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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))

COURT’S LIMITED POWER OF REVIEW OF AN ARBITRATION AWARD EXPLAINED IN DEPTH, VACATION OF AWARD REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Friedman, determined that Supreme Court did not have the power to order reconsideration of certain portions of the arbitration award (of over $100 million). The opinion is too detailed and comprehensive to fairly summarize here. The importance of the opinion is its detailed explanation of a court's limited power to review an arbitration award, even where the arbitrators got the law wrong:

The order vacating the award in part cannot be justified under the “emphatic federal policy in favor of arbitral dispute resolution” embodied in the FAA [Federal Arbitration Act],  a policy that “applies with special force in the field of international commerce” … . Under the FAA, even if an arbitral tribunal's legal and procedural rulings might reasonably be criticized on the merits, an award is not subject to vacatur for ordinary errors of the kind the court identified in this case, as opposed to manifest disregard of the law, a concept that … means “more than a simple error in law”… . “The potential for . . . mistakes [by the arbitrators] is the price for agreeing to arbitration” … , and, “however disappointing [an award] may be,” parties that have bargained for arbitration “must abide by it” ( ,,, [“Errors, mistakes, departures from strict legal rules, are all included in the arbitration risk”]). Accordingly, we reverse, grant the petition to confirm the award, and deny the cross motion to vacate it. Matter of Daesang Corp. v NutraSweet Co., 2018 NY Slip Op 06331, First Dept 9-27-18

ARBITRATION (COURT'S LIMITED POWER OF REVIEW OF AN ARBITRATION AWARD EXPLAINED IN DEPTH, VACATION OF AWARD REVERSED (FIRST DEPT))/FEDERAL ARBITRATION ACT (FAA) (COURT'S LIMITED POWER OF REVIEW OF AN ARBITRATION AWARD EXPLAINED IN DEPTH, VACATION OF AWARD REVERSED (FIRST DEPT))

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PROPERLY DENIED, DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED OR CLEANED AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF WATER ON THE FLOOR (FIRST DEPT).

The First Department determined that defendant's motion for summary judgment in this slip and fall case was properly denied. Defendant did not demonstrate when the area of the fall was last inspected or cleaned and did not demonstrate a lack of constructive notice of water on the floor:

Defendant failed to establish its entitlement to judgment as a matter of law in this action where plaintiff slipped and fell on water in the vestibule of defendant's building. Defendant failed to make a prima facie showing that it lacked constructive notice because the superintendent failed to testify or aver that his assistant adhered to a janitorial schedule on the day of the accident or when the area was last inspected prior to plaintiff's fall … . Since defendant failed to meet its initial burden to establish that it lacked constructive notice of the alleged defect as a matter of law, the burden never shifted to plaintiff to establish how long the condition existed … .

Defendant also failed to establish that it lacked constructive notice on the basis that the water was not present in the vestibule for a sufficient period to afford defendant an opportunity to discover and remedy the condition … . Whether the water was present for that sufficient period presents an outstanding factual issue, as the time it took plaintiff and her friend to return to the premises from the store is unclear, and defendant failed to clarify the issue at the deposition. Hill v Manhattan N. Mgt., 2018 NY Slip Op 06323, First Dept 9-27-18

NEGLIGENCE (DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PROPERLY DENIED, DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED OR CLEANED AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF WATER ON THE FLOOR (FIRST DEPT))/EVIDENCE (SLIP AND FALL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PROPERLY DENIED, DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED OR CLEANED AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF WATER ON THE FLOOR (FIRST DEPT))/SLIP AND FALL (DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PROPERLY DENIED, DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED OR CLEANED AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF WATER ON THE FLOOR (FIRST DEPT))

VISITATION SHOULD NOT HAVE BEEN CONDITIONED ON CHILDREN’S CONSENT (FIRST DEPT).

The First Department, modifying Family Court, determined visitation should not have been conditioned on the children's consent:

… [V]isitation should not have been conditioned on the children's (ages 9 and 11) consent and the parties' agreement. Visitation is a joint right of the noncustodial parent, here the adoptive mother, and of the children … . Although the children have a fractured relationship with their adoptive mother, a reasonable visitation schedule should have been set with her. At a minimum, supervised visitation would have alleviated the children's concerns. Not only is it untenable for these parties to set up their own visitation schedule, there is an insufficient showing that visitation would be detrimental to the children. “A court may not delegate its authority to determine visitation to either a parent or a child” … . Consequently, we remand this matter so that Family Court can, at a minimum, establish an appropriate supervised access schedule for the great-grandmother with the children and for the allocation of any other suitable resources to restore their relationship. Matter of Cornell S.J. v Altemease R.J., 2018 NY Slip Op 06320, First Dept 9-27-18

FAMILY LAW (VISITATION SHOULD NOT HAVE BEEN CONDITIONED ON CHILDREN'S CONSENT (FIRST DEPT))/VISITATION (FAMILY LAW, VISITATION SHOULD NOT HAVE BEEN CONDITIONED ON CHILDREN'S CONSENT (FIRST DEPT))

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PLAINTIFF’S TESTIMONY THAT THE STEP LADDER WOBBLED CAUSING HIM TO FALL WAS SUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR IN THIS LABOR LAW 240 (1) ACTION, DESPITE THE LACK OF WITNESSES TO THE FALL, HEARSAY EVIDENCE IN THE ACCIDENT REPORT, AND A CONCLUSORY EXPERT AFFIDAVIT (FIRST DEPT).

The First Department determined plaintiff was properly granted summary judgment in this Labor Law 240 (1) action. Plaintiff alleged the step ladder he was using wobbled causing him to fall. The fact that there were no witnesses to the incident did not preclude summary judgment:

Plaintiff's testimony that, as he was climbing down a six-foot scaffold, the scaffold wobbled, causing him to fall to the floor, establishes prima facie defendants' liability under Labor Law § 240(1) … . Plaintiff satisfied his burden of demonstrating that defendants failed to provide adequate safety devices to prevent him from falling when the scaffold moved … . The fact that plaintiff was the only witness to his accident does not preclude summary judgment in his favor, since nothing in the record controverts his account of the accident or calls his credibility into question… .

Defendants failed to raise an issue of fact in opposition, relying solely on hearsay statements in the accident report and the speculative opinion of their expert… . For the same reason, defendants failed to establish prima facie their freedom from liability. Rroku v West Rac Contr. Corp., 2018 NY Slip Op 06312, First Dept 9-27-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF'S TESTIMONY THAT THE STEP LADDER WOBBLED CAUSING HIM TO FALL WAS SUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN PLAINTIFF'S FAVOR IN THIS LABOR LAW 240 (1) ACTION, DESPITE THE LACK OF WITNESSES TO THE FALL, HEARSAY EVIDENCE IN THE ACCIDENT REPORT, AND A CONCLUSORY EXPERT AFFIDAVIT (FIRST DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF'S TESTIMONY THAT THE STEP LADDER WOBBLED CAUSING HIM TO FALL WAS SUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN PLAINTIFF'S FAVOR IN THIS LABOR LAW 240 (1) ACTION, DESPITE THE LACK OF WITNESSES TO THE FALL, HEARSAY EVIDENCE IN THE ACCIDENT REPORT, AND A CONCLUSORY EXPERT AFFIDAVIT (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF'S TESTIMONY THAT THE STEP LADDER WOBBLED CAUSING HIM TO FALL WAS SUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN PLAINTIFF'S FAVOR IN THIS LABOR LAW 240 (1) ACTION, DESPITE THE LACK OF WITNESSES TO THE FALL, HEARSAY EVIDENCE IN THE ACCIDENT REPORT, AND A CONCLUSORY EXPERT AFFIDAVIT (FIRST DEPT))

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PLAINTIFF CAN PRESENT EXPERT TESTIMONY ABOUT THE AMOUNT OF PLAINTIFF’S LEGAL COSTS ATTRIBUTABLE TO DEFENDANT-ATTORNEY’S ALLEGED USE OF AN ALLEGEDLY FORGED DOCUMENT IN LITIGATION IN VIOLATION OF JUDICIARY LAW 487 (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff (Melcher) can present expert testimony (by Lupkin) about the amount of Melcher's legal costs attributable to defendant-attorney's (Corwin's) alleged use of an allegedly forged document in violation of Judiciary Law 487:

… [W]e are cognizant of the “evident intent [of Judiciary Law § 487] to enforce an attorney's special obligation to protect the integrity of the courts and foster their truth-seeking function” … . Accordingly, we exercise our discretion to modify Supreme Court's order to permit Melcher to call Lupkin to testify as an expert witness on damages at trial, with the proviso that his testimony be limited to the assessment of the excess legal costs that Melcher was required to incur, during the period beginning February 17, 2004, and ending May 11, 2009, as the proximate result of any violation of Judiciary Law § 487 by Corwin that the factfinder may find to have occurred, as discussed above. Melcher v Greenberg Traurig LLP, 2018 NY Slip Op 06310, First Dept 9-27-18

ATTORNEYS (PLAINTIFF CAN PRESENT EXPERT TESTIMONY ABOUT THE AMOUNT OF PLAINTIFF'S LEGAL COSTS ATTRIBUTABLE TO DEFENDANT-ATTORNEY'S ALLEGED USE OF AN ALLEGEDLY FORGED DOCUMENT IN LITIGATION IN VIOLATION OF JUDICIARY LAW 487 (FIRST DEPT))/EVIDENCE (ATTORNEYS, JUDICIARY LAW 487, PLAINTIFF CAN PRESENT EXPERT TESTIMONY ABOUT THE AMOUNT OF PLAINTIFF'S LEGAL COSTS ATTRIBUTABLE TO DEFENDANT-ATTORNEY'S ALLEGED USE OF AN ALLEGEDLY FORGED DOCUMENT IN LITIGATION IN VIOLATION OF JUDICIARY LAW 487 (FIRST DEPT))/EXPERT OPINION (ATTORNEYS, JUDICIARY LAW 487, PLAINTIFF CAN PRESENT EXPERT TESTIMONY ABOUT THE AMOUNT OF PLAINTIFF'S LEGAL COSTS ATTRIBUTABLE TO DEFENDANT-ATTORNEY'S ALLEGED USE OF AN ALLEGEDLY FORGED DOCUMENT IN LITIGATION IN VIOLATION OF JUDICIARY LAW 487 (FIRST DEPT))/JUDICIARY LAW 487 (ATTORNEYS, PLAINTIFF CAN PRESENT EXPERT TESTIMONY ABOUT THE AMOUNT OF PLAINTIFF'S LEGAL COSTS ATTRIBUTABLE TO DEFENDANT-ATTORNEY'S ALLEGED USE OF AN ALLEGEDLY FORGED DOCUMENT IN LITIGATION IN VIOLATION OF JUDICIARY LAW 487 (FIRST DEPT))

HABEAS CORPUS PETITIONS STEMMING FROM THE DENIAL OF BAIL IN AN ATTEMPTED MURDER CASE PROPERLY DENIED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, determined the two habeas corpus petitions, stemming from the denial of bail in an attempted murder case, were properly denied. The petitioner was charged with the attempted murder of her husband. It was petitioner's cousin who actually attacked petitioner's husband. The cousin had been convicted after trial before the judge who twice denied petitioner's bail applications, resulting in the two habeas corpus petition's before the First Department:

… [W]e find that the habeas court in the first proceeding correctly found that Justice Farber did not abuse his discretion in denying petitioner's initial bail application. The denial of bail was amply supported by the seriousness of the charges including attempted murder, the potential sentence of at least 5 years and up to 25 years in prison for the class B violent felonies of attempted murder in the second degree or first-degree burglary … , as well as the strength of the evidence. Notably, Justice Farber had just presided over Nolan's trial for carrying out the plot allegedly orchestrated by petitioner … .

To the extent [petitioner] argues that the court improperly focused on the seriousness of the charges and the sentencing exposure to the exclusion of other factors, the court's failure to explicitly address each statutory factor or every specific argument raised by the parties on the record does not establish that the court abused its discretion. The court implicitly based its ruling on all of the parties' arguments … . * * *

“Petitioner's position, if accepted, would mandate that bail be granted in every case in which the accused has the financial resources to offer private security and monitoring, thereby depriving the court of its discretion to grant or deny bail on consideration of the factors enumerated in CPL 510.30(2)(a). While petitioner claims that her security package is foolproof and trumps all other factors, the fact remains that no ad hoc arrangement based on keeping a defendant in her private home under the watch of a security firm that she hired could be as secure as remand” … . Matter of State of NY ex rel. Fischetti v Brann, 2018 NY Slip Op 06220, First Dept 9-25-18

CRIMINAL LAW (HABEAS CORPUS PETITIONS STEMMING FROM THE DENIAL OF BAIL IN AN ATTEMPTED MURDER CASE PROPERLY DENIED (FIRST DEPT))/HABEAS CORPUS (HABEAS CORPUS PETITIONS STEMMING FROM THE DENIAL OF BAIL IN AN ATTEMPTED MURDER CASE PROPERLY DENIED (FIRST DEPT))/BAIL  (HABEAS CORPUS PETITIONS STEMMING FROM THE DENIAL OF BAIL IN AN ATTEMPTED MURDER CASE PROPERLY DENIED (FIRST DEPT))

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NOTICE PURPORTING TO DISSOLVE A PARTNERSHIP WAS A NULLITY BECAUSE IT DID NOT COMPORT WITH THE RELEVANT PROVISIONS OF THE PARTNERSHIP AGREEMENT (FIRST DEPT).

The First Department determined the notice issued by two partners purporting to dissolve the partnership was a nullity because the notice did not comport with the relevant provisions of the partnership agreement:

On October 15, 2015, two of the partners issued a notice purporting to withdraw from and dissolve the partnerships, pursuant to New York Partnership Law § 62(1)(b), “which,” the notice said, “provides that a partnership is terminable at will on notice.” * * *

“New York's Partnership Law creates default provisions that fill gaps in partnership agreements, but where the agreement clearly states the means by which a partnership will dissolve, or other aspects of partnership dissolution, it is the agreement that governs the change in relations between partners and the future of the business” … . Where, as here, a partnership agreement contains provisions governing the dissolution of the partnership by the will of the partners, ordinary contract principles apply … , and a notice by a partner or partners to dissolve a partnership in contravention of the partnership agreement's dissolution provisions is a legal nullity and does not effect a dissolution of the partnership. Wiener v Weissman, 2018 NY Slip Op 06205, First Dept 9-26-18

PARTNERSHIP LAW (NOTICE PURPORTING TO DISSOLVE A PARTNERSHIP WAS A NULLITY BECAUSE IT DID NOT COMPORT WITH THE RELEVANT PROVISIONS OF THE PARTNERSHIP AGREEMENT (FIRST DEPT))/CONTRACT LAW (PARTNERSHIP LAW, NOTICE PURPORTING TO DISSOLVE A PARTNERSHIP WAS A NULLITY BECAUSE IT DID NOT COMPORT WITH THE RELEVANT PROVISIONS OF THE PARTNERSHIP AGREEMENT (FIRST DEPT))

COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT’S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT).

The First Department determined the college adequately addressed petitioner-Ph.D-student's learning disability and petitioner was properly terminated from the program after failing an exam:

The record establishes that respondents reasonably accommodated the known aspects of petitioner's learning disability by granting him, among other accommodations, double the amount of time (six hours) for a certification exam, with an additional hour for lunch to be used at his discretion. There is no record that respondents were ever apprised, until months after petitioner had twice unsuccessfully sat for the exam, that the resulting length of the test could exacerbate petitioner's disability through fatigue. Petitioner thus failed to meet his burden, under the Americans with Disabilities Act (ADA), of showing that the additional accommodations he sought (i.e., to take the exam home or split the six hours over two days) were facially reasonable… . Moreover, the record establishes that respondents met their duty, in advance of both administrations of the exam, to engage in an interactive dialogue with petitioner … .

Petitioner's claim for breach of implied contract also fails, as respondents' determination that petitioner did not pass the exam (and the resulting termination from the program) was rationally based in the record and, as an academic evaluation, is beyond further review … . Matter of De Jesus v Teachers Coll., 2018 NY Slip Op 06186, First Dept 9-25-18

EDUCATION-SCHOOL LAW (COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT'S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT))/AMERICANS WITH DISABILITIES ACT (EDUCATION-SCHOOL LAW, COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT'S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT))/LEARNING DISABILITIES (ACCOMMODATIONS, COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT'S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT))/ACCOMMODATIONS (EDUCATION-SCHOOL LAW, COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT'S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT))

OFFICE OF CHILDREN AND FAMILY SERVICES’ CHILD-MALTREATMENT FINDING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT).

The First Department found that the child maltreatment determination by the NYS Office of Children and Family Services (OCFS) was not indicated:

OCFS's determination that child maltreatment by petitioners was “indicated” is not supported by substantial evidence… . Petitioners were in compliance with the recommendations of the child's pediatrician during the period in question, and there is no evidence that their failure to seek regular visits with a hematologist or to administer a daily dose of penicillin to the child as a prophylaxis either impaired or risked imminently impairing the child's physical condition… . Medical records show that the child's hospitalizations in 2014 and a year later in 2015 were the result of a viral infection, which would not have been prevented by his seeing a hematologist regularly or taking penicillin, an antibiotic. After the 2015 hospitalization, the child's treating physician ratified a course of treatment that did not include a daily antibiotic. Further, petitioners' decision not to further vaccinate the child did not violate the pediatrician's directive … . Matter of Charles v Poole, 2018 NY Slip Op 06185, First Dept 9-25-18

FAMILY LAW (OFFICE OF CHILDREN AND FAMILY SERVICES' CHILD-MALTREATMENT FINDING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT))/CHILD MALTREATMENT (OFFICE OF CHILDREN AND FAMILY SERVICES' CHILD-MALTREATMENT FINDING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT))/OFFICE OF CHILDREN AND FAMILY SERVICES (OFFICE OF CHILDREN AND FAMILY SERVICES' CHILD-MALTREATMENT FINDING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT))

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