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CUSTODY AWARD REVERSED, FACTORS ERRONEOUSLY RELIED UPON BY FAMILY COURT EXPLAINED IN DETAIL. 

The First Department, reversing Family Court, determined mother, not father, should be awarded sole legal custody of the child:

The Family Court Judge presiding over the trial of this complex and long-running custody matter was clearly concerned with the child’s best interests and wrestled with concerns about the mother’s history of mental health issues, and the effect on the child of a “temporary” award of custody to the father, issued years prior to assignment of the case to the trial judge. However, a thorough review of the record does not provide a sound and substantial basis for the award of custody to the father, and requires an award of custody to the mother. * * *

In its award of custody to the father, the Family Court erred in several respects. First, it gave substantial weight to the fact that the father had temporary custody of the child for four years and nine months. This fact should not have been a basis, without more, for a final custody award. * * *

Secondly, the Family Court gave excessive weight to the parties’ financial circumstances, noting that their finances favored the father because the father works, and the mother is unemployed and receives Supplemental Security Income (SSI). * * *

Third, there is no support for the Family Court’s finding that the neutral forensic evaluator “made an initial superficial assessment of the parties at the commencement of his evaluative process, cast his lot with [the mother], and worked from that point to present his findings in her favor.” * * *

Fourth, Family Court’s concern about the mother’s mental health history is understandable, but its conclusions disregard crucial evidence and its determination is not in the child’s best interests. In March 2015, when the trial was completed, the mother was in remission, had not been hospitalized since November 2010, and, in the five years since then, had been compliant with treatment by her psychiatrist and therapist. * * *

Fifth, [the child’s]  close relationship to her siblings, all of whom reside with her mother, also weighs in favor of awarding custody to the mother, since “the stability and companionship to be gained from keeping the children together is an important factor for the court to consider” in making a custody determination …, because “[y]oung brothers and sisters need each other’s strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful” … . …

Finally, Family Court improperly considered this a relocation case, governed by Matter of Tropea v Tropea (87 NY2d 727, 740-741 [1996]). However, since there has been no prior custody order, Tropea does not govern, and relocation should have been considered as one factor in determining the child’s best interests … . Matter of Michael B. (Lillian B.), 2016 NY Slip Op 08101, 1st Dept 12-1-16

 

FAMILY LAW (CUSTODY AWARD REVERSED, FACTORS ERRONEOUSLY RELIED UPON BY FAMILY COURT EXPLAINED IN DETAIL)/CUSTODY (CUSTODY AWARD REVERSED, FACTORS ERRONEOUSLY RELIED UPON BY FAMILY COURT EXPLAINED IN DETAIL)

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COUNTERCLAIMS ALLEGING ENTITLEMENT TO A NONDISCRETIONARY BONUS PRECLUDED BY TERMS OF EMPLOYEE HANDBOOK.

The First Department, over an extensive dissent, determined the terms of the employee handbook, signed by the plaintiff, precluded counterclaims alleging an oral promise to pay an annual bonus:

The operative employee handbook stating, inter alia, that bonuses were paid at the sole discretion of plaintiff, and the acknowledgment of the handbook’s terms signed by defendant, conclusively refute the counterclaims based on the alleged oral promise to pay an annual nondiscretionary bonus … .

Nor was the discretionary bonus policy modified by the alleged oral agreement. As defendant’s acknowledgment makes clear, “[N]o supervisor, manager or other representative of [plaintiff] has the authority to make any verbal promises, commitments, or statements of any kind regarding the Company’s policies, procedures, or any other issues that are legally binding on the Company.”

The quasi-contractual counterclaims based on the alleged agreement are likewise precluded by the discretionary bonus policy … .

The alleged oral promise to pay acquisition proceeds, however, was not established to be a “bonus” within the scope of the discretionary bonus policy. The complaint alleges that the promised payment was not performance-based, but was an inducement to keep defendant from quitting … . The breach of contract counterclaim based on this alleged promise is nonetheless barred because the promise was not in writing, as required by the broad language of the acknowledgment … .

The quasi-contractual counterclaims, to the extent predicated on an alleged agreement to pay acquisition proceeds, likewise fail. Such claims require an element of reasonable reliance on a promise, a reasonable expectation of compensation, or an inequity, all of which are negated where, as here, the plaintiff receives adequate compensation and signed a written acknowledgment confirming the fact that no representative of plaintiff had authority to make legally binding verbal promises … . Newmark & Co. Real Estate, Inc. v Frischer, 2016 NY Slip Op 08100, 1st Dept 12-1-16

EMPLOYMENT LAW (COUNTERCLAIMS ALLEGING ENTITLEMENT TO A NONDISCRETIONARY BONUS PRECLUDED BY TERMS OF EMPLOYEE HANDBOOK)/CONTRACT LAW (EMPLOYMENT LAW, COUNTERCLAIMS ALLEGING ENTITLEMENT TO A NONDISCRETIONARY BONUS PRECLUDED BY TERMS OF EMPLOYEE HANDBOOK)/BONUSES (EMPLOYMENT LAW, COUNTERCLAIMS ALLEGING ENTITLEMENT TO A NONDISCRETIONARY BONUS PRECLUDED BY TERMS OF EMPLOYEE HANDBOOK)

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FALL FROM SCAFFOLD WITH NO SIDE RAILS ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED.

LABOR LAW-CONSTRUCTION LAW, CIVIL PROCEDURE, EVIDENCE.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff fell from a Baker’s scaffold that had no side rails. Although hearsay can be submitted in opposition to a summary judgment motion, the motion will not be defeated by hearsay alone (the case here). The court noted that the plaintiff’s unsigned deposition transcript was properly considered because it was certified by the reporter, its accuracy was not challenged by the defendant, and plaintiff adopted it as accurate by submitting it:

Plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim where he fell from a six-foot-high Baker’s scaffold, which he was directed to use in order to plaster a ceiling. The record shows that the scaffold “had no side rails, and no other protective device was provided to protect him from falling off the sides” … . …

… [T]he statement in the affidavit of [defendant’s] owner that a subcontractor had assured him that the subcontractor had instructed all his employees to use the lifeline, belt and harness is insufficient raise a triable issue of fact as to whether plaintiff may be the sole proximate cause for disregarding such an instruction … . While hearsay may be considered in opposition to defeat a summary judgment motion if it is not the only evidence upon which opposition to the motion is predicated, because it was the only evidence establishing that plaintiff disregarded an instruction to use the safety devices, it is insufficient to defeat plaintiff’s motion … . Chong v 457 W. 22nd St. Tenants Corp., 2016 NY Slip Op 07997, 1st Dept 11-29-16

 

LABOR LAW-CONSTRUCTION LAW (FALL FROM SCAFFOLD WITH NO SIDE RAILS ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)/CIVIL PROCEDURE (HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)/EVIDENCE (HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)/SCAFFOLDS (FALL FROM SCAFFOLD WITH NO SIDE RAILS ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)/SUMMARY JUDGMENT (HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)

SCAFFOLD DID NOT HAVE A SAFETY RAILING, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON 240 (1) CAUSE OF ACTION.

The First Department determined plaintiff was properly awarded summary judgment in this Labor Law 240(1) action. Plaintiff fell from a scaffold which did not have safety railings. Any comparative negligence on plaintiff’s part (not locking the wheels) was irrelevant:

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law § 240(1) claim by presenting undisputed evidence that he “fell off a scaffold without guardrails that would have prevented his fall” … . Plaintiff’s alleged “failure to use the locking wheel devices and his movement of the scaffold while standing on it” were at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Celaj v Cornell, 2016 NY Slip Op 07996, 1st Dept 11-29-16

LABOR LAW-CONSTRUCTION LAW (SCAFFOLD DID NOT HAVE A SAFETY RAILING, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON 240 (1) CAUSE OF ACTION)/SCAFFOLDS (SCAFFOLD DID NOT HAVE A SAFETY RAILING, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON 240 (1) CAUSE OF ACTION)

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MISREPRESENTATION CAUSE OF ACTION AGAINST BEAR STEARNS RE COLLATERALIZED DEBT OBLIGATIONS AND RESIDENTIAL MORTGAGE-BACKED SECURITIES SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE.

The First Department, in a full-fledged opinion by Justice Richter, determined (1) plaintiff’s misrepresentation cause of action was properly dismissed because of a lack of specificity in the allegations, (2) the cause of action should not have been dismissed with prejudice, (3) and the specificity provided in the appellate briefs may support an amended complaint. Plaintiff, a stock insurance company, alleged it was induced to insure collateralized debt obligations (CDO’s) by misrepresentations made by Bear Stearns:

[P]laintiff CIFG Assurance North America, Inc., a stock insurance company, alleges that Bear Stearns & Co. Inc., a predecessor of defendant J.P. Morgan Securities LLC, made material misrepresentations that induced CIFG to provide financial guaranty insurance in connection with two collateralized debt obligations (CDOs). According to CIFG, Bear Stearns had on its books a large number of high-risk residential mortgage-backed securities (RMBSs), and embarked on a scheme to rid itself of these toxic assets by offloading them into the two CDOs, and marketing the CDOs’ securities to investors. * * *

… [T]he claim should not have been dismissed with prejudice, but rather, CIFG should be given the opportunity to replead. A request for leave to amend a complaint should be “freely given, and denied only if there is prejudice or surprise resulting directly from the delay, or if the proposed amendment is palpably improper or insufficient as a matter of law” … . CIFG Assur. N. Am., Inc. v J.P. Morgan Sec. LLC, 2016 NY Slip Op 08029, 1st Dept 11-29-16

 

INSURANCE LAW (STOCK INSURANCE, MISREPRESENTATION CAUSE OF ACTION AGAINST BEAR STEARNS RE COLLATERALIZED DEBT OBLIGATIONS AND RESIDENTIAL MORTGAGE-BACKED SECURITIES SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE)/SECURITIESMISREPRESENTATION CAUSE OF ACTION AGAINST BEAR STEARNS RE COLLATERALIZED DEBT OBLIGATIONS AND RESIDENTIAL MORTGAGE-BACKED SECURITIES SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE/FRAUD (MISREPRESENTATION CAUSE OF ACTION AGAINST BEAR STEARNS RE COLLATERALIZED DEBT OBLIGATIONS AND RESIDENTIAL MORTGAGE-BACKED SECURITIES SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE)/COLLATERALIZED DEBT OBLIGATIONS (MISREPRESENTATION CAUSE OF ACTION AGAINST BEAR STEARNS RE COLLATERALIZED DEBT OBLIGATIONS AND RESIDENTIAL MORTGAGE-BACKED SECURITIES SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE)/RESIDENTIAL MORTGAGE-BACKED SECURITIES  (MISREPRESENTATION CAUSE OF ACTION AGAINST BEAR STEARNS RE COLLATERALIZED DEBT OBLIGATIONS AND RESIDENTIAL MORTGAGE-BACKED SECURITIES SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE)

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ALLOWING IN EVIDENCE INTERNAL RULES WHICH IMPOSED A HIGHER STANDARD OF CARE THAN REQUIRED BY THE COMMON LAW WAS REVERSIBLE ERROR. 

The First Department determined a new liability trial was necessary in a personal injury case because of erroneous evidentiary rulings. The trial court allowed into evidence internal rules (apparently dealing with the operation of a subway train) which imposed a higher standard of care than that required by the common law:

The court erred in admitting into evidence portions of defendant’s internal rules, which imposed a higher standard of care than required by common law … . Moreover, the prejudice to defendant was heightened by plaintiff’s expert’s reading of those internal rules to the jury.

The court also erred in allowing plaintiff’s counsel to question defendant’s train operator about his discussions with counsel. Sebhat v MTA N.Y. City Tr., 2016 NY Slip Op 07872, 1st Dept 11-22-16

 

NEGLIGENCE (ALLOWING IN EVIDENCE INTERNAL RULES WHICH IMPOSED A HIGHER STANDARD OF CARE THAN REQUIRED BY THE COMMON LAW WAS REVERSIBLE ERROR)/EVIDENCE (NEGLIGENCE, ALLOWING IN EVIDENCE INTERNAL RULES WHICH IMPOSED A HIGHER STANDARD OF CARE THAN REQUIRED BY THE COMMON LAW WAS REVERSIBLE ERROR)/STANDARD OF CARE (ALLOWING IN EVIDENCE INTERNAL RULES WHICH IMPOSED A HIGHER STANDARD OF CARE THAN REQUIRED BY THE COMMON LAW WAS REVERSIBLE ERROR)

PLAINTIFF COULD NOT IDENTIFY CAUSE OF THE FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT.

The First Department determined defendants’ motion for summary judgment in this sidewalk slip and fall case was properly granted. Plaintiff could not identify the cause of the fall and any defect that might have existed was deemed trivial:

Defendants established prima facie that any defect in the sidewalk that allegedly caused plaintiff to trip and fall was insignificant and that there were no surrounding circumstances that magnified the dangers it posed … . They submitted plaintiff’s testimony that he could not describe the characteristics of the alleged defect or specify exactly where on the sidewalk he fell, and an affidavit by an expert who took photographs and measured the area and found no defect presenting an elevation differential of more than one quarter inch and no space between sidewalk slabs greater than one half inch. Contrary to plaintiff’s contention, the fact that the photographs were taken and the inspection performed almost two years after the accident is immaterial. Defendants submitted testimony that there had been no repairs to the sidewalk since the accident, and plaintiff does not argue that the photographs do not show the sidewalk in substantially the same condition as existed at the time of the accident.

In opposition, plaintiff failed to raise a triable issue of fact. He was unable to describe the defect, except to say that it was not wide and it was not deep, and he cites no surrounding circumstances that enhanced the danger. Nor did he offer any measurements of the alleged defects in the area of his fall in refutation of defendants’ expert’s measurements. Saab v CVS Caremark Corp., 2016 NY Slip Op 07763, 1st Dept 11-17-16

NEGLIGENCE (PLAINTIFF COULD NOT IDENTIFY CAUSE OF FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT)/SLIP AND FALL (PLAINTIFF COULD NOT IDENTIFY CAUSE OF FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT)/SIDEWALKS (SLIP AND FALL, PLAINTIFF COULD NOT IDENTIFY CAUSE OF FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT)/TRIVIAL DEFECTS (PLAINTIFF COULD NOT IDENTIFY CAUSE OF FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT)

FALL OFF BACK OF FLATBED TRUCK WARRANTED SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION.

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was knocked off the back of a flatbed truck. The Labor Law 241(6) cause of action was properly dismissed (no sufficiently specific industrial code regulation applied). And defendants’ control over the injury-producing work was insufficient to support the Labor Law 200 cause of action:

The injured plaintiff testified that a metal beam, while being placed on a flatbed truck, fell off the blades of a forklift, slamming plaintiff’s foot and causing him to fall off the truck. This unrefuted testimony established prima facie that “plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” and therefore that liability exists under Labor Law § 240(1) … . The cases that defendants rely on are inapposite, since they involve not objects falling on or toward workers on flatbeds but workers falling from flatbeds, implicating only the adequacy of safety devices for falling workers, which is not at issue here … .

Nor was plaintiff the sole proximate cause of his injuries since the injuries “were caused at least in part by the lack of safety devices to check the beam’s descent as well as the manner in which [his coworker] lowered the beam” … . McLean v Tishman Constr. Corp., 2016 NY Slip Op 07754, 1st Dept 11-17-16

LABOR LAW-CONSTRUCTION LAW (FALL OFF BACK OF FLATBED TRUCK WARRANTED SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION)/FLATBED TRUCK (LABOR LAW, (FALL OFF BACK OF FLATBED TRUCK WARRANTED SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION)

APPELLANT PROPERLY FOUND TO BE A PERSON LEGALLY RESPONSIBLE FOR THE CHILD, CRITERIA EXPLAINED.

The First Department, affirming a neglect finding, explained that appellant was properly found to be “a person legally responsible for the subject child:”

A person legally responsible for a child is defined as the child’s “custodian, guardian, or any other person responsible for the child’s care at the relevant time.” A “[c]ustodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the . . . neglect of the child” (Family Ct Act § 1012[g]). A person who “acts as the functional equivalent of a parent in a familial or household setting” is a person legally responsible for a child’s care … .

The determination of whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the circumstances in each case. Factors to be considered include the frequency and nature of the contact, the nature and extent of the control exercised by appellant over the child’s environment, the duration of appellant’s contact with the child, and appellant’s relationship with the child’s parent … .

Appellant testified that he cared for the younger children every work day by taking them to school and picking them up, preparing meals, cleaning the home, preparing the children’s clothing, grocery shopping, and providing financial assistance to the household. The school social worker and appellant both testified that M.W. lived in the home in September 2014, when the incident took place. Although appellant later changed his testimony concerning her residence, the court properly credited his initial statement and found that he was a person legally responsible for M.W. Given her age, she did not require the same hands-on care as the younger children, but his testimony reflected that he contributed to the functioning of the household of which she was a part and had frequent regular contact with her … . Matter of Keniya G. (Avery P.), 2016 NY Slip Op 07752, 1st Dept 11-17-16

 

FAMILY LAW (APPELLANT PROPERLY FOUND TO BE A PERSON LEGALLY RESPONSIBLE FOR THE CHILD, CRITERIA EXPLAINED)/NEGLECT (APPELLANT PROPERLY FOUND TO BE A PERSON LEGALLY RESPONSIBLE FOR THE CHILD, CRITERIA EXPLAINED)/PERSON LEGALLY RESPONSIBLE FOR CHILD (FAMILY LAW, NEGLECT, APPELLANT PROPERLY FOUND TO BE A PERSON LEGALLY RESPONSIBLE FOR THE CHILD, CRITERIA EXPLAINED)

PAUCITY OF INFORMATION PROVIDED TO DEFENDANT CONCERNING THE BASIS FOR HER ARREST WARRANTED A SUPPRESSION HEARING DESPITE THE CONCLUSORY ALLEGATIONS IN THE MOTION TO SUPPRESS.

The First Department determined the conclusory allegations in defendant’s motion to suppress were sufficient, under the circumstances, to warrant a suppression hearing:

In People v Wynn (117 AD3d 487 [1st Dept 2014]), we held that the court erred in summarily denying the motion of defendant’s codefendant to suppress statements and physical evidence as the fruits of an unlawful arrest, notwithstanding the conclusory nature of the factual allegations in her suppression motion, where “[a]lthough the People provided defendant with extensive information about the facts of the crime and the proof to be offered at trial, they provided no information whatsoever, at any stage of the proceedings, about how defendant came to be a suspect, and the basis for her arrest, made hours after the crime at a different location” (id. at 487-488). Because the factual allegations in the People’s pleadings and relevant disclosures were materially the same in this case, we conclude that defendant’s motion to suppress, although it asserted nothing more than that probable cause was lacking, was sufficient under the circumstances to entitle him to a hearing. Unlike the situation in People v Lopez (5 NY3d 753, 754 [2005]), defendant’s statement did not “on its face show[] probable cause for defendant’s arrest.” People v Terry, 2016 NY Slip Op 07751, 1st Dept 11-17-16

CRIMINAL LAW (PAUCITY OF INFORMATION PROVIDED TO DEFENDANT CONCERNING THE BASIS FOR HER ARREST WARRANTED A SUPPRESSION HEARING DESPITE THE CONCLUSORY ALLEGATIONS IN THE MOTION TO SUPPRESS)/SUPPRESS, MOTION TO (STATEMENTS, PAUCITY OF INFORMATION PROVIDED TO DEFENDANT CONCERNING THE BASIS FOR HER ARREST WARRANTED A SUPPRESSION HEARING DESPITE THE CONCLUSORY ALLEGATIONS IN THE MOTION TO SUPPRESS)

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