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STONE WALL ABUTTING A SIDEWALK IS NOT A FEATURE CONSTRUCTED ON THE SIDEWALK, THE SPECIAL USE DOCTRINE THEREFORE DID NOT APPLY, HERE THE WALL OBSTRUCTED PLAINTIFF BICYCLIST’S VIEW AND PLAINTIFF WAS STRUCK BY A CAR BACKING ACROSS THE SIDEWALK, PROPERTY OWNER OWED NO DUTY TO PLAINTIFF.

The Fourth Department, reversing Supreme Court, determined defendant property owner’s motion for summary judgment should have been granted. Plaintiff bicyclist was struck by a car backing out of a driveway on defendant’s property. It was alleged that both the bicyclist’s and driver’s view was obstructed by a stone fence on defendant’s property abutting the sidewalk. The Fourth Department held that defendant did not owe a duty to plaintiff. The special use doctrine applies only when a special use of a sidewalk results in a structure on the sidewalk (not the case here):

Contrary to plaintiff’s contention, defendant established that it owed no duty to plaintiff, a user of the public way … . Although plaintiff contends that a duty arose because defendant made a special use out of the sidewalk by virtue of the fact that the driveway passed over the sidewalk, we conclude that the special use doctrine is inapplicable where, as here, there is no alleged defect in the sidewalk or driveway itself … . “In the absence of a special feature constructed in the sidewalk, the special use doctrine will not be applied even if the defendant makes continual, heavy use of the sidewalk”… .

We thus conclude that defendant established that it owed no duty of care to plaintiff. “In the absence of duty, there is no breach and without a breach there is no liability” … . Weston v Martinez, 2017 NY Slip Op 03301, 4th Dept 4-28-17

 

NEGLIGENCE (STONE WALL ABUTTING A SIDEWALK IS NOT A FEATURE CONSTRUCTED ON THE SIDEWALK, THE SPECIAL USE DOCTRINE THEREFORE DID NOT APPLY, HERE THE WALL OBSTRUCTED PLAINTIFF BICYCLIST’S VIEW AND PLAINTIFF WAS STRUCK BY A CAR BACKING ACROSS THE SIDEWALK, PROPERTY OWNER OWED NO DUTY TO PLAINTIFF)/SIDEWALKS (SPECIAL USE DOCTRINE, STONE WALL ABUTTING A SIDEWALK IS NOT A FEATURE CONSTRUCTED ON THE SIDEWALK, THE SPECIAL USE DOCTRINE THEREFORE DID NOT APPLY, HERE THE WALL OBSTRUCTED PLAINTIFF BICYCLIST’S VIEW AND PLAINTIFF WAS STRUCK BY A CAR BACKING ACROSS THE SIDEWALK, PROPERTY OWNER OWED NO DUTY TO PLAINTIFF)/SPECIAL USE DOCTRINE (SIDEWALKS, STONE WALL ABUTTING A SIDEWALK IS NOT A FEATURE CONSTRUCTED ON THE SIDEWALK, THE SPECIAL USE DOCTRINE THEREFORE DID NOT APPLY, HERE THE WALL OBSTRUCTED PLAINTIFF BICYCLIST’S VIEW AND PLAINTIFF WAS STRUCK BY A CAR BACKING ACROSS THE SIDEWALK, PROPERTY OWNER OWED NO DUTY TO PLAINTIFF)/BICYCLES (STONE WALL ABUTTING A SIDEWALK IS NOT A FEATURE CONSTRUCTED ON THE SIDEWALK, THE SPECIAL USE DOCTRINE THEREFORE DID NOT APPLY, HERE THE WALL OBSTRUCTED PLAINTIFF BICYCLIST’S VIEW AND PLAINTIFF WAS STRUCK BY A CAR BACKING ACROSS THE SIDEWALK, PROPERTY OWNER OWED NO DUTY TO PLAINTIFF)

SPEED BUMP NOT OPEN AND OBVIOUS AS A MATTER OF LAW.

The Fourth Department determined defendants’ summary judgment motion in this slip and fall case was properly denied. A speed bump painted the same color as an adjacent walkway was not open and obvious as a matter of law:

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Contrary to defendants’ contention, we conclude that they failed to establish as a matter of law that the hazard posed by the speed bump was open and obvious and thus that they had no duty to warn plaintiff of a tripping hazard. It is well established that there is no duty to warn of an open and obvious dangerous condition “because in such instances the condition is a warning in itself’ “… . “Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances . . . A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted”… . “Some visible hazards, because of their nature or location, are likely to be overlooked . . . , and the facts here simply do not warrant concluding as a matter of law that the [speed bump] was so obvious that it would necessarily be noticed by any careful observer, so as to make any warning superfluous” … . Schneider v Corporate Place, LLC, 2017 NY Slip Op 03300, 4th Dept 4-28-17

NEGLIGENCE (SLIP AND FALL, SPEED BUMP NOT OPEN AND OBVIOUS AS A MATTER OF LAW)/SLIP AND FALL (SPEED BUMP NOT OPEN AND OBVIOUS AS A MATTER OF LAW)/SPEED BUMP (SLIP AND FALL, SPEED BUMP NOT OPEN AND OBVIOUS AS A MATTER OF LAW)/OPEN AND OBVIOUS (SLIP AND FALL, SPEED BUMP NOT OPEN AND OBVIOUS AS A MATTER OF LAW)

QUESTION OF FACT WHETHER SCAFFOLD WAS AN ADEQUATE SAFETY DEVICE UNDER THE CIRCUMSTANCES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department, reversing (modifying) Supreme Court, determined defendants’ motion for summary judgment on the Labor Law 240 (1) cause of action should not have been granted. There was a question of fact whether the scaffold was an adequate safety device because defendant alleged he was ordered to work on the scaffold when it was not high enough to reach his work area:

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Inasmuch as a modification to the scaffold was required and could have taken hours to be performed, we conclude that there are triable issues of fact whether an adequate safety device was “readily available” for plaintiff’s use … . Moreover, based on plaintiff’s testimony describing the third supervisor’s instructions, we conclude that there are triable issues of fact whether plaintiff chose “for no good reason” not to wait for the scaffold to be modified … . Although the third supervisor denied making such a comment, that denial merely establishes that neither party is entitled to summary judgment on the Labor Law § 240 (1) claim. Videan v NRG Energy, Inc., 2017 NY Slip Op 03315, 4th Dept 4-28-17

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER SCAFFOLD WAS AN ADEQUATE SAFETY DEVICE UNDER THE CIRCUMSTANCES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED)/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER SCAFFOLD WAS AN ADEQUATE SAFETY DEVICE UNDER THE CIRCUMSTANCES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED)

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FRAUD ALLEGED TO HAVE BEEN COMMITTED IN A PRIOR PROCEEDING MUST BE ADDRESSED BY A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT IN A SECOND PLENARY ACTION.

The Fourth Department determined that a second plenary action for fraud allegedly committed in a foreclosure proceeding is not proper. The proper remedy is a motion to vacate the judgment in the foreclosure proceeding:

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“To the extent that the [amended] complaint alleged fraud, misrepresentation, or other misconduct of an adverse party committed during the course of the prior litigation, plaintiff[s’] sole remedy was a motion to vacate the court’s prior order pursuant to CPLR 5015 (a) (3). A litigant’s remedy for alleged fraud in the course of a legal proceeding lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the [judgment] due to its fraudulent procurement, not a second plenary action collaterally attacking the” judgment … .

Contrary to plaintiffs’ further contention, this case does not fit within the exception … which applies when the alleged fraud or perjury “is merely a means to the accomplishment of a larger fraudulent scheme,” i.e., one “greater in scope than [that] in the prior proceeding” … .  MAA-Sharda, Inc. v First Citizens Bank & Trust Co., 2017 NY Slip Op 03290, 4th Dept 4-28-17

FRAUD (FRAUD ALLEGED TO HAVE BEEN COMMITTED IN A PRIOR PROCEEDING MUST BE ADDRESSED BY A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT IN A SECOND PLENARY ACTION)/CIVIL PROCEDURE (FRAUD ALLEGED TO HAVE BEEN COMMITTED IN A PRIOR PROCEEDING MUST BE ADDRESSED BY A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT IN A SECOND PLENARY ACTION)

PROOF INSUFFICIENT TO DEMONSTRATE INCARCERATED FATHER ABANDONED THE CHILDREN.

The Fourth Department, reversing Family Court, determined the proof did not demonstrate father, who was incarcerated, abandoned the children. The Fourth Department noted that the failure to offer a meaningful plan for the children’s future is not relevant to an abandonment proceeding:

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A child is deemed abandoned where, for the period six months immediately prior to the filing of the petition for abandonment . . . , a parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or [petitioner], although able to do so and not prevented or discouraged from doing so by [petitioner]’ ” … . Here, the evidence established that the father, who was incarcerated for most of the six-month period immediately prior to the filing of the petition, contacted the children or petitioner every month during that period. The father wrote letters to the children and called, met with, and wrote letters to the children’s caseworker. We conclude that the father’s contacts were not minimal, sporadic, or insubstantial … . Moreover, during that period, the father filed a petition seeking custody or visitation with the children, which indicates that he did not intend to forego his parental rights … . Although Family Court’s finding that the father failed to offer a meaningful plan for the children’s future is relevant to a termination proceeding based on permanent neglect… , it is not relevant to a termination proceeding based on abandonment … . Matter of John F. (John F., Jr.), 2017 NY Slip Op 03369, 4th Dept 4-28-17

FAMILY LAW (PROOF INSUFFICIENT TO DEMONSTRATE INCARCERATED FATHER ABANDONED THE CHILDREN)/ABANDONMENT (FAMILY LAW, PROOF INSUFFICIENT TO DEMONSTRATE INCARCERATED FATHER ABANDONED THE CHILDREN)

FAMILY COURT DOES NOT HAVE THE AUTHORITY TO ORDER COUNSELING AS A PREREQUISITE FOR FATHER’S VISITATION.

The Fourth Department, after finding father’s physical abuse of mother in the children’s presence justified a modification of custody, determined Family Court did not have the authority to order counseling as a prerequisite to father’s visitation:

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We agree with the father, however, that the court erred to the extent that it ordered that future modification of the father’s visitation is conditioned on completion of a parenting class. “[A]lthough a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation” … . Thus, “the court lack[s] the authority to condition any future application for modification of [a parent’s] visitation on her [or his] participation in . . . counseling” … . Nevertheless, the court may order that a parent’s completion of counseling and compliance therewith “would constitute a substantial change of circumstances for any future petition for modification of the order” … , provided that “[n]othing in the order prevents the [parent] from supporting a modification petition with a showing of a different change of circumstances” … . We therefore modify the order by striking the provision requiring the father to complete a parenting class as a prerequisite for modification of visitation and substituting therefor a provision directing that he comply with that condition as a component of supervised visitation. Matter of Allen v Boswell, 2017 NY Slip Op 03312, 4th Dept 4-28-17

FAMILY LAW (FAMILY COURT DOES NOT HAVE THE AUTHORITY TO ORDER COUNSELING AS A PREREQUISITE FOR FATHER’S VISITATION)/VISITATION (FAMILY LAW, FAMILY COURT DOES NOT HAVE THE AUTHORITY TO ORDER COUNSELING AS A PREREQUISITE FOR FATHER’S VISITATION)/COUNSELING (FAMILY LAW, VISITATION, FAMILY COURT DOES NOT HAVE THE AUTHORITY TO ORDER COUNSELING AS A PREREQUISITE FOR FATHER’S VISITATION)

MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing Family Court in this neglect proceeding, determined the matter should not have been disposed of based upon the mother’s purported default and mother’s attorney’s request for an adjournment should have been granted. The court noted that when, as here, a party’s attorney is present and participates in the proceeding a default finding is improper:

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“As we have repeatedly held, a respondent who fails to appear personally in a matter but nonetheless is represented by counsel who is present when the case is called is not in default in that matter” … . Moreover, inasmuch as the mother’s counsel objected on ten occasions during the inquest, this is not a situation where a default could be found based, at least in part, upon counsel’s ” election to stand mute’ ” during the inquest … . …

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We further agree with the mother that the court abused its discretion in denying her counsel’s request to adjourn the hearing. The request was based on the fact that the mother was unable to attend the hearing owing to illness. It is well settled that the grant or denial of a request for an adjournment for any purpose is a matter resting within the sound discretion of the trial court … . Here, the record demonstrates that the mother contacted her counsel and petitioner prior to the hearing to report her illness, that the proceedings in this matter were not protracted, that the mother personally appeared at all prior proceedings, and that the request for an adjournment was the mother’s first… . Matter of Cameron B., 2017 NY Slip Op 03299, 4th Dept 4-28-17

 

FAMILY LAW (MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED)/DEFAULT (FAMILY LAW, MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED)/ADJOURNMENTS (FAMILY LAW, MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED)

REQUEST FOR AN ADJOURNMENT IN THIS FAMILY OFFENSE PROCEEDING SHOULD HAVE BEEN GRANTED.

The Fourth Department determined Family Court abused its discretion when it refused mother’s attorney’s request for an adjournment because mother could not attend the proceeding in which she was accused of committing two family offenses:

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We agree with the mother that the court abused its discretion in denying her attorney’s motion to adjourn the hearing because the mother was unable to attend. We therefore reverse the order on appeal and remit the matter to Family Court for further proceedings on the amended petition. In Family Court Act article 8 proceedings, the court “may adjourn a fact-finding hearing or a dispositional hearing for good cause shown on its own motion or on motion of either party” (Family Ct Act § 836 [a]). Although the court does not abuse its discretion in denying a request for an adjournment where the party making the request gives no reason for his or her absence … , here, the mother explained her absence. Moreover, the proceedings were not protracted, and the mother made no prior requests for an adjournment … . Matter of Drake v Riley, 2017 NY Slip Op 03282, 4th Dept 4-28-17

FAMILY LAW (REQUEST FOR AN ADJOURNMENT IN THIS FAMILY OFFENSE PROCEEDING SHOULD HAVE BEEN GRANTED)/ADJOURNMENTS (FAMILY LAW, REQUEST FOR AN ADJOURNMENT IN THIS FAMILY OFFENSE PROCEEDING SHOULD HAVE BEEN GRANTED)

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JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9.

The Fourth Department, reversing County Court, determined defendant’s juvenile delinquency adjudication should not have been used to calculate his risk level under risk factor 9:

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Defendant was assessed 15 points under risk factor 9 for a prior crime as a juvenile delinquent, and the court, relying on People v Catchings (56 AD3d 1181 … , rejected defendant’s challenge to the assessment of points under risk factor 9. As we recently held in People v Brown (148 AD3d 1705, ___), however, a juvenile delinquency adjudication may not be considered a crime for purposes of assessing points in a SORA determination, and Catchings should no longer be followed to that extent. Consequently, we conclude that the court erred in considering defendant’s juvenile delinquency adjudication in assessing 15 points under risk factor 9.

Removing the improperly assessed points under risk factor 9 renders defendant a presumptive level two risk. Under the circumstances of this case, we remit the matter to County Court for further proceedings to determine whether an upward departure is warranted … . People v Gibson, 2017 NY Slip Op 03355, 4th Dept 4-28-17

 

CRIMINAL LAW (SORA, JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9)/SEX OFFENDER REGISTRATION ACT (SORA)  (JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9)/JUVENILE DELINQUENCY ADJUDICATION (SORA, JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9)

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JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE.

The Fourth Department, in an original Article 78 proceeding, determined the judge was prohibited from imposing on defendant a sentence of probation. Defendant was sentenced to 30 days in jail. Outside the defendant’s presence the sentencing judge signed an order imposing a five-year probationary period and defendant agreed to the order by signing it in jail:

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While a court possesses the inherent authority to correct a mistake or error in a criminal defendant’s sentence … , the process by which a court corrects such an error is by resentencing the defendant … , which must be done in the defendant’s presence (see CPL 380.40 [1]). We thus conclude that the Judge erred in imposing an additional component to the sentence outside of petitioner’s presence …

We further conclude that petitioner cannot now be resentenced. It is well settled that, “where a defendant is released from custody and returns to the community after serving the period of incarceration that was ordered by the sentencing court, and the time to appeal the sentence has expired or the appeal has been finally determined,’ a legitimate expectation of the original sentence’s finality arises and double jeopardy precludes the modification of that sentence to include a period of” probation … . Here, ,,, petitioner has completed serving the period of incarceration and has been released from custody. Petitioner did not file a notice of appeal, and the time within which to do so has expired … . Although petitioner, as of this writing, could still move for an extension of time to take an appeal … , he cannot be forced to do so. We thus conclude that petitioner’s sentence is “beyond the court’s authority,” and an additional component to that sentence cannot be imposed … . Matter of Brandon v Doran, 2017 NY Slip Op 03371, 4th Dept 4-28-17

 

CRIMINAL LAW (JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)/CIVIL PROCEDURE (ARTICLE 78, PROHIBITION, CRIMINAL LAW, JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)/JUDGES (ARTICLE 78, PROHIBITION, CRIMINAL LAW, JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)/DOUBLE JEOPARDY (JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)/SENTENCING (JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)

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