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DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined that the defect which caused the claimant’s slip and fall was not trivial as a matter of law and there were questions of fact about the defendant’s constructive and actual notice of the defect. Claimant is incarcerated and the slip and fall occurred in a walkway at a correctional facility:​

In claimant’s deposition testimony, which defendant submitted in support of the motion, claimant testified that he was proceeding along a walkway from the housing area to the commissary. It had rained, and a large puddle of water had accumulated on the walkway. Claimant attempted to step over the flooded portion of the walkway, but his foot came down on a portion of the walkway that was cracked and damaged. The concrete shifted under his foot, causing him to lose his balance, and he fell. …​

We also agree with claimant that defendant failed to meet its burden of establishing that it lacked actual or constructive notice of the allegedly dangerous condition … . In support of the motion, defendant submitted the affidavit of a correction officer who had worked at the prison for the prior 27 years. The correction officer averred that he was familiar with the walkway and its condition before claimant fell, that the concrete was broken and uneven, and that water can gather there after it rains, but he did not consider the condition to be dangerous. Furthermore, the correction officer averred that he periodically walked the premises to look for anything in need of repair, and claimant testified at his deposition that the walkway was cracked prior to his arrival at the prison and that it flooded every time it rained. Bennett v State of New York, 2018 NY Slip Op 04212, Fourth Dept 6-8-18

NEGLIGENCE (SLIP AND FALL, DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SLIP AND FALL (DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRIVIAL DEFECT (SLIP AND FALL,  DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))​

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT).

The Fourth Department determined plaintiffs’ summary judgment motion in this vehicle-pedestrian accident case should have been granted. Plaintiff demonstrated the driver’s (Gorman’s) negligence and was not required to show the absence of comparative negligence:

Plaintiffs commenced this action seeking damages for injuries sustained by Michael Edwards (plaintiff) when he was struck by an ambulance driven by defendant Francine M. Gorman. At the time of the collision, plaintiff, a parking attendant, was tasked with instructing vehicles traveling in a two-lane, one-way “pass-through” road of the entrance loop of Strong Memorial Hospital on how to reach an alternate entrance for a nearby parking garage. Plaintiff was standing in the center of the pass-through road between the two lanes of travel, and Gorman struck him as she was slowing down for a stop sign at the end of the pass-through road. …

… [P]laintiffs were required to establish only that Gorman was negligent and that her negligence was a proximate cause of the accident. We conclude that plaintiffs met that burden by providing photographs, video footage and Gorman’s deposition testimony in which she admitted that she executed a wide turn through multiple lanes of the pass-through road, which constitutes a violation of Vehicle and Traffic Law § 1128 (a) … . In opposition, defendants failed to raise a triable issue of fact … . Although defendants successfully raised triable issues of fact with respect to plaintiff’s negligence, that is of no moment in the context of plaintiffs’ appeal. “To be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault” … . Edwards v Gorman, 2018 NY Slip Op 04129, Fourth Dept 6-8-18

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT))/TRAFFIC ACCIDENTS (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT))/COMPARATIVE NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT))

QUESTION OF FACT WHETHER PLAINTIFF ASSUMED THE RISK OF FALLING FROM A CLIMBING WALL (FOURTH DEPT).

The Fourth Department determined defendant did not demonstrate plaintiff assumed the risk that his harness would become detached causing him to fall from defendant’s climbing wall:

The climbing wall amusement attraction included a safety harness worn by the patron and a belay cable system that attached to the harness by use of a carabiner. There is no dispute that the carabiner detached from the safety harness worn by plaintiff, and that plaintiff fell approximately 18 feet to the ground below.

The doctrine of assumption of the risk operates “as a defense to tort recovery in cases involving certain types of athletic or recreational activities” … . A person who engages in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . However, “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced” … . Here, we conclude that the court properly denied that part of defendant’s motion based on assumption of the risk inasmuch as it failed to meet its initial burden of establishing that the risk of falling from the climbing wall is a risk inherent in the use and enjoyment thereof … . Stillman v Mobile Mtn., Inc., 2018 NY Slip Op 04149, Fourth Dept 6-8-18​

NEGLIGENCE (QUESTION OF FACT WHETHER PLAINTIFF ASSUMED THE RISK OF FALLING FROM A CLIMBING WALL (FOURTH DEPT))/ASSUMPTION OF THE RISK (CLIMBING WALL, QUESTION OF FACT WHETHER PLAINTIFF ASSUMED THE RISK OF FALLING FROM A CLIMBING WALL (FOURTH DEPT))/CLIMBING WALL (ASSUMPTION OF THE RISK, QUESTION OF FACT WHETHER PLAINTIFF ASSUMED THE RISK OF FALLING FROM A CLIMBING WALL (FOURTH DEPT))

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CITY’S DETERMINATION IT WOULD NOT DEFEND A POLICE OFFICER IN A CIVIL ACTION STEMMING FROM THE OFFICER’S STRIKING A CIVILIAN WAS ARBITRARY AND CAPRICIOUS (FOURTH DEPT).

The Fourth Department. over a two-justice dissent, determined the city’s refusal to defend and indemnify a police officer who was sued civilly for striking a civilian was arbitrary and capricious:

We respectfully disagree with the view of our dissenting colleagues that a 30-second-long video recording of a portion of the incident, considered in conjunction with the indictment, provides a factual basis for respondent’s implicit determination that petitioner was not acting within the scope of his employment and duties as a police officer. First, it is well settled that “[a]n indictment is a mere accusation and raises no presumption of guilt” … . Thus, the filing of an indictment against petitioner does not provide a factual basis to support the denial of a defense to petitioner in the civil action. Second, the video recording captured only part of the encounter between petitioner and the complainant, and did not capture the beginning or the end of the encounter. As a result, the recorded images of petitioner striking the complainant in the area of his legs and feet with a baton are unaccompanied by contextual factual information that would be essential to support a determination that petitioner’s actions fell outside the scope of his employment and duties as a police officer. Notably, the brief video clip shows a loud and chaotic intersection with a heavy police presence, and petitioner appeared to be dressed in police uniform and wearing a jacket with the word “POLICE” printed in bold letters. Three of the officers in the video appeared to be carrying batons, like petitioner, and one other officer appeared to have been engaged in a physical struggle with a civilian on the sidewalk. That struggle appeared to continue into the roadway before the other officer and the civilian disengaged, at which point the camera panned over to a parking lot where petitioner was already engaged with the complainant.

Although it is well settled that an employee’s conduct does not fall within the scope of his or her employment where his or her actions are taken for wholly personal reasons not related to the employee’s job … , we conclude that the video recording does not establish that petitioner’s actions were taken for wholly personal reasons unrelated to his job as a police officer. Matter of Krug v City of Buffalo, 2018 NY Slip Op 04118, Fourth Dept 6-8-18

MUNICIPAL LAW (EMPLOYMENT LAW, POLICE OFFICERS, CITY’S DETERMINATION IT WOULD NOT DEFEND A POLICE OFFICER IN A CIVIL ACTION STEMMING FROM THE OFFICER’S STRIKING A CIVILIAN WAS ARBITRARY AND CAPRICIOUS (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, POLICE OFFICERS, CITY’S DETERMINATION IT WOULD NOT DEFEND A POLICE OFFICER IN A CIVIL ACTION STEMMING FROM THE OFFICER’S STRIKING A CIVILIAN WAS ARBITRARY AND CAPRICIOUS (FOURTH DEPT))/POLICE OFFICERS ( CITY’S DETERMINATION IT WOULD NOT DEFEND A POLICE OFFICER IN A CIVIL ACTION STEMMING FROM THE OFFICER’S STRIKING A CIVILIAN WAS ARBITRARY AND CAPRICIOUS (FOURTH DEPT))

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LOCAL LAWS CONCERNING HEALTH BENEFITS FOR RETIRED TOWN EMPLOYEES WHICH WERE NOT ENACTED BY REFERENDUM ARE ENTIRELY INVALID (FOURTH DEPT). ​

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined local laws concerning health benefits for retired town employees were invalid because they were not enacted by referendum:​

Plaintiffs correctly acknowledge that the modification clauses in the 2009 Law and the 2014 Law run afoul of Municipal Home Rule Law § 23 (2) (f) because those laws were not enacted by referendum. “[A] local law shall be subject to mandatory referendum if it . . . [a]bolishes, transfers or curtails any power of an elective officer” (id.). Therefore, a local legislative body lacks the power to enact legislation curtailing the voting powers of its own members; such legislation cannot be enacted except by referendum. Here, the modification clauses in the 2009 Law and the 2014 Law curtailed the voting powers of the elected members of the Town Board by requiring a supermajority vote to enact certain kinds of legislation. The 2009 Law and 2014 Law are thus invalid inasmuch as they were not enacted by referendum. …

Where, as here, a local law is subject to a mandatory referendum, the failure to enact it by referendum renders the entire law invalid … . Parker v Town of Alexandria, 2018 NY Slip Op 04126, Fourth Dept 6-8-18

MUNICIPAL LAW (LOCAL LAWS CONCERNING HEALTH BENEFITS FOR RETIRED TOWN EMPLOYEES WHICH WERE NOT ENACTED BY REFERENDUM ARE ENTIRELY INVALID (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, LOCAL LAWS CONCERNING HEALTH BENEFITS FOR RETIRED TOWN EMPLOYEES WHICH WERE NOT ENACTED BY REFERENDUM ARE ENTIRELY INVALID (FOURTH DEPT))/MUNICIPAL HOME RULE LAW (LOCAL LAWS CONCERNING HEALTH BENEFITS FOR RETIRED TOWN EMPLOYEES WHICH WERE NOT ENACTED BY REFERENDUM ARE ENTIRELY INVALID (FOURTH DEPT))/LOCAL LAWS (MUNICIPAL LAW, (LOCAL LAWS CONCERNING HEALTH BENEFITS FOR RETIRED TOWN EMPLOYEES WHICH WERE NOT ENACTED BY REFERENDUM ARE ENTIRELY INVALID (FOURTH DEPT))/HEALTH BENEFITS (MUNICIPAL LAW, EMPLOYMENT LAW, LOCAL LAWS CONCERNING HEALTH BENEFITS FOR RETIRED TOWN EMPLOYEES WHICH WERE NOT ENACTED BY REFERENDUM ARE ENTIRELY INVALID (FOURTH DEPT))

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT AN AGENT OF THE OWNER OR GENERAL CONTRACTOR (FOURTH DEPT).

The Fourth Department determined defendant’s (Pumpcrete’s) motion for summary judgment on the Labor Law 241 (6) cause of action should have been granted, but a question of fact precluded summary judgment in favor of Pumpcrete on the common law negligence cause of action:

Plaintiff was injured while guiding a concrete pump hose that was attached to a truck owned and operated by defendant Pumpcrete Corporation (Pumpcrete). An obstruction formed in the pump hose, causing wet concrete to suddenly be ejected from the hose and knocking plaintiff off of the scaffolding upon which he was standing. At the time of the accident, plaintiff was working for the general contractor, which had hired Pumpcrete to supply the concrete pumping equipment. …

With respect to the Labor Law § 241 (6) cause of action … , we note that, “while under that statute owners and general contractors are generally absolutely liable for statutory violations . . . , other parties may be liable under th[at] statute[ ] only if they are acting as the agents of the owner or general contractor by virtue of the fact that they had been given the authority to supervise and control the work being performed at the time of the injury” … . Pumpcrete satisfied its initial burden of establishing as a matter of law that it was not an agent of the owner or general contractor by submitting deposition testimony from plaintiff and the Pumpcrete pump operator that Pumpcrete lacked authority to supervise or control plaintiff’s work, and plaintiff failed to raise a triable issue of fact in response … . Rohr v Dewald, 2018 NY Slip Op 04160, Fourth Dept 6-8-18

LABOR LAW-CONSTRUCTION LAW (DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT AN AGENT OF THE OWNER OR GENERAL CONTRACTOR (FOURTH DEPT))

QUESTION OF FACT WHETHER SAFETY DEVICES FOR LIFTING HEAVY MOTOR WERE AVAILABLE, PLAINTIFFS’ MOTION OF SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether safety devices were available precluded granting plaintiffs’ motion for summary judgment on the Labor Law 240 (1) cause of action. Plaintiff was injured lifting a heavy motor onto a scissor lift. Defendant’s foreman testified he had never manually lifted a motor onto a scissors lift and safety devices for lifting the motor must have been available:

In support of the motion, plaintiffs submitted the deposition testimony of plaintiff set forth above, as well as that of his coworker and a foreman. Plaintiff’s coworker testified that he had performed work on 30 or 40 such doors and had manually lifted the motor onto a scissor lift every time. Conversely, the foreman, who was not on location on the date of the injury, testified that he had performed work on “over a thousand” such doors and had “never lifted a motor manually onto a scissor lift.” The foreman found it “hard to believe” that hoists, blocks, pulleys, ropes, or other safety devices were not available on site.

We conclude that plaintiffs failed to meet their initial burden on their motion inasmuch as their evidentiary submissions created issues of fact whether plaintiff’s “injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” … . Smiley v Allgaier Constr. Corp., 2018 NY Slip Op 04130, Fourth Dept 6-8-18

​LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER SAFETY DEVICES FOR LIFTING HEAVY MOTOR WERE AVAILABLE, PLAINTIFFS’ MOTION OF SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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BAD FAITH DISCLAIMER ACTION BROUGHT AFTER INJURED PLAINTIFFS WERE ASSIGNED THE INSURED’S RIGHTS UNDER THE POLICY NOT BARRED BY RES JUDICATA, PLAINTIFFS DID NOT HAVE STANDING TO BRING THE BAD FAITH ACTION UNTIL THE RIGHTS WERE ASSIGNED (FOURTH DEPT). ​

The Fourth Department determined plaintiffs’ bad faith action against the insurer was not barred by res judicata. Plaintiffs successfully sued the insured in this accidental shooting case and recovered the policy limits. Plaintiffs then were assigned the insured’s rights against the insurer and sued for the insurer for disclaiming coverage in bad faith. Because plaintiffs could not have brought the bad faith action until the assignment of rights, plaintiffs had standing to bring the current action. The Fourth Department noted that the 1st Department had come to the opposite conclusion under similar facts:

… [U]nder Insurance Law § 3420 (a) (2) and (b) (1), an injured party’s standing to bring an action against an insurer is limited to recovering only the policy limits of the insured’s insurance policy. … [I]f an injured party/judgment creditor seeks to recover from the insurer an amount above the insured’s policy limits on a theory of liability beyond that created by Insurance Law § 3420 (a) (2), the statute does not confer standing to do so. However, if the insured assigns his or her rights under the insurance contract to the injured party/judgment creditor, then the injured party/judgment creditor may simultaneously bring a direct action against the insurer pursuant to Insurance Law § 3420 (a) (2) along with any other appropriate claim, including a bad faith claim, seeking a judgment in a total amount beyond the insured’s policy limits.

Here, when [plaintiffs] commenced the prior action pursuant to Insurance Law § 3420 (a) (2) … , the [insured] had not yet assigned their rights under the insurance contract … . As a result, [plaintiffs] did not have standing to bring a bad faith claim against defendant … . Thus, because [plaintiffs] lacked standing to bring a bad faith claim against defendant at the time [they] brought the Insurance Law § 3420 (a) (2) action, we conclude that the doctrine of res judicata does not bar this action … . Corle v Allstate Ins. Co., 2018 NY Slip Op 04135, Fourth Dept 6-8-18​

INSURANCE LAW (BAD FAITH DISCLAIMER ACTION BROUGHT AFTER INJURED PLAINTIFFS WERE ASSIGNED THE INSURED’S RIGHTS UNDER THE POLICY NOT BARRED BY RES JUDICATA, PLAINTIFFS DID NOT HAVE STANDING TO BRING THE BAD FAITH ACTION UNTIL THE RIGHTS WERE ASSIGNED (FOURTH DEPT))/CIVIL PROCEDURE (RES JUDICATA, INSURANCE LAW, BAD FAITH DISCLAIMER ACTION BROUGHT AFTER INJURED PLAINTIFFS WERE ASSIGNED THE INSURED’S RIGHTS UNDER THE POLICY NOT BARRED BY RES JUDICATA, PLAINTIFFS DID NOT HAVE STANDING TO BRING THE BAD FAITH ACTION UNTIL THE RIGHTS WERE ASSIGNED (FOURTH DEPT))/BAD FAITH (INSURANCE LAW, (BAD FAITH DISCLAIMER ACTION BROUGHT AFTER INJURED PLAINTIFFS WERE ASSIGNED THE INSURED’S RIGHTS UNDER THE POLICY NOT BARRED BY RES JUDICATA, PLAINTIFFS DID NOT HAVE STANDING TO BRING THE BAD FAITH ACTION UNTIL THE RIGHTS WERE ASSIGNED (FOURTH DEPT))/DISCLAIMER (INSURANCE LAW, BAD FAITH DISCLAIMER ACTION BROUGHT AFTER INJURED PLAINTIFFS WERE ASSIGNED THE INSURED’S RIGHTS UNDER THE POLICY NOT BARRED BY RES JUDICATA, PLAINTIFFS DID NOT HAVE STANDING TO BRING THE BAD FAITH ACTION UNTIL THE RIGHTS WERE ASSIGNED (FOURTH DEPT))/RES JUDICATA (INSURANCE LAW, BAD FAITH DISCLAIMER ACTION BROUGHT AFTER INJURED PLAINTIFFS WERE ASSIGNED THE INSURED’S RIGHTS UNDER THE POLICY NOT BARRED BY RES JUDICATA, PLAINTIFFS DID NOT HAVE STANDING TO BRING THE BAD FAITH ACTION UNTIL THE RIGHTS WERE ASSIGNED (FOURTH DEPT))

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FOURTEEN YEAR OLD CHILD HAD THE STATUTORY RIGHT TO WAIVE HIS PRESENCE AT THE PERMANENCY HEARING AND SHOULD NOT HAVE BEEN ORDERED TO APPEAR, APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing Family Court, in a full-fledged opinion by Justice Troutman, determined the 14-year-old child had the statutory right to waive his presence at the permanency hearing and the judge should not have ordered his presence. Although the hearing had been held, the appeal was heard under as an exception to the mootness doctrine because the issue was likely to recur:

The child was freed for adoption in 2014. A permanency hearing was scheduled for March 30, 2017, and notice of the hearing was provided to the child, who was then 14 years old. One week before the scheduled hearing date, the Attorney for the Child (AFC) filed a form indicating that the child, after consultation with the AFC, waived his right to participate in the hearing. The AFC appeared at the hearing on the child’s behalf and reiterated that the child had waived his right to participate in the hearing. The court stated, however, that it was “required by law to have some communication” with the child, and that the child would therefore be required to appear at the next scheduled hearing date. …

Here, the statutory language is clear and unambiguous. Although the permanency hearing must include “an age appropriate consultation with the child” (Family Ct Act § 1090-a [a] [1]), that requirement may not “be construed to compel a child who does not wish to participate in his or her permanency hearing to do so” … . The choice belongs to the child. Indeed, “[a] child age fourteen and older shall be permitted to participate in person in all or any portion of his or her permanency hearing in which he or she chooses to participate” … . Moreover, “a child who has chosen to participate in his or her permanency hearing shall choose the manner in which he or she shall participate, which may include participation in person, by telephone or available electronic means, or the issuance of a written statement to the court” … . Although the court may limit the participation of a child under the age of 14 based on the best interests of the child… , the court lacks the authority to compel the participation of a child who has waived his or her right to participate in a permanency hearing after consultation with his or her attorney … . Matter of Shawn S., 2018 NY Slip Op 04208, Fourth Dept 6-8-18

FAMILY LAW (PERMANENCY HEARING, FOURTEEN YEAR OLD CHILD HAD THE STATUTORY RIGHT TO WAIVE HIS PRESENCE AT THE PERMANENCY HEARING AND SHOULD NOT HAVE BEEN ORDERED TO APPEAR, APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT))/APPEALS (FAMILY LAW, MOOTNESS,  FOURTEEN YEAR OLD CHILD HAD THE STATUTORY RIGHT TO WAIVE HIS PRESENCE AT THE PERMANENCY HEARING AND SHOULD NOT HAVE BEEN ORDERED TO APPEAR, APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT))/PERMANENCY HEARINGS (FAMILY LAW, FOURTEEN YEAR OLD CHILD HAD THE STATUTORY RIGHT TO WAIVE HIS PRESENCE AT THE PERMANENCY HEARING AND SHOULD NOT HAVE BEEN ORDERED TO APPEAR, APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT))/MOOTNESS DOCTRINE (APPEALS, FAMILY LAW, FOURTEEN YEAR OLD CHILD HAD THE STATUTORY RIGHT TO WAIVE HIS PRESENCE AT THE PERMANENCY HEARING AND SHOULD NOT HAVE BEEN ORDERED TO APPEAR, APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT))

FAMILY COURT SHOULD HAVE SET A SPECIFIC AND DEFINITIVE VISITATION SCHEDULE, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, modifying Family Court, determined Family Court should have set a specific and definitive visitation schedule:

Respondent mother appeals from an amended order that, inter alia, granted petitioner father’s petition to modify a prior custody order by awarding him primary physical custody of their daughter. We agree with the mother that Family Court erred in failing to set a specific and definitive visitation schedule … . We therefore modify the amended order by striking from the first ordering paragraph the words “and subject to periods of visitation with the Mother and the Father shall encourage [the child] to visit with her Mother,” and we remit the matter to Family Court to fashion a specific and definitive schedule for visitation between the mother and daughter. Matter of Montes v Johnson, 2018 NY Slip Op 04194, Fourth Dept 6-8-18

FAMILY LAW (VISITATION, FAMILY COURT SHOULD HAVE SET A SPECIFIC AND DEFINITIVE VISITATION SCHEDULE, MATTER REMITTED (FOURTH DEPT))/VISITATION (FAMILY LAW, FAMILY COURT SHOULD HAVE SET A SPECIFIC AND DEFINITIVE VISITATION SCHEDULE, MATTER REMITTED (FOURTH DEPT))

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