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Facts Did Not Support Family Court’s Dismissal of a Petition to Terminate Parental Rights of Both Parents—Permanent Neglect Finding Was Warranted by the Facts

The First Department reversed Family Court, based on the appellate division’s own findings of fact, and found that neither parent had made realistic plans for the child’s future, constituting clear and convincing evidence of permanent neglect:

There is no dispute that the agency has met the threshold requirement in a permanent neglect proceeding of showing it discharged its statutory obligation to exert diligent efforts to encourage and strengthen the parental relationships (see Social Services Law § 384-b[7][a]…). However, contrary to the findings by Family Court, there is clear and convincing evidence, the standard of proof required …, that despite the agency’s diligence, neither parent has, “for a period of either at least one year or fifteen out of the most recent twenty-two months following the date [the] child came into the care of an authorized agency,” shown sufficient planning for the child’s future, as described in the Social Services Law, to warrant continuing parental rights (see Social Services Law § 384-b[7][a]…).

Planning for the future of the child under the Social Services Law requires that the parent take “necessary [steps] to provide an adequate, stable home and parental care for the child within a period of time which is reasonable”; at the very least, the parent must take steps to “correct the conditions” that resulted in the initial removal of the child from the home … . Matter of Selvin Adoph F v Thelma Lynn F, 2014 NY Slip Op 03432, 1st Dept 5-13-14

 

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Release Time Certificates, Allowing Full Pay for Police Officers Doing Union Work, Properly Rescinded Based Upon the Indictment of the Officers

The First Department, in a full-fledged opinion by Justice Andrias, over a two-justice dissent, determined that police officers who were indicted in connection with a ticket-fixing scheme were properly denied Release Time certificates based upon the indictments.  Release Time certificates are issued by the Office of Labor Relations (OLR) pursuant to the Mayor’s Executive Order 75 (EO 75) and allow full-time leave with pay and benefits for union work:

The right of union-designated employees to be released from their job duties to perform union or joint labor-management activities is established in EO 75, which generally vests the City with broad oversight of employee representatives. Section 4(4) of EO 75 provides:

“Organizing, planning, directing, or participating in any way in strikes, work stoppages, or job actions of any kind, are excluded from the protection or coverage of this Order. Any employees assigned on a full or part-time basis or granted leave of absence without pay pursuant to this Order who participate in such excluded activity may have such status suspended or terminated by the City Director of Labor Relations.”

Section 4(10) provides: “Employees assigned on a full-time or part-time basis or granted leave without pay pursuant to this Order shall at all times conduct themselves in a responsible manner.” Section 5 provides that “[n]othing contained in this Order shall be deemed to have the effect of changing the character of any subject matter hereof which is a managerial prerogative and as a non-mandatory subject of collective bargaining.”

Enforcement of EO 75 is committed to the OLR Commissioner, who may issue implementing rules and regulations. The indictments of the individual petitioners on charges related to a ticket-fixing scheme that include allegations of grand larceny, official misconduct, tampering with public records, and criminal solicitation constitute a sufficient basis for the City to determine that the individual petitioners did not “at all times conduct themselves in a responsible manner” … . Accordingly, OLR was entitled to unilaterally rescind the Release Time certificates. Matter of Patrolmen’s Benevolent Assn of the City of New York Inc v City of New York, 2014 NY Slip Op 03464, 1st Dept 5-13-14

 

Question of Fact Whether Elevator Company Had Constructive Notice of “Misleveling Condition”/Question of Fact About Applicability of Res Ipsa Loquitur Doctrine

The First Department determined questions of fact had been raised about whether an elevator company, which exclusively maintained and repaired the elevator, had constructive notice of the “misleveling condition.”  In addition there was a question of fact about the applicability of the res ipsa loquitur doctrine:

An elevator company that agrees to maintain an elevator may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found … .

Plaintiffs raised a triable issue of fact as to whether defendants had constructive notice of the misleveling condition or with reasonable care could have discovered and corrected the condition, by submitting the affidavit of their expert, who reviewed defendants’ repair tickets and concluded that they revealed conditions related to the elevator’s leveling function. * * *

Issues of fact exist as to whether the doctrine of res ipsa loquitur applies here. The expert testimony conflicts as to whether the misleveling of the elevator would not ordinarily occur in the absence of negligence. It is, however, undisputed that defendants were exclusively responsible for maintenance and repair of the elevator, and the record is devoid of any evidence that plaintiff contributed to its misleveling… . McLaughlin v Thyssen Dover El Co, 2014 NY Slip Op 03440, 1st Dept 5-13-14

 

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Family Court Should Not Have Denied Father’s Request for Son’s Mental Health Records Without an In Camera Review

The First Department determined Family Court should not have denied father’s request for his son’s mental health records without first conducting and in camera review of the records and applying a balancing test required by Family Court Act section 1038 (d). There was no evidence of the alleged abuse except the child’s testimony, so the child’s credibility was the central issue:

Respondent father moved to subpoena the eldest child’s (the child) mental health treatment records. The Family Court, without conducting an in camera review of the requested records, denied the motion. Pursuant to Family Court Act (FCA) § 1038(d), the court must conduct a balancing test … . The statute requires that the court weigh “the need of the [moving] party for the discovery to assist in the preparation of the case” against “any potential harm to the child [arising] from the discovery.” Here, the Family Court should have reviewed the child’s mental health records in camera to determine if the records are relevant to the central issue of the child’s credibility before making its disclosure ruling.

The record contains no physical evidence of the alleged abuse and the case against respondent relies almost entirely on the credibility of the child, placing a great amount of weight on the child’s testimony… . Matter of Dean T Jr (Dean T Sr), 2014 NY Slip Op 03430, 1st Dept 5-13-14

 

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Church’s Decision to Terminate Minister Constitutionally Protected Under “Ministerial Exception”

The First Department determined a minister who brought a wrongful termination action was, according to the terms of the personnel manual, an at will employee.  In addition the claim was barred by the ministerial exception under which a church’s decisions concerning the employment of a minister are constitutionally protected:

…[T]he ministerial exception also bars plaintiff’s claim, which primarily involves intra-church matters. “Under the ministerial exception’ …, a church’s decision to hire, to fire, and to prescribe the duties of its minister are commonly held to be constitutionally protected” … . Mills v Standing Gen Commn on Christian Unity & Interreligious Concerns, 2014 NY Slip Op 03437, 1st Dept 5-13-14

 

Detective’s Strongly Urging Defendant to Make a Statement Did Not Render Statement Involuntary

The First Department determined the detective’s urging defendant to make a statement did not render defendant’s statement involuntary:

…[P]rior to administering Miranda warnings, for a period of approximately 20 minutes, [the detective] urged defendant to talk to the police and “gave him several reasons why he should.” The detective properly conveyed to defendant that he knew defendant was involved in the crime, stating “point blank” that the evidence against defendant was strong, including videotape and eyewitness evidence. He urged defendant to take advantage of “your chance” to speak before the other suspects implicated him … . The detective also told defendant that cooperation could be beneficial and that the detective would “call the D.A.” once defendant “put down” his story. After defendant indicated that he wanted to talk, he was read his Miranda rights, waived them, and proceeded to make several written statement and one videotaped statement.There is nothing in the record to indicate that defendant’s will was overborne or that the detective’s preliminary remarks tricked, cajoled or threatened him into waiving his Miranda rights. People v Rutledge, 2014 NY Slip Op 02885, 1st Dept 4-29-14

 

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Demand for Jury Trial Properly Struck/Rescission Was Core of Action and Counterclaim

In a detailed opinion by Justice Moskowitz, the First Department methodically went through the issues raised in a trial stemming from the breakdown of a partnership including breach of fiduciary duty, tortious interference with contract and unjust enrichment. In the course of the opinion, the court noted that inclusion of a cause of action and counterclaim for rescission constituted a waiver of a jury trial:

Defendants next assert that the trial court improperly struck their jury demand in Action 1. This argument has no merit. Because defendants’ demand for the equitable remedy of rescission in Action 2 was not “incidental” to that action, and their demand for rescission was not “incidental” to their counterclaims in Action 1, defendants effectively waived their right to a jury trial by joining those demands with claims for legal relief … . In addition, defendants argued that rescission of the partnership’s license agreements … was “the core” of their claims in both actions, and defendants all asserted, as part of their Action 1 counterclaims, that they had “no adequate remedy at law.” New Media Holding Co LLC v Kagalovsky, 2014 NY Slip Op 02888, 1st Dept 4-29-14

 

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Question of Fact About Property Owner’s Constructive Notice of Lead Paint/Tenant by the Entirety Could Be Vicariously Liable

The First Department determined questions of fact had been raised about whether defendant property owner, Robert Dvorak, had constructive notice of lead paint on the premises.  The court noted that the complaint should not have been dismissed against Diane Dvorak who also owned the property as a tenant by the entirety:

The motion court correctly found that plaintiffs raised questions of fact as to whether Robert A. Dvorak had constructive notice of lead-based paint in the Babylon premises, since they presented evidence that he entered the premises, made repairs, knew that the building was constructed before the banning of lead-based interior paint, was aware that paint was peeling on the premises, knew of the hazards of lead-based paint to young children, and knew that a young child lived in the house …. .The motion court should not have granted summary judgment to Diane L. Dvorak, since, as a tenant by the entirety with her husband Robert, she may be held vicariously liable for his actions toward the property… . Rivera v Neighborhood Partnership Hous Dev Fund Co Inc, 2014 NY Slip Op 02873, 1st Dept 3-29-14

 

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Quantum Meruit and Unjust Enrichment Causes of Action Should Not Have Been Dismissed

The First Department reversed Supreme Court and found plaintiff had sufficiently pled the causes of action for quantum meruit and unjust enrichment.  Plaintiff lived with and took care of an elderly woman for six years, an obligation undertaken by the defendant.  Although plaintiff was given room and board, as well as health insurance, by the defendant, she was never paid for her work.  The suit was based upon plaintiff’s allegation that defendant had promised to compensate her. The Supreme Court found the “compensation-promise” allegation incredible because plaintiff worked for six years without pay. The First Department noted that whether the “compensation-promise” allegation was credible was solely a matter for the jury.  The court explained the elements of quantum meruit and unjust enrichment:

Generally, under the doctrine of quantum meruit, “the performance and acceptance of services gives rise to the inference of an implied contract to pay for the reasonable value of such services” … . To state a cause of action for quantum meruit, plaintiff must allege “(l) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services” … .

Allegations that plaintiff provided personal services in good faith … on behalf of defendant … are sufficient. Similarly, plaintiff has sufficiently alleged the element of acceptance via allegations that defendant, inter alia, placed her on … group insurance, filed tax returns on her behalf, and submitted visa applications in which she represented that plaintiff was an employee … . * * *

Similarly, plaintiff has sufficiently alleged, at this juncture, that defendant … was unjustly enriched at her expense. To state a cause of action for unjust enrichment, a plaintiff must demonstrate “that (1) defendant was enriched, (2) at plaintiff’s expense, and (3) that it is against equity and good conscience to permit [] defendant to retain what is sought to be recovered” … . A person may be unjustly enriched not only where she receives money or property, but also where she otherwise receives a benefit … . Such a benefit may be conferred where the person’s debt is satisfied or where she is otherwise saved expense or loss … .

* * * The fact that plaintiff may have been compensated, in part, by room and board and health insurance, is not dispositive on the question of whether she received adequate compensation for her services, and does not bar the claim at the pleading stage … . Farina v Bastianich, 2014 NY Slip Op 02661, 1st Dept 4-17-14

 

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Dissolved Corporation Amenable to Suit Under New Jersey Law/Substitute Service Upon Insurer of Dissolved Corporation Proper

In an asbestos case, the First Department determined that, under New Jersey law, a dissolved corporation (Jenkins Bros.) was still amenable to suit for pre-dissolution actions, and service of process upon the insurer was appropriate where service on the dissolved corporation was not possible:

In this action for personal injuries allegedly due to asbestos exposure while plaintiffs were employed by Jenkins Bros., a dissolved New Jersey corporation, appellant insurance company, Jenkins’ liability insurer during the relevant time periods, maintains that Jenkins is not amenable to suit based on its bankruptcy and subsequent dissolution. The plain language of the New Jersey dissolution statute, which governs here, provides for a corporation that has been dissolved to “sue and be sued in its corporation name . . . ” (NJSA § 14A:12-9[2]), and the statute places no restriction on how long a dissolved corporation maintains its capacity to be sued for its tortious conduct committed pre-dissolution … . Thus, contrary to appellant’s argument, Jenkins Bros. is amenable to suit pursuant to the laws of the state of its incorporation … .

The motion court properly directed that substituted service be made on appellant. It is undisputed that service was attempted at multiple corporate addresses, to no avail, and that plaintiffs were only able to locate two former corporate representatives. Accordingly, substituted service on the insurer is proper and does not violate due process …. Appellant accepted premiums from Jenkins and agreed to defend and indemnify Jenkins for tortious conduct committed during the coverage periods. This coverage includes liability for conduct that may have led to injuries such as asbestos disease which carries a long latency period between exposure and manifestation of disease … . Matter of New York City Asbestos Litig, 2014 NY Slip Op 02686, 1st Dept 4-17-14

 

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