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SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, SEARCHED THE RECORD AND ISSUED A DECLARATORY JUDGMENT ALLOWING PLANTIFFS TO PAVE AN EASEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined Supreme Court should not have, sua sponte, searched the record and issued a declaratory judgment allowing plaintiffs to pave an easement and further should not have granted defendant’s motion for summary judgment. Plaintiffs have an easement which allows access to their driveway. Plaintiffs alleged the easement needed to be paved because their vehicle would hit bottom crossing it:

A party’s right of passage over an easement carries with it the ” right to maintain it in a reasonable condition for such use’ “… . The right to repair and maintain an easement includes “the right to carry out work as necessary to reasonably permit the passage of vehicles and, in so doing, to not only remove impediments but supply deficiencies in order to construct [or repair] a suitable road’ “… . The right to repair and maintain, however, is “limited to those actions necessary to effectuate the express purpose of [the] easement’ ” … , and thus the work performed must not “materially increase the burden of the servient estate[] or impose new and additional burdens on the servient estate[]” … . Relatedly, the servient landowner has a “corresponding right[] to have the natural condition of the terrain preserved, as nearly as possible’ . . . and to insist that the easement enjoyed shall remain substantially as it was at the time it accrued, regardless of whether benefit or damage will result from a proposed change’ ” … . …

Defendant contends on his appeal that the court erred in searching the record and entering a declaratory judgment in plaintiffs’ favor. We agree. As an initial matter, although plaintiffs did not seek declaratory relief, the court has the authority to “grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just” (CPLR 3017 [a]…). We conclude, however, that the declaration was not appropriate given the evidence presented here. Tarsel v Trombino, 2018 NY Slip Op 08779, Fourth Dept 12-21-18

 

PURELY CONCLUSORY ALLEGATIONS IN A COMPLAINT WILL NOT SURVIVE A PRE-ANSWER MOTION TO DISMISS (FOURTH DEPT).

The Fourth Department, in determining a negligent training and supervision cause of action was properly dismissed, noted that purely conclusory allegations in a complaint will not survive a pre-answer motion to dismiss:

We reject plaintiffs’ contention that the court erred in dismissing the third cause of action, alleging negligent training and supervision. We are cognizant of our duty on a motion to dismiss to “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” .. , and that the issue ” [w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss’ ” … . Nevertheless, although “it is axiomatic that a court must assume the truth of the complaint’s allegations, such an assumption must fail where there are conclusory allegations lacking factual support . . . Indeed, a cause of action cannot be predicated solely on mere conclusory statements . . . unsupported by factual allegations”… . Here, the only factual allegations in the third cause of action concern the actions of other defendants not involved in this appeal; therefore, plaintiffs’ conclusory allegations with respect to defendants fail to state a valid cause of action for negligent training and supervision against them … . Bratge v Simons, 2018 NY Slip Op 08778, Fourth Dept 12-21-18

 

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INFANT PLAINTIFF WAS ALLEGEDLY SEXUALLY ABUSED BY ANOTHER STUDENT ON A PRIVATE BUS TAKING THE CHILD HOME FROM SCHOOL, CERTAIN NEGLIGENCE CAUSES OF ACTION AGAINST THE SCHOOL SURVIVED A PRE-ANSWER MOTION TO DISMISS, NEGLIGENT SUPERVISION, HIRING AND TRAINING CAUSES OF ACTION DISMISSED BECAUSE THE EMPLOYEES WERE ALLEGED TO HAVE BEEN ACTING WITHIN THE SCOPE OF EMPLOYMENT, TWO DISSENTING JUSTICES ARGUED THE STUDENT WAS NO LONGER IN THE CUSTODY AND CONTROL OF THE SCHOOL WHEN THE ABUSE OCCURRED ON THE BUS (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined certain negligence causes of action against the school properly survived a pre-answer motion to dismiss. Infant plaintiff, a special needs student, was allegedly sexually abused by another student on a private bus which provided transportation from the school under a contract with the city. All the justices agreed that the negligent hiring, supervision and training causes of action were properly dismissed because the relevant employees were alleged to have been acting within the scope of their employment, rendering the employer liable under the doctrine of respondeat superior. The dissenters argued that the child was no longer in the custody of the school when the child was on the private bus:

From the Dissent: “[A] school has a duty of care while children are in its physical custody or orbit of authority” (Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 378 [1995]), which generally “does not extend beyond school premises”… . A school continues to have a duty of care to a child released from its physical custody or orbit of authority only under certain narrow circumstances, specifically, where the school “releases a child without further supervision into a foreseeably hazardous setting it had a hand in creating” (Ernest v Red Cr. Cent. Sch. Dist., 93 NY2d 664, 672 [1999], rearg denied 93 NY2d 1042 [1999]… ).

In determining that the sixth, ninth, twelfth, thirteenth, and fourteenth causes of action adequately set forth a cognizable theory of negligence, the majority effectively ignores the language in Ernest limiting a school’s duty of care to instances where “it releases a child without further supervision”… . Those circumstances do not exist here inasmuch as the child was released to the care of the bus company, which was then responsible for the “further supervision” of the child (id.). The majority also ignores the precedent set by Chainani, which states that a school that has “contracted-out responsibility for transportation” to a private bus company “cannot be held liable on a theory that the children were in [the school’s] physical custody at the time of injury” … . Therefore, defendants’ duty of care ended when the child was released to the physical custody of the bus company, especially where, as here, the bus company was hired by the City and had no contractual relationship with the School. Brown v First Student, Inc., 2018 NY Slip Op 08776, Fourth Dept 12-21-18

 

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ARBITRATOR DID NOT EXCEED HIS AUTHORITY IN FINDING THAT THE COLLECTIVE BARGAINING AGREEMENT REQUIRED DUE PROCESS PROTECTIONS, INCLUDING NOTICE, BEFORE AN EMPLOYEE COULD BE TERMINATED FOR ALLEGED MISCONDUCT, ARBITRATOR’S AWARD SHOULD HAVE BEEN CONFIRMED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the arbitration award in this employment matter should have been confirmed. The grievant was employed by the respondent town as a school crossing guard. Without notice, the town’s chief of police called the grievant to his office and fired her for alleged misconduct. The arbitrator determined the collective bargaining agreement (CBA) required limited due process protections, including notice, and found termination of the grievant was without just cause:

“[A]n arbitrator exceed[s] his [or her] power’ under the meaning of the statute where his [or her] award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power’ “… .

“Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact’ ” … . “An arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be” … . The court lacks the power to review the legal merits of the award, or to substitute its own judgment for that of the arbitrator, “simply because it believes its interpretation would be the better one” … . …

The “for cause” language contained in the management rights provision expressly circumscribed respondent’s right to discipline or discharge the grievant. The arbitrator interpreted that language, consistent with arbitral precedent, as incorporating a just cause standard that encompasses a right to due process. We thus conclude that “the arbitrator merely interpreted and applied the provisions of the CBA, as [he] had the authority to do” … . Matter of Town of Greece Guardians’ Club, Local 1170 (Town of Greece), 2018 NY Slip Op 08775, Fourth Dept 12-21-18

 

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CITY EMPLOYEE’S CONTRACTUAL RIGHT TO MEDICAL BENEFITS VESTED BEFORE THE COLLECTIVE BARGAINING AGREEMENT WAS TERMINATED (FOURTH DEPT).

The Fourth Department determined that plaintiff city employee’s medical benefits vested before the collective bargaining agreement (CBA) was terminated:

“As a general rule, contractual rights and obligations do not survive beyond the termination of a collective bargaining agreement . . . However, [r]ights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement’ . . . , and we must look to well established principles of contract interpretation to determine whether the parties intended that the contract give rise to a vested right. [A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms’ ”  … . …

… [W]e conclude that the court properly determined that the plain meaning of the provisions at issue in the … CBA establishes that plaintiff has a vested right to medical benefits, those rights vested when he completed his 20th year of service, and plaintiff became eligible to receive said benefits when he reached retirement age… . Plaintiff’s right to medical benefits vested when he satisfied the criteria in the … CBA, and there is no language in the … CBA indicating that employees would forfeit or surrender their vested rights if they transferred jobs or unions prior to reaching retirement age. We thus conclude that the court’s interpretation of the … CBA ” give[s] fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized . . . [and does] not . . . leave one of its provisions substantially without force or effect’ ” … . Timkey v City of Lockport, 2018 NY Slip Op 08792, Fourth Dept 12-21-18

 

INCARCERATION AFTER A PROBATION VIOLATION IN THIS VEHICULAR MANSLAUGHTER CASE DEEMED HARSH AND SEVERE, PROBATION REINSTATED WITH 100 HOURS COMMUNITY SERVICE (FOURTH DEPT).

The Fourth Department exercised its discretion to find a legal sentence was unduly harsh and severe. Defendant had been sentenced to incarceration after a probation violation in this vehicular manslaughter case. The Fourth Department reinstated probation with 100 hours of community service:

We agree with defendant … that the sentence is unduly harsh and severe. “The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime[s] charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … . Although we conclude that the court did not abuse its discretion in revoking defendant’s probation and sentencing her to an indeterminate term of incarceration, “we can [nevertheless] substitute our own discretion for that of a trial court [that] has not abused its discretion in the imposition of a sentence” … . …

Here, defendant, who was 18 years old and had no criminal history at the time of the underlying crimes, completed substance abuse counseling and was fully compliant with the reporting requirement during the nearly 2½ years between her release to probation from an initial period of incarceration and the death of her grandfather … . A clinical psychologist who treated defendant in the years following the underlying crimes and during the probation period noted that, despite the effects that her grandfather’s death had on defendant, she did not revert to previous unhealthy coping mechanisms, i.e., using alcohol and drugs, and she thereafter re-engaged in her treatment program. The psychologist also opined that incarceration would impede defendant’s progress and create a setback in her recovery, and that continuation of probation and her treatment program would best facilitate defendant’s commitment to a sober, productive lifestyle. Significantly, in consideration of all the circumstances, including a single “low positive reading” for marihuana approximately one year prior to her grandfather’s death that did not result in a violation petition against defendant, the probation officer recommended against incarceration given that defendant was otherwise compliant with the terms of probation until her failure to report on four occasions. Further, the record establishes that defendant was employed on a full-time basis, intended to re-enroll in college classes, and committed no crimes after the underlying conviction. … People v Clause, 2018 NY Slip Op 08815, Fourth Dept 12-21-18

SENTENCING

FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO ORDER VISITATION TO THE THERAPISTS BY CONDITIONING FATHER’S VISITATION ON HIS PARTICIPATION IN THERAPEUTIC COUNSELING (FOURTH DEPT).

The Fourth Department determined Family Court should not have conditioned father’s visitation upon his participation in therapeutic counseling because the condition effectively delegated the court’s power to order visitation to the therapists:

… [T]he court erred in conditioning the father’s visitation upon his participation in therapeutic counseling. “Although a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation”… . Here, the court erred in making participation in counseling the “triggering event” in determining visitation … . We further conclude that the court impermissibly delegated the decision to hold family therapy sessions to the father’s and the child’s therapists and therefore improperly gave the therapists the authority to determine if and when visitation would occur… . We therefore modify the order by vacating the sixth, seventh, and eighth ordering paragraphs, and we remit the matter to Family Court to fashion a specific and definitive schedule for visitation between the father and the subject child. Matter of Rice v Wightman, 2018 NY Slip Op 08813, Fourth Dept 12-21-18

 

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HEARING IS REQUIRED TO DETERMINE WHETHER A GUARDIAN SHOULD BE APPOINTED FOR MOTHER IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, MOTHER SUFFERS FROM SCHIZOPHRENIA (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined a guardian should have been appointed for mother in the proceeding which terminated her parental rights:

It is well settled that courts cannot “shut their eyes to the special need of protection of a litigant actually incompetent but not yet judicially declared such. There is a duty on the courts to protect such litigants”… . Indeed, “[t]he public policy of this State . . . is one of rigorous protection of the rights of the mentally infirm”… . Thus, ” where there is a question of fact . . . whether a guardian ad litem should be appointed, a hearing must be conducted’ ” … , and the failure to make such an inquiry once a meritorious question of a litigant’s competence has been raised requires remittal … .

… [W]e conclude that a meritorious question of the mother’s competence was raised. It is of no moment that the mother’s attorney did not move for the appointment of a guardian ad litem inasmuch as the court may make such an appointment on its own initiative (see CPLR 1202 [a] …). …

There is no dispute that the mother, who had been diagnosed with, inter alia, schizophrenia, had been in and out of psychiatric hospitals throughout her life. Indeed, at the time of the subject child’s birth, which was two years before this termination proceeding, the mother had been committed to a psychiatric unit after being found incompetent to stand trial in a criminal court. During the course of the hearing in this proceeding, the mother was involuntarily committed to a psychiatric unit, and the matter had to be adjourned until her release. Additionally, during the mother’s brief testimony upon resumption of the hearing, the court and the AFC [attorney for the child] had to interrupt her repeatedly inasmuch as her answers to questions were nonresponsive and, at times, completely nonsensical.

Given “the magnitude of the rights at stake [in a termination proceeding], as well as the allegations of mental illness” …, we conclude that the court erred in failing to hold a hearing on whether a guardian ad litem should have been appointed for the mother. Matter of Jesten J.F. (Ruth P.S.), 2018 NY Slip Op 08812, Fourth Dept 12-21-18

 

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IN THIS CUSTODY PROCEEDING BROUGHT BY MOTHER, A HEARING IS NECESSARY TO DETERMINE WHETHER NEW YORK HAD JURISDICTION AFTER THE CHILD SPENT FOUR OR FIVE MONTHS WITH FATHER IN NORTH CAROLINA (FOURTH DEPT).

The Fourth Department, reversing Family Court, found that a hearing is necessary in this custody proceeding to determine whether New York had jurisdiction after the child spent four or five months in North Carolina:

Petitioner mother appeals from an order that dismissed for lack of jurisdiction her petition for custody of the subject child. Domestic Relations Law § 76 (1) (a) provides in relevant part that a New York court has jurisdiction to make an initial custody determination if New York “is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent . . . continues to live in this state . . . .” ” Home state’ means the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding” (§ 75-a [7]). A period of temporary absence during the six-month time frame is considered part of the time period to establish home-state residency … . Moreover, if “a parent wrongfully removes a child from a state, the time following the removal is considered a temporary absence” … .

We conclude that Family Court erred in dismissing the petition based on lack of jurisdiction without holding a hearing. Here, there are disputed issues of fact whether the child’s four- or five-month stay in North Carolina constituted a temporary absence from New York State in light of allegations that respondent father withheld the child from the mother for purposes of establishing a “home state” in North Carolina … and whether the mother’s absence from New York State interrupted the child’s six-month pre-petition residency period required by Domestic Relations Law § 76 (1) (a) … . Matter of Dean v Sherron, 2018 NY Slip Op 08807, Fourth Dept 12-21-18

 

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STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined that the Executive Law provision which prohibits level three sex offenders from entering school grounds applies to all level three sex offenders, not only those who are incarcerated for one of the enumerated sex crimes at the time they are released on parole. Petitioner was convicted of rape and adjudicated a level three offender in 1994. Subsequently petition was convicted of and incarcerated for robbery, which is not one of the enumerated crimes. The court noted that it was not, under administrative law principles, required to defer to the Board of Parole’s ruling, but nevertheless it agreed with the ruling and Supreme Court’s denial of the petition. The Fourth Department found the statute is ambiguous applying statutory-construction rules and then turned to the legislative history of the statute (Executive Law 259-c (14)):

When Executive Law § 259-c (14) was first enacted, the school grounds mandatory condition applied only to persons serving a sentence for an enumerated offense against a minor … . In 2005, the legislature amended the statute to add the reference to level three sex offenders … . The sponsors’ memorandum defined the purpose of that amendment: “To prohibit sex offenders placed on conditional release or parole from entering upon school grounds or other facilities where the individual has been designated as a level three sex offender” … . As justification, the sponsors offered: “There is a need to prohibit those sex offenders who are determined to pose the most risk to children from entering upon school grounds or other areas where children are cared for” … . …

Based on our review of the legislative history relating to the enactment of the relevant amendment to Executive Law § 259-c (14), we conclude that there existed a consensus among governmental and nongovernmental organizations that, for good or ill, the amended language was intended to extend the school grounds mandatory condition to all persons conditionally released or released to parole who have been designated level three sex offender. People ex rel. Garcia v Annucci, 2018 NY Slip Op 07868, Fourth Dept 11-16-18 

CRIMINAL LAW (STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA)  (STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))/PAROLE (SEX OFFENDERS, STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))/SCHOOL GROUNDS (SEX OFFENDERS, PAROLE, STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))EXECUTIVE LAW (SEX OFFENDERS, SCHOOL GROUNDS, PAROLE, STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))

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