from a ladder which shifted. The hearsay evidence in a report which mistranslated plaintiff’s statement using the word “stairs” rather than “ladder” (the Spanish word means both) did not create an issue of fact. The court noted that the tenant who hired plaintiff’s employer and the property owner were liable:

Defendants … failed to raise a triable issue of fact. Hearsay, standing alone, is insufficient to defeat summary judgment. The mistranslated statement in the C-3 report (“while walking I fell down stairs”) does not qualify as a prior inconsistent statement or as a business record so as to fit within an exception to the hearsay rule … . The declaration against interest hearsay exception to the hearsay rule is likewise inapplicable inasmuch as, among other reasons, the declarant was indisputably unaware that the statement was adverse when made … .

Defendants, as the proponents of the evidence, were obligated to show that plaintiff was the source of the information recorded in the C-3 indicating that he fell from “stairs,” and that “the translation was provided by a competent, objective interpreter whose translation was accurate, a fact generally established by calling the translator to the stand” … . This defendants have failed to do. Nava-Juarez v Mosholu Fieldston Realty, LLC, 2018 NY Slip Op 08744, First Dept 12-20-18

ACCIDENT REPORTS

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IN THIS TRAFFIC ACCIDENT CASE, AN AFFIDAVIT FROM A LICENSED CLINICAL SOCIAL WORKER (LCSW) CONSTITUTED COMPETENT EVIDENCE PLAINTIFF SUFFERS FROM POST-TRAUMATIC STRESS DISORDER (PTSD), PTSD IS A ‘SERIOUS INJURY’ WITHIN THE MEANING OF INSURANCE LAW 5102 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined an affidavit from a licensed clinical social worker (LCSW) was competent evidence that plaintiff in this traffic accident case suffered from post-traumatic stress disorder (PTSD) which is recognized as a “serious injury” within the meaning of Insurance Law 5102 (d):

Under Education Law § 7701 (2), an LCSW can diagnose “mental, emotional, behavioral, addictive and developmental disorders and disabilities” and can administer and interpret tests of psychological functioning, create assessment-based treatment plans and provide “short-term and long-term psychotherapy and psychotherapeutic treatment.” These are functions comparable to those of a psychologist (see Education Law § 7601-a [1], [2]). For licensing purposes, an LCSW must “have at least three years full-time supervised postgraduate clinical social work experience in diagnosis, psychotherapy, and assessment-based treatment plans, or its part-time equivalent, obtained over a continuous period not to exceed six years, under the supervision . . . of a psychiatrist, a licensed psychologist, or [an LCSW] in a facility setting” … . Given the above, we conclude that an LCSW is competent to render an opinion as to whether a person has PTSD for purposes of establishing a serious injury under the Insurance Law. …

Iantorno [the LCSW] averred that she “personally witnessed physical anxiety exhibited by . . . Vergine [plaintiff]. This was visible to me and further validated diagnosis of PTSD.” Such clinical observations qualify as objective medical evidence for purposes of establishing a serious injury … . Iantorno opined that Vergine was significantly limited in her ability to drive and even distressed as a passenger, conditions that impacted her independence and imposed a significant limitation of her psychological function. We find that this submission presents an issue of fact as to whether Vergine sustained causally-related PTSD, constituting a “significant limitation of use of a body function or system” (Insurance Law § 5102 [d]). Vergine v Phillips, 2018 NY Slip Op 08740, Third Dept 12-20-18

 

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DEFENDANT PROPERTY MANAGER AND DEFENDANT OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE KNOWLEDGE OF THE ICE AND SNOW CONDITION WHERE PLAINTIFF FELL IN THIS STRIP MALL PARKING LOT SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this parking lot slip and fall case should not have been granted. The defendant Benderson managed the strip mall where the slip and fall occurred, and defendant Fitzgerald owned the property. The defendants did not demonstrate they did not have construction notice of the snow and ice condition:

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . This burden cannot be satisfied merely by pointing out gaps in the plaintiff’s case, as the defendants did here… . The defendants failed to show what the accident site actually looked like within a reasonable time after the cessation of the prior snowstorm and what the accident site actually looked like within a reasonable time prior to the incident. The defendants also failed to submit any meteorological data to show that the alleged ice condition that caused the plaintiff to fall was not the product of a prior storm. Bronstein v Benderson Dev. Co., LLC, 2018 NY Slip Op 08625, Second Dept 12-19-18

 

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EVIDENCE DID NOT SUPPORT TEMPORARY REMOVAL OF CHILD FROM FATHER’S CUSTODY DURING THE PENDENCY OF A CHILD PROTECTIVE PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support temporary removal of the child from father’s custody during the pendency of a child protective proceeding:

“[O]nce a child protective petition has been filed, Family Court Act § 1027(a)(iii) authorizes the court to conduct a hearing to determine whether the child’s interests require protection, including whether the child should be removed from his or her parent”… . Upon such a hearing, temporary removal is only authorized where the court finds it necessary “to avoid imminent risk to the child’s life or health” … . “In determining a removal application pursuant to Family Court Act § 1027, the court must engage in a balancing test of the imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal'” … .

Here, the petitioner failed to establish that Chloe would be subject to imminent risk if she remained in the father’s care pending the outcome of the neglect proceeding … . The hearing evidence showed that at no time did the father inflict excessive corporal punishment upon Chloe. In addition, the evidence showed that Dasanie may have been coached by Chloe’s mother, and Dasanie recanted, before several individuals, the allegations that the father inflicted excessive corporal punishment upon her. Matter of Chloe-Elizabeth A.T. (Albert T.), 2018 NY Slip Op 08666, Second Dept 12-19-18

 

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FAMILY COURT DID NOT HAVE SUFFICIENT EVIDENCE TO DETERMINE IT WAS IN THE CHILD’S BEST INTERESTS TO BE WITH FATHER IN THIS TEMPORARY CUSTODY PROCEEDING, ALLEGATIONS OF EXCESSIVE CORPORAL PUNISHMENT REQUIRED A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined questions of fact about father’s use of corporal punishment required a hearing in this temporary custody matter about whether it was in the child’s best interests to be placed with father:

“[I]n any action concerning custody or [parental access] where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interest of the child, together with other factors and circumstances as the court deems relevant in making an award of custody” (…see Domestic Relations Law § 240[1]…). In addition, consideration may be given to the express wishes of older and more mature children, but such wishes are not dispositive … .

As a general rule, “a custody determination should be made only after a full and fair hearing at which the record is fully developed”… . Under the circumstances of this case, the Family Court did not have sufficient evidence before it to reach a sound conclusion that it was in the subject child’s best interests for the father to have temporary custody pending determination of the issue of permanent custody. Throughout the proceedings, there were controverted allegations of excessive corporal punishment by the father against the subject child and the court was informed that the subject child suffers from certain mental health issues that were being treated in Connecticut. Matter of Poltorak v Poltorak, 2018 NY Slip Op 08662, Second Dept 12-19-18

 

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LOST NOTE AFFIDAVIT INSUFFICIENT BECAUSE UCC REQUIREMENTS NOT MET, PROOF OF RPAPL 1304 NOTICE INSUFFICIENT, PROOF OF COMPLIANCE WITH NOTICE CONDITION OF THE MORTGAGE INSUFFICIENT, SUPREME COURT SHOULD NOT HAVE GRANTED THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment in this foreclosure action should not have been granted for three reasons: (1) the lost note affidavit was insufficient pursuant to the requirements of the Uniform Commercial Code (UCC); (2) the proof of compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 was not sufficient; and (3) the plaintiff did not show it had complied the notice condition of the mortgage (a condition precedent ro foreclosure):

Pursuant to UCC 3-804, the owner of a lost note may maintain an action “upon due proof of [1] his [or her] ownership, [2] the facts which prevent his [or her] production of the instrument and [3] its terms” (UCC 3-804). The party seeking to enforce a lost instrument is required to “account for its absence” … .

Here, although the plaintiff came forward with evidence establishing that the note was assigned to it and establishing the note’s terms, the affidavit of lost note submitted in support of its motion failed establish the facts that prevent the production of the original note … . …

… [T]he affidavit of a representative of its loan servicer was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, as the representative did not provide proof of a standard office mailing procedure and provided no independent proof of the actual mailing … . …

… [T]the plaintiff failed to establish, prima facie, that it complied with the condition precedent contained in the mortgage requiring it to give notice of default prior to demanding payment in full … . The affidavit of a representative of the plaintiff’s loan servicer claiming that notice of default was sent to the defendant …  was conclusory and unsubstantiated and … was insufficient to prove that the notice was sent in accordance with the terms of the mortgage … . U.S. Bank N.A. v Cope, 2018 NY Slip Op 08709, Second Dept 12-19-18

 

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