JUST RELEASED

October Page I

I

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)

 

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ATTORNEYS, TRUSTS AND ESTATES.

IN A DISPUTE BETWEEN A HOSPITAL AND A DOCTOR CONCERNING A CHARITABLE GIFT TO THE HOSPITAL, DISQUALIFICATION OF THE DOCTOR'S LAW FIRM WAS PROPER, A LAWYER AT THE FIRM WAS ON THE HOSPITAL'S BOARD OF TRUSTEES (SECOND DEPT).

The Second Department determined the petitioner hospital's motion to disqualify an attorney. The underlying matter concerned a revocable trust related to a charitable gift to the hospital in the amount of $75 million. The oncologist, Williams, who treated the man who made the gift hired a law firm to represent him in the trust proceedings. A lawyer at the firm, Glassman, was on the hospital's board of trustees. The complaint ... alleges ... that the hospital and its executives are harassing Williams and trying to terminate his relationship with the hospital in order to take control of the gift in violation of the terms of the trust:

... [W]hile Glassman's status as member of the hospital's Board of Trustees did not constitute a traditional attorney-client relationship, there existed "sufficient aspects of such relationship"—notably the fiduciary duty owed by Glassman to the hospital—to trigger inquiry into the potential conflict arising from Fox Rothschild's simultaneous representation of Williams in litigation against the hospital ... . Moreover, the hospital established that Glassman, as a member of the hospital's Board of Trustees, had access to confidential information regarding the gift and the ongoing dispute with Williams, both before and after this proceeding was commenced ... . Matter of Blackman, 2018 NY Slip Op 06528, Second Dept 10-3-18

ATTORNEYS (CONFLICT OF INTEREST, IN A DISPUTE BETWEEN A HOSPITAL AND A DOCTOR CONCERNING A CHARITABLE GIFT TO THE HOSPITAL, DISQUALIFICATION OF THE DOCTOR'S LAW FIRM WAS PROPER, A LAWYER AT THE FIRM WAS ON THE HOSPITAL'S BOARD OF TRUSTEES (SECOND DEPT))/CONFLICT OF INTEREST (ATTORNEYS, IN A DISPUTE BETWEEN A HOSPITAL AND A DOCTOR CONCERNING A CHARITABLE GIFT TO THE HOSPITAL, DISQUALIFICATION OF THE DOCTOR'S LAW FIRM WAS PROPER, A LAWYER AT THE FIRM WAS ON THE HOSPITAL'S BOARD OF TRUSTEES (SECOND DEPT))/DISQUALIFICATION (ATTORNEYS, CONFLICT OF INTEREST, IN A DISPUTE BETWEEN A HOSPITAL AND A DOCTOR CONCERNING A CHARITABLE GIFT TO THE HOSPITAL, DISQUALIFICATION OF THE DOCTOR'S LAW FIRM WAS PROPER, A LAWYER AT THE FIRM WAS ON THE HOSPITAL'S BOARD OF TRUSTEES (SECOND DEPT))/TRUSTS AND ESTATES (ATTORNEYS, CONFLICT OF INTEREST, IN A DISPUTE BETWEEN A HOSPITAL AND A DOCTOR CONCERNING A CHARITABLE GIFT TO THE HOSPITAL, DISQUALIFICATION OF THE DOCTOR'S LAW FIRM WAS PROPER, A LAWYER AT THE FIRM WAS ON THE HOSPITAL'S BOARD OF TRUSTEES (SECOND DEPT))

CIVIL PROCEDURE.

ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although defendants received timely notice of a lawsuit, they were never served with the summons and complaint. The affidavit of the process server demonstrated due diligence in a failure to serve defendants, residents of Israel, at a New York address. The default judgment, therefore, was a nullity:

CPLR 317 applies where a defendant was served by means other than personal delivery, did not receive notice of the action, and has a potentially meritorious defense... . Here, the defendants claimed they were never served. Therefore, they sought to vacate the default judgment against them pursuant to CPLR 5015(a)(4) for lack of personal jurisdiction. On this point, the affidavit of service of a process server generally constitutes prima facie evidence of proper service... . In this case, however, the process server submitted affidavits of exercising due diligence to attempt service, not affidavits of service.

 

If service is not made, the default judgment is a nullity ... . If a defendant is not served, "notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court"... .

 

Since the defendants were not served, the defendants' motion to vacate so much of the judgment entered December 19, 2013, as was in favor of the plaintiff and against them in the principal sum of $676,928.23, and to dismiss the complaint insofar as asserted against them should have been granted. 2004 McDonald Ave. Corp. v KGYM Holdings Group, Inc., 2018 NY Slip Op 06508, Second Dept 10-3-18

CIVIL PROCEDURE (ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))/CPLR 317 (ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))/CPLR 5015  (ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))/DEFAULT JUDGMENT (CIVIL PROCEDURE, ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))/SERVICE OF PROCESS  (ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))

CIVIL PROCEDURE.

BECAUSE DEFENDANT WAS GIVEN EXTRA TIME TO COMPLETE DISCOVERY, THE TIME TO FILE A MOTION FOR SUMMARY JUDGMENT WAS EXTENDED AS WELL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Macchia) should have been given an extension of the period to file a summary judgment motion based upon the referee's grant of extra time to complete discovery:

Upon the filing of a note of issue, there are two separate and distinct methods to obtain further disclosure. The first method, pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21(e), provides, in pertinent part, that: "Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect."

 

The second method, pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21(d), provides, in pertinent part, that: "Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings."

 

Here, it appears that Macchia did not comply with either method, but, because depositions of the parties had not yet been conducted, the Court Attorney Referee so-ordered a stipulation which directed that further discovery take place beyond the date that summary judgment motions were to be filed. Given the Court Attorney Referee's implicit consent to the basis for the extension of the time to move for summary judgment, Macchia reasonably believed that the deadline for summary judgment motions would likewise be extended. Thus, under these particular facts and circumstances, we find that Macchia demonstrated good cause for allowing an extension of time to move for summary judgment ... . Khan v Macchia, 2018 NY Slip Op 06519, Second Dept 10-3-18

CIVIL PROCEDURE (BECAUSE DEFENDANT WAS GIVEN EXTRA TIME TO COMPLETE DISCOVERY, THE TIME TO FILE A MOTION FOR SUMMARY JUDGMENT WAS EXTENDED AS WELL (SECOND DEPT))/SUMMARY JUDGMENT (CIVIL PROCEDURE, (BECAUSE DEFENDANT WAS GIVEN EXTRA TIME TO COMPLETE DISCOVERY, THE TIME TO FILE A MOTION FOR SUMMARY JUDGMENT WAS EXTENDED AS WELL (SECOND DEPT))/DISCOVERY (CIVIL PROCEDURE, BECAUSE DEFENDANT WAS GIVEN EXTRA TIME TO COMPLETE DISCOVERY, THE TIME TO FILE A MOTION FOR SUMMARY JUDGMENT WAS EXTENDED AS WELL (SECOND DEPT))

CIVIL PROCEDURE, ATTORNEYS.

LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department determined the motion to vacate a default judgment was properly denied because the law-office-failure excuse was insufficient:

" A party seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1), and thereupon to serve a late answer, must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action'" ... . "Where a delay or default results from law office failure, a court may exercise its discretion to excuse that delay or default" (...see CPLR 2005). A claim of law office failure should be supported by a "detailed and credible" explanation of the default ... . "[M]ere neglect" ...  or "[b]are allegations of incompetence on the part of prior counsel"...  are insufficient to establish a reasonable excuse ... .

Here, in support of their motion, the corporate defendants submitted an affidavit ... , which alleged, without supporting evidence, that prior retained counsel had not informed him of the need to answer the complaint. Such a bare allegation is insufficient to establish a reasonable excuse for the corporate defendants' default ... . Ferraro Foods, Inc. v Guyon, Inc., 2018 NY Slip Op 06515, Second Dept 10-3-18

CIVIL PROCEDURE (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 2005 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/DEFAULT JUDGMENT  (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/ATTORNEYS (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/LAW OFFICE FAILURE  (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))

CIVIL PROCEDURE, ATTORNEYS.

LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department determined the law-office-failure allegations were insufficient to warrant vacating a default judgment:

While the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005...), "[a] party attributing his or her default to a former attorney must provide a detailed and credible explanation of the default. Conclusory and unsubstantiated allegations of law office failure are not sufficient" ... . "[M]ere neglect is not a reasonable excuse" ... .

 

Contrary to [defendant's] contention, it failed to provide a detailed and credible explanation of the default, and no other evidence was submitted to corroborate the allegation of law office failure ... . Accordingly, [defendant's] "bare allegations of incompetence on the part of prior counsel" ... were insufficient to establish an excusable default under CPLR 5015(a)(1) ... . Torres v Rely On Us, Inc., 2018 NY Slip Op 06587, Second Dept 10-3-18

CIVIL PROCEDURE (LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 2005 (LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT))/ATTORNEYS (LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT))/LAW OFFICE FAILURE (LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT))

CIVIL PROCEDURE, DEBTOR-CREDITOR, EVIDENCE.

DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213 should have been granted. Plaintiff met her burden by submitting the notes and guarantees and an affidavit of nonpayment. The evidence submitted by the defendants was deemed conclusory and designed to create a feigned question of fact:

Plaintiff met her initial burden of establishing entitlement to judgment as a matter of law "by submitting the notes and guarantees, together with an affidavit of nonpayment" ... . In opposition, defendants failed " to establish, by admissible evidence, the existence of a triable issue [of fact] with respect to a bona fide defense' " ... . Defendants contend that they are entitled to an offset because plaintiff allegedly breached a related stock purchase agreement and, following the execution of the stock purchase agreement, coerced them into paying additional funds to which plaintiff was not entitled through economic duress. The evidence submitted by defendants in support of those contentions, however, is conclusory, unsubstantiated, and internally inconsistent in a manner that appears "designed to raise feigned factual issues in an effort to avoid the consequences" of plaintiff's otherwise valid motion for summary judgment on her claim to recover on the promissory notes and guarantees ... . Among other things, the affidavit of defendants' expert public accountant is "speculative and conclusory inasmuch as the expert failed to submit the data upon which he based his opinions. The affidavit thus lacks an adequate factual foundation and is of no probative value" . Finally, in addition to failing to raise a triable issue of fact with respect to economic duress, defendants waived any such claim "in light of the inordinate length of time which passed between the alleged duress and the assertion of the claim" ... . Birjukow v Niagara Coating Servs., Inc., 2018 NY Slip Op 06637, Fourth Dept 10-5-18

CIVIL PROCEDURE (DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/DEBTOR-CREDITOR (DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT)).CPLR 3213  (DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/EVIDENCE (SUMMARY JUDGMENT, DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SUMMARY JUDGMENT (EVIDENCE, DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

CRIMINAL LAW.

SUPERIOR COURT INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE A CRIME CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant's conviction by guilty plea, determined that the superior court information was jurisdictionally defective:

A defendant may waive indictment and consent to be prosecuted by a superior court information (see CPL 195.20...). As relevant here, "[t]he offenses named [in a superior court information] may include any offense for which the defendant was held for action of a grand jury"... , i.e., "the same crime as [charged in] the felony complaint or a lesser included offense of that crime"... . Inasmuch as attempted kidnapping in the second degree is not a crime charged in the felony complaint or a lesser included offense, the superior court information is jurisdictionally defective. "That defect does not require preservation, and it survives defendant's waiver of the right to appeal and his guilty plea"... . People v Bennett, 2018 NY Slip Op 06663. Fourth Dept 10-5-18

 

CRIMINAL LAW (SUPERIOR COURT INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE A CRIME CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (FOURTH DEPT))/SUPERIOR COURT INFORMATION (SUPERIOR COURT INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE A CRIME CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (FOURTH DEPT))

CRIMINAL LAW, APPEALS.

FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT).

The Fourth Department reversed defendant's conviction because the trial judge did not fully advise counsel of the contents of a jury note:

We agree with defendant that the court violated the core requirements of CPL 310.30 in failing to advise counsel on the record of the contents of a substantive jury note, and thereby committed reversible error ... . The record establishes that, during its deliberations, the jury sent several notes, the first two of which are germane here. The first note requested that the jury be provided with a written copy of the court's legal instructions, and the second note requested, inter alia, a rereading of all of the court's legal instructions. The record reflects that the court informed the parties that the jury had sent several notes and indicated that the jury requested a rereading of the instructions, but the court did not mention the contents of the first note. Although the record establishes that " defense counsel was made aware of the existence of the [first] note, there is no indication that the entire contents of the note were shared with counsel' " ... . We therefore "reject the People's argument that defense counsel's awareness of the existence and the gist' of the note satisfied the court's meaningful notice obligation, or that preservation was required. Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note—as it is in this case—preservation is not required' . . . Moreover, . . . [i]n the absence of record proof that the trial court complied with its [meaningful notice obligation] under CPL 310.30, a mode of proceedings error occurred requiring reversal' " ... . People v Ott, 2018 NY Slip Op 06646, Fourth Dept 10-5-18

CRIMINAL LAW (FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT))/JURY NOTES (CRIMINAL LAW, FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, JURY NOTES, FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT))

CRIMINAL LAW, APPEALS.

APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT).

The Fourth Department reserved decision and sent the matter back for a reconstruction hearing concerning whether the trial judge apprised defense counsel of the entire contents of a jury note. The court reporter submitted an affidavit indicating the transcript is incomplete and the judge's remarks about the jury note were inadvertently omitted:

... [T]he People stipulated to the record without seeking to amend the transcript (see CPLR 5525 [c] [1]; see also 22 NYCRR former 1000.4 [a] [1] [ii]), rely upon an affidavit that does not constitute a part of the underlying prosecution ... , and have not submitted a supplemental transcript certified by the court reporter that would fall within the parties' stipulation to submit the trial transcripts to this Court ... . It is well established, however, that "[p]arties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer"... . Thus, under the circumstances of this case, we take judicial notice of our own records, i.e., the court reporter's affidavit submitted in opposition to defendant's motion for a writ of error coram nobis ... .

 

In her affidavit, the court reporter averred that, although the transcript indicates that the court stated that the jury requested readbacks of the testimony of only four witnesses, the transcript inadvertently omits from the court's recitation of the note the jury's request for a readback of the testimony of a fifth witness—the medical examiner. The court reporter's affidavit thus indicates that a stenographic error may have resulted in a transcript that does not accurately reflect whether the court read the entire content of the note verbatim in open court prior to responding to the jury. We conclude that the alleged error in the transcript of the court's on-the-record reading of the note should be subject to a reconstruction hearing because "[t]he trial judge is the final arbiter of the record' certified to the appellate courts" ... . People v Timmons, 2018 NY Slip Op 06644, Fourth Dept 10-5-18

CRIMINAL LAW (APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))/JURY NOTES (CRIMINAL LAW, APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))/RECONSTRUCTION HEARING (CRIMINAL LAW, JURY NOTES, APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))/APPEALS, CRIMINAL LAW, APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))

CRIMINAL LAW, APPEALS.

FAILURE TO RULE ON A PORTION OF DEFENDANT'S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department noted that a failure to rule on a portion of a motion cannot be deemed a denial. Therefore the decision on appeal was reserved and the matter sent back for a ruling:

Defendant appeals from an order insofar as it failed to grant that part of his pro se motion seeking DNA testing of a rape kit and the victim's shirt and pants. The order addressed defendant's motion to the extent it sought to vacate the judgment of conviction pursuant to CPL 440.10, but did not address the motion to the extent it sought DNA testing pursuant to CPL 440.30 (1-a). Inasmuch as County Court's failure to rule on that part of defendant's motion "cannot be deemed a denial thereof" ... , we hold the case, reserve decision, and remit the matter to County Court for a determination whether " there was a reasonable probability that, had th[e rape kit, shirt and pants] been tested and had the results been admitted at trial, the verdict would have been more favorable to defendant' " ... . People v Lewis, 2018 NY Slip Op 06645, Fourth Dept 10-5-18

CRIMINAL LAW (APPEALS, FAILURE TO RULE ON A PORTION OF DEFENDANT'S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO RULE ON A PORTION OF DEFENDANT'S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT))

CRIMINAL LAW, APPEALS.

DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, vacating defendant's sentence, determined defendant was improperly sentenced as a second felony offender. The issue was not preserved but was reviewed in the interest of justice:

The predicate felony statement filed by the People did not set forth the dates of the defendant's incarceration since the commission of his prior felony in 1996, as required by CPL 400.21(2). Consequently, the People failed to establish a sufficient tolling period to qualify the defendant's 1996 conviction as a predicate felony under Penal Law § 70.06(1)(b)(iv) and (v) ... . People v Spencer, 2018 NY Slip Op 06574, Second Dept 10-3-18

 

CRIMINAL LAW (DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT))/SENTENCING  (DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT))/SECOND FELONY OFFENDER  (DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT))

 

 

 

CRIMINAL LAW, APPEALS.

WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT).

The Fourth Department, vacating defendant's guilty plea, determine defendant's waiver of appeal was invalid and defendant was not informed of the period of post-release supervision:

We agree with defendant that his purported waiver of the right to appeal is invalid. "County Court failed to obtain a knowing and voluntary waiver of the right to appeal at the time of the plea" ... . Moreover, "the written waiver of the right to appeal that [defendant] signed as part of the treatment court contract,' [a day] after he pleaded guilty, does not constitute a valid waiver of the right to appeal" ... .

 

Furthermore, we agree with defendant that the court failed to fulfill its obligation to advise him, at the time of the plea, that the sentences imposed upon his conviction of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree would include periods of postrelease supervision ... . People v Teta, 2018 NY Slip Op 06674, Fourth Dept 10-5-18

CRIMINAL LAW (WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT))/POST-RELEASE SUPERVISION (CRIMINAL LAW, WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT))/GUILTY PLEA, VACATION OF (CRIMINAL LAW, WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT))

 

 

CRIMINAL LAW, ATTORNEYS, EVIDENCE, APPEALS.

JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined the jury should have been instructed on a lesser included offense, evidence of defendant's pretrial silence should not have been admitted, and there was misconduct on the part of the prosecutor. The prosecutorial misconduct issues were not preserved, but the issues were reviewed in the interest of justice. The prosecutorial misconduct alone justified reversal:

... [C]riminally negligent homicide, in addition to manslaughter in the second degree, is a lesser included offense of manslaughter in the first degree ... , and, viewing the evidence in the light most favorable to the defendant, should have been charged. Had the jury credited the defendant's account of the incident, it reasonably could have concluded that the defendant did not intend to cause serious physical injury and that he failed to perceive that his conduct created a substantial and unjustifiable risk that death would occur ... . ...

.. [T]the defendant correctly contends that the trial court erred in permitting the prosecutor to question him about his post-arrest silence, because, although the defendant initially responded to certain questions asked by the police, he effectively invoked his right to remain silent and offered no information regarding the essential facts of his involvement in the crime ... . ...

The defendant's contention that he was denied a fair trial due to the prosecutor's improper comments during summation is, for the most part, unpreserved for our review (see CPL 470.05[2]). However, we reach the issue as a matter of discretion in the interest of justice ... . The prosecutor engaged in misconduct throughout his summation, inter alia, by continuously referring to the defendant as a liar, misstating evidence, denigrating the defense, shifting the burden of proof, attempting to arouse the sympathies of the jurors, and vouching for his witnesses' credibility ... . The cumulative effect of the prosecutor's improper comments deprived the defendant of a fair trial ... . People v Flores, 2018 NY Slip Op 06557, Second Dept 10-3-18

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/APPEALS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/LESSER INCLUDED OFFENSES (JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/PROSECUTORIAL MISCONDUCT  (JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/INTEREST OF JUSTICE (CRIMINAL LAW, APPEALS, JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))

 

 

 

 

CRIMINAL LAW, CIVIL PROCEDURE.

THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT).

The Fourth Department determined there is no mechanism in the Criminal Procedure Law for a nonparty to intervene in a criminal case. Here a reporter sought information about the jurors who were deliberating a murder case. The court further found that the requirements for a CPLR 1013, 1014 motion to intervene were not met here:

... [I]t is well established that "[t]he Criminal Procedure Law provides no mechanism for a nonparty to intervene or be joined in a criminal case" ... . Moreover, even assuming, arguendo, that the mechanism for intervening in an action set forth in the Civil Practice Law and Rules authorizes such an intervention in a criminal case (see CPLR 1013), we note that there is a statutory requirement that "[a] motion to intervene shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought" (CPLR 1014), and thus the court here would have "had no power to grant . . . leave to intervene" without a proposed pleading from the intervenors ... . Consequently, in each appeal we must vacate the order [which denied the motion to intervene on other grounds] and dismiss the appeal. People v Conley, 2018 NY Slip Op 06647, Fourth Dept 10-5-18

 

CRIMINAL LAW (MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/CIVIL PROCEDURE (MOTION TO INTEREVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/CPLR 1013, 1014  (MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/INTERVENE, MOTION TO (THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/REPORTERS (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))NEWSPAPERS (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/PRESS (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/MEDIA (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))

 

 

 

CRIMINAL LAW, EVIDENCE.

CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT).

The Second Department determined evidence of prior domestic abuse was properly admitted in this criminal contempt proceeding. The court explained the criteria for the admission of evidence of uncharged crimes and bad acts (Molineux evidence):

"[E]vidence of a defendant's uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant's propensity to commit the crime charged" ... . Even where there is a proper nonpropensity purpose, "the decision whether to admit evidence of defendant's prior bad acts rests upon the trial court's discretionary balancing of probative value and unfair prejudice" ... . Thus, "[a]dmissibility of evidence under these principles is determined by reference to a two-part inquiry . . . The first level of this inquiry requires the proponent of the evidence, as a threshold matter, to identify some issue, other than mere criminal propensity, to which the evidence is relevant . . . Once such a showing is made, the court must go on to weigh the evidence's probative worth against its potential for mischief to determine whether it should ultimately be placed before the fact finder. This weighing process is discretionary, but the threshold problem of identifying a specific issue, other than propensity, to which the evidence pertains poses a question of law"... .

Contrary to the defendant's contention, the County Court did conduct the requisite "two-part inquiry." The court determined that evidence of the defendant's prior acts of abuse against the complainant were admissible "as relevant background material regarding the defendant's relationship with the complainant, to explain the issuance of a temporary order of protection, and as evidence of the defendant's motive and intent in the commission of the charged crimes" ... . The court then concluded that the probative value of the evidence outweighed any prejudice to the defendant .... Furthermore, the court gave the jury appropriate limiting instructions, to which defense counsel did not object, as to the limited purpose for which that evidence was received ... . People v Bittrolff, 2018 NY Slip Op 06551, Second Dept 10-3-18

CRIMINAL LAW (EVIDENCE, CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT)/MOLINEUX (CRIMINAL LAW, CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT))/UNCHARGED CRIMES AND BAD ACTS (CRIMINAL LAW, EVIDENCE, CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT))

CRIMINAL LAW, EVIDENCE.

MOTION TO SET ASIDE THE CONVICTION PROPERLY DENIED, EVIDENCE IN AN UNSWORN PRESENTENCE REPORT DID NOT MEET THE STATUTORY CRITERIA FOR THE MOTION (SECOND DEPT).

The Second Department determined defendant's motion to set aside his conviction was properly denied. The defendant argued that the complainant's version of events as stated in the presentence report was newly discovered evidence because it differed from the complainant's trial testimony. The court held that the unsworn presentence report did not meet the statutory requirements for a motion to set aside a conviction:

The "power to grant a new trial on the ground of newly discovered evidence is of statutory origin and strict compliance with the statute is necessary" ... . In support of the defendant's motion, he submitted his attorney's affirmation, to which the attorney attached a copy of the presentence report. However, the presentence report did not satisfy the requirement that the defendant submit sworn allegations in support of his motion (see CPL 330.40[2][a]).

 

A presentence report does not contain sworn allegations. Indeed, probation officers are directed, in preparing their report, to include "an analysis of as much of the information gathered in the investigation as the agency that conducted the investigation deems relevant to the question of sentence" (CPL 390.30[3][a]). It is not mandated, nor expected, that a presentence report include a verbatim account of the complainant's words. Indeed, some presentence reports do not contain victim impact statements. The presentence report is not sworn to by the probation officer who prepares the report. Accordingly, while a presentence report is deemed generally reliable for sentencing purposes, its information "need not always be credited" and at best constitutes "reliable hearsay" ... .

Since the "moving papers [did] not contain sworn allegations of all facts essential to support the motion," the Supreme Court was able to make its determination on the basis of the motion papers and, thus, did not err in failing to hold a hearing ... . People v Windsor, 2018 NY Slip Op 06576, Second Dept 10-3-18

CRIMINAL LAW (MOTION TO SET ASIDE THE CONVICTION PROPERLY DENIED, EVIDENCE IN AN UNSWORN PRESENTENCE REPORT DID NOT MEET THE STATUTORY CRITERIA FOR THE MOTION (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, MOTION TO SET ASIDE THE CONVICTION PROPERLY DENIED, EVIDENCE IN AN UNSWORN PRESENTENCE REPORT DID NOT MEET THE STATUTORY CRITERIA FOR THE MOTION (SECOND DEPT))

CRIMINAL LAW, MENTAL HYGIENE LAW, ATTORNEYS.

DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Tom, determined defendant did not receive effective assistance of counsel when counsel conceded that defendant had a dangerous mental disorder requiring civil confinement. There was no strategic justification for waiving a CPL 330.20 hearing to determine which treatment/confinement track was appropriate for defendant:

... [A]fter a court accepts a not responsible plea, it must issue an examination order for the defendant to be examined by two qualified psychiatric examiners (CPL 330.20[2]), who must submit to the court a report of their findings and evaluation regarding defendant's mental condition (CPL 330.20[5]).

 

Critical to this procedure is the requirement that the court conduct an initial hearing within 10 days after receipt of the psychiatric examination reports, in order to classify the defendant as "track one," "track two," or "track three" based on the defendant's mental condition (CPL 330.20[6]...).

 

The track is significant because it determines the level of the defendant's confinement and treatment. Track one is based on a finding of "dangerous mental disorder," meaning that the defendant suffers from a "mental illness," and that "because of such condition he currently constitutes a physical danger to himself or others" (CPL 330.20[1][c]; see Mental Hygiene Law § 1.03[20] [defining "mental illness"]). Track two is based on a finding of "mentally ill," without a dangerous mental disorder (CPL 330.20[1][d]). Track three is based on a finding of not mentally ill (CPL 330.20[7]).

 

"The track designation places more dangerous acquittees under the purview of the Criminal Procedure Law, while less dangerous, though still mentally ill, acquittees are committed to the custody of the Commissioner of Mental Health and come under the supervision of the Mental Hygiene Law"... . Thus, track designation is "vitally important in determining the level of judicial and prosecutorial involvement in future decisions about an acquittee's confinement, transfer and release" ... . People v Darryl T., 2018 NY Slip Op 06634, First Dept 10-4-18

CRIMINAL LAW (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/DANGEROUS MENTAL DISORDER (CRIMINAL LAW, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/MENTAL HYGIENE LAW (CRIMINAL LAW, DANGEROUS MENTAL DISORDER, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/CRIMINAL PROCEDURE LAW 330.20  (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/INEFFECTIVE ASSISTANCE OF COUNSEL (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))

CRIMINAL LAW, SEX OFFENDER REGISTRATION ACT (SORA).

INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT).

The Fourth Department determined there was insufficient evidence the defendant and the 16-year-old victim and the 24-year-old were strangers. The risk assessment was therefore reduced by 20 points:

We agree with defendant that Supreme Court erred in assessing him 20 points under risk factor 7, which applies when, insofar as relevant here, the offender's conduct " was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization' "... . The 24-year-old defendant and the 16-year-old victim met while working at a local Red Cross; the two exchanged contact information and, months later, communicated through social media and by telephone before any sexual contact occurred. Under these circumstances, the People failed to establish by clear and convincing evidence that defendant and the victim were strangers at the time of the crime ... . Moreover, the People "presented no evidence that defendant . . . targeted the victim for the primary purpose of victimizing her" ... .

 

Without the 20 points assessed under risk factor 7, defendant is a presumptive level one sex offender ... . People v Perez, 2018 NY Slip Op 06666, Fourth Dept 10-5-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT))

EMPLOYMENT LAW, CONTRACT LAW.

THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT).

The First Department, reversing Supreme Court, determined that an agreement signed after the employment agreement superseded the employment agreement. Therefore the dispute was subject to arbitration based upon the second agreement:

After [plaintiff] and defendant Mirae Asset Securities (USA) Inc. had entered into an employment agreement which contained a forum selection clause, plaintiff executed a "Uniform Application for Securities Industry Registration or Transfer" (Form U-4), which contains an arbitration provision. We find that the Form U-4 supersedes the employment agreement and therefore that the parties' dispute must be arbitrated.

 

This dispute is governed by state contract law principles ... . The first principle is that "a subsequent contract regarding the same matter will supersede the prior contract" ... . The determination whether a subsequent agreement is superseding is fact-driven ... . Plaintiff's execution of a valid U-4 Form constituted an agreement to limit his contractual remedies when he signed the U-4 Form... . The U-4 Form encompasses the same employment-related disputes as were addressed in the employment agreement. Thus, the forum selection clause was effectively extinguished ... . Hyuncheol Hwang v Mirae Asset Sec. (USA) Inc., 2018 NY Slip Op 06485, First Dept 10-2-18

EMPLOYMENT LAW (THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT))/CONTRACT LAW (EMPLOYMENT LAW, THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT))/FORUM SELECTION CLAUSE (THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT))/ARBITRATION CLAUSE (THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT))

FAMILY LAW.

PETITION TO MODIFY VISITATION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined that mother's petition to modify a visitation order should not have been denied without a hearing:

" A party seeking to modify a prior visitation order must show that there has been a sufficient change in circumstances since the entry of the order such that modification is warranted to further the [child]'s best interests'" ... . The best interests of the child must be determined by a review of the totality of the circumstances... , and "[s]upervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child" ... . "Generally, where a facially sufficient petition has been filed, modification of a Family Ct Act article 6 custody and visitation order requires a full and comprehensive hearing at which a parent is to be afforded a full and fair opportunity to be heard" ... . A decision regarding child custody and visitation should be based on admissible evidence ... 

 

Here, the Family Court should not have, without a hearing, in effect, denied the mother's petition and limited the mother to parental access with the child supervised by the YWCA ... . Matter of King v Peters, 2018 NY Slip Op 06538, Second Dept 10-3-18

FAMILY LAW (PETITION TO MODIFY VISITATION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT))/VISITATION (FAMILY LAW, PETITION TO MODIFY VISITATION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT))

FAMILY LAW.

FAMILY COURT SHOULD HAVE COMPLETED THE HEARING, AWARD OF PRIMARY PHYSICAL CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER REVERSED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined primary physical custody of the children should not have been awarded to the maternal grandmother because the proceedings were flawed:

"[A]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances" ... . "The nonparent has the burden of establishing that extraordinary circumstances exist even where, as here, the prior order granting custody of the child to [the] nonparent[] was made upon consent of the parties' " ... .

Here, the court erred in granting the grandmother's petition prior to the completion of the hearing. The mother's testimony was not complete, the grandmother had not yet rested, and the mother had not been afforded the opportunity to call witnesses or present other evidence on her own behalf. In addition, there were controverted issues inasmuch as there is no evidence in the record of the mother's mental health other than her erratic in-court conduct, which she attributed to the trauma of being separated from her children, and there is no evidence whatsoever that the mother was abusing drugs or alcohol. Indeed, she denied abusing alcohol. We conclude that the court should have completed the hearing. Matter of Driscoll v Mack, 2018 NY Slip Op 06640, Fourth Dept 10-5-18

FAMILY LAW (FAMILY COURT SHOULD HAVE COMPLETED THE HEARING, AWARD OF PRIMARY PHYSICAL CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER REVERSED (FOURTH DEPT))/CUSTODY (FAMILY LAW, FAMILY COURT SHOULD HAVE COMPLETED THE HEARING, AWARD OF PRIMARY PHYSICAL CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER REVERSED (FOURTH DEPT))

FAMILY LAW.

COURT IMPROPERLY INCLUDED A PROVISION IN THE ORDER DENYING MOTHER'S PETITION TO RELOCATE WHICH WOULD AUTOMATICALLY AWARD CUSTODY TO FATHER IF MOTHER RELOCATES (FOURTH DEPT).

The Fourth Department, in affirming the denial of mother's petition to relocate, determined the portion of the order which provided that father would automatically be granted custody upon mother's relocation:

... [The] court erred in including a provision in the order that transferred primary physical custody of the child from the mother to the father in the event that the mother relocates outside of Monroe County, and we therefore modify the order accordingly. Such a provision, "while possibly never taking effect, impermissibly purports to alter the parties' custodial arrangement automatically upon the happening of a specified future event without taking into account the child['s] best interests at that time" ... . Matter of Eason v Bowick, 2018 NY Slip Op 06641, Fourth Dept 10-5-18

FAMILY LAW (COURT IMPROPERLY INCLUDED A PROVISION IN THE ORDER DENYING MOTHER'S PETITION TO RELOCATE WHICH WOULD AUTOMATICALLY AWARD CUSTODY TO FATHER IF MOTHER RELOCATES (FOURTH DEPT))/RELOCATE, PETITION FOR (FAMILY LAW, COURT IMPROPERLY INCLUDED A PROVISION IN THE ORDER DENYING MOTHER'S PETITION TO RELOCATE WHICH WOULD AUTOMATICALLY AWARD CUSTODY TO FATHER IF MOTHER RELOCATES (FOURTH DEPT))

FAMILY LAW.

FATHER COULD NOT BE FOUND TO HAVE PERMANENTLY NEGLECTED THE CHILDREN AND ALSO BE FOUND MENTALLY ILL TO A DEGREE WARRANTING TERMINATION OF HIS PARENTAL RIGHTS (FOURTH DEPT).

The Fourth Department determined father could not be found to have permanently neglected the children and also found to be mentally ill to a degree warranting termination of his parental rights:

Given the court's finding that the father was incapable of caring for the children based on his mental illness, however, the court erred in terminating his parental rights on the additional ground of permanent neglect. The father "could not be found to be mentally ill to a degree warranting termination of his parental rights and at the same time be found to have failed to plan for the future of the children although physically and financially able to do so" ... . We therefore modify the order by dismissing the petition insofar as it alleges that the father permanently neglected the subject children. Matter of Norah T. (Norman T.), 2018 NY Slip Op 06681, Fourth Dept 10-5-18

FAMILY LAW (PARENTAL RIGHTS, FATHER COULD NOT BE FOUND TO HAVE PERMANENTLY NEGLECTED THE CHILDREN AND ALSO BE FOUND MENTALLY ILL TO A DEGREE WARRANTING TERMINATION OF HIS PARENTAL RIGHTS (FOURTH DEPT))/PARENTAL RIGHTS (FATHER COULD NOT BE FOUND TO HAVE PERMANENTLY NEGLECTED THE CHILDREN AND ALSO BE FOUND MENTALLY ILL TO A DEGREE WARRANTING TERMINATION OF HIS PARENTAL RIGHTS (FOURTH DEPT))/NEGLECT (FAMILY LAW, PARENTAL RIGHTS, FATHER COULD NOT BE FOUND TO HAVE PERMANENTLY NEGLECTED THE CHILDREN AND ALSO BE FOUND MENTALLY ILL TO A DEGREE WARRANTING TERMINATION OF HIS PARENTAL RIGHTS (FOURTH DEPT))

FAMILY LAW, APPEALS.

APPEAL HELD IN RESERVE AND MATTER SENT BACK FOR FACTUAL FINDINGS IN THIS CUSTODY CASE (FOURTH DEPT).

The Fourth Department, holding the appeal in reserve, sent the matter back for factual findings in this custody case:

With respect to the court's award of sole legal custody to the mother, we conclude that the court failed to set forth " those facts upon which the rights and liabilities of the parties depend' "... , specifically its "analysis of those factors that traditionally affect the best interests of a child" ... . "[E]ffective appellate review . . . requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses"... . We therefore hold the case, reserve decision and remit the matter to Family Court to set forth its factual findings. Matter of Valentin v Mendez, 2018 NY Slip Op 06680, Fourth Dept 10-5-18

FAMILY LAW (APPEALS, APPEAL HELD IN RESERVE AND MATTER SENT BACK FOR FACTUAL FINDINGS IN THIS CUSTODY MATTER (FOURTH DEPT))/APPEALS (FAMILY LAW, APPEAL HELD IN RESERVE AND MATTER SENT BACK FOR FACTUAL FINDINGS IN THIS CUSTODY MATTER (FOURTH DEPT))

FAMILY LAW, ATTORNEYS.

ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD'S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT).

The Second Department, reversing Family Court, determined the attorney for a child with Down syndrome and profound disabilities could continue to make medical and foster care decisions for the child after the child turned 18. Therefore, Family Court's sua sponte appointment of a guardian was unnecessary:

We disagree with the Family Court's determination to deny the child's motion to relieve the guardian ad litem. Family Court Act §§ 1016, 1087, and 1090(a), and 22 NYCRR 7.2(d)(3), read in conjunction with each other, authorize the attorney for the child to represent the child's interests in this matter, substitute its judgment for that of the child, and provide consent for the child to remain in foster care, thereby rendering the appointment of a guardian ad litem unnecessary ... . Matter of Elliot Z. (Joseph Z.), 2018 NY Slip Op 06547, Second Dept 10-3-18

FAMILY LAW (ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD'S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))/ATTORNEYS (FAMILY LAW, ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD'S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))/GUARDIANS (FAMILY LAW, ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD'S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))

FAMILY LAW, FRAUD.

PARTIES' CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT).

The Second Department determined the parties' consent to a DNA test did not eliminate the need for a hearing on the vacation of the the acknowledgment of paternity on the basis of fraud:

On November 22, 1998, an acknowledgment of paternity was executed with respect to the subject child, which contained the signatures of the mother and the father. Seventeen years later, the father filed the instant petition to vacate the acknowledgment of paternity on the ground of fraud, alleging, inter alia, "I do not believe that I have ever executed an acknowledgment" of paternity. Although the parties consented to a DNA test, the Family Court proceeded to conduct a hearing on the issue of whether the acknowledgment of paternity should be vacated on the ground of fraud. At the conclusion of the hearing, the court determined that the father failed to establish that the acknowledgment of paternity was fraudulently executed, and thus denied the father's petition. The father appeals.

 

Contrary to the father's contention, the parties' consent to a DNA test did not obviate the need for a hearing on the issue of whether the acknowledgment of paternity should be vacated on the ground of fraud. Where, as here, a party seeks to challenge an acknowledgment of paternity more than 60 days after its execution, "Family Court Act § 516-a(b) requires the court to conduct a hearing to determine the issues of fraud, duress, or a material mistake of fact [in the execution of the acknowledgment of paternity] before ordering a [genetic marker test]" ... . Matter of Andrew E. v Angela N.S., 2018 NY Slip Op 06530, Second Dept 10-3-18

FAMILY LAW (PARTIES' CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT))/FRAUD (FAMILY LAW, PATERNITY, PARTIES' CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT))/PATERNITY (FRAUD, PARTIES' CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT))/DNA (PATERNITY, PARTIES' CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT))

FAMILY LAW, EVIDENCE.

NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD'S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department, reversing Family Court, determined that the proof did not support a finding that either parent had neglected the child. Apparently mother's boyfriend had spanked the child and bruising appeared over time. Mother had no reason to suspect her boyfriend would mistreat the child and the parents could not be faulted for not recognizing the significance of the bruising:

... [T]here was no evidence that the mother had any prior knowledge of the boyfriend's alleged propensity to mistreat the children, and there was no evidence that he had done so on any prior occasion. In fact, Sophia's medical records did not contain any indication of prior neglect, maltreatment, or abuse of any kind. As the DCFS's  [Dutchess County Department of Community and Family Service's] own expert testified at the hearing, "[Sophia] was a healthy little girl and this seemed to have happened out of the blue." Under these circumstances, the mother did not neglect the children by leaving them in the boyfriend's care ... .

 

Likewise, the mother's failure to recognize the significance of the pattern of bruising—which the medical expert conceded would not be apparent to a layperson—cannot be faulted. Moreover, the record supports both parents' position that the decision to wait until Tuesday morning to bring Sophia to the hospital was an acceptable course of action in light of all the surrounding circumstances (see Family Ct Act § 1012[f][i]...) Indeed, the medical evidence showed that no treatment was required for the bruising, and that both parents had promptly sought treatment for the unrelated ankle injury.

 

As for the father, the undisputed evidence showed that the bruising occurred before Sophia was brought to the father's residence for a weekend visit. Further, the evidence established that it was the mother—not the father—who had left the children in the boyfriend's care. When the father took custody of Sophia on Saturday, she did not appear to be in pain, and after monitoring her throughout the weekend, the father, in consultation with the mother, agreed that Sophia should be seen by her pediatrician on Monday. Matter of Alana H. (Caitlin M.), 2018 NY Slip Op 06534, Second Dept 10-3-18

FAMILY LAW (NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD'S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))/EVIDENCE (FAMILY LAW, NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD'S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))/NEGLECT (FAMILY LAW, NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD'S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))

FAMILY LAW, EVIDENCE.

FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER'S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT).

The First Department determined Family Court should not have ruled on mother's petition to modify custody without holding a hearing. In addition the First Department noted that Family Court improperly relied solely upon the child's wishes and unsworn documentary evidence:

Family Court improperly determined the mother's modification petition and the father's petitions for enforcement, parenting time modification, and sole custody by suspending all contact between the father and child without a hearing ... . Modification of custody or visitation, even on a temporary basis, requires a hearing, except in cases of emergency ... . We have held that a hearing may be "as abbreviated, in the court's broad discretion, as the particular allegations and known circumstances warrant" ... . However, here, the court granted the drastic remedy of suspension of all contact between parent and child based solely upon its in camera interview with the child and its review of the motion papers and some portion of the court file, which included an unsworn and uncertified report by Family Court Mental Health Services (MHS) and unsworn letters from the child's treating therapist and from therapists who had seen the parties and child for family therapy ... . Matter of Kenneth J. v Lesley B., 2018 NY Slip Op 06625, First Dept 10-4-18

FAMILY LAW (CUSTODY, FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER'S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT))/CUSTODY (FAMILY LAW, FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER'S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT))/EVIDENCE (FAMILY LAW, CUSTODY, FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER'S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT))

FAMILY LAW, EVIDENCE.

DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support a drug-related neglect finding against father:

We agree with the father that the court's finding of neglect is not supported by the requisite preponderance of the evidence (see generally Family Ct Act § 1046 [b] [i]). "[P]roof that a person repeatedly misuses . . . drugs . . . to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except that such drug . . . misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program" ... . Here, petitioner submitted evidence that the father tested positive for THC, oxycodone, and opioids on one occasion, which is insufficient to establish that the father repeatedly misused drugs ... . The father's admission to using marihuana was also insufficient to meet petitioner's burden without further evidence as to the "duration, frequency, or repetitiveness of his drug use, or whether [the father] was ever under the influence of drugs while in the presence of the subject child" ... . Matter of Bentley C. (Zachary D.), 2018 NY Slip Op 06667, Fourth Dept 10-5-18

FAMILY LAW (DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/NEGLECT (FAMILY LAW, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))

FAMILY LAW, EVIDENCE.

DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support a drug-related neglect finding:

We agree with respondents that petitioner failed to establish by a preponderance of the evidence "that [the children's] physical, mental or emotional condition[s have] been impaired or [are] in imminent danger of becoming impaired" (... see Family Ct Act § 1012 [f] [i]). Although the evidence adduced at the fact-finding hearing established that respondents used illicit drugs, the mere use of illicit drugs is insufficient to support a finding of neglect ... , and we conclude that petitioner failed to establish the requisite causal nexus between respondents' illicit drug use and the alleged impairment or imminent danger of impairment of the children's physical, mental, or emotional condition ... . Petitioner produced no evidence that respondents ever used drugs in the presence of the children ... . Moreover, although the younger child suffered two accidents, each of which resulted in a fractured wrist, petitioner offered no evidence that respondents were using drugs or under the influence of drugs at the time the accidents occurred, respondents' innocent explanations for the accidents were uncontroverted at the fact-finding hearing, and there was no evidence of any impairment or imminent danger of impairment to the older child arising from respondents' alleged drug use. We further conclude that petitioner failed to establish a prima facie case of neglect by submitting evidence that respondents used drugs "to the extent that [such use] has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality" (§ 1046 [a] [iii]). Absent from the record was any evidence as to the duration or frequency of respondents' drug use ... . Matter of Delanie S. (Jeremy S.), 2018 NY Slip Op 06677, Fourth Dept 10-5-18

FAMILY LAW (DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/NEGLECT (FAMILY LAW, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))

FAMILY LAW, EVIDENCE, APPEALS.

UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department reversed Family Court's neglect finding in the interest of justice, in part because the finding relied on the uncorroborated hearsay testimony of the child:

... [T]he court determined that the mother neglected the children by forgetting to feed them, but the only evidence of such a danger is the uncorroborated out-of-court statement of one of the children. The mother failed to preserve for our review her contention that the court erred in relying on that child's uncorroborated statement ... . Nevertheless, we exercise our power to review that contention as a matter of discretion in the interest of justice. Although "[i]t is well settled that there is an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child . . . where . . . the statements are corroborated" ... , "repetition of an accusation by a child does not corroborate the child's prior account of [neglect]" ... . Here, there was no corroboration of the one child's out-of-court statement, and thus the court erred in relying upon it to conclude that neglect occurred.

The court's further determination that the mother stopped taking her medication, and "that without . . . psychotropic medication [the] mother's mental health could rapidly deteriorate and she would endanger the safety and well-being of the children," is belied by the testimony of the mother's counselor, the only witness who testified on that issue. The mother's counselor testified that the mother had been properly weaned off of those medications because they were impeding her functionality, and that the mother's ability to parent the children had increased after she successfully stopped taking those medications. Matter of Chance C. (Jennifer S.), 2018 NY Slip Op 06642, Fourth Dept 10-5-18

FAMILY LAW (UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/EVIDENCE (FAMILY LAW, HEARSAY, UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/HEARSAY (FAMILY LAW, UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (FAMILY LAW, UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))

FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), CIVIL PROCEDURE.

DEFENDANT'S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant's motion to cancel and discharge the mortgage based upon the expiration of the statute of limitations should have been granted. The court noted that Supreme Court's imposition of an equitable mortgage was improper under the facts:

RPAPL 1501(4) provides that "[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage . . . has expired," any person with an estate or interest in the property may maintain an action "to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom"... .

 

Here, the defendant established her prima facie entitlement to judgment as a matter of law on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge the mortgage by demonstrating that more than six years had passed since the mortgage was accelerated and therefore this foreclosure action was time-barred ... . The plaintiff did not raise a triable issue of fact in opposition ... . Thus, the Supreme Court should have granted that branch of the defendant's cross motion which was for summary judgment on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge the mortgage (see CPLR 213[4]; RPAPL 1501[4]...).

 

We disagree with the Supreme Court's determination to impose an equitable mortgage in favor of the plaintiff. The plaintiff never requested this relief, and the defendant was not afforded any notice nor an opportunity to be heard on this issue which amounted to a denial of the defendant's due process rights ... . In any event, the doctrine of equitable mortgage is inapplicable to the circumstances of this case, where a legal written mortgage existed ... . 21st Mtge. Corp. v Nweke, 2018 NY Slip Op 06509, Second Dept 10-3-18

FORECLOSURE (DEFENDANT'S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, DEFENDANT'S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, DEFENDANT'S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT))/EQUITABLE MORTGAGE  (DEFENDANT'S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT))

INSURANCE LAW, CONTRACT LAW.

OWNER OF PROPERTY WHERE THE EMPLOYEE SLIPPED AND FELL WAS NOT AN ADDITIONAL INSURED UNDER THE EMPLOYER'S POLICY, EMPLOYER FURNISHED THE CONDITION FOR THE SLIP AND FALL BUT DID NOT PROXIMATELY CAUSE THE SLIP AND FALL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that Pioneer Middle School was not an additional insured under the policy which insured of the employer (Kleanerz) of Ayers, who slipped and fell on ice and snow in the Pioneer Middle School parking law:

We conclude that Pioneer is not an additional insured under the policy inasmuch as Ayers's injuries were not proximately caused by Kleanerz. The policy's additional insured endorsement provides that the injury must have been "caused, in whole or in part, by" Kleanerz's conduct, and thus it requires that the insured must have been a proximate cause of the injury, not merely a "but for" cause ... . Here, it is undisputed that Kleanerz was not responsible for clearing ice and snow from the parking lot and that Ayers's fall resulted from her slipping on the ice or snow. Although Pioneer contends that Kleanerz caused the accident by instructing Ayers to exit Pioneer Middle School through a door located near the area where Ayers subsequently slipped, Kleanerz's instructions to Ayers "merely furnished the occasion for the injury" by "fortuitously plac[ing Ayers] in a location or position in which . . . [an alleged] separate instance of negligence acted independently upon [her] to produce harm" ... , and were not a cause of the accident triggering the additional insured clause of the policy. Pioneer Cent. Sch. Dist. v Preferred Mut. Ins. Co., 2018 NY Slip Op 06682, Fourth Dept 10-5-18

INSURANCE LAW (OWNER OF PROPERTY WHERE THE EMPLOYEE SLIPPED AND FELL WAS NOT AN ADDITIONAL INSURED UNDER THE EMPLOYER'S POLICY, EMPLOYER FURNISHED THE CONDITION FOR THE SLIP AND FALL BUT DID NOT PROXIMATELY CAUSE THE SLIP AND FALL (FOURTH DEPT))/CONTRACT LAW (INSURANCE LAW, OWNER OF PROPERTY WHERE THE EMPLOYEE SLIPPED AND FELL WAS NOT AN ADDITIONAL INSURED UNDER THE EMPLOYER'S POLICY, EMPLOYER FURNISHED THE CONDITION FOR THE SLIP AND FALL BUT DID NOT PROXIMATELY CAUSE THE SLIP AND FALL (FOURTH DEPT))/ADDITIONAL INSURED (INSURANCE LAW, OWNER OF PROPERTY WHERE THE EMPLOYEE SLIPPED AND FELL WAS NOT AN ADDITIONAL INSURED UNDER THE EMPLOYER'S POLICY, EMPLOYER FURNISHED THE CONDITION FOR THE SLIP AND FALL BUT DID NOT PROXIMATELY CAUSE THE SLIP AND FALL (FOURTH DEPT))

INSURANCE LAW, CIVIL PROCEDURE, CONSTITUTIONAL LAW.

INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Singh, in a matter of first impression, determined that the insurer of a New York State driver (Country-Wide) did not have sufficient contacts with North Carolina, where a U-Haul vehicle driven by the New York driver rear-ended the injured parties, to provide New York with jurisdiction. The insurer of the U-Haul vehicle (Repwest) sought to recover, in New York, the amount of the settlement after Country-Wide failed to appear in North Carolina:

On this appeal we are asked to consider an issue that we have never directly addressed: whether an automobile liability policy's territory of coverage clause that covers any accident within the United States and the occurrence of the accident in the forum state are sufficient to confer personal jurisdiction over the primary insurer of the offending vehicle. We find that the connection is not sufficient to comport with federal due process, and that this renders the foreign judgment unenforceable. * * *

 

We find that minimum contacts has not been established on this record. Countrywide did not purposefully avail itself of conducting activities within North Carolina. It is undisputed that Countrywide has never been licensed or authorized to do business in any capacity in North Carolina. At all times relevant to this suit, Countrywide has only been licensed to issue insurance policies within New York State. Countrywide has never maintained an office or employees in North Carolina. It is a company incorporated under the laws of Delaware, with its principal place of business in New York. Countrywide has never conducted or solicited business in or from North Carolina. There is a qualitative distinction between contracting to cover an insured under a territory of coverage clause and the insurer of the policy being amenable to being haled into court anywhere in the United States in a dispute with another insurer. Countrywide cannot reasonably foresee being haled into court in a state where it did not purposefully direct its activities ... . Repwest Ins. Co. v Country-Wide Ins. Co., 2018 NY Slip Op 06505, First Dept 10-2-18

INSURANCE LAW (INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/CIVIL PROCEDURE (INSURANCE LAW, LONG-ARM JURISDICTION, INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/LONG-ARM JURISDICTION (INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/CONSTITUTIONAL LAW (CIVIL PROCEDURE, LONG-ARM JURISDICTION, INSURANCE LAW, (INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/TERRITORY OF COVERAGE CLAUSE (INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/TRAFFIC ACCIDENTS (INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))

LABOR LAW-CONSTRUCTION LAW.

A COMPRESSOR ROLLING OFF A PALLET JACK ONTO PLAINTIFF'S ANKLE WAS NOT AN ELEVATION-RELATED ACCIDENT COVERED BY LABOR LAW 240 (1), REGULATION-VIOLATION RAISED FOR THE FIRST TIME IN OPPOSITION PAPERS PROPERLY CONSIDERED, CRITERIA FOR LABOR LAW 240 (1), 241 (6) AND 200 CAUSES OF ACTION EXPLAINED IN SOME DETAIL (SECOND DEPT).

The Second Department affirmed most of Supreme Court's rulings granting summary judgment to defendants in this Labor Law 240 (1), 241 (6) and 200 action. Plaintiff was moving a heavy compressor on a pallet jack when a wheel on the jack hit a small piece of concrete and the compressor rolled off the pallet jack onto plaintiff's ankle. The court found that the compressor was not a falling object within the meaning of Labor Law 240 (1). Plaintiff's raising a regulation violation (re: the Labor Law 241 (6) cause of action) for the first time in opposition papers did not preclude consideration of the argument because no new factual allegations were involved, no new theories of liability were presented, and there was no prejudice. The decision offers a comprehensive explanation of the criteria for all three of these Labor Law causes of action. With regard to the Labor Law 240 (1) cause of action, the court wrote:

"The extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity'" ... . In determining whether a plaintiff is entitled to the extraordinary protections of Labor Law § 240(1), the "single decisive question [is] whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" ... . "Without a significant elevation differential, Labor Law § 240(1) does not apply, even if the injury is caused by the application of gravity on an object" ... .

"With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured'" ... . Therefore, "a plaintiff must show more than simply that an object fell, thereby causing injury to a worker" ... . "[A] plaintiff must show that, at the time the object fell, it was being hoisted or secured, or that the falling object required securing for the purposes of the undertaking" ... . A plaintiff must also show that "the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute" ... .

 

We agree with the Supreme Court's granting of that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff's injuries were not caused by the elevation or gravity-related risks encompassed by Labor Law § 240(1) ... . Simmons v City of New York, 2018 NY Slip Op 06585, Second Dept 10-3-18

LABOR LAW-CONSTRUCTION LAW (A COMPRESSOR ROLLING OFF A PALLET JACK ONTO PLAINTIFF'S ANKLE WAS NOT AN ELEVATION-RELATED ACCIDENT COVERED BY LABOR LAW 240 (1), REGULATION-VIOLATION RAISED FOR THE FIRST TIME IN OPPOSITION PAPERS PROPERLY CONSIDERED, CRITERIA FOR LABOR LAW 240 (1), 241 (6) AND 200 CAUSES OF ACTION EXPLAINED IN SOME DETAIL (SECOND DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, A COMPRESSOR ROLLING OFF A PALLET JACK ONTO PLAINTIFF'S ANKLE WAS NOT AN ELEVATION-RELATED ACCIDENT COVERED BY LABOR LAW 240 (1), REGULATION-VIOLATION RAISED FOR THE FIRST TIME IN OPPOSITION PAPERS PROPERLY CONSIDERED, CRITERIA FOR LABOR LAW 240 (1), 241 (6) AND 200 CAUSES OF ACTION EXPLAINED IN SOME DETAIL (SECOND DEPT))/ELEVATION-RELATED RISKS (LABOR LAW-CONSTRUCTION LAW, A COMPRESSOR ROLLING OFF A PALLET JACK ONTO PLAINTIFF'S ANKLE WAS NOT AN ELEVATION-RELATED ACCIDENT COVERED BY LABOR LAW 240 (1), REGULATION-VIOLATION RAISED FOR THE FIRST TIME IN OPPOSITION PAPERS PROPERLY CONSIDERED, CRITERIA FOR LABOR LAW 240 (1), 241 (6) AND 200 CAUSES OF ACTION EXPLAINED IN SOME DETAIL (SECOND DEPT))

LABOR LAW-CONSTRUCTION LAW, NEGLIGENCE.

LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Labor Law 200 and common-law negligence causes of action should not have been dismissed:

This Labor Law and common-law negligence action arises from injuries sustained by Michael W. Parkhurst (decedent) when he slipped and fell on plastic sheeting covering newly-laid carpet after descending a ladder while performing drywall finishing work. ...

Where, as here, "the worker's injuries result from a dangerous condition at the work site rather than from the manner in which the work is performed, the general contractor or owner may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and [has created or has] actual or constructive notice of the dangerous condition" ... . "Thus, [d]efendants, as the parties seeking summary judgment dismissing those claims, were required to establish as a matter of law that they did not exercise any supervisory control over the general condition of the premises or that they neither created nor had actual or constructive notice of the dangerous condition on the premises" ... , and defendants failed to meet that burden here. Parkhurst v Syracuse Regional Airport Auth., 2018 NY Slip Op 06670, Fourth Dept 10-5-18

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/NEGLIGENCE (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))

LEGAL MALPRACTICE, NEGLIGENCE, ATTORNEYS, IMMIGRATION LAW, ELECTION LAW.

PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT).

The First Department determined plaintiff's legal malpractice action based upon advice to plead guilty to an election law violation was not viable because he pled guilty without any assertion of innocence. However, the legal malpractice action based upon the advice that his travel abroad would not affect his immigration status was viable. Plaintiff, a legal resident, was detained for four months when he attempted to return to the US from abroad:

We affirm dismissal of part of the malpractice claim ... . Plaintiff's claim that he pleaded guilty to criminal charges in reliance on defendants' negligent legal advice concerning the immigration consequences of the plea is barred by his guilty plea and lack of any claim of innocence (Carmel v Lunney, 70 NY2d 169, 173 [1987]... ).

 

However, the policy underlying the rule established in Carmel v Lunney, supra, does not require dismissal of the entirety of plaintiff's legal malpractice claim, because the remainder of his claim that defendants failed to advise him of the potential immigration consequences of traveling outside the United States as a result of entering a guilty plea does not dispute the validity of his conviction ... . Further, plaintiff's allegations that he relied on defendants' faulty legal advice concerning the immigration consequences of his guilty plea in deciding to travel abroad after he pled guilty, resulting in his being detained and subjected to removal proceedings, state a valid cause of action for legal malpractice. Sehgal v DiRaimondo, 2018 NY Slip Op 06619, First Dept 10-4-18

LEGAL MALPRACTICE (PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/ATTORNEYS (MALPRACTICE, PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/IMMIGRATION LAW (ATTORNEYS, LEGAL MALPRACTICE, PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/ELECTION LAW (IMMIGRATION LAW, LEGAL MALPRACTICE, (PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))

NEGLIGENCE, EDUCATION-SCHOOL LAW, EMPLOYMENT LAW.

NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT).

The Second Department determined defendant Department of Education's (DOE's) motion for summary judgment in this negligent hiring, training, retention and supervision action was properly denied. The suit alleged sexual abuse of plaintiff-student by a school employee (Denice). Although the abuse did not take place on school premises, it was preceded by inappropriate conduct in the school, including touching:

... [T]he DOE defendants failed to make a prima facie showing that the DOE was not negligent with respect to the hiring, retention, and supervision of Denice. The DOE defendants' own submissions in support of their motion for summary judgment raised a triable issue of fact as to whether the DOE took the appropriate measures to evaluate Denice's employment and fitness at the time he was allowed to intern at the school... . Moreover, there is a triable issue of fact as to whether the DOE had notice of the potential for harm to the infant plaintiff such that its alleged negligence in supervising and retaining Denice "placed [Denice] in a position to cause foreseeable harm" ... .

 

Generally, liability may not be imposed upon school authorities where all of the improper acts against a student occurred off school premises and outside school hours ... . Here, however, the DOE defendants' submissions demonstrated that, although the sexual abuse ultimately occurred in the infant plaintiff's home, it was preceded by time periods when the infant plaintiff was alone with Denice during school hours on a regular basis. During these times, Denice engaged in inappropriate behavior, including physical touching. Thus, triable issues of fact exist regarding, inter alia, whether the DOE knew or should have known of such behavior and Denice's propensity for sexual abuse ... . Johansmeyer v New York City Dept. of Educ., 2018 NY Slip Op 06518, Second Dept 10-3-18

NEGLIGENCE (NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT))/EDUCATION-SCHOOL LAW  (NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT))/EMPLOYMENT LAW  (NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT)

NEGLIGENCE, EVIDENCE.

QUESTIONS OF FACT WHETHER DEFENDANT DRIVER HAD A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION PRECLUDED SUMMARY JUDGMENT IN PLAINTIFF'S FAVOR, PLAINTIFF SUBMITTED A POLICE REPORT WHICH RAISED THE QUESTIONS OF FACT, BY SUBMITTING THE REPORT PLAINTIFF WAIVED ANY OBJECTIONS TO INADMISSIBLE STATEMENTS INCLUDED IN IT (SECOND DEPT).

The Second Department determined questions of fact raised by the police reported precluded summary judgment in plaintiff's favor in this rear-end collision case. Although the police report included inadmissible statements, plaintiff waived any objections by submitting the report with the motion papers:

... [T]he plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability. In support of the motion, the plaintiff submitted an affidavit wherein he averred that he gradually brought his vehicle to a stop for a red traffic light and that his vehicle was stopped for approximately three to five seconds when it was struck in the rear by the defendants' vehicle. The plaintiff also submitted, however, an uncertified copy of a police accident report, which stated that according to the defendant driver, the plaintiff's vehicle came to a sudden stop even though the traffic light was green. Although the police report contained self-serving statements not in admissible form, the plaintiff waived any objection to the admissibility of the report by submitting it in support of his motion ... . Under the circumstances, triable issues of fact exist, inter alia, as to whether the defendant driver had a nonnegligent explanation for striking the plaintiff's vehicle in the rear ... . Grant v Carrasco, 2018 NY Slip Op 06516, Second Dept 10-3-18

NEGLIGENCE (REAR END COLLISIONS, QUESTIONS OF FACT WHETHER DEFENDANT DRIVER HAD A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION PRECLUDED SUMMARY JUDGMENT IN PLAINTIFF'S FAVOR, PLAINTIFF SUBMITTED A POLICE REPORT WHICH RAISED THE QUESTIONS OF FACT, BY SUBMITTING THE REPORT PLAINTIFF WAIVED ANY OBJECTIONS TO INADMISSIBLE STATEMENTS INCLUDED IN IT (SECOND DEPT))/REAR-END COLLISIONS (QUESTIONS OF FACT WHETHER DEFENDANT DRIVER HAD A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION PRECLUDED SUMMARY JUDGMENT IN PLAINTIFF'S FAVOR, PLAINTIFF SUBMITTED A POLICE REPORT WHICH RAISED THE QUESTIONS OF FACT, BY SUBMITTING THE REPORT PLAINTIFF WAIVED ANY OBJECTIONS TO INADMISSIBLE STATEMENTS INCLUDED IN IT (SECOND DEPT))/TRAFFIC ACCIDENTS  (REAR END COLLISIONS, QUESTIONS OF FACT WHETHER DEFENDANT DRIVER HAD A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION PRECLUDED SUMMARY JUDGMENT IN PLAINTIFF'S FAVOR, PLAINTIFF SUBMITTED A POLICE REPORT WHICH RAISED THE QUESTIONS OF FACT, BY SUBMITTING THE REPORT PLAINTIFF WAIVED ANY OBJECTIONS TO INADMISSIBLE STATEMENTS INCLUDED IN IT (SECOND DEPT))/EVIDENCE (REAR END COLLISIONS, QUESTIONS OF FACT WHETHER DEFENDANT DRIVER HAD A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION PRECLUDED SUMMARY JUDGMENT IN PLAINTIFF'S FAVOR, PLAINTIFF SUBMITTED A POLICE REPORT WHICH RAISED THE QUESTIONS OF FACT, BY SUBMITTING THE REPORT PLAINTIFF WAIVED ANY OBJECTIONS TO INADMISSIBLE STATEMENTS INCLUDED IN IT (SECOND DEPT))/POLICE REPORTS (EVIDENCE, REAR END COLLISIONS, QUESTIONS OF FACT WHETHER DEFENDANT DRIVER HAD A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION PRECLUDED SUMMARY JUDGMENT IN PLAINTIFF'S FAVOR, PLAINTIFF SUBMITTED A POLICE REPORT WHICH RAISED THE QUESTIONS OF FACT, BY SUBMITTING THE REPORT PLAINTIFF WAIVED ANY OBJECTIONS TO INADMISSIBLE STATEMENTS INCLUDED IN IT (SECOND DEPT))

NEGLIGENCE, VEHICLE AND TRAFFIC LAW.

PEDESTRIAN PLAINTIFF'S EMERGING FROM BETWEEN PARKED CARS AND ATTEMPTING TO CROSS THE STREET WHERE THERE WAS NO CROSSWALK CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE PEDESTRIAN-VEHICLE ACCIDENT, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendants demonstrated plaintiff's emerging from between parked cars and attempting to cross the street where there was no crosswalk constituted the sole proximate cause of the pedestrian-vehicle accident:

... [T]he defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff, given his actions in crossing the street as he did at the time of the accident, violated Vehicle and Traffic Law § 1152(a) and was the sole proximate cause of his injuries. The plaintiff opposed the defendants' motion on the ground, among others, that there were triable issues of fact as to whether the defendant driver operated the vehicle in a negligent manner. The Supreme Court denied the defendants' motion, and the defendants appeal.

 

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the conduct of the plaintiff in crossing the street at a location other than at an intersection, while emerging from between vehicles in the left lane of eastbound traffic, was the sole proximate cause of the accident, and that the defendant driver was free from fault despite the plaintiff's allegation that he failed to avoid a collision with the plaintiff ... . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant driver operated the vehicle in a negligent manner or failed to see that which, through proper use of his senses, he should have seen ... . Pixtun-Suret v Gevinski, 2018 NY Slip Op 06581, Second Dept 10-3-18

NEGLIGENCE (PEDESTRIAN PLAINTIFF'S EMERGING FROM BETWEEN PARKED CARS AND ATTEMPTING TO CROSS THE STREET WHERE THERE WAS NO CROSSWALK CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE PEDESTRIAN-VEHICLE ACCIDENT, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (PEDESTRIAN PLAINTIFF'S EMERGING FROM BETWEEN PARKED CARS AND ATTEMPTING TO CROSS THE STREET WHERE THERE WAS NO CROSSWALK CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE PEDESTRIAN-VEHICLE ACCIDENT, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, PEDESTRIAN PLAINTIFF'S EMERGING FROM BETWEEN PARKED CARS AND ATTEMPTING TO CROSS THE STREET WHERE THERE WAS NO CROSSWALK CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE PEDESTRIAN-VEHICLE ACCIDENT, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

PRODUCTS LIABILITY, NEGLIGENCE, CIVIL PROCEDURE.

PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined the products liability and negligence causes of action against the manufacturer of a motorcycle helmet properly survived summary judgment. There are two parts to securing the helmet with a strap---a D-ring fastener and a snap. Plaintiff used only the snap and was injured, allegedly as a result of the failure of the helmet to protect him. The court noted that plaintiff's untimely response to the defendants' motion for summary judgment was properly considered because defendants were able to reply to it and the demonstration of prejudice was insufficient:

The court correctly rejected defendants' contention that the danger of failing to secure the helmet with the D-rings was open and obvious as a matter of law and that therefore it did not render the helmet unfit for its intended use and they had no duty to warn of the danger or to design the helmet differently. That a danger is open and obvious does not preclude a design defect claim ... . Defendants similarly failed to establish that the design of the chin strap did not breach their warranties of fitness and merchantability ... .

 

While there is no duty to warn of a hazard that is open and obvious and "readily apparent as a matter of common sense" ... , the record presents issues of fact as to whether the danger of failing to use the D-rings and using only the snap fastener to secure the helmet is open and obvious ... . Narvaez v Wadsworth, 2018 NY Slip Op 06475, First Dept 10-2-18

PRODUCTS LIABILITY (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/NEGLIGENCE (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/CIVIL PROCEDURE (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/OPEN AND OBVIOUS (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/WARN, FAILURE TO (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/MOTORCYCLE HELMET (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST

DEPT))/HELMET (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT)/WARRANTY OF MERCHANTABILITY (PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF'S UNTIMELY OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))

PUBLIC NUISANCE, RELIGION.

PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT).

The Second Department determined the public nuisance cause of action, based upon the sexual abuse of plaintiff by a priest and the Diocese's failure to release the names of accused priests, should have been dismissed:

"A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons" ... . "A public nuisance is a violation against the State and is subject to abatement or prosecution by the proper governmental authority" ... . A public nuisance is actionable by a private person only where the person suffered special injury beyond that suffered by the community at large ... .

 

Here, the complaint failed to identify any cognizable right common to all members of the general public that the Diocese has interfered with by, among other things, failing to disclose the names of priests who had been accused of, but neither charged with nor convicted of, molesting children ... . Notwithstanding a moral or ethical duty to notify the public, or investigate and report instances of suspected child molestation, the complaint does not allege that the Diocese violated any laws recognizing the public's right to information regarding accusations of child molestation, or that the Diocese violated any legal duty to report such accusations to appropriate authorities. ...

 

... The complaint does not allege that any member or employee of the Diocese is a mandated reporter, or that any such member or employee violated Social Services Law § 413 in failing to report to appropriate authorities allegations of suspected child abuse. ...

 

Furthermore, although parish and Diocese property may be open to the public, it still is private property ... . Monaghan v Roman Catholic Diocese of Rockville Ctr., 2018 NY Slip Op 06527, Second Dept 10-3-18

PUBLIC NUISANCE (SEXUAL ABUSE BY PRIESTS, PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT))/PRIESTS (SEXUAL ABUSE BY PRIESTS, PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT))/SEXUAL ABUSE (PRIESTS, (SEXUAL ABUSE BY PRIESTS, PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT))/SOCIAL SERVICES LAW (SEXUAL ABUSE BY PRIESTS, PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT))/RELIGION (SEXUAL ABUSE BY PRIESTS, PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT)

REAL ESTATE.

SUMMARY JUDGMENT ON SPECIFIC PERFORMANCE CAUSE OF ACTION PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined plaintiff's motion for summary judgment on the specific performance cause of action was properly denied:

In order to make time of the essence, where the contract does not provide for same, "there must be a clear, distinct, and unequivocal notice to that effect giving the other party a reasonable time in which to act" ... . Despite arguments that the plaintiffs raise to the contrary, there is no specific time period that is per se adequate, since "[w]hat constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case," and "[t]he determination of reasonableness must by its very nature be determined on a case-by-case basis" ... . "Included within a court's determination of reasonableness are the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of prejudice or hardship to either one, as well as the specific number of days provided for performance" ... .

 

Under the circumstances presented here, the plaintiffs failed to establish, prima facie, that the time-of-the-essence letter provided the defendants with a reasonable time within which to close ... . Furthermore, by submitting certain email exchanges between the parties' attorneys concerning the scheduling of the closing, the plaintiffs failed to eliminate triable issues of fact as to whether the defendants objected to the plaintiffs' attempt to declare a law date ... .  Kok Chai Lee v Robertson, 2018 NY Slip Op 06520, Second Dept 10-3-18

REAL ESTATE (SPECIFIC PERFORMANCE, SUMMARY JUDGMENT ON SPECIFIC PERFORMANCE CAUSE OF ACTION PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT))/SPECIFIC PERFORMANCE (SPECIFIC PERFORMANCE, SUMMARY JUDGMENT ON SPECIFIC PERFORMANCE CAUSE OF ACTION PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT))/TIME OF THE ESSENCE  (SPECIFIC PERFORMANCE, SUMMARY JUDGMENT ON SPECIFIC PERFORMANCE CAUSE OF ACTION PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT))

RETIREMENT AND SOCIAL SECURITY LAW.

CORRECTION OFFICER'S FALL DOWN A STAIRWAY WAS PROXIMATELY CAUSED BY THE ACT OF AN INMATE, THE RESULTING DISABILITY IS THEREFORE COMPENSABLE (THIRD DEPT).

The Third Department, annulling the hearing officer's decision, determined that petitioner, a county correction officer, suffered a disability that resulted from the act of an inmate and was therefore compensable:

... [W]e find that petitioner has demonstrated that the injuries that he sustained from his fall occurred "contemporaneously with, and flowed directly, naturally and proximately from, the inmate's" disobedient and affirmative act of descending down the stairs unexpectedly prior to receiving permission to do so ... . Although "losing one's footing — without more — does not constitute an affirmative act" ... , petitioner's misstep and fall flowed directly, naturally and proximately from the inmate's act of being out of place without permission and startling petitioner by running down the stairs ... . Having determined that petitioner's injury was a natural and proximate result of an act of an inmate, the matter must be remitted for further proceedings on the issue of the permanency of petitioner's alleged disability ... . Matter of Garcia v DiNapoli, 2018 NY Slip Op 06602, Second Dept 10-4-18

RETIREMENT AND SOCIAL SECURITY LAW (CORRECTION OFFICER'S FALL DOWN A STAIRWAY WAS PROXIMATELY CAUSED BY THE ACT OF AN INMATE, THE RESULTING DISABILITY IS THEREFORE COMPENSABLE (THIRD DEPT))/CORRECTION OFFICERS (RETIREMENT AND SOCIAL SECURITY LAW, CORRECTION OFFICER'S FALL DOWN A STAIRWAY WAS PROXIMATELY CAUSED BY THE ACT OF AN INMATE, THE RESULTING DISABILITY IS THEREFORE COMPENSABLE (THIRD DEPT))

TRUSTS AND ESTATES. FORECLOSURE.

APPELLANT EXERCISED UNDUE INFLUENCE OVER DECEDENT, SATISFACTION OF MORTGAGE PROVIDED TO APPELLANT NULLIFIED PURSUANT TO THE RIGGS DOCTRINE, FORECLOSURE OF THE MORTGAGE DEEMED PROPER (SECOND DEPT).

The Second Department determined the appellant, Rajic, had exercised undue influence over the decedent resulting in decedent's signing over her home to Rajic and providing a satisfaction of mortgage to Rajic for a fraction of the amount due. The satisfaction of mortgage was nullified and the foreclosure action brought on behalf of the estate was deemed proper:

Sometimes referred to as the "Riggs doctrine" ... , from the seminal case in which a grandson, who had intentionally killed his grandfather in order to ensure his inheritance, was prevented from inheriting under the grandfather's will ... , " this fundamental equitable principle'" dictates that " [n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime'" ... . "Pursuant to this doctrine, which has been applied in both civil and criminal cases, the wrongdoer is deemed to have forfeited the benefit that would flow from his or her wrongdoing" ... . "In determining whether the Riggs doctrine applies to a particular case, the court must examine the facts and circumstances before it, and determine whether the causal link between the wrongdoing and the benefits sought is sufficiently clear that application of the Riggs doctrine will prevent an injustice from occurring" ... . * * *

The record supports the Supreme Court's conclusion that, by exercising "undue influence over the decedent," "handling the decedent's financial affairs unscrupulously," and, in effect, obtaining the deed to the decedent's house through fraud, then "accepting a satisfaction of mortgage from the decedent knowing the mortgage was far from being satisfied," Rajic, "[b]y her conduct, . . . forfeited any rights that would flow" from the note and mortgage and from the subsequent satisfaction of mortgage ... . ...

As to the respondent's failure to provide notice of the intent to accelerate and notice of acceleration, the note contains an acceleration clause, "with no requirement of notice and demand"... , as well as a clause pursuant to which Rajic specifically waived any right to notice and demand, notice of intent to accelerate, or notice of acceleration. "Consequently, . . . [the respondent] had the right to exercise the acceleration option anytime after [default] without serving a notice of default or demand for payment" ... , or notice of intent to accelerate or notice of acceleration. Rajic v Faust, 2018 NY Slip Op 06582, Second Dept 10-3-18

TRUSTS AND ESTATES (APPELLANT EXERCISED UNDUE INFLUENCE OVER DECEDENT, SATISFACTION OF MORTGAGE PROVIDED TO APPELLANT NULLIFIED PURSUANT TO THE RIGGS DOCTRINE, FORECLOSURE OF THE MORTGAGE DEEMED PROPER (SECOND DEPT))/RIGSS DOCTRINE (TRUSTS AND ESTATES,  

APPELLANT EXERCISED UNDUE INFLUENCE OVER DECEDENT, SATISFACTION OF MORTGAGE PROVIDED TO APPELLANT NULLIFIED PURSUANT TO THE RIGGS DOCTRINE, FORECLOSURE OF THE MORTGAGE DEEMED PROPER (SECOND DEPT))/UNDUE INFLUENCE (TRUSTS AND ESTATES, APPELLANT EXERCISED UNDUE INFLUENCE OVER DECEDENT, SATISFACTION OF MORTGAGE PROVIDED TO APPELLANT NULLIFIED PURSUANT TO THE RIGGS DOCTRINE, FORECLOSURE OF THE MORTGAGE DEEMED PROPER (SECOND DEPT))/FORECLOSURE (TRUSTS AND ESTATES, UNDUE INFLUENCE, (APPELLANT EXERCISED UNDUE INFLUENCE OVER DECEDENT, SATISFACTION OF MORTGAGE PROVIDED TO APPELLANT NULLIFIED PURSUANT TO THE RIGGS DOCTRINE, FORECLOSURE OF THE MORTGAGE DEEMED PROPER (SECOND DEPT))

WORKERS' COMPENSATION LAW, ADMINISTRATIVE LAW.

SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, affirmed the Workers' Compensation Board's finding that claimant's shoulder injury was not compensable because it did not arise out of and in the course of her employment. Claimant's injury occurred when she scanned her parking pass to enter a parking garage. The garage was not owned by her employer, but there were spaces reserved for employees and the employer paid for parking. The majority found sufficient evidence to support the Board's ruling. But the dissenters argued this was not a case which required weighing conflicting evidence, therefore precedent allowing recovery for injuries in employee parking areas should control:

In concluding that claimant's injury was not compensable, the Board found that the parking garage was utilized by members of the public, as well as other businesses located within the same building as the employer. The Board further noted that the employer did not own or maintain the garage. These facts, which the Board credited, lead to the conclusion that the employer did not extend its premises to the area where claimant's injury occurred ... . Although facts exist that would support a contrary result, given that substantial evidence supports the Board's decision, we discern no basis to disturb it ... .

From the dissent: We respectfully dissent. The proper disposition of this case is not based upon our substantial evidence standard of review, as this is not a case where the Workers' Compensation Board was weighing and balancing conflicting evidence. There was no relevant conflicting evidence. The location and circumstances of the underlying event are not disputed; claimant does not challenge the factual findings, but instead addresses the appeal solely to the resulting legal determination. In this case, the Board was required to apply the policy established by precedent to the relevant undisputed facts. As the Board failed to properly apply this precedent in rendering the determination, we would reverse, based upon the law. Matter of Grover v State Ins. Fund, 2018 NY Slip Op 06601, Third Dept 10-4-18

WORKERS' COMPENSATION LAW (SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT))/ADMINISTRATIVE LAW (WORKERS' COMPENSATION LAW, (SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT))/PARKING GARAGES (WORKERS' COMPENSATION LAW, (SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT))

 

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