First Department – Page 208 – New York Appellate Digest

FATHER’S REQUEST FOR UNSUPERVISED VISITATION SHOULD NOT HAVE BEEN DENIED, NOTWITHSTANDING THE PENDING PERMANENT NEGLECT PROCEEDINGS.

The First Department, reversing Family Court, over a dissent, determined respondent father had demonstrated good cause for a modification of his visitation to allow “sandwich visits,” a half hour of unsupervised visitation between two periods of supervised visitation … . The fact that there was a pending permanent neglect proceeding was not an impediment to the change in visitation. Although father had a drug problem and had been incarcerated, he was working full time and had been drug free for some time:

Although respondent has a history of drug abuse, which led to a period of incarceration, he has demonstrated his commitment to counseling and treatment, and has not tested positive for drugs since January 2016. Respondent has also demonstrated a desire to turn his life around, obtaining regular employment and endeavoring to build a relationship with the child, who is now almost six years old, by regularly attending the twice weekly supervised visits. It is undisputed that these visits have been positive for the child and that there are no concerns about the child’s safety in spending time with respondent.

Nor is there any evidence that the limited sandwich visits would be emotionally damaging for the child just because there is a possibility that respondent’s parental rights will be terminated at the end of the permanency proceeding. “No case has been cited for the proposition that a finding of permanent neglect and a goal of adoption are legal impediments to changing the nature of a parent’s visitation or increasing its frequency, and none has been found . . . Until the conclusion of disposition and the rendering of a decision, the outcome of this case remains uncertain” … . Matter of Gerald Y.-C. (Roland Y.), 2017 NY Slip Op 03843, 1st Dept 5-11-17

FAMILY LAW (FATHER’S REQUEST FOR UNSUPERVISED VISITATION SHOULD NOT HAVE BEEN DENIED, NOTWITHSTANDING THE PENDING PERMANENT NEGLECT PROCEEDINGS)/VISITATION (FAMILY LAW, FATHER’S REQUEST FOR UNSUPERVISED VISITATION SHOULD NOT HAVE BEEN DENIED, NOTWITHSTANDING THE PENDING PERMANENT NEGLECT PROCEEDINGS)/NEGLECT (FAMILY LAW, FATHER’S REQUEST FOR UNSUPERVISED VISITATION SHOULD NOT HAVE BEEN DENIED, NOTWITHSTANDING THE PENDING PERMANENT NEGLECT PROCEEDINGS)

May 11, 2017

MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED.

The First Department determined Supreme Court should not have denied a motion to compel discovery of New York Police Department documents solely because prior requests for the documents under the Freedom of Information Law were denied. The “public interest” privilege did not justify outright denial of the motion:

… [T]the court erred in denying defendants’ motion outright because of the prior denials of their requests for the same information under the Freedom of Information Law (FOIL). “CPLR article 31 is not a statute specifically exempt[ing]’ public records from disclosure under FOIL” and “no provision of FOIL bars simultaneous use of both” CPLR 3101 and FOIL to procure discovery … .

The “public interest” privilege did not justify the outright denial of defendants’ motion, because the court did not engage in the requisite balancing of the public interest in encouraging witnesses to come forward to cooperate in pending criminal investigations against defendants’ need for the documents to defend against plaintiffs’ claim … . Accordingly, we find that remittal to the motion court for in camera review of the requested files is appropriate in this case, to give the court the opportunity to conduct the proper balancing, in the first instance, of the interests of both parties … . Smith v Watson, 2017 NY Slip Op 03878, 1st Dept 5-11-17

CIVIL PROCEDURE (MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)/FREEDOM OF INFORMATION LAW (CIVIL PROCEDURE, MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)/DISCOVERY LAW (CIVIL PROCEDURE, MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)/PRIVILEGE (PUBLIC INTEREST PRIVILEGE, MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)/PUBLIC INTEREST PRIVILEGE (MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)

May 11, 2017

Labor Law-Construction Law

THE LADDER PLAINTIFF WAS USING WOBBLED, SPUN AND FELL OVER, PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff alleged the ladder on which he was standing wobbled causing him to fall. The court distinguished a recent Court of Appeals case which found a question of fact precluded summary judgment where plaintiff fell on wet temporary exterior stairs. The First Department noted there is a presumption that a ladder or scaffold which fails did not provide adequate protection:

As the Court of Appeals recently reiterated in O’Brien v Port Auth. of N.Y. & N.J. (_ NY3d _, 2017 NY Slip Op 02466 … , ‘The fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240(1).” “Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” … . However, “[i]n cases involving ladders or scaffolds that collapse or malfunction for no apparent reason,” the Court of Appeals has applied “a presumption that the ladder or scaffolding device was not good enough to afford proper protection” … — a presumption that the O’Brien Court recognized but found inapplicable to the facts before it, which involved a fall from an exterior stairway.

Here, plaintiff established prima facie that Labor Law § 240(1) was violated through his testimony that the ladder from which he fell wobbled during its use … , that two of the ladder’s rubber feet were missing …, and that the ladder spun and fell over … . Kebe v Greenpoint-Goldman Corp., 2017 NY Slip Op 03712, 1st Dept 5-9-17

LABOR LAW-CONSTRUCTION LAW (THE LADDER PLAINTIFF WAS USING WOBBLED, SPUN AND FELL OVER, PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION)/LADDERS (LABOR LAW-CONSTRUCTION LAW, THE LADDER PLAINTIFF WAS USING WOBBLED, SPUN AND FELL OVER, PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION)

May 9, 2017

Civil Procedure, Condominiums, Foreclosure

DEFENDANT IN THIS CONDOMINIUM ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE.

The First Department determined the defendant in this condominium foreclosure action was not entitled to a mandatory mortgage foreclosure settlement conference. The court had ordered settlement conferences in the past and defendant had refused to participate:

The express language of the condominium’s bylaws permitted the appointment of a receiver, without notice, to collect unpaid common charges in this foreclosure action. Further, the record demonstrates that while defendant, an owner of an apartment in the condominium, paid maintenance arrears after plaintiff board filed a notice of lien and commenced the action to foreclose on the lien, she still owed plaintiff for assessments, late fees and associated attorney’s fees. Accordingly, plaintiff was entitled to seek judgment for these fees, which constitute common charges under the bylaws… . We reject defendant’s claim that she was entitled to a mandatory mortgage foreclosure settlement conference, particularly since the court directed the parties to engage in settlement conferences to resolve this matter, and it appears that defendant, for the most part, refused to participate. Board of Mgrs. of St. James’s Tower Condominium v Kutler, 2017 NY Slip Op 03605, 1st Dept 5-4-17

FORECLOSURE (CONDOMINIUMS, DEFENDANT IN THIS CONDOMINIUM FORECLOSURE ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)/CIVIL PROCEDURE (FORECLOSURE, MANDATORY SETTLEMENT CONFERENCE, DEFENDANT IN THIS CONDOMINIUM FORECLOSURE ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)/CONDOMINIUMS (FORECLOSURE, MANDATORY FORECLOSURE SETTLEMENT CONFERENCE, DEFENDANT IN THIS CONDOMINIUM FORECLOSURE ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)

May 4, 2017

Attorneys, Legal Malpractice, Negligence

ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE.

The First Department, reversing Supreme Court, determined plaintiff had alleged a valid cause of action for legal malpractice. Plaintiff alleged defendants’ failure to refresh the eyewitness’s recollection of the appearance of the truck which fled the hit-and-run accident scene led to erroneous testimony by the witness and the loss of the case:

In this legal malpractice action, plaintiff, the victim of a hit-and-run accident, alleges that defendants, who represented him in the underlying personal injury action, were negligent in failing to prepare and present the testimony of the sole eyewitness; that defendants’ negligence caused a verdict against him; and that he sustained actual damages. Specifically, plaintiff alleges that, prior to the eyewitness’s deposition testimony two years after the accident, defendants failed to refresh the eyewitness’s memory by showing him the police record of a phone call he made shortly after the accident, in which he described the hit-and-run vehicle as a green garbage truck with a flat front. The eyewitness then testified to the contrary at his deposition, stating that the garbage truck he remembered fleeing the scene had a round front, not a flat front. Plaintiff alleges that but for defendants’ negligence in handling the key witness in his case, he would have prevailed, as the driver operated a green garbage truck with a flat front, and the driver had already admitted to a route that would have placed him at the scene on the day and time of the accident. These allegations are sufficient to survive a CPLR 3211(a)(1) and (7) motion to dismiss, as nothing in the record conclusively establishes a defense as a matter of law … . Caso v Miranda Sambursky Sloane Sklarin Ver Veniotis LLP, 2017 NY Slip Op 03607, 1st Dept 5-4-17

ATTORNEYS (LEGAL MALPRACTICE, ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE)/NEGLIGENCE (LEGAL MALPRACTICE, ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE)/LEGAL MALPRACTICE (ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE)

May 4, 2017

Contract Law

CONTRACT BETWEEN NYU AND A PHARMACEUTICAL COMPANY CONCERNING THE DEVELOPMENT OF A CANCER-INHIBITING DRUG IS AMBIGUOUS, NYU’S COMPLAINT SEEKING ROYALTIES SHOULD NOT HAVE BEEN DISMISSED.

The First Department, in a full-fledged opinion by Justice Andrias, over a two-justice dissenting opinion, reversing Supreme Court, determined the terms of a contract between New York University (NYU) and a pharmaceutical company were ambiguous. Therefore NYU’s complaint seeking royalties for its role in the development of a cancer-inhibiting drug should not have been dismissed. The language of the contract is too technical to fairly summarize here. New York Univ. v Pfizer Inc., 2017 NY Slip Op 03464, 1st Dept. 5-2-17

CONTACT LAW (CONTRACT BETWEEN NYU AND A PHARMACEUTICAL COMPANY CONCERNING THE DEVELOPMENT OF A CANCER-INHIBITING DRUG IS AMBIGUOUS, NYU’S COMPLAINT SEEKING ROYALTIES SHOULD NOT HAVE BEEN DISMISSED)/AMBIGUITY (CONTRACT LAW, CONTRACT BETWEEN NYU AND A PHARMACEUTICAL COMPANY CONCERNING THE DEVELOPMENT OF A CANCER-INHIBITING DRUG IS AMBIGUOUS, NYU’S COMPLAINT SEEKING ROYALTIES SHOULD NOT HAVE BEEN DISMISSED)

May 2, 2017

Appeals, Criminal Law

LOSS OF TRANSCRIPT OF LAST DAY OF BENCH TRIAL AND SENTENCING DID NOT PRECLUDE APPEAL.

The First Department determined the loss of the stenographic notes for the last day of the bench trial and sentencing did not preclude appeal:

Although the stenographic notes of the last day of the trial and the sentencing proceeding have been lost and no transcript is available for those dates, a reconstruction hearing sufficed to protect defendant’s right to appeal. The judge’s notes from the last day of trial, the prosecutor’s detailed outline of her summation and trial counsel’s affirmation, which were placed in the record at the hearing, provided an adequate basis to determine whether appealable issues existed … . The fact that this was a nonjury trial, where the factfinder is presumed to have disregarded prejudicial matter … , weighs strongly against the concern that the missing minutes may have revealed appealable issues. People v Zuniga, 2017 NY Slip Op 03264, 1st Dept 4-27-17

CRIMINAL LAW (LOSS OF TRANSCRIPT OF LAST DAY OF BENCH TRIAL AND SENTENCING DID NOT PRECLUDE APPEAL)/APPEAL (CRIMINAL LAW, LOSS OF TRANSCRIPT OF LAST DAY OF BENCH TRIAL AND SENTENCING DID NOT PRECLUDE APPEAL)/TRANSCRIPT (CRIMINAL LAW, APPEALS, LOSS OF TRANSCRIPT OF LAST DAY OF BENCH TRIAL AND SENTENCING DID NOT PRECLUDE APPEAL)

April 27, 2017

Mental Hygiene Law

15 MONTH DELAY IN ARTICLE 10 TRIAL DID NOT DEPRIVE RESPONDENT OF DUE PROCESS.

The First Department determined the 15-month delay in holding respondent sex-offender’s Article 10 trial did not deprive him of due process. The court explained that the statutory 60-day time limit for holding the trial did not require dismissal of the petition and further explained and applied the four-point due process analysis:

The 60-day deadline by which a trial “shall” be commenced, pursuant to Mental Hygiene Law § 10.07(a), is not a “strict time limit[]” … . As there is no clear legislative intent to make compliance with that time frame a prerequisite to continued jurisdiction … , the failure to commence a trial within 60 days does not mandate dismissal of the petition … . Article 10 of the Mental Hygiene Law (MHL) states repeatedly that failure to comply with various deadlines does not affect the validity of the petition or the various actions subject to those deadlines … . …

Respondent’s due process rights were not violated by the 15-month delay between his declaration of readiness for trial, after the probable cause determination, made upon his waiver of a probable cause hearing, and the start of the trial. Under the four-factor balancing test set forth in Barker v Wingo (407 US 514 [1972] … , the length of the delay may be considered presumptively prejudicial … . The second factor, the reason given for the delay (id. at 531), weighs only slightly against petitioner, because a considerable portion of the delay is attributable to respondent, the unavailability of the experts, and circumstances beyond petitioner’s control. …

The third Barker factor, respondent’s assertion of his rights (407 US at 531-532), weighs in respondent’s favor with respect to those adjournments to which he objected. However, his failure to retain any experts for, or to testify in, the article 10 proceedings, his consent to delays, his refusal to appear in court twice, and his engagement in abusive conduct directed against those associated with the proceeding suggest that respondent “did not desire an early judicial hearing” … . …

The fourth Barker factor, prejudice to respondent (407 US 532), weighs in petitioner’s favor. There was no oppressive pretrial incarceration, since respondent chose to be confined at Rikers Island, rather than at a secure mental health facility, during the proceedings … , and respondent’s ability to put on a defense was not affected by the delay. Matter of State of New York v Keith F., 2017 NY Slip Op 03276, 1st Dept 4-27-17

MENTAL HYGIENE LAW (SEX OFFENDERS, 15 MONTH DELAY IN ARTICLE 10 TRIAL DID NOT DEPRIVE RESPONDENT OF DUE PROCESS)/SEX OFFENDERS (MENTAL HYGIENE LAW, 15 MONTH DELAY IN ARTICLE 10 TRIAL DID NOT DEPRIVE RESPONDENT OF DUE PROCESS)

April 27, 2017

Negligence

INTERNAL RULE THAT BUS DRIVER MUST ASSIST PASSENGERS OFF THE BUS EXCEEDED THE STANDARD OF ORDINARY CARE AND THEREFORE COULD NOT BE THE BASIS FOR LIABILITY IN THIS SLIP AND FALL CASE.

The First Department determined defendant bus company’s motion for summary judgment in this slip and fall case was properly granted. Plaintiff alleged she slipped on an oily substance on the step of a bus. Plaintiff’s expert argued the handrails were inadequate, but the statutes and regulations cited related to buildings, not buses. Although the internal rules of defendant bus company required the driver to assist passengers off the bus, that rule exceeded the ordinary care standard and could not be the basis for liability. Ziman-Scheuer v Golden Touch Transp. of NY, Inc., 2017 NY Slip Op 03124, 1st Dept 4-25-17

NEGLIGENCE (INTERNAL RULE THAT BUS DRIVER MUST ASSIST PASSENGERS OFF THE BUS EXCEEDED THE STANDARD OF ORDINARY CARE AND THEREFORE COULD NOT BE THE BASIS FOR LIABILITY IN THIS SLIP AND FALL CASE)/SLIP AND FALL (BUSES, INTERNAL RULE THAT BUS DRIVER MUST ASSIST PASSENGERS OFF THE BUS EXCEEDED THE STANDARD OF ORDINARY CARE AND THEREFORE COULD NOT BE THE BASIS FOR LIABILITY IN THIS SLIP AND FALL CASE)/BUSES (SLIP AND FALL, INTERNAL RULE THAT BUS DRIVER MUST ASSIST PASSENGERS OFF THE BUS EXCEEDED THE STANDARD OF ORDINARY CARE AND THEREFORE COULD NOT BE THE BASIS FOR LIABILITY IN THIS SLIP AND FALL CASE)/STANDARD OF CARE (INTERNAL RULES, INTERNAL RULE THAT BUS DRIVER MUST ASSIST PASSENGERS OFF THE BUS EXCEEDED THE STANDARD OF ORDINARY CARE AND THEREFORE COULD NOT BE THE BASIS FOR LIABILITY IN THIS SLIP AND FALL CASE)/INTERNAL RULES (NEGLIGENCE, STANDARD OF CARE, INTERNAL RULE THAT BUS DRIVER MUST ASSIST PASSENGERS OFF THE BUS EXCEEDED THE STANDARD OF ORDINARY CARE AND THEREFORE COULD NOT BE THE BASIS FOR LIABILITY IN THIS SLIP AND FALL CASE)

April 25, 2017

Criminal Law

DEFENDANT NEVER ADMITTED THE PRIOR FELONY CONVICTION AND WAS NEVER PROPERLY NOTIFIED THE PRIOR CONVICTION WOULD BE USED AS A PREDICATE, RESENTENCING REQUIRED.

The First Department determined the flawed procedure leading to sentencing defendant as a second felony offender required remittal for resentencing:

… [D]efendant never admitted the prior felony conviction upon which his second violent felony adjudication was predicated, and the court never adjudicated defendant a second violent felony offender. Moreover, there is no record evidence that the predicate felony statement was filed prior to sentencing, as required by CPL 400.15(2) … . Further, the record does not reflect that defendant was given a copy of the predicate felony statement, as CPL 400.15(3) requires. Thus, the record is devoid of any indication that defendant received adequate notice that the prior felony conviction in question would be used as the basis for enhancement of his sentence or had an opportunity to be heard as to the validity of that conviction … . The brief, incidental, logistical comments made by Supreme Court, the clerk and the prosecutor in defendant’s presence during the plea proceedings concerning the existence of a predicate felony statement are insufficient to constitute substantial compliance with CPL 400.15 requirements … . People v Traylor, 2017 NY Slip Op 03111, 1st Dept 4-25-17

CRIMINAL LAW (DEFENDANT NEVER ADMITTED THE PRIOR FELONY CONVICTION AND WAS NEVER PROPERLY NOTIFIED THE PRIOR CONVICTION WOULD BE USED AS A PREDICATE, RESENTENCING REQUIRED)/SECOND FELONY ADJUDICATION (DEFENDANT NEVER ADMITTED THE PRIOR FELONY CONVICTION AND WAS NEVER PROPERLY NOTIFIED THE PRIOR CONVICTION WOULD BE USED AS A PREDICATE, RESENTENCING REQUIRED)