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NEGLECT FINDINGS BASED ON MOTHER’S MENTAL ILLNESS AND INADEQUATE SHELTER, EDUCATION, HYGIENE OR CLOTHING NOT SUPPORTED BY THE EVIDENCE; CRITERIA EXPLAINED IN SOME DEPTH (FOURTH DEPT).

The Fourth Department, reversing Family Court, in a fact-specific decision which cannot be fairly summarized here, determined the proof did not support the finding mother neglected the child by providing inadequate shelter, education, hygiene or clothing. In addition, the finding mother neglected the child based on mental illness was not proven. The decision explains the level of proof needed for finding neglect in these contexts:

… [T]he Family Court Act defines a neglected child as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [the child’s] parent . . . to exercise a minimum degree of care . . . in supplying the child with adequate food, clothing, [or] shelter . . . though financially able to do so or offered financial or other reasonable means to do so” (Family Ct Act § 1012 [f] [i] [A]). The statute also provides that a parent is responsible for educational neglect when, under the same requisite conditions, the parent fails to supply the child with “adequate . . . education in accordance with the provisions of [the compulsory education part of Education Law article 65] . . . notwithstanding the efforts of the school district or local educational agency and child protective agency to ameliorate such alleged failure prior to the filing of the petition” … .

“The statute thus imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence” (… see Family Ct Act § 1046 [b] [i]). “First, there must be ‘proof of actual (or imminent danger of) physical, emotional or mental impairment to the child’ ” … . “In order for danger to be ‘imminent,’ it must be ‘near or impending, not merely possible’ ” … . “This prerequisite to a finding of neglect ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior” … . “Second, any impairment, actual or imminent, must be a consequence of the parent’s failure to exercise a minimum degree of parental care . . . This is an objective test that asks whether a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances . . . Critically, however, the statutory test is minimum degree of care—not maximum, not best, not ideal—and the failure must be actual, not threatened” … .Matter of Justice H.M. (Julia S.), 2024 NY Slip Op 01653, Fourth Dept 3-22-24

Practice Point: The criteria for a neglect finding are explained in some depth. Here the proof did not support a finding of neglect based on mother’s mental illness or inadequate shelter, education, hygiene or clothing.

 

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THE TRIAL TESTIMONY RENDERED THE COUNT DUPLICITOUS, NEW TRIAL REQUIRED (FOURTH DEPT).

The Fourth Department, reversing the conviction and ordering a new trial, determined the trial testimony rendered the count duplicitous:

“Even if a count facially charges one criminal act, that count is duplicitous if the evidence makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … . Here, count 2 of the indictment charged defendant with sexual abuse in the first degree regarding an alleged instance, occurring between July 2012 and January 2013, in which she subjected the victim to sexual contact when he was less than 11 years old. At trial, however, the victim testified to multiple acts of sexual contact during the relevant time frame, any one of which could serve as the sexual contact necessary to prove defendant’s guilt of count 2.

Because each act of alleged sexual contact constitutes “a separate and distinct offense” … , the victim’s testimony that numerous such acts occurred during the relevant time frame rendered count 2 of the indictment duplicitous. Indeed, ” ‘it is impossible to verify that each member of the jury convicted defendant for the same criminal act’ ” in connection with count 2 … . People v Zona, 2024 NY Slip Op 01652, Fourth Dept 3-22-24

Practice Point: If the indictment charges one incident during the described time-frame and the trial testimony reveals more than one incident, it is impossible to know whether the jury reached a unanimous verdict on any one incident.

 

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A RULING ON A MOTION TO DISMISS DEALS ONLY WITH THE SUFFICIENCY OF THE PLEADINGS AND DOES NOT CONSTITUTE THE LAW OF THE CASE WITH RESPECT TO A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FOURTH DEPT). ​

The Fourth Department, reversing the Court of Claims, determined the judge improperly refused to consider evidence submitted by defendants in opposition to claimant’s summary judgment motion citing the law of the case doctrine. The judge’s “law of the case” ruling, however, was based on her prior ruling on a motion to dismiss. Because a motion to dismiss addresses only the sufficiency of the pleadings, a ruling on a motion to dismiss is not the law of the case with respect to a subsequent summary judgment motion:

It is well settled that the law of the case doctrine “applies only to legal determinations that were necessarily resolved on the merits in a prior decision” … , and that a court’s order denying a motion to dismiss is “addressed to the sufficiency of the pleadings” and does not “establish the law of the case for the purpose of” motions for summary judgment … . We thus agree with defendants that the court erred in refusing to consider defendants’ proof in opposition to the motion … . Riley v State of New York, 2024 NY Slip Op 01647, Fourth Dept 3-22-24

Practice Point: A ruling on a motion to dismiss is not the law of the case for a subsequent summary judgment motion.

 

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A SIROIS HEARING TO DETERMINE WHETHER WITNESSES ARE UNAVAILABLE TO TESTIFY BECAUSE OF INTIMIDATION IS A MATERIAL STAGE OF A TRIAL; DEFENDANT AND DEFENSE COUNSEL WERE EXCLUDED FROM THE HEARING; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing the conviction and ordering a new trial, determined the judge should not have conducted the Sirois hearing, which is a material stage of a trial, in the absence of defendant and defense counsel. The hearing determined two witnesses were unavailable to testify because of intimidation. Defense counsel was allowed to submit questions to be posed during the hearing:

… [A] new trial is warranted with respect to the criminal possession of a weapon count because he was denied his right to be present at a material stage of the trial (… see generally CPL 260.20). During the suppression hearing, allegations were made that defendant, or people acting at his behest, had threatened two witnesses to the underlying incident about testifying against defendant. The People, therefore, requested a Sirois hearing and sought a determination that the witnesses had been made constructively unavailable to testify at trial by threats attributable to defendant, allowing them to introduce at trial statements made by the witnesses that would otherwise constitute inadmissible hearsay … . * * *

The court erred in conducting the Sirois hearing without defendant or defense counsel present. “[A] defendant’s absence at a Sirois hearing has a substantial effect on [their] ability to defend the charges against [them] and, thus, a Sirois hearing constitutes a material stage of the trial” … . A “[d]efendant [is] entitled to confront the witness[es] against [them] at [such a] hearing and also to be present so that [the defendant can] advise counsel of any errors or falsities in the witness[es]’ testimony which could have an impact on guilt or innocence” … . People v Steele, 2024 NY Slip Op 01642, Fourth Dept 3-22-24

Practice Point; Here defendant and defense counsel were excluded from the Sirois hearing which determined two prosecution witnesses were unavailable to testify because of intimidation. Because the hearing is a material stage of the trial, defendant must be present. Allowing defense counsel to submit written questions was insufficient. A new trial was required.

 

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A PRIOR RULING IN A PRIOR ACTION FINDING THAT THE WITHHELD DOCUMENTS WERE PROTECTED FROM DISCLOSURE DID NOT INDICATE THE SPECIFIC PRIVILEGE WHICH APPLIED TO EACH DOCUMENT; THEREFORE THE PRIOR RULING DID NOT TRIGGER THE COLLATERAL ESTOPPEL DOCTRINE AND THE DISCLOSURE OF DOCUMENTS MUST BE DETERMINED ANEW IN THE INSTANT ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a prior ruling in a prior action finding that withheld documents were protected from disclosure did not trigger the collateral estoppel doctrine in the instant action because the prior ruling did not indicate the specific privilege invoked for each document:

… [T]he court abused its discretion in summarily denying the motion on the basis that it had previously ruled that the withheld documents were protected from disclosure in a prior action involving the parties. Collateral estoppel bars relitigation of an issue when “the identical issue necessarily [was] decided in the prior action and [is] decisive of the present action, and . . . the party to be precluded from relitigating the issue [had] a full and fair opportunity to contest the prior determination” … . Preclusion of an issue occurs only if that issue was ” ‘actually litigated, squarely addressed and specifically decided’ ” in the prior action … . While in the prior action the court denied a motion to compel the identical documents contained in the privilege log, the court did not specifically address whether the withheld documents were protected and which protection, such as attorney-client privilege, applied to each document. Thus, there is no evidence that the identical issue, decisive in this action, was necessarily decided in the prior action … . Wiltberger v Allen, 2024 NY Slip Op 01635, Fourth Dept 3-22-24

Practice Point: Collateral estoppel applies only when the issues are identical. Here, even though the documents at issue were found to be privileged in the prior action, the precise privilege applied to each document was not described in the prior order. Therefore it is not clear the issues are identical in the instant proceeding, so the application of collateral estoppel to preclude disclosure is not available.

 

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​THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) RELIED SOLELY ON PRIOR NEGLECT FINDINGS FROM 2007 AND 2009 TO PROVE DERIVATIVE NEGLECT; NEGLECT FINDING REVERSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Administration for Children’s Services (ACS) did not demonstrate mother had derivatively neglected the child. ACS had brought a motion for summary judgment which the court granted. The Second Department noted that motions for summary judgment pursuant to CPLR 3212 can be appropriate in a Family Court proceeding:

While proof of the abuse or neglect of one child is admissible evidence on the issue of the abuse or neglect of any other child of the parent (see Family Ct Act § 1046[b]), “there is no per se rule that a finding of neglect of one sibling requires a finding of derivative neglect with respect to the other siblings. The focus of the inquiry . . . is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood” … . In determining whether a child born after the underlying acts of abuse or neglect should be adjudicated derivatively neglected, the “determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists” … .

Here, ACS failed to establish, prima facie, that the mother derivatively neglected the children based upon her alleged failure to address certain mental health issues underlying the 2007 and 2009 findings of neglect … . In support of its motion, ACS relied solely on the prior neglect findings and failed to include an affidavit from anyone with personal knowledge of the events alleged in the neglect petitions or any other evidentiary material (see CPLR 3212[b]). The prior neglect findings were not so proximate in time to establish, as a matter of law, that the conditions that formed the basis therefor continued to exist … . Matter of Kiarah V.R. (Virginia V.), 2024 NY Slip Op 01552, Second Dept 3-20-24

Practice Point: Here reliance on 2007 and 2009 neglect findings to demonstrate derivative neglect was deemed insufficient.

Practice Point: The court noted that summary judgment motions pursuant to CPLR 3212 can be brought in Family Court.

 

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ALTHOUGH THE COURT HAD, IN 2018, GRANTED MOTHER’S APPLICATION TO RELOCATE WITH THE CHILD TO CONNECTICUT, THE COURT SHOULD NOT HAVE DECIDED IT DID NOT HAVE JURISDICTION TO DETERMINE FATHER’S PETITION TO MODIFY THE CUSTODY ORDER WITHOUT HOLDING A HEARING ABOUT THE CHILD’S CONNECTIONS TO NEW YORK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have determined New York courts no longer had jurisdiction over this modification of custody case without holding a hearing:

In November 2018, the Supreme Court granted the mother’s application to relocate with the child from New York to Connecticut. In an order dated May 31, 2022, the court awarded sole custody of the child to the mother and suspended the father’s parental access upon the father’s default in appearing at a scheduled court appearance. The father subsequently filed a petition to modify the order dated May 31, 2022, so as to award him sole physical custody of the child. At a court appearance on December 5, 2022, the court stated, inter alia, that the mother had “relocated to Connecticut years ago” and that “[t]he [c]ourt no longer has jurisdiction.” …

The Supreme Court should not have summarily determined, without a hearing, that it lacked jurisdiction on the ground that the child had been residing in Connecticut. The court made previous custody determinations in relation to the child in conformity with the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act and, therefore, would ordinarily retain exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a … . In order to determine whether it lacked exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a(1)(a), the court should have afforded the parties an opportunity to present evidence as to whether the child had maintained a significant connection with New York and whether substantial evidence was available in New York concerning the child’s “care, protection, training, and personal relationships” … . Matter of Holley v Mills, 2024 NY Slip Op 01542, Second Dept 3-20-24

Practice Point: Although the court in 2018 granted mother’s application to relocate to Connecticut with the child, it may have continuing jurisdiction. Therefore the court should not have decided it did not have jurisdiction over father’s petition to modify the custody order without holding a hearing about the child’s connections to New York.

Similar jurisdiction issue in a child support modification proceeding (governed by Family Court Act 580-205(a)) in Matter of Sherman v Killian, 2024 NY Slip Op 01550, Second Dept 3-20-24

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THE REAR-DRIVER IN A REAR-END COLLISION IS NOT ALWAYS NEGLIGENT; HERE THERE IS A QUESTION OF FACT WHETHER THE FRONT DRIVER STOPPED SUDDENLY FOR NO APPARENT REASON (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether the rear driver in this rear-end collision case was negligent. The rear-driver alleged plaintiff’s vehicle stopped for no apparent reason when no cars were in front of it:

“‘A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle'” (… see Vehicle and Traffic Law § 1129[a]). “‘There can be more than one proximate cause of an accident, and a defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident'” …. “‘[N]ot every rear-end collision is the exclusive fault of the rearmost driver. The frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision'” … . Laureano v EAN Holdings, LLC, 2024 NY Slip Op 01538, Second Dept 3-20-24

Practice Point: The rear driver in a rear-end collision case is not always negligent. Here there was a question of fact whether the front driver stopped suddenly for no apparent reason.

 

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A DEFECT IN THE TOP STEP OF A STAIRWAY WAS ALLEGED TO HAVE CAUSED THE TRIP AND FALL; THERE WERE QUESTIONS OF FACT WHETHER THE DEFECT WAS OPEN AND OBVIOUS AND WHETHER THE DEFECT WAS A DANGEROUS CONDITION; THE COURT NOTED THAT AN OPEN AND OBVIOUS CONDITION MAY STILL BE DANGEROUS AND THE QUESTION IS USUALLY FOR A JURY TO DECIDE (SECOND DEPT).

The Second Department,, reversing Supreme Court, determined defendant’s motion for summary judgment in this stairway trip and fall case should not have been granted. The court noted that a condition which is open and obvious may still be dangerous. Here it was alleged a defect on the edge of the top step caused the fall:

While there is “no duty to protect or warn against conditions that are open and obvious and not inherently dangerous” … , when a dangerous condition exists on the premises, proof that the dangerous condition is open and obvious “does not preclude a finding of liability against an owner for failure to maintain property in a safe condition” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . “The issue of whether a condition is open and obvious and not inherently dangerous is case-specific, and usually a question of fact for a jury” … .

Here, the defendants’ submissions, including photographs of the alleged defect, failed to eliminate all triable issues of fact as to whether the allegedly defective condition was open and obvious … . While the plaintiff testified at her deposition that she had previously used the stairway and observed the allegedly defective condition, she also testified that she did not inspect the condition each time that she had used the stairway and that she had not noticed that the condition had worsened since she last observed it. Johnson v 1451 Assoc., L.P., 2024 NY Slip Op 01537, Second Dept 3-20-24

Practice Point: An open and obvious condition can still be a dangerous condition. Whether a condition is open and obvious and whether it is inherently dangerous are usually fact-specific questions for a jury.

 

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ALTHOUGH THE REAR DRIVER IN A REAR-END COLLISION IS NOT ALWAYS NEGLIGENT, THE ALLEGATION THE FRONT DRIVER SUDDENLY STOPPED FOR A YELLOW LIGHT WAS NOT ENOUGH TO AVOID SUMMARY JUDGMENT IN FAVOR OF THE FRONT DRIVER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should have been awarded summary judgment in this rear-end collision case. The defendant rear driver alleged plaintiff stopped for a yellow light, which did not raise a question of fact about plaintiff’s negligence:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . “A sudden stop of the lead vehicle may constitute a nonnegligent explanation for a rear-end collision” … . “But ‘vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows'” … .

Here, in support of his motion, the plaintiff submitted his own affidavit that established, prima facie, that the defendant driver was negligent when he struck the rear of the plaintiff’s stopped vehicle, and that the defendant driver’s negligence was the sole proximate cause of the accident … . In opposition, the defendants failed to raise a triable issue of fact. The defendant driver’s explanation for striking the plaintiff’s vehicle in the rear, set forth in his affidavit in opposition to the plaintiff’s motion, that the plaintiff’s vehicle stopped abruptly at a yellow light in front of the intersection’s thick white stop line, was insufficient to raise a triable issue of fact as to the defendant driver’s negligence or whether the plaintiff’s actions contributed to the happening of the accident … . Yawagyentsang v Safeway Constr. Enters., LLC, 2024 NY Slip Op 01580, Second Dept 3-20-24

Practice Point: There are more appellate decisions of late finding questions of fact about whether the rear-driver is negligent in a rear-end collision based upon the allegation the front-driver stopped suddenly for no apparent reason. Here the rear driver alleged the front driver stopped suddenly for a yellow light. That was not enough to raise a question of fact.

 

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