Fourth Department – Page 145 – New York Appellate Digest

Civil Procedure, Evidence, Medical Malpractice, Negligence, Public Health Law

REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT).

The Fourth Department determined a report concerning an investigation by the Department of Health which cited defendant health system for failure to inform plaintiff and his family of the unintentional disconnection of a heart-lung machine was not subject to disclosure:

Defendant met its burden of establishing that the information contained in the report was ” generated in connection with a quality assurance review function pursuant to Education Law § 6527 (3) or a malpractice prevention program pursuant to Public Health Law § 2805-j’ “… . Thus, the information contained in the report is expressly exempted from disclosure under CPLR article 31 pursuant to the confidentiality conferred on information gathered by defendant in accordance with Education Law § 6527 (3) and Public Health Law § 2805-m … . Contrary to plaintiff’s contention that the privilege is “negated” because the report purportedly contains information that was improperly omitted from Pasek’s [plaintiff’s] medical records, it is well settled that “information which is privileged is not subject to disclosure no matter how strong the showing of need or relevancy”… . Indeed, the purpose of the privilege “is to enhance the objectivity of the review process’ and to assure that medical review [or quality assurance] committees may frankly and objectively analyze the quality of health services rendered’ by hospitals . . . , and thereby improve the quality of medical care” … . Pasek v Catholic Health Sys., Inc., 2018 NY Slip Op 02069, Fourth Dept 3-23-18

NEGLIGENCE (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/MEDICAL MALPRACTICE ( REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/EDUCATION LAW (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/PUBLIC HEALTH LAW (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))

March 23, 2018

Education-School Law, Negligence

SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the defendant school district could not have foreseen the incident in which the plaintiff’s high school classmate injured plaintiff in gym class. The classmate put plaintiff in a choke hold from behind and plaintiff fell to the floor on his face. The classmate’s violent behavior when he was younger, three years before the gym class incident, was deemed insufficient to put the school on notice of the classmate’s propensity for violence:

“In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . “Actual or constructive notice to the school of prior similar conduct is generally required because, obviously, school personnel cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily” … . Thus, “an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” … . “Summary judgment must be granted if the proponent makes a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact,’ and the opponent fails to rebut that showing” … . …

Defendant’s submissions … established that there were no prior incidents and no history of any animosity between the two students … . Indeed, the classmate testified that he intended only to “horse around” and that he “[d]idn’t mean anything by it.” Moreover, the classmate had never engaged in disorderly, insubordinate, disruptive, or violent conduct in any of the gym teacher’s classes prior to the subject incident. … [W]e agree with defendant that the classmate’s overall disciplinary record is insufficient to create an issue of fact whether the subject incident could reasonably have been anticipated. Although the classmate had an extensive disciplinary history, the majority of the incidents involved insubordinate and disruptive behavior, and the instances of violent and endangering conduct occurred when the classmate was in sixth through eighth grade, with his last citation for violent conduct occurring in April 2009, i.e., three years prior to the subject incident when the classmate was in 11th grade … . We thus conclude that the classmate’s prior violent and endangering conduct was too remote to provide defendant with sufficiently specific knowledge or notice that the classmate posed a danger to other students in gym class … . Hale v Holley Cent. Sch. Dist., 2018 NY Slip Op 02033, Fourth Dept 3-23-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT))/EDUCATION-SCHOOL LAW (STUDENT ON STUDENT ASSAULT, SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT))/ASSAULT, LIABILITY FOR THIRD PARTY (EDUCATION-SCHOOL LAW, SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT))/STUDENTS (ASSAULT, SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT))

March 23, 2018

Negligence

REAR-MOST DRIVER IN A CHAIN-REACTION ACCIDENT LIABLE TO PLAINTIFF WHO WAS IN THE LINE OF STOPPED CARS, REAR-MOST DRIVER NOT LIABLE FOR PLAINTIFF’S SUBSEQUENT INJURY WHEN HE WAS STRUCK BY ANOTHER DRIVER AFTER GETTING OUT OF HIS CAR (FOURTH DEPT).

The Fourth Department determined plaintiff was entitled to summary judgment in his action against the rear-most driver (Lipome) which struck a stopped car (Foley’s car) causing chain-reaction collisions. Plaintiff was subsequently struck by another car (driven by Hourt) after he got out of his car to check on the other drivers. The rear-most driver who caused the chain-reaction accident (Lipome) was not liable for the subsequent accident (when plaintiff was on foot and struck by Hourt):

” [T]he rearmost driver in a chain-reaction collision bears a presumption of responsibility’ ” … , and “[i]t is well established that a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle, and imposes a duty on the operator of the moving vehicle to come forward with an adequate, [nonnegligent] explanation for the accident”… . Here, plaintiff met his initial burden of demonstrating that Lipome was negligent in rear-ending Foley’s vehicle, which undisputedly caused the chain-reaction accident. Lipome has not provided any nonnegligent explanation for the collision and, indeed, it appears from the record that Lipome essentially admitted that she was at fault for rear-ending Foley’s vehicle. …

We agree with Lipome, however, that she is entitled to partial summary judgment dismissing the complaint against her insofar as it relates to the accident between plaintiff and Hourt, and we therefore further modify the order accordingly. Lipome’s negligence in the chain-reaction accident “did nothing more than to furnish the condition or give rise to the occasion by which [plaintiff’s] injury was made possible and which was brought about by the intervention of a new, independent and efficient cause” … , i.e., plaintiff’s conduct in walking back to the accident scene. Prior to plaintiff’s accident with Hourt, the situation resulting from the initial rear-end accident ” was a static, completed occurrence,’ . . . [and] [t]he risk undertaken by plaintiff’ [in walking back to the rear-end accident scene] was created by himself” … . Gustke v Nickerson, 2018 NY Slip Op 02087, Fourth Dept 3-23-18

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR-MOST DRIVER IN A CHAIN-REACTION ACCIDENT LIABLE TO PLAINTIFF WHO WAS IN THE LINE OF STOPPED CARS, REAR-MOST DRIVER NOT LIABLE FOR PLAINTIFF’S SUBSEQUENT INJURY WHEN HE WAS STRUCK BY ANOTHER DRIVER AFTER GETTING OUT OF HIS CAR (FOURTH DEPT))/TRAFFIC ACCIDENTS (REAR-MOST DRIVER IN A CHAIN-REACTION ACCIDENT LIABLE TO PLAINTIFF WHO WAS IN THE LINE OF STOPPED CARS, REAR-MOST DRIVER NOT LIABLE FOR PLAINTIFF’S SUBSEQUENT INJURY WHEN HE WAS STRUCK BY ANOTHER DRIVER AFTER GETTING OUT OF HIS CAR (FOURTH DEPT))/REAR-END COLLISIONS (REAR-MOST DRIVER IN A CHAIN-REACTION ACCIDENT LIABLE TO PLAINTIFF WHO WAS IN THE LINE OF STOPPED CARS, REAR-MOST DRIVER NOT LIABLE FOR PLAINTIFF’S SUBSEQUENT INJURY WHEN HE WAS STRUCK BY ANOTHER DRIVER AFTER GETTING OUT OF HIS CAR (FOURTH DEPT))/CHAIN-REACTION ACCIDENTS (TRAFFIC ACCIDENTS, REAR-MOST DRIVER IN A CHAIN-REACTION ACCIDENT LIABLE TO PLAINTIFF WHO WAS IN THE LINE OF STOPPED CARS, REAR-MOST DRIVER NOT LIABLE FOR PLAINTIFF’S SUBSEQUENT INJURY WHEN HE WAS STRUCK BY ANOTHER DRIVER AFTER GETTING OUT OF HIS CAR (FOURTH DEPT))/FURNISH CONDITION FOR ACCIDENT (TRAFFIC ACCIDENTS, REAR-MOST DRIVER IN A CHAIN-REACTION ACCIDENT LIABLE TO PLAINTIFF WHO WAS IN THE LINE OF STOPPED CARS, REAR-MOST DRIVER NOT LIABLE FOR PLAINTIFF’S SUBSEQUENT INJURY WHEN HE WAS STRUCK BY ANOTHER DRIVER AFTER GETTING OUT OF HIS CAR (FOURTH DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, REAR-MOST DRIVER IN A CHAIN-REACTION ACCIDENT LIABLE TO PLAINTIFF WHO WAS IN THE LINE OF STOPPED CARS, REAR-MOST DRIVER NOT LIABLE FOR PLAINTIFF’S SUBSEQUENT INJURY WHEN HE WAS STRUCK BY ANOTHER DRIVER AFTER GETTING OUT OF HIS CAR (FOURTH DEPT))

March 23, 2018

Employment Law, Municipal Law

VILLAGE EMPLOYEE’S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER’S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER’S LICENSE (FOURTH DEPT).

The Fourth Department determined that the termination of a village employee (Jakubowicz) was arbitrary and capricious. The employee was fired because he did not have a commercial driver’s license. However, the Mechanic II position does not explicitly require a commercial driver’s license:

The Village, as limited by its brief, contends that a commercial driver’s license is a minimum qualification for Jakubowicz’s position as a Mechanic II in the Village and that his failure to maintain such minimum qualification required the termination of his employment. We reject that contention. The Mechanic II position in the Village requires, inter alia, “[p]ossession, at time of appointment and during service in this classification, of a valid NYS Motor Vehicle Operator’s license appropriate for the type of vehicles which the employee may from time to time operate.” ” [B]oth due process and fundamental fairness require that a qualification or requirement of employment be expressly stated in order for an employer to bypass the protections afforded by the Civil Service Law or a collective bargaining agreement and summarily terminate an employee’ ” … . Here, the requirement of a commercial driver’s license is not “expressly stated” … . Furthermore, while “an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it” … , the Village here offered Jakubowicz a hearing “to afford [him] the opportunity to present information to the Village why [he] should not be administratively terminated from employment.” There is no dispute that a hearing was never held. Matter of Jakubowicz v Village of Fredonia, 2018 NY Slip Op 02059, Fourth Dept 3-23-18

MUNICIPAL LAW (VILLAGE EMPLOYEE’S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER’S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER’S LICENSE (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, VILLAGE EMPLOYEE’S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER’S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER’S LICENSE (FOURTH DEPT))/CIVIL SERVICE LAW (VILLAGE EMPLOYEE’S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER’S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER’S LICENSE (FOURTH DEPT))

March 23, 2018

Insurance Law

USING THE COURT’S OWN DEFINITION OF SURFACE WATER, THE COURT DETERMINED THE SURFACE WATER DAMAGE EXCLUSION IN THE PROPERTY INSURANCE POLICY DID NOT APPLY, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the insurer’s cross motion for summary judgment should not have been granted and the insured’s motion for summary judgment should have been granted. Plaintiffs’ home was damaged by water. The policy excluded damage from surface water and coverage was denied on that ground. Without describing the facts, the Fourth Department noted that the term “surface water” was not defined in the policy and, using the court’s own definition, held that the water which caused the damage was not surface water:

“An insurance agreement is subject to principles of contract interpretation” … , and “[a]ny . . . exclusions or exceptions from policy coverage must be specific and clear in order to be enforced. They are not to be extended by interpretation or implication, but are to be accorded a strict and narrow construction” … . Inasmuch as the term “surface water” is not defined in the policy, “we afford that term its plain and ordinary meaning’ ” … . We have previously defined surface water as ” the accumulation of natural precipitation on the land and its passage thereafter over the land until it either evaporates, is absorbed by the land or reaches stream channels’ ” … .We thus conclude that, under the clear and unambiguous terms of the policy, the water that entered the plaintiffs’ residence was not surface water, and defendant therefore erroneously denied coverage under that policy exclusion. Smith v Safeco Ins. Co. of Am., 2018 NY Slip Op 02055, Fourth Dept 3-23-18

INSURANCE LAW (USING THE COURT’S OWN DEFINITION OF SURFACE WATER, THE COURT DETERMINED THE SURFACE WATER DAMAGE EXCLUSION IN THE PROPERTY INSURANCE POLICY DID NOT APPLY, SUPREME COURT REVERSED (FOURTH DEPT))/SURFACE WATER (INSURANCE LAW, USING THE COURT’S OWN DEFINITION OF SURFACE WATER, THE COURT DETERMINED THE SURFACE WATER DAMAGE EXCLUSION IN THE PROPERTY INSURANCE POLICY DID NOT APPLY, SUPREME COURT REVERSED (FOURTH DEPT))/WATER (SURFACE WATER, INSURANCE LAW, USING THE COURT’S OWN DEFINITION OF SURFACE WATER, THE COURT DETERMINED THE SURFACE WATER DAMAGE EXCLUSION IN THE PROPERTY INSURANCE POLICY DID NOT APPLY, SUPREME COURT REVERSED (FOURTH DEPT))

March 23, 2018

Civil Procedure, Family Law

ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT).

The Fourth Department determined that, although father could not seek modification of an out of state support order under the Uniform Interstate Family Support Act (UIFSA), he could seek modification under the Full Faith and Credit for Child Support Orders Act (FFCCSOA), which was deemed to preempt the UIFSA:

In order to modify an out-of-state child support order under the Uniform Interstate Family Support Act ([UIFSA] Family Ct Act art 5-B), the order must be registered in New York and, in relevant part, the following conditions must be present: “(i) neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state; (ii) a petitioner who is a nonresident of this state seeks modification; and (iii) the respondent is subject to the personal jurisdiction of the tribunal of this state” … . Although the New Jersey child support order was registered in New York, the father is the petitioner and he is a resident of New York. Therefore, under the UIFSA, the father could not properly bring the petition for modification of the New Jersey child support order in New York. The father could, however, properly bring the petition for modification in New York under the Full Faith and Credit for Child Support Orders Act … . Under the FFCCSOA, a New York court may modify an out-of-state child support order if “the court has jurisdiction to make such a child support order pursuant to [28 USC § 1738B] subsection (i)” and, in relevant part, “the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child’s State or the residence of any individual contestant” … . Here, neither the parties nor the child continued to reside in New Jersey, and New Jersey therefore ceased to have continuing, exclusive jurisdiction … .

Although the UIFSA and the FFCCSOA “have complementary policy goals and should be read in tandem”… , the UIFSA and the FFCCSOA conflict when applied to these facts, and we conclude that the FFCCSOA preempts the UIFSA here. The FFCCSOA “is so comprehensive in scope that it is inferable that Congress intended to fully occupy the field of its subject matter” … . Matter of Reynolds v Evans, 2018 NY Slip Op 02077, Fourth Dept 3-23-18

FAMILY LAW (SUPPORT, ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/SUPPORT (FAMILY LAW, ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/CIVIL PROCEDURE (FAMILY LAW, PREEMPTION, ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/PREEMPTION (FAMILY LAW, SUPPORT, ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/UNIFORM INTERSTATE FAMILY SUPPORT ACT (ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT ( ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))

March 23, 2018

Attorneys, Family Law

COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY’S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Peradotto, reversing Supreme Court, determined the court did not have the power to impute income to the defendant for the purpose of determining defendant’s eligibility for assigned counsel in a Family Court Act custody/visitation matter. Defendant was a PhD student living with his parents and had very little income. After a hearing, Supreme Court imputed $50,000 in annual income to the defendant, making him ineligible for assigned counsel:

… [A] person facing potential jail time for willfully violating court orders has a significant stake in the proceedings, and the legislature has guaranteed an equal playing field between the parties by providing such a person with assigned counsel if he or she is financially unable to obtain private counsel… . Moreover, to the extent that the court is concerned that defendant could bring serial modification petitions with impunity, thereby causing plaintiff to repeatedly expend her personal funds, we note that sanctions may be imposed for frivolous conduct … and, in an appropriate case, a court may preclude a party from filing new petitions without permission of the court where the record establishes that the party has abused the judicial process by engaging in meritless, frivolous or vexatious litigation … . We thus conclude that the court erred in determining that it was authorized to impute income to defendant in determining his eligibility for assigned counsel and, based upon the documentation provided by defendant indisputably establishing that he “is financially unable to obtain” counsel … . Carney v Carney, 2018 NY Slip Op 02034, Fourth Dept 3-23-18

FAMILY LAW (ATTORNEYS, COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY’S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT))/ATTORNEYS (FAMILY LAW, ASSIGNED COUNSEL, COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY’S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT))/ASSIGNED COUNSEL (FAMILY LAW, COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY’S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT))

March 23, 2018

Family Law

FATHER’S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION AS MUTUALLY AGREED, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, FATHER ALLEGED THE MUTUALLY AGREED VISITATION HAD BECOME UNTENABLE (FOURTH DEPT).

The Fourth Department determined father’s motion to modify visitation should not have been denied without a hearing. The existing order allowed father visitation under mutually agreed circumstance. Father alleged mother had prohibited visitation for three years:

Although “[a] court cannot delegate its authority to determine visitation to either a parent or a child” … , it may order visitation as the parties may mutually agree so long as such an arrangement is not untenable under the circumstances … . Where, as here, a prior order provides for visitation as the parties may mutually agree, a party who is unable to obtain visitation pursuant to that order “may file a petition seeking to enforce or modify the order” … .

We agree with the father that the court erred in dismissing the modification petition without a hearing inasmuch as the father made “a sufficient evidentiary showing of a change in circumstances to require a hearing”… . Contrary to the mother’s contention, upon giving the petition a liberal construction, accepting the facts alleged therein as true, and according the father the benefit of every favorable inference… , we conclude that the father adequately alleged a change of circumstances insofar as the visitation arrangement based upon mutual agreement was no longer tenable given that the mother purportedly denied the father any contact with the child … . In addition, we note that, although the father is now incarcerated, there is a rebuttable presumption that visitation is in the child’s best interests … . Matter of Kelley v Fifield, 2018 NY Slip Op 02110, Fourth Dept 3-23-18

FAMILY LAW (VISITATION, FATHER’S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION AS MUTUALLY AGREED, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, FATHER ALLEGED THE MUTUALLY AGREED VISITATION HAD BECOME UNTENABLE (FOURTH DEPT))/VISITATION (FAMILY LAW, MODIFICATION OF MUTUALLY AGREED VISITATION, FATHER’S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION AS MUTUALLY AGREED, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, FATHER ALLEGED THE MUTUALLY AGREED VISITATION HAD BECOME UNTENABLE (FOURTH DEPT))

March 23, 2018

Attorneys, Criminal Law, Evidence

ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a strong two-justice dissent, affirmed defendant’s murder conviction despite the introduction of highly prejudicial evidence of unrelated crimes and defense counsel’s failure to object to that inadmissible propensity evidence. The majority decided not to address the inadmissible propensity evidence because defense counsel did not object to it (error not preserved for appeal). The majority further determined that allowing the jury to hear the inadmissible propensity evidence was a valid defense strategy (painting the admission to the charged crime and other crimes as merely tough talk):

We conclude, contrary to the view of our dissenting colleagues, that defendant received effective assistance of counsel. It is well settled that “a reviewing court must avoid confusing true ineffectiveness with mere losing tactics’ ” … . It “is not for [the] court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” … . Crucially, we note that the evidence in question is the very same evidence upon which defendant relied to establish his defense at trial. The defense theory of the case, as articulated in defense counsel’s summation, was that defendant did not kill the victim; he was merely “talking tough” because he was afraid of being in jail. Indeed, as defendant told the investigators, he was just “trying to sound bigger than he really was.” Defense counsel urged the jury to find defendant’s statements unworthy of belief because defendant was frightened and “puffing.” In an effort to deflect the jury’s attention from defendant’s admissions to the charged crime, defense counsel made a deliberate choice, as a matter of trial strategy, to leave those admissions in the context of the gratuitous boasting in which they arose. Although the evidence in question would have been excludable upon a motion by defendant, we conclude that the evidence was consistent with the defense strategy. Moreover, the redaction of such material from the letter and audio recording would have highlighted defendant’s confession to the [charged] homicide. In other words, extracting defendant’s admissions from the extraneous talk that was consistent with the puffing defense would have undercut the defense theory and focused the jury’s attention on defendant’s admissions of guilt. People v Anderson, 2018 NY Slip Op 02105, Fourth Dept 3-23-18

CRIMINAL LAW (ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, UNCHARGED CRIMES, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/UNCHARGED CRIMES (ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/PROPENSITY EVIDENCE (CRIMINAL LAW, UNCHARGED CRIMES, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/INEFFECTIVE ASSISTANCE OF COUNSEL (CRIMINAL LAW, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))

March 23, 2018

Criminal Law, Evidence

DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (OVERRULING PRECEDENT) (FOURTH DEPT).

The Fourth Department determined defendant was entitled to a hearing on his motion to withdraw his guilty plea based upon the People’s failure to disclose the autopsy and toxicology reports relating to the two persons on a motorcycle who died after colliding with defendant’s truck. The reports indicated high blood alcohol levels. The Fourth Department noted that the reports constituted Brady material and held that a defendant does not waive a Brady violation by pleading guilty. Prior Fourth Department decisions to the contrary are no longer to be followed:

… [W]e reject the People’s contention that defendant forfeited his right to raise the alleged Brady violation by pleading guilty … . Brady is premised upon considerations of fairness and due process … , and we conclude that it would undermine the prosecutor’s Brady obligations if a defendant is deemed to have forfeited his or her right to raise an alleged Brady violation by entering a plea without the knowledge that the People possessed exculpatory evidence… . To the extent that our prior decisions hold that a defendant, by pleading guilty, forfeits the right to raise an alleged Brady violation (see e.g. People v Brockway, 148 AD3d 1815, 1816 [4th Dept 2017]; People v Chant, 140 AD3d 1645, 1648 [4th Dept 2016], lv denied 28 NY3d 970 [2016]; People v Chinn, 104 AD3d 1167, 1168 [4th Dept 2013], lv denied 21 NY3d 1014 [2013]), they are no longer to be followed. …

We reject the People’s contention that the reports do not contain exculpatory material and that they were thus under no obligation to disclose them. Rather, we agree with defendant that evidence of the motorcycle operator’s intoxication is relevant with respect to the cause of the fatal accident and defendant’s culpability therefor and, here, the toxicology report states that two blood samples obtained from the motorcycle operator indicated blood alcohol concentrations of .081 and .098. Moreover, the exculpatory value of that evidence is enhanced by defendant’s initial account of the accident to State Police officers at the scene, wherein defendant asserted that the accident occurred when the motorcycle was passing another vehicle and suddenly appeared “right in front of him.” People v Wilson, 2018 NY Slip Op 02106, Fourth Dept 3-23-18

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))/BRADY MATERIAL (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))/GUILTY PLEA, MOTION TO WITHDRAW (BRADY VIOLATION DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))

March 23, 2018

Tag Archive for: Fourth Department

REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT).

SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT).

REAR-MOST DRIVER IN A CHAIN-REACTION ACCIDENT LIABLE TO PLAINTIFF WHO WAS IN THE LINE OF STOPPED CARS, REAR-MOST DRIVER NOT LIABLE FOR PLAINTIFF’S SUBSEQUENT INJURY WHEN HE WAS STRUCK BY ANOTHER DRIVER AFTER GETTING OUT OF HIS CAR (FOURTH DEPT).

VILLAGE EMPLOYEE’S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER’S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER’S LICENSE (FOURTH DEPT).

USING THE COURT’S OWN DEFINITION OF SURFACE WATER, THE COURT DETERMINED THE SURFACE WATER DAMAGE EXCLUSION IN THE PROPERTY INSURANCE POLICY DID NOT APPLY, SUPREME COURT REVERSED (FOURTH DEPT).

ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT).

COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY’S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT).

FATHER’S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION AS MUTUALLY AGREED, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, FATHER ALLEGED THE MUTUALLY AGREED VISITATION HAD BECOME UNTENABLE (FOURTH DEPT).

ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT).

DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (OVERRULING PRECEDENT) (FOURTH DEPT).

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