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THE EVIDENCE PRESENTED IN SUPPORT OF THE DEFENDANT TOWN’S AND POLICE-OFFICER’S MOTION FOR SUMMARY JUDGMENT WAS UNEQUIVOCAL AND DEMONSTRATED THE OFFICERS DID NOT VIOLATE THE “RECKLESS DISREGARD” STANDARD WHEN PURSUING PLAINTIFF MOTORCYCLIST, WHO CRASHED AND WAS SERIOUSLY INJURED; THERE WAS NO INDICATION FURTHER DISCOVERY WOULD UNCOVER ADDITIONAL EVIDENCE; THE MOTION SHOULD NOT HAVE BEEN DENIED AS PREMATURE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town and police–officer defendants were entitled to summary judgment in this motorcycle-accident case. The plaintiff motorcyclist (Ronnie) was speeding when the defendant officers attempted to follow him with their emergency lights on. Both officers pulled back because of the plaintiff’s speed, losing sight of plaintiff. The officers came upon plaintiff in the woods after he had crashed. Supreme Court ruled that the defendants had demonstrated entitlement to summary judgment but found that the summary judgment motion was premature and should await further discovery. The Second Department held the motion was not premature because there was no indication additional evidence would be uncovered:

… [T]he defendants’ motion was not premature. The plaintiff “failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the [defendants]” … . Here, the officers directly involved in the attempt to stop Ronnie provided sworn affidavits, which were unequivocal and consistent with the other evidence in the case. There is no basis to conclude that depositions or other discovery would render a different account of the accident. The plaintiff’s mere hope or speculation that discovery would render evidence sufficient to defeat the defendants’ motion was not a sufficient basis to deny the motion … . Rojas v Town of Tuxedo, 2023 NY Slip Op 05751, Second Dept 11-15-23

Practice Point: Where the evidence supports summary judgment and there is no indication further discovery will uncover additional evidence, the summary judgment motion should not be denied as “premature.”

 

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RESPONDENT, THE CHILDREN’S UNCLE WHO LIVED WITH THE CHILDREN’S FAMILY, WAS A FUNCTIONAL EQUIVALENT OF A PARENT AND SHOULD HAVE BEEN DEEMED A PERSON LEGALLY RESPONSIBLE FOR THE CHILDREN IN THIS SEXUAL ABUSE PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined respondent, the children’s uncle who lived with the children’s family, was a person legally responsible for the children who had sexually abused the children:

“Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case. Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent(s) are some of the variables which should be considered and weighed by a court” … . These factors are not exhaustive, “but merely illustrate some of the salient considerations in making an appropriate determination” … . * * *

… [T]he respondent, the paternal uncle of Yasmin P. and Hilary P., continually resided in the same apartment with Yasmin P. and Hilary P. for approximately five years. In addition, the respondent’s brother testified during the fact-finding hearing that the respondent told him that the respondent considered both the respondent’s family and the respondent’s brother’s family, including Yasmin P. and Hilary P., to be one big family (see Family Ct Act § 1012[g] …). The respondent also exercised control over Yasmin P.’s and Hilary P.’s environment during the relevant period by freely accessing their bedroom and the common areas of the apartment, including when Yasmin P. and Hilary P. were home and their parents were away at work or running errands, and by controlling Yasmin P. with commands or the promise of gifts. Accordingly, the evidence adduced at the fact-finding hearing established that the respondent was a person legally responsible for Yasmin P. and Hilary P. Matter of Marjorie P. (Gerardo M. P.), 2023 NY Slip Op 05734, Second Dept 11-15-23

Practice Point: Here the children’s uncle, who lived with the children’s family, should have been deemed a person legally responsible for the children in this sexual abuse proceeding.

 

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PLAINTIFF WAS ENGAGED IN AN “ALTERING” ACTIVITY COVERED BY LABOR LAW 240 AND THE ACCIDENT–AN OBJECT FALLING DOWN A MANHOLE AND STRIKING PLAINTIFF–WAS ELEVATION-RELATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was engaged in work covered by Labor Law 240 and the accident–an object falling down a manhole and striking plaintiff–was elevation-related:

Plaintiff established that he was engaged in an “altering” activity as enumerated by Labor Law § 240(1). … [P]laintiff’s work involved more than “feeding cable through a preexisting hole.” Rather, it was part of a much larger, multi-worker project to install a fiber optic network through a 20-manhole structure where none had previously existed, with the ultimate goal of installing the cables into the school buildings, which would necessarily require drilling holes into the foundation of the school buildings in order to reach the communications room … . …

… [T]he vacuum that fell from ground level into the manhole and struck plaintiff on the head posed the type of elevation-related risk covered by Labor Law § 240(1) … . Keilitz v Light Tower Fiber N.Y., Inc., 2023 NY Slip Op 05661, First Dept 11-9-23

Practice Point: Here the plaintiff was installing a fiber optic network and was struck by an object which fell down the manhole he was in. He was engaged in “altering” within the meaning of Labor Law 240. The accident was elevation-related within the meaning of Labor Law 240. He was entitled to summary judgment.

 

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THE BIOLOGICAL MOTHER OF THE CHILD DIED BEFORE SHE AND PETITIONER WERE TO BE MARRIED; THE BIOLOGICAL FATHER ARGUED PETITIONER DID NOT HAVE STANDING TO SEEK CUSTODY AND FAMILY COURT AGREED; HOWEVER STANDING CAN BE DEMONSTRATED BY EXTRAORDINAY CIRCUMSTANCES WHICH MAY BE PRESENT; MATTER REMITTED FOR A RULING (FIRST DEPT).

The First Department, reversing Family Court, determined standing in a custody matter can be proven by extraordinary circumstances and sent the matter back for a ruling. The child’s mother died unexpectedly before she and petitioner were to be married. The petition was denied for lack of standing. However, standing can be proven by extraordinary circumstance which may be demonstrated here:

As a prerequisite to seeking custody or visitation with a child, a party must establish standing. The party may establish standing (1) as a parent pursuant to Domestic Relations Law § 70; (2) as a sibling for visitation pursuant to Domestic Relations Law § 71; (3) as a grandparent for visitation or custody pursuant to Domestic Relations Law § 72; or (4) by showing extraordinary circumstances pursuant to Matter of Bennett v Jeffreys (40 NY2d 543 [1976]) … . * * *

Family Court erred in dismissing petitioner’s custody and visitation petitions without permitting petitioner the opportunity to present evidence supporting her argument that she had standing based on extraordinary circumstances. Indeed, the Referee stated on the record during the hearing that she agreed with the biological father’s position that petitioner could only present extraordinary circumstances evidence after she established that she had standing. This is an error of law, as extraordinary circumstances is one of several bases for standing to seek custody and visitation.

Extraordinary circumstances may be found where there has been “a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child” … . Matter of Lashawn K. v Administration for Children’s Servs., 2023 NY Slip Op 05662, First Dept 11-9-23

Practice Point: Standing to bring a custody petition may be demonstrated by extraordinary circumstances. Here the biological mother died unexpectedly before she and petitioner were to be married. The biological father successfully argued petitioner did not have standing. The matter was sent back for Family Court for a ruling on whether petitioner demonstrated standing based upon extraordinary circumstances.

 

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FATHER DID NOT DEMONSTRATE THE CHILD WAS CONSTRUCTIVELY EMANCIPATED; THEREFORE FATHER’S SUPPORT OBLIGATION SHOULD NOT HAVE BEEN TERMINATED (SECOND DEPT).

The Second Department, reversing Family Court, determined father did not meet his burden of proof in his attempt to demonstrate the constructive emancipation of the child such that his support obligation should be terminated:

“It is fundamental public policy in New York that parents are responsible for their children’s support until age 21” … . “However, under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and [parental access] may forfeit any entitlement to support. A child’s mere reluctance to see a parent is not abandonment” … . “[W]here it is the parent who causes a breakdown in communication with his or her child, or has made no serious effort to contact the child and exercise his or her parental access rights, the child will not be deemed to have abandoned the parent” … . “The burden of proof as to emancipation is on the party asserting it” … .

Here, contrary to the father’s contention, the evidence adduced at the hearing failed to demonstrate that he made serious efforts to maintain a relationship with the child during the relevant time period, or that the child actively abandoned her relationship with him … . Matter of Rosenkrantz v Rosenkrantz, 2023 NY Slip Op 05609, Second Dept 11-8-23

Practice Point: The proof requirements for constructive emancipation of a child were not met; criteria explained.

 

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THE AFFIDAVIT WHICH PURPORTED TO DEMONSTRATE PLAINTIFF BANK HAD STANDING TO BRING THE FORECLOSURE ACTION REFERRED TO BUSINESS RECORDS WHICH WERE NOT ATTACHED, RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to bring the foreclosure action. The affidavit which purported to establish standing referred to business records which were not attached:

… [T]he plaintiff failed to attach the business records upon which Delpesche [an employee of the loan servicing company] relied upon in his affidavit. “Although the foundation for . . . admission of a business record [usually is] provided by the testimony of the custodian, [the author or some other witness familiar with the practices and procedures of the particular business,] ‘it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted'” … . “‘Without submission of the business records, a witness’s testimony as to the contents of the records is inadmissible hearsay'” … . Since the plaintiff failed to attach the business records upon which Delpesche relied in his affidavit, his assertions based upon those records constituted inadmissible hearsay … . Wells Fargo Bank, N.A. v Carrington, 2023 NY Slip Op 05632, Second Dept 11-8-23

Practice Point: Where an affidavit refers to and relies on business records which are not attached, the affidavit is inadmissible hearsay.

 

 

 

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PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HIS STAIRWAY FALL BUT HE TESTIFIED HE REACHED FOR A HANDRAIL AND THERE WAS NONE; DEFENDANTS DID NOT PRESENT ANY EVIDENCE ON THE PRESENCE OR NEED FOR A HANDRAIL; THERE CAN BE MORE THAN ONE PROXIMATE CAUSE OF A FALL; DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants were not entitled to summary judgment in this stairway slip and fall case. Although plaintiff could not identify the initial cause of his fall, plaintiff, in his deposition, testified he reached for a handrail, but there was none. Defendants did not present evidence there was a handrail or a handrail was not required. In the usual case, the inability to identify the cause of a fall is fatal to the action. But here there is a question of fact whether there was an additional proximate cause of the fall, i.e., the absence of a handrail:

… [T]he defendants established, prima facie, that a jury would be required to speculate that cement dust caused the plaintiff to fall. In support of their cross-motion, they submitted the plaintiff’s deposition testimony that, after his fall, he noticed concrete dust on his face, hair, and uniform. The plaintiff admitted, however, that he did not notice the cement dust before his fall or see it on the landing of the stairs after his fall, and he failed to point to any additional evidence that might create a reasonable inference that the cement dust, rather than a misstep or loss of balance, was a proximate cause of his fall.

However, “[t]here can be more than one proximate cause of an accident, and [g]enerally, it is for the trier of fact to determine the issue of proximate cause” … . Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party, the defendants failed to establish that a handrail was present or was not required, or that its alleged absence was not a proximate cause of the plaintiff’s injuries … . Adzei v Edward Bldrs., Inc., 2023 NY Slip Op 05580, Second Dept 11-8-23

Practice Point: Here plaintiff’s inability to identify the cause of his fall was not fatal to the action. There can be more than one proximate cause of a fall. Plaintiff testified he reached for a handrail but there was none and defendants presented no evidence of the presence or the need for a handrail.

 

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THE CRITERIA FOR “A CONTINUING COURSE OF SEXUAL CONTACT” WERE NOT MET; DEFENDANT’S SORA RISK-LEVEL REDUCED TO LEVEL ONE (SECOND DEPT).

The Second Department, reducing defendant’s SORA risk-level assessment to level one, determined the People did not demonstrate “a continuing course of sexual contact:“

The Guidelines provide, in part, regarding risk factor 4, that “an offender has engaged in a continuing course of sexual contact when he [or she] engages in either (i) two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours, or (ii) three or more acts of sexual contact over a period of at least two weeks” … .

In this proceeding, the People failed to meet their burden of proof on risk factor 4 since they failed to establish, by clear and convincing evidence, that the two acts of sexual contact the defendant committed against the victim were separated in time by at least 24 hours … . People v Parez, 2023 NY Slip Op 05526, Second Dept 11-1-23

Practice Point: There must be 24 hours between acts of sexual contact to constitute “a continuing course of sexual contact” under the SORA risk-level guidelines; not the case here.

 

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SUPREME COURT SHOULD NOT HAVE BASED AN UPWARD DEPARTURE IN THIS SORA RISK-ASSESSMENT PROCEEDING ON GROUNDS NOT RAISED BY THE PEOPLE WHERE THE DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO CONTEST THOSE GROUNDS (SECOND DEPT).

The Second Department, reversing the SORA risk level assessment, determined defendant should have been given the opportunity to contest the grounds for an upward department not raised by the People:

A “SORA court deprive[s a] defendant of those basic procedural guarantees when it upwardly depart[s] from the presumptive risk level without affording [the] defendant notice or an opportunity to contest the basis for the departure” … .

Here, the Supreme Court erred in basing its decision to depart from the presumptive risk level, in part, upon grounds that were not raised by the People and of which the defendant had no notice or an opportunity to contest ,,, , People v Cutting, 2023 NY Slip Op 05524, Second Dept 11-1-23

Practice Point: A SORA risk-level assessment cannot be based on grounds of which the defendant was not given notice or the opportunity to contest.

 

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THE PEOPLE WERE ALLOWED TO PRESENT EXPERT TESTIMONY ON CHILD PSYCHOLOGY AND CHILD ABUSE; DEFENDANT WAS DEPRIVED OF HIS RIGHT TO PRESENT A DEFENSE WHEN THE REQUEST TO PRESENT A REBUTTAL WITNESS WAS DENIED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defendant should have been allowed to present a witness to rebut the People’s expert testimony on child psychology and child abuse. Failure to allow the rebuttal witness deprived defendant of his right to a fair trial:

… Supreme Court did not err in permitting the People to call an expert witness in the field of child psychology and child sex abuse, notwithstanding any alleged delay in the People’s disclosure of the contents of the witness’s testimony, as the defendant failed to establish that he was prejudiced by the alleged delay … .

… Supreme Court improperly precluded the defendant from calling a rebuttal witness. The right to present a defense is a fundamental element of due process of law … , and, in the instant case, calling a rebuttal expert to testify was central to the defense case. … [T]here is no evidence that the People were prejudiced by the timing of the notice or that the delay was willfully motivated, inasmuch as the content of the People’s expert testimony was disclosed approximately one week prior.  People v Neustadt, 2023 NY Slip Op 05519, Second Dept 11-1-23

Practice Point: Here the denial of defendant’s request to present testimony rebutting the People’s expert denied defendant his right to present a defense (due process).

 

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