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CUSTODY SHOULD NOT HAVE BEEN TRANSFERRED TO FATHER AND ALL CONTACT BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN SUSPENDED WITHOUT A HEARING, JUDGE, SUA SPONTE, SHOULD NOT HAVE PROHIBITED FUTURE PETITIONS FOR CUSTODY OR VISITATION BY MOTHER (FIRST DEPT).

The First Department, reversing Family Court, determined the court should not have transferred custody to father and suspended all contact between the child and mother for a year without conducting a hearing. The First Department further held that the judge should not have, sua sponte, prohibited mother from filing future petitions for custody or visitation without leave of court because no party requested that relief:

… [T]he court erred when, without holding an evidentiary hearing, it made a final order transferring physical and legal custody to the father and suspending all contact between the mother and the child for a year. Determination of the child’s best interests requires examination of the totality of the circumstances … . We have consistently held that “an evidentiary hearing is necessary before a court modifies a prior order of custody or visitation,” even where the court is familiar with the parties and child, and particularly where there are facts in dispute … . Furthermore, while we have stated that a hearing on modification of a custody arrangement in the child’s best interests “may be as abbreviated, in the court’s broad discretion, as the particular allegations and known circumstances warrant. . . ,’ it must include an opportunity for both sides, and the children’s attorney when there is one, to present their respective cases, and the factual underpinnings of any temporary order [must be] made clear on the record'” … .

Here, the court made a final determination without taking any testimony or entering any documents into evidence. The court’s reliance on statements made by the ACS caseworker during a court conference was inappropriate, since the mother’s attorney had requested, but was denied, a full hearing at which counsel could have cross-examined the caseworker. Matter of Michael G. v Katherine C., 2018 NY Slip Op 08568, First Dept 12-13-18

 

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QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF HAS STANDING IN THIS FORECLOSURE ACTION AND WHETHER THE RPAPL 1304 NOTICE WAS SERVED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT)

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. There exist questions of fact on whether plaintiff has standing and whether the RPAPL 1304 notice was served:

The borrower raised a meritorious standing defense based on questions as to the sufficiency of the content of the conclusory lost note affidavit, which does not state that a thorough and diligent search was made based on a review of the business records or anything else, does not state that any search was made or by whom, and does nothing to indicate when approximately the note was lost … .

The borrower also raised a plausible notice defense regarding plaintiff’s service of the requisite 90-day notice under RPAPL 1304 … . AS Helios LLC v Chauhan, 2018 NY Slip Op 08565, First Dept 12-13-18

 

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THE MURDER COUNT, WHICH SHOULD HAVE BEEN DISMISSED BECAUSE THE PEOPLE DID NOT SEEK PERMISSION TO RESUBMIT IT AFTER THE GRAND JURY DEADLOCKED ON THE CHARGE, DID NOT TAINT THE CONVICTION ON THE MANSLAUGHTER COUNT UNDER A SPILL-OVER ANALYSIS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a concurring opinion, reversing the appellate division, determined the murder count in the second indictment should have been dismissed because the People did not seek court permission to re-present it after the grand jury which issued the first indictment deadlocked on that charge. But the court further held the murder count, on which defendant was acquitted, did not taint the manslaughter conviction under a spill-over analysis. The manslaughter count was a valid count in the first indictment (both indictments were tried together):

The People’s failure to obtain court permission to resubmit a murder count to a new grand jury after the first grand jury deadlocked on that charge violated Criminal Procedure Law § 190.75 (3), and Supreme Court erred in denying defendant’s pretrial motion to dismiss the murder count in the second indictment on that ground.  * * *

Under the particular circumstances of this case, we conclude that defendant is not entitled to a new trial on the manslaughter count. The People assert that all of the evidence admitted to prove defendant’s guilt of murder in the second degree was also admissible to prove his guilt of manslaughter in the first degree, and defendant does not contend otherwise. … [T]he presence of the tainted murder count here did not result in the admission of any prejudicial evidence that the jury would have been unable to consider if the murder count had been dismissed … . People v Allen, 2018 NY Slip Op 08537, CtApp 12-13-18

 

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A BLOCKED TRACHEOSTOMY TUBE IS A FORESEEABLE EVENT FOR WHICH DEFENDANT ANESTHESIOLOGIST WAS TRAINED AND PREPARED, THEREFORE THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE EMERGENCY DOCTRINE, DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE ACTION REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defense verdict and ordering a new trial in this medical malpractice action, determined the jury should not have been charged on the emergency doctrine. Plaintiff’s decedent died after her tracheostomy tube became blocked. Because a blocked tracheostomy tube is a foreseeable condition, the emergency doctrine did not apply:

In the days after … surgery, Jones [plaintiff’s decedent] was improving and was out of bed and talking. On March 30, 2007, a nurse and respiratory therapist were removing a Passy-Muir valve (a device designed to allow a patient to speak with a tracheostomy tube in place) and met resistance while attempting to place an inner cannula into the tube. Jones began to experience shortness of breath. Despite attempts to suction the tube and ventilate Jones manually with an Ambu bag, Jones’s oxygen saturation levels continued to drop to the low 60s, and her level of consciousness rapidly decreased. Accordingly, Sher [defendant], an anesthesiologist, and Joann Noto, a physician assistant, were paged. * * *

… [W]e disagree with the Supreme Court’s determination to instruct the jury on the emergency doctrine. The emergency doctrine “has been reserved, in a medical context, to situations where a doctor is confronted by a sudden and unforeseen condition’ and is forced to undertake care under less than optimal circumstances,” and is inapplicable where the defendant physician was trained and prepared for the specific emergency … . Here, there is no dispute that it was foreseeable for secretions to block a tracheostomy tube and that Sher was qualified as an anesthesiologist to replace a blocked tracheostomy tube. Indeed, Sher admitted that, in his 30 years of experience, creating airways for patients is what anesthesiologists do. Further, Sher was advised by Noto that a mucus plug was blocking the tracheostomy tube which Sher was ultimately able to replace within seconds. Accordingly, there was no sudden and unforeseen condition for which Sher was not trained or prepared. Crayton v Sher, 2018 NY Slip Op 08461, Second Dept 12-12-18

 

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THE OWNER OF THE DEFECTIVE LADDER WHICH CAUSED PLAINTIFF’S INJURY ALLEGED THE LADDER WAS PURCHASED AT A PARTICULAR HOME DEPOT STORE, IN THE FACE OF PROOF THE STORE DID NOT OPEN UNTIL YEARS AFTER THE ALLEGED PURCHASE, THE OWNER OF THE LADDER ALLEGED THE LADDER WAS EITHER PURCHASED AT A DIFFERENT TIME OR AT A DIFFERENT HOME DEPOT STORE, HOME DEPOT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Home Depot’s motion for summary judgment should have been granted in this defective ladder products liability case. Defendant Garberg, the owner of the ladder, alleged he purchased the ladder at a specific Home Depot store between 1994 and 1995. Home Depot demonstrate the store in question did not open until 2001. Garberg then submitted an affidavit alleging he either bought ladder after the store opened or he bought the ladder at another Home Depot store (which was identified):

” [L]iability may not be imposed for . . . strict products liability upon a party that is [*2]outside the manufacturing, selling, or distribution chain'”… . Here, Home Depot established its prima facie entitlement to judgment as a matter of law by demonstrating that it was outside the manufacturing, selling, or distribution chain… . In opposition, the plaintiff failed to raise a triable issue of fact on this issue. Garberg’s 2016 affidavit contained assertions made for the first time in opposition to the motion and merely raised feigned issues designed to avoid the consequences of Garberg’s earlier affidavit. Garberg swore to the 2016 affidavit after he settled with the plaintiff, after the close of discovery, and after Home Depot submitted its conclusive proof establishing that he could not have purchased the defective ladder when and where he claimed he had. The 2016 affidavit speculated about a possible purchase at a different Home Depot location that, unlike the Cropsey Avenue location, the parties did not have the opportunity to explore during discovery. Garberg also contradicted his prior unambiguous assertion about the timing of his purchase. His 2016 opposition affidavit was, therefore, insufficient to defeat summary judgment … . Rooney v Garberg, 2018 NY Slip Op 08521, Second Dept 11-12-18

 

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THE PRESUMPTION OF OWNERSHIP OF A VEHICLE CREATED BY THE CERTIFICATE OF TITLE CAN BE REBUTTED BY PROOF OF DOMINION AND CONTROL OVER THE VEHICLE, PLAINTIFF’S MOTION TO DISCOVER THE INSURER’S FILE IN THIS TRAFFIC ACCIDENT CASE TO DETERMINE WHETHER DEFENDANT EXERCISED DOMINION AND CONTROL OVER THE VEHICLE SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that evidence that defendant exercised dominion of control of the vehicle would rebut the presumption of ownership created by a certificate of title. Here the tile was in defendant’s wife’s name and she was driving at the time of the traffic accident. Plaintiff sought to discover the insurer’s file pursuant to CPLR 3124. Supreme Court should have granted the motion:

“A certificate of title is prima facie evidence of ownership” (… Vehicle and Traffic Law §§ 128, 2101[g]; 2108[c]…) . However, this presumption may be rebutted by evidence demonstrating that another individual owns the subject vehicle… . This may include evidence that a person other than the title holder exercised “dominion and control” over the vehicle …  .

Here, documents from the insurer concerning the vehicle and the accident are material and relevant to the issue of whether the defendant exercised dominion and control over the vehicle … . Accordingly, the Supreme Court should have granted the plaintiff’s motion to compel the defendant to provide an executed authorization for documents in the insurer’s possession concerning the vehicle and the accident … . ​Portillo v Carlson, 2018 NY Slip Op 08520, Second Dept 12-12-18

 

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EVEN PHYSICALLY SMALL DEFECTS, IN COMBINATION WITH OTHER FACTORS, CAN CONSTITUTE A DANGEROUS CONDITION, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the expert opinion submitted by both sides raised questions of fact whether “beveled edge between the dance floor and the adjoining rug” created a dangerous condition in this slip and fall case. The court noted that even physically small defects can become dangerous in combination with other factors, including lighting:

The Court of Appeals has recognized that even a physically small defect may be actionable, such as where there is a jagged edge, a rough, irregular surface, the presence of other defects in the vicinity, or poor lighting, or if the defect is located where people are naturally distracted from looking down at their feet … . Attention to the specific circumstances is always required, and undue or exclusive focus on whether a defect is a trap or snare is not appropriate … . …

The plaintiffs submitted the expert affidavit of a professional engineer who inspected the dance floor and carpet area. He measured the static coefficient of friction of the beveled edges of the dance floor, and found that they did not provide proper slip resistance for an individual stepping on it while dancing. Additionally, he found that inadequate lighting contributed to the accident by “not providing visual clues to recognize that the dance floor had terminated with the subject metal edging.” … .

Given the conflicting expert affidavits, and the circumstances of the accident, there are triable issues of fact as to whether the beveled edges of the dance floor constituted a dangerous condition that caused the injured plaintiff to slip and fall … . Poliziani v Culinary Inst. of Am., 2018 NY Slip Op 08519, Second Dept 12-12-18

 

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MOTHER’S PETITION TO RELOCATE WITH THE CHILD SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING, THE PETITION WAS GRANTED AFTER FATHER SCREAMED AT COURT PERSONNEL (SECOND DEPT).

The Second Department determined Family Court should not have granted mother’s petition to relocate in this custody modification proceeding without holding a hearing. Family Court granted the petitioner after father appeared and screamed at court personnel:

Where a custodial parent seeks to relocate over the objection of the non-custodial parent, the court must consider each relocation request “on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child” … . “In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests” … .

Although “[a] parent seeking a change of custody is not automatically entitled to a hearing” … , “custody determinations should [g]enerally’ be made only after a full and plenary hearing and inquiry'” … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “When the allegations of fact in a petition to change custody are controverted, the court must, as a general rule, hold a full hearing” … . Matter of Williams v Jenkins, 2018 NY Slip Op 08491, Second Dept 12-12-18

 

 

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AUDIOTAPES OF CONVERSATIONS BETWEEN THE PATERNAL GRANDMOTHER AND THE CHILD WERE PROPERLY SUPPRESSED BECAUSE THEY WERE THE PRODUCT OF ILLEGAL WIRETAPPING UNDER CPLR 4506 (SECOND DEPT).

The Second Department determined Family Court properly suppressed audiotapes of conversations between the paternal grandmother and the child in this custody dispute between the maternal and paternal grandmothers. The audiotapes constituted illegal wiretapping pursuant to CPLR 4506:

Contrary to the maternal grandmother’s contention, the Family Court properly granted the paternal grandmother’s motion to suppress audiotapes of conversations between the paternal grandmother and the child pursuant to CPLR 4506, which provides for the suppression of evidence obtained by illegal wiretapping. The maternal grandmother and her son (the child’s uncle) were not parties to the conversation, were not present during the conversation, and the maternal grandmother does not assert that, under the circumstances, any vicarious consent was given… . Moreover, there is no merit to the maternal grandmother’s contention that the motion was untimely because it was not made before the hearing, since the paternal grandmother only learned of the existence of the tapes during the hearing (see CPLR 4506[4]). Matter of Dennis v Davis-Schloemer, 2018 NY Slip Op 08480, Second Dept 12-12-18

MOTION TO SUPPRESS, SUPPRESSION

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PETITION TO DEEM A LATE NOTICE OF CLAIM TIMELY SERVED SHOULD NOT HAVE BEEN GRANTED, THE CITY’S KNOWLEDGE OF THE CROSSWALK DEFECT IN THIS SLIP AND FALL CASE IS NOT EQUIVALENT TO TIMELY KNOWLEDGE OF THE NATURE OF PLAINTIFF’S CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s petition to deem the late notice of claim timely served should not have been granted in this slip and fall case. Plaintiff alleged she tripped and fell over a defect in a crosswalk. The notice of claim was serve eight months after the fall. Photos of the defect were alleged to have been taken “shortly after” the fall but were not authenticated. An Internet map service apparently depicted the defects in 2013 and 2014. The court held that the fact that the city may have known of the defect does not mean the city had timely notice of the nature of plaintiff’s claim:

… [W]e disagree with the Supreme Court’s determination that the City acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident or a reasonable time thereafter. While the photographs submitted in support of the petition may have demonstrated that the City had prior knowledge of the crosswalk defect, actual knowledge of the defect is not tantamount to actual knowledge of the facts constituting the claim, since the City was not aware of the petitioner’s accident, her injuries, and the facts underlying her theory of liability… . Similarly, the service of the notice of claim approximately five months after the expiration of the 90-day statutory period for service did not provide the City with the requisite actual knowledge within a reasonable time … .

We also disagree with the Supreme Court’s determination, based on the photographs submitted by the petitioner, that she sustained her burden of demonstrating that the City would not be substantially prejudiced by the late notice. The petitioner contended that the photographic evidence showed that the defective condition was substantially the same in appearance at the time of her accident as it was some eight months later when her petition was served. However, the photographs purportedly taken “shortly after” the accident were never authenticated … , nor did the petitioner identify the actual date the photographs were taken or the person who took them. Moreover, the more recent photographs were taken at different angles than the earlier photos, and neither set of images contained any measurements or dimensions to support the conclusion that a comparison of the two sets of photographs established that the defect did not change in the interim … . Matter of Bermudez v City of New York, 2018 NY Slip Op 08477, Second Dept 12-12-18

 

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