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THE RECORD DID NOT SUPPORT THE AWARD OF PRIMARY PHYSICAL CUSTODY TO MOTHER, FAMILY COURT REVERSED, ALTHOUGH THE CHILD WISHED TO STAY WITH MOTHER, THAT FACTOR WAS AFFORDED LITTLE WEIGHT DUE TO THE CHILD’S YOUNG AGE.

The Fourth Department, reversing Family Court, determined there was not a sound and substantial basis in the record for awarding primary physical custody to the mother. Although the child wished to stay with mother, the Fourth Department accorded that factor little weight because of the child’s young age and mother’s permissive parenting style:

It is well settled that, in determining the child’s best interests, a court should consider “(1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) [the] quality of the child’s home environment and that of the parent seeking custody; (3) the ability of each parent to provide for the child’s emotional and intellectual development; (4) the financial status and ability of each parent to provide for the child; (5) the individual needs and expressed desires of the child; and (6) the need of the child to live with siblings” … . Additionally, a preexisting custody arrangement established by agreement is ” a weighty factor,’ ” but is not absolute … .

… With respect to the first factor, although the mother has been the child’s primary caretaker since birth, her living arrangements were unstable. The mother and the child had lived in seven different residences over the three years preceding the hearing, which resulted in the child changing schools every year. As the court recognized in its decision, the father is the more stable parent.

Concerning the quality of the home environment, the father and his wife own a home where the child has his own room, his own bed, and age-appropriate toys. In contrast, the mother’s chaotic living arrangements have put the child in regular contact with a half-sister who abuses drugs and have resulted in the child living in a home that was infested with fleas. Concerning the child’s emotional and intellectual development, the father ensures that the child attends school regularly and completes his homework. The record established that, since the father began playing a larger role in the child’s life, the child’s attendance and performance in school has improved dramatically. Also, the father facilitates the child’s participation in activities such as karate and swimming, encourages him to read for 20 minutes a day, and has adjusted his diet to address his medical needs. In contrast, the mother has shown a lack of concern for the child’s attendance and performance in school, shields him from experiences and foods that he finds unpleasant, and prefers that he play video games and eat fast food. Concerning the parents’ relative financial status, the father’s household income is significantly higher and his job is stable. In contrast, although the mother had difficulty affording her expenses and was evicted from prior residences, she continued to bounce from one part-time job to another and testified that she sees no need to work more than 28 hours a week. Matter of Braga v Bell, 2017 NY Slip Op 05348, 4th Dept 6-30-17

 

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QUESTIONS OF FACT RAISED WHETHER DEFAMATORY STATEMENTS WERE MOTIVATED SOLELY BY MALICE, THEREBY OVERCOMING QUALIFIED IMMUNITY, AND WERE MADE WITHIN THE SCOPE OF EMPLOYMENT, THEREBY RENDERING THE EMPLOYER VICARIOUSLY LIABLE.

The Fourth Department, modifying Supreme Court, determined the defamation causes of action properly survived summary judgment with respect to the speaker (Cramer) and the defamation causes of action against Cramer’s employers (the village and fire department), based upon vicarious liability, should not have been dismissed. Cramer had made statements to her employer that plaintiff was a child molester and she had tapes to prove it. There was evidence the statements were motivated solely by malice (and therefore not protected by qualified immunity) and were made within the scope of Cramer’s employment:

We conclude that defendants met their initial burden of establishing that any alleged statements are protected by a qualified privilege inasmuch as they were made between members of the organization in connection with plaintiff’s application for membership, and thus “the burden shifted to plaintiff[] to raise a triable issue of fact whether the statements were motivated solely by malice’ ” … . “If [Cramer’s] statements were made to further the interest protected by the privilege, it matters not that [she] also despised plaintiff. Thus, a triable issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication’ ” … . Plaintiff provided the deposition testimony of the assistant fire chief, who testified that Cramer told him to “go tell [plaintiff] for me that if he continues with this application I’m going to pull out tapes that I have that shows he’s a child molester and that it’s going to ruin his life.” Plaintiff also provided the deposition testimony of a woman who was at the Fire Department … and heard Cramer call plaintiff a “child molester”; that same witness heard Cramer call plaintiff a pedophile in 2011. A Fire Department employee testified in his deposition that he heard Cramer say to her husband that she had proof that plaintiff was a “child molester.” In light of that evidence, we therefore conclude that plaintiff raised an issue of fact whether Cramer’s statements were motivated solely by malice and thus are not protected by a qualified privilege.

“An employer may be held vicariously liable for an allegedly slanderous statement made by an employee only if the employee was acting within the scope of his or her employment at the time that the statement was made”… . We further conclude that defendants failed to establish their entitlement to judgment as a matter of law that Cramer was not acting within the scope of her employment when she allegedly made the statements to the assistant fire chief and/or at the meeting … . Stevenson v Cramer, 2017 NY Slip Op 05353, 4th Dept 6-30-17

 

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PEOPLE PROPERLY ALLOWED TO IMPEACH THEIR OWN WITNESS, THE WITNESS’S TESTIMONY AFFIRMATIVELY DAMAGED THE PEOPLE’S CASE AND WAS NOT, AS ARGUED BY THE CONCURRING JUSTICES, MERELY NEUTRAL OR UNHELPFUL.

The Fourth Department, over a two-justice concurrence, determined the People were properly allowed to impeach their own witness when the witness testified she did not see the driver of the car from which shots were fired. She had previously stated the defendant was the driver. The concurring justices argued that the witness’s changed testimony did not affirmatively damage the People’s case, but was merely neutral and unhelpful, and therefore impeachment was not appropriate. However, the concurring justices deemed the error harmless:

Contrary to defendant’s … contention, the court properly allowed the People to impeach the credibility of the victim’s girlfriend when she testified that she did not see the driver of the vehicle who shot the victim, which contradicted her grand jury testimony and her sworn statement identifying defendant as the shooter. It is well established that “[e]vidence of a prior contradictory statement may be received for the limited purpose of impeaching the witness’s credibility with respect to his or her testimony . . . [where, as here], the testimony on a material fact’ . . . tend[s] to disprove the party’s position or affirmatively damage[s] the party’s case’ ” … . We conclude that the testimony of the witness denying that she saw the driver related to a material fact, the identity of the shooter, and affirmatively damaged the People’s case … , particularly because the victim did not testify. People v Ellison, 2017 NY Slip Op 05339, 4th Dept 6-30-17

 

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DEFENDANT WAS ERRONEOUSLY TOLD HE COULD APPEAL THE GRAND JURY EVIDENCE ISSUES AFTER ENTERING A GUILTY PLEA, HIS MOTION TO WITHDRAW HIS PLEA UPON LEARNING OF THE ERROR SHOULD HAVE BEEN GRANTED. ​

The Fourth Department determined defendant’s motion to withdraw his guilty plea should have been granted. Defendant was told he could appeal the court’s ruling that the grand jury minutes constituted legally sufficient evidence of the charges in the indictment. However the denial of a motion to dismiss arguing the insufficiency or inadmissibility of the grand jury evidence is not appealable after a guilty plea:

We agree with defendant … that the court erred in denying his motion to withdraw his plea of guilty. “A trial court is constitutionally required to ensure that a defendant, before entering a guilty plea, has a full understanding of what the plea entails and its consequences” … . It is nevertheless well established that a guilty plea is not invalid merely because the court “failed to specifically enumerate all the rights to which the defendant was entitled and to elicit from him or her a list of detailed waivers before accepting the guilty plea” … . Where the record establishes, however, that the court incorrectly advised the defendant of the consequences of his guilty plea, the resulting plea “must be vacated because it was not knowingly, intelligently and voluntarily entered” … .

Here, the court incorrectly advised defendant with respect to the rights that defendant was forfeiting in pleading guilty. It is well established that a defendant who pleads guilty may not challenge on appeal the sufficiency or the admissibility of the evidence before the grand jury … . The record establishes, however, that defendant asked to be assured that he could raise those issues on appeal from a judgment entered upon his plea of guilty, and the court assured him that he could do so. Given those assurances, which ended up being false, defendant accepted the plea deal, and entered a guilty plea. When defendant learned that he would not be able to raise on appeal the above grand jury issues, he made a motion to withdraw his plea, which the court denied. Under the circumstances, that was error. People v Colon, 2017 NY Slip Op 05343, 4th Dept 6-30-17

 

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MULTIPLICITOUS COUNTS OF SEX OFFENSE INDICTMENT DISMISSED IN THE INTEREST OF JUSTICE, THE COUNTS CHARGED SINGLE UNINTERRUPTED OFFENSES WHICH SHOULD NOT HAVE BEEN SPLIT INTO TWO COUNTS EACH.

The Fourth Department, in the interest of justice, determined several counts of the sex offense indictment were multiplicitous and therefore must be dismissed. The defendant was charged with two counts for single uninterrupted events, touching the victim’s vagina while simultaneously having the victim touch his penis:

An indictment is multiplicitous “when a single offense is charged in more than one count”… . A person commits the criminal offense of sexual abuse in the first degree when he or she subjects a person under 11 years old to sexual contact … . Nevertheless, a defendant may not be charged with separate counts of sexual abuse in the first degree for each instance of unlawful sexual contact where the instances of sexual contact constitute “a single, uninterrupted criminal act”  … . Here, for each instance of defendant touching a victim’s vagina, defendant was properly charged with a single and distinct count. By contrast, for each instance of defendant compelling a victim to touch his penis while defendant was simultaneously touching that victim’s vagina, defendant was charged with two separate counts. Charging two separate counts under those facts was improper inasmuch as the actions alleged in each pair of counts constituted a single, uninterrupted criminal act. We thus conclude that the indictment was multiplicitous, and we therefore dismiss counts 2, 5, 13 through 17, and 25 through 28 of indictment No. 5548 … . People v Sprague, 2017 NY Slip Op 05347, 4th dept 6-30-17

 

FOR CAUSE CHALLENGE TO JUROR WHO WANTED TO HEAR FROM EVERYONE (IMPLICITLY INCLUDING THE DEFENDANT) SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED.

The Fourth Department, reversing defendant’s conviction, determined a for cause challenge to a juror who said she would like to hear from everybody (implicitly including the defendant) should have been granted:

Upon being asked by defense counsel whether she thought that she “would have to hear from [defendant] in order to determine what the verdict should be,” the prospective juror responded, in relevant part, that she “would like to hear from everyone involved.” Defense counsel later asked the prospective juror, by way of confirmation, whether she had said that she would “like to hear from [defendant],” and the prospective juror reiterated that she “would like to hear from everyone.” We conclude that the prospective juror’s responses suggested that defendant had an obligation to testify, thereby casting serious doubt on her ability to render an impartial verdict … . We further conclude that the prospective juror’s silence when the court subsequently asked the entire panel whether anyone “needs to hear from the defendant or must hear from the defendant before he or she renders a verdict” did not constitute an unequivocal assurance of impartiality that would warrant denial of defendant’s challenge for cause … . People v Hargis, 2017 NY Slip Op 05363, 4th Dept 6-30-17

 

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COUNTY LAW 308 DOES NOT PROHIBIT DISCOVERY OF 911 CALL RECORDS IN A CIVIL LAWSUIT, INCLUDING THE RECORDS OF 911 CALLS MADE BY NONPARTIES.

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, determined Supreme Court properly ordered the county to provide to plaintiff records of 911 calls made during a severe winter storm. Plaintiff’s decedent was stranded in his car during the storm and called 911 for help. Help did not arrive until nearly 24 hours later, after plaintiff’s decedent died. In addition to the records of plaintiff’s decedent’s 911 call (which the county provided), plaintiff sought records of 911 calls made by others during the storm. The county argued the list of parties allowed access to 911 call records in County Law § 308 (4) was exclusive, and did not include parties in civil lawsuits. The Fourth Department determined the county’s argument was not supported by the legislative history of the statute:

Here, the context and legislative history of section 308 (4) paint a different picture than defendants’ de-contextualized analysis suggests. Section 308 was enacted as part of article 6 of the County Law, which contains 59 discrete provisions related almost exclusively to the financing of a uniform, statewide telephonic emergency response system. * * *

… County Law § 300 reveals unmistakably that the Legislature was motivated to adopt County Law article 6 in order to update the emergency response system across the State and to mitigate the financial burden of that endeavor for local governments. It is hardly surprising, then, that section 308 (4) lacks the hallmark language of other statutory provisions which specifically cut off a civil litigant’s access to certain classes of evidentiary materials for reasons of public policy… .

The relevant legislative history lends further support to our conclusion that the Legislature did not enact section 308 (4) in order to exempt 911 records from the scope of discovery authorized by CPLR article 31. Specifically, the sponsoring memorandum for what would become County Law article 6 referenced only the budgetary implications of enhanced 911 services for local government … , and a later-introduced bill sought to repeal section 308 (4) on the ground that it unjustifiably shielded 911 records from requests under the Freedom of Information Law (FOIL) … . Tellingly, the sponsor … did not identify any need to repeal section 308 (4) in order to make 911 records discoverable under article 31, and for good reason — section 308 (4) had never exempted 911 records from such disclosure in the first place. Abate v County of Erie, 2017 NY Slip Op 05351, 4th Dept 6-30-17

 

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PLAINTIFF’S MOTION TO COMPEL POST-JUDGMENT DISCOVERY TO DETERMINE DAMAGES SHOULD HAVE BEEN GRANTED, DEFENDANTS’ ANSWER HAD BEEN STRUCK FOR FAILURE TO COMPLY WITH A DISCOVERY ORDER AND A DEFAULT JUDGMENT HAD BEEN GRANTED.

The Fourth Department determined plaintiff’s motion seeking discovery to determine damages after defendants’ answer had been struck should have been granted. Plaintiff alleged defendants had breached “noncompete” provisions of an employment agreement. Defendant (Morrow) did not show up for a deposition and defendants did not provide discovery. Supreme Court granted plaintiff’s motion to strike the answer and enter judgment for plaintiff, but denied plaintiff’s motion for post-judgment discovery:

We agree with plaintiff that it is entitled to discovery in order to establish its damages … . A “defendant’s obligation to afford [a] plaintiff the opportunity to pursue discovery [is not] terminated when the answer [is] stricken,” inasmuch as a plaintiff should not be “handicapped in the proof of its damages by [a] defendant’s prior defiance of orders, notices, or subpoenas calling for his production of records or the taking of a deposition” … . Thus, a “plaintiff, if it chooses to do so, may press its right to discovery in advance of the inquest, whether for direct use as evidence in proving its damages or for the procurement of information that may lead to such evidence” … . Here, plaintiff is entitled to an order compelling Morrow’s compliance with the discovery demands insofar as those demands are “material and necessary” to establish plaintiff’s damages (CPLR 3101 [a]). We therefore reverse the order insofar as appealed from and grant that part of the motion seeking an order to compel discovery from Morrow with respect to damages only. ICM Controls Corp. v Morrow, 2017 NY Slip Op 05355, 4th Dept 6-30-17

 

NO SHOWING A REASONABLE RETURN ON THE PROPERTY WAS NOT POSSIBLE WITH A CONFORMING USE, USE VARIANCE SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined the grant of a use variance by the zoning board of appeals (ZBA) should have been annulled. The parties seeking the variance (JCC and Lynn) did not present any proof that a reasonable return was not possible with a conforming use:

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“No . . . use variance shall be granted without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship.” In order to prove such unnecessary hardship, the Zoning Ordinance requires the applicant to establish, among other things, that, for each and every permitted use under the zoning regulations for the particular district where the property is located, the applicant cannot realize a reasonable return and that the lack of return is substantial as demonstrated by competent financial evidence… . In other words, the applicant must demonstrate “by dollars and cents proof” that he or she cannot realize a reasonable return by any conforming use… . As part of that demonstration, the applicant must necessarily establish what a reasonable return for the property is … . An applicant’s failure to establish that he or she cannot realize a reasonable return by any conforming use requires denial of the use variance by the ZBA … .

Here, JCC and Lynn failed to present any evidence to the ZBA to satisfy the first requirement of unnecessary hardship, i.e., that they could not realize a reasonable return on the property by any conforming use. In the absence of such evidence in dollars and cents form, there is no rational basis for the ZBA’s finding that the premises would not yield a reasonable return in the absence of the requested use variance and, for that reason, we conclude that the ZBA’s determination must be annulled … . Leone v City of Jamestown Zoning Bd. of Appeals, 2017 NY Slip Op 04980, 4th Dept 6-16-17

 

ZONING (USE VARIANCE, NO SHOWING A REASONABLE RETURN ON THE PROPERTY WAS NOT POSSIBLE WITH A CONFORMING USE, USE VARIANCE SHOULD NOT HAVE BEEN GRANTED)/USE VARIANCE (ZONING, NO SHOWING A REASONABLE RETURN ON THE PROPERTY WAS NOT POSSIBLE WITH A CONFORMING USE, USE VARIANCE SHOULD NOT HAVE BEEN GRANTED)

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SOLAR AND WIND EASEMENTS, WHICH WERE RECORDED AFTER THE MORTGAGES, ARE SUBJECT TO FORECLOSURE.

The Fourth Department determined solar and wind easements granted subsequent to the mortgages are subject to foreclosure:

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… [D]efendant’s easements constitute interests in the realty that are subject to foreclosure by plaintiff. A mortgage creates a lien upon the property to the extent of the mortgagor’s own interest or title at the time of the giving of the mortgage. Thus, “[t]he effect of the foreclosure [judgment and sale] . . . is to vest in the purchaser the entire interest and estate of mortgagor and mortgagee as it existed at the date of the mortgage, and unaffected by the subsequent [e]ncumbrances and conveyances of the mortgagor” … . Given that defendant’s easements were not granted and recorded until June 2015, after the subject mortgages were given and recorded in August 2012 and April 2014, respectively, the mortgagors’ interests at the time of the giving of the mortgages included the use or control of the airspace above their properties. Thus, the mortgages are prior in time and right to defendant’s easements … . Bank of Akron v Spring Cr. Athletic Club, Inc., 2017 NY Slip Op 05008, 4th Dept 6-16-17

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REAL PROPERTY (FORECLOSURE, SOLAR AND WIND EASEMENTS, SOLAR AND WIND EASEMENTS, WHICH WERE RECORDED AFTER THE MORTGAGES, ARE SUBJECT TO FORECLOSURE)/FORECLOSURE (SOLAR AND WIND EASEMENTS , WHICH WERE RECORDED AFTER THE MORTGAGES, ARE SUBJECT TO FORECLOSURE)/EASEMENTS (FORECLOSURE, SOLAR AND WIND EASEMENTS , WHICH WERE RECORDED AFTER THE MORTGAGES, ARE SUBJECT TO FORECLOSURE)/SOLAR EASEMENTS (FORECLOSURE, SOLAR AND WIND EASEMENTS , WHICH WERE RECORDED AFTER THE MORTGAGES, ARE SUBJECT TO FORECLOSURE)/WIND EASEMENTS (FORECLOSURE, SOLAR AND WIND EASEMENTS , WHICH WERE RECORDED AFTER THE MORTGAGES, ARE SUBJECT TO FORECLOSURE)

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