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FAMILY COURT SHOULD HAVE COMPLETED THE HEARING, AWARD OF PRIMARY PHYSICAL CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER REVERSED (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined primary physical custody of the children should not have been awarded to the maternal grandmother because the proceedings were flawed:

“[A]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” … . “The nonparent has the burden of establishing that extraordinary circumstances exist even where, as here, the prior order granting custody of the child to [the] nonparent[] was made upon consent of the parties' ” … .

Here, the court erred in granting the grandmother's petition prior to the completion of the hearing. The mother's testimony was not complete, the grandmother had not yet rested, and the mother had not been afforded the opportunity to call witnesses or present other evidence on her own behalf. In addition, there were controverted issues inasmuch as there is no evidence in the record of the mother's mental health other than her erratic in-court conduct, which she attributed to the trauma of being separated from her children, and there is no evidence whatsoever that the mother was abusing drugs or alcohol. Indeed, she denied abusing alcohol. We conclude that the court should have completed the hearing. Matter of Driscoll v Mack, 2018 NY Slip Op 06640, Fourth Dept 10-5-18

FAMILY LAW (FAMILY COURT SHOULD HAVE COMPLETED THE HEARING, AWARD OF PRIMARY PHYSICAL CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER REVERSED (FOURTH DEPT))/CUSTODY (FAMILY LAW, FAMILY COURT SHOULD HAVE COMPLETED THE HEARING, AWARD OF PRIMARY PHYSICAL CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER REVERSED (FOURTH DEPT))

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OWNER OF PROPERTY WHERE THE EMPLOYEE SLIPPED AND FELL WAS NOT AN ADDITIONAL INSURED UNDER THE EMPLOYER’S POLICY, EMPLOYER FURNISHED THE CONDITION FOR THE SLIP AND FALL BUT DID NOT PROXIMATELY CAUSE THE SLIP AND FALL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that Pioneer Middle School was not an additional insured under the policy which insured of the employer (Kleanerz) of Ayers, who slipped and fell on ice and snow in the Pioneer Middle School parking law:

We conclude that Pioneer is not an additional insured under the policy inasmuch as Ayers's injuries were not proximately caused by Kleanerz. The policy's additional insured endorsement provides that the injury must have been “caused, in whole or in part, by” Kleanerz's conduct, and thus it requires that the insured must have been a proximate cause of the injury, not merely a “but for” cause … . Here, it is undisputed that Kleanerz was not responsible for clearing ice and snow from the parking lot and that Ayers's fall resulted from her slipping on the ice or snow. Although Pioneer contends that Kleanerz caused the accident by instructing Ayers to exit Pioneer Middle School through a door located near the area where Ayers subsequently slipped, Kleanerz's instructions to Ayers “merely furnished the occasion for the injury” by “fortuitously plac[ing Ayers] in a location or position in which . . . [an alleged] separate instance of negligence acted independently upon [her] to produce harm” … , and were not a cause of the accident triggering the additional insured clause of the policy. Pioneer Cent. Sch. Dist. v Preferred Mut. Ins. Co., 2018 NY Slip Op 06682, Fourth Dept 10-5-18

INSURANCE LAW (OWNER OF PROPERTY WHERE THE EMPLOYEE SLIPPED AND FELL WAS NOT AN ADDITIONAL INSURED UNDER THE EMPLOYER'S POLICY, EMPLOYER FURNISHED THE CONDITION FOR THE SLIP AND FALL BUT DID NOT PROXIMATELY CAUSE THE SLIP AND FALL (FOURTH DEPT))/CONTRACT LAW (INSURANCE LAW, OWNER OF PROPERTY WHERE THE EMPLOYEE SLIPPED AND FELL WAS NOT AN ADDITIONAL INSURED UNDER THE EMPLOYER'S POLICY, EMPLOYER FURNISHED THE CONDITION FOR THE SLIP AND FALL BUT DID NOT PROXIMATELY CAUSE THE SLIP AND FALL (FOURTH DEPT))/ADDITIONAL INSURED (INSURANCE LAW, OWNER OF PROPERTY WHERE THE EMPLOYEE SLIPPED AND FELL WAS NOT AN ADDITIONAL INSURED UNDER THE EMPLOYER'S POLICY, EMPLOYER FURNISHED THE CONDITION FOR THE SLIP AND FALL BUT DID NOT PROXIMATELY CAUSE THE SLIP AND FALL (FOURTH DEPT))

FATHER COULD NOT BE FOUND TO HAVE PERMANENTLY NEGLECTED THE CHILDREN AND ALSO BE FOUND MENTALLY ILL TO A DEGREE WARRANTING TERMINATION OF HIS PARENTAL RIGHTS (FOURTH DEPT). ​

The Fourth Department determined father could not be found to have permanently neglected the children and also found to be mentally ill to a degree warranting termination of his parental rights:

Given the court's finding that the father was incapable of caring for the children based on his mental illness, however, the court erred in terminating his parental rights on the additional ground of permanent neglect. The father “could not be found to be mentally ill to a degree warranting termination of his parental rights and at the same time be found to have failed to plan for the future of the children although physically and financially able to do so” … . We therefore modify the order by dismissing the petition insofar as it alleges that the father permanently neglected the subject children. Matter of Norah T. (Norman T.), 2018 NY Slip Op 06681, Fourth Dept 10-5-18

FAMILY LAW (PARENTAL RIGHTS, FATHER COULD NOT BE FOUND TO HAVE PERMANENTLY NEGLECTED THE CHILDREN AND ALSO BE FOUND MENTALLY ILL TO A DEGREE WARRANTING TERMINATION OF HIS PARENTAL RIGHTS (FOURTH DEPT))/PARENTAL RIGHTS (FATHER COULD NOT BE FOUND TO HAVE PERMANENTLY NEGLECTED THE CHILDREN AND ALSO BE FOUND MENTALLY ILL TO A DEGREE WARRANTING TERMINATION OF HIS PARENTAL RIGHTS (FOURTH DEPT))/NEGLECT (FAMILY LAW, PARENTAL RIGHTS, FATHER COULD NOT BE FOUND TO HAVE PERMANENTLY NEGLECTED THE CHILDREN AND ALSO BE FOUND MENTALLY ILL TO A DEGREE WARRANTING TERMINATION OF HIS PARENTAL RIGHTS (FOURTH DEPT))

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APPEAL HELD IN RESERVE AND MATTER SENT BACK FOR FACTUAL FINDINGS IN THIS CUSTODY CASE (FOURTH DEPT).

The Fourth Department, holding the appeal in reserve, sent the matter back for factual findings in this custody case:

With respect to the court's award of sole legal custody to the mother, we conclude that the court failed to set forth ” those facts upon which the rights and liabilities of the parties depend' “… , specifically its “analysis of those factors that traditionally affect the best interests of a child” … . “[E]ffective appellate review . . . requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses”… . We therefore hold the case, reserve decision and remit the matter to Family Court to set forth its factual findings. Matter of Valentin v Mendez, 2018 NY Slip Op 06680, Fourth Dept 10-5-18

FAMILY LAW (APPEALS, APPEAL HELD IN RESERVE AND MATTER SENT BACK FOR FACTUAL FINDINGS IN THIS CUSTODY MATTER (FOURTH DEPT))/APPEALS (FAMILY LAW, APPEAL HELD IN RESERVE AND MATTER SENT BACK FOR FACTUAL FINDINGS IN THIS CUSTODY MATTER (FOURTH DEPT))

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DEFENDANTS’ EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213 should have been granted. Plaintiff met her burden by submitting the notes and guarantees and an affidavit of nonpayment. The evidence submitted by the defendants was deemed conclusory and designed to create a feigned question of fact:

Plaintiff met her initial burden of establishing entitlement to judgment as a matter of law “by submitting the notes and guarantees, together with an affidavit of nonpayment” … . In opposition, defendants failed ” to establish, by admissible evidence, the existence of a triable issue [of fact] with respect to a bona fide defense' ” … . Defendants contend that they are entitled to an offset because plaintiff allegedly breached a related stock purchase agreement and, following the execution of the stock purchase agreement, coerced them into paying additional funds to which plaintiff was not entitled through economic duress. The evidence submitted by defendants in support of those contentions, however, is conclusory, unsubstantiated, and internally inconsistent in a manner that appears “designed to raise feigned factual issues in an effort to avoid the consequences” of plaintiff's otherwise valid motion for summary judgment on her claim to recover on the promissory notes and guarantees … . Among other things, the affidavit of defendants' expert public accountant is “speculative and conclusory inasmuch as the expert failed to submit the data upon which he based his opinions. The affidavit thus lacks an adequate factual foundation and is of no probative value” . Finally, in addition to failing to raise a triable issue of fact with respect to economic duress, defendants waived any such claim “in light of the inordinate length of time which passed between the alleged duress and the assertion of the claim” … . Birjukow v Niagara Coating Servs., Inc., 2018 NY Slip Op 06637, Fourth Dept 10-5-18

CIVIL PROCEDURE (DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/DEBTOR-CREDITOR (DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT)).CPLR 3213  (DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/EVIDENCE (SUMMARY JUDGMENT, DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SUMMARY JUDGMENT (EVIDENCE, DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support a drug-related neglect finding:

We agree with respondents that petitioner failed to establish by a preponderance of the evidence “that [the children's] physical, mental or emotional condition[s have] been impaired or [are] in imminent danger of becoming impaired” (… see Family Ct Act § 1012 [f] [i]). Although the evidence adduced at the fact-finding hearing established that respondents used illicit drugs, the mere use of illicit drugs is insufficient to support a finding of neglect … , and we conclude that petitioner failed to establish the requisite causal nexus between respondents' illicit drug use and the alleged impairment or imminent danger of impairment of the children's physical, mental, or emotional condition … . Petitioner produced no evidence that respondents ever used drugs in the presence of the children … . Moreover, although the younger child suffered two accidents, each of which resulted in a fractured wrist, petitioner offered no evidence that respondents were using drugs or under the influence of drugs at the time the accidents occurred, respondents' innocent explanations for the accidents were uncontroverted at the fact-finding hearing, and there was no evidence of any impairment or imminent danger of impairment to the older child arising from respondents' alleged drug use. We further conclude that petitioner failed to establish a prima facie case of neglect by submitting evidence that respondents used drugs “to the extent that [such use] has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality” (§ 1046 [a] [iii]). Absent from the record was any evidence as to the duration or frequency of respondents' drug use … . Matter of Delanie S. (Jeremy S.), 2018 NY Slip Op 06677, Fourth Dept 10-5-18

FAMILY LAW (DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/NEGLECT (FAMILY LAW, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))

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WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT). ​

The Fourth Department, vacating defendant's guilty plea, determine defendant's waiver of appeal was invalid and defendant was not informed of the period of post-release supervision:

We agree with defendant that his purported waiver of the right to appeal is invalid. “County Court failed to obtain a knowing and voluntary waiver of the right to appeal at the time of the plea” … . Moreover, “the written waiver of the right to appeal that [defendant] signed as part of the treatment court contract,' [a day] after he pleaded guilty, does not constitute a valid waiver of the right to appeal” …

Furthermore, we agree with defendant that the court failed to fulfill its obligation to advise him, at the time of the plea, that the sentences imposed upon his conviction of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree would include periods of postrelease supervision … . People v Teta, 2018 NY Slip Op 06674, Fourth Dept 10-5-18

CRIMINAL LAW (WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT))/POST-RELEASE SUPERVISION (CRIMINAL LAW, WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT))/GUILTY PLEA, VACATION OF (CRIMINAL LAW, WAIVER OF APPEAL INVALID AND GUILTY PLEA VACATED BECAUSE DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION (FOURTH DEPT))

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LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Labor Law 200 and common-law negligence causes of action should not have been dismissed:

This Labor Law and common-law negligence action arises from injuries sustained by Michael W. Parkhurst (decedent) when he slipped and fell on plastic sheeting covering newly-laid carpet after descending a ladder while performing drywall finishing work. …

Where, as here, “the worker's injuries result from a dangerous condition at the work site rather than from the manner in which the work is performed, the general contractor or owner may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and [has created or has] actual or constructive notice of the dangerous condition” … . “Thus, [d]efendants, as the parties seeking summary judgment dismissing those claims, were required to establish as a matter of law that they did not exercise any supervisory control over the general condition of the premises or that they neither created nor had actual or constructive notice of the dangerous condition on the premises” … , and defendants failed to meet that burden here. Parkhurst v Syracuse Regional Airport Auth., 2018 NY Slip Op 06670, Fourth Dept 10-5-18

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/NEGLIGENCE (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))

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DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support a drug-related neglect finding against father:

We agree with the father that the court's finding of neglect is not supported by the requisite preponderance of the evidence (see generally Family Ct Act § 1046 [b] [i]). “[P]roof that a person repeatedly misuses . . . drugs . . . to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except that such drug . . . misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program” … . Here, petitioner submitted evidence that the father tested positive for THC, oxycodone, and opioids on one occasion, which is insufficient to establish that the father repeatedly misused drugs … . The father's admission to using marihuana was also insufficient to meet petitioner's burden without further evidence as to the “duration, frequency, or repetitiveness of his drug use, or whether [the father] was ever under the influence of drugs while in the presence of the subject child” … . Matter of Bentley C. (Zachary D.), 2018 NY Slip Op 06667, Fourth Dept 10-5-18

FAMILY LAW (DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/NEGLECT (FAMILY LAW, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))

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INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT).

The Fourth Department determined there was insufficient evidence the defendant and the 16-year-old victim and the 24-year-old were strangers. The risk assessment was therefore reduced by 20 points:

We agree with defendant that Supreme Court erred in assessing him 20 points under risk factor 7, which applies when, insofar as relevant here, the offender's conduct ” was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization' “… . The 24-year-old defendant and the 16-year-old victim met while working at a local Red Cross; the two exchanged contact information and, months later, communicated through social media and by telephone before any sexual contact occurred. Under these circumstances, the People failed to establish by clear and convincing evidence that defendant and the victim were strangers at the time of the crime … . Moreover, the People “presented no evidence that defendant . . . targeted the victim for the primary purpose of victimizing her” … .

Without the 20 points assessed under risk factor 7, defendant is a presumptive level one sex offender … . People v Perez, 2018 NY Slip Op 06666, Fourth Dept 10-5-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT))

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