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AN ACTION AGAINST A CORPORATION AND AN ACTION AGAINST INDIVIDUAL PRINCIPALS OF THE CORPORATION DO NOT HAVE AN “IDENTITY OF PARTIES” WHICH WOULD ALLOW DISMISSAL OF ONE OF THE COMPLAINTS; TEXT MESSAGES DO NOT SUPPORT DISMISSAL OF A COMPLAINT BASED ON “DOCUMENTARY EVIDENCE;” THE COMPLAINT STATED A CAUSE OF ACTION FOR CONVERSION; THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR FRAUD (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined certain causes of action should not have been dismissed. Dismissal of two causes action on the ground there existed identical causes of action in another lawsuit was error because the parties in the two lawsuits were not the same. It was error to dismiss a cause of action based on documentary evidence because text messages do not fit the definition of “documentary evidence.” It was also error to dismiss the action for conversion for failure to state a cause of action:

It is well settled that ” ‘[i]ndividual principals of a corporation are legally distinguishable from the corporation itself’ and a court may not ‘find an identity of parties by, in effect, piercing the corporate veil without a request that this be done and, even more importantly, any demonstration . . . that such a result is warranted’ ” … . * * *

… [T]he court erred in using text message excerpts to justify dismissal of the fourth cause of action or, indeed, any cause of action. Documents such as text messages “do not meet the requirements for documentary evidence” to support a CPLR 3211 (a) (4) motion … . To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable” … . Here, the text messages do not even identify the person who is communicating with plaintiff. The names and numbers are redacted. Moreover, the text messages do not “conclusively establish[ ] a defense as a matter of law” with respect to the fourth cause of action … . * * *

The second cause of action alleges that defendants converted plaintiff’s personal property, including dental equipment, to their own use. “Two key elements of conversion are (1) plaintiff’s possessory right or interest in the property . . . and (2) [a] defendant’s dominion over the property or interference with it, in derogation of plaintiff’s rights” … . … [W]e conclude that the pleading includes sufficient allegations to support a cause of action for conversion. Plaintiff alleged that each defendant exerted dominion and control over property to which she had a possessory right or interest … . Nosegbe v Charles, 2024 NY Slip Op 02406, Fourth Dept 5-3-24

Practice Point: An action against a corporation and an action against individual principals of that corporation do not have “an identity of parties” which would subject one of the actions to dismissal.

Practice Point: Text messages are not “documentary evidence” which can be the basis for dismissal of a complaint.

 

MOTHER’S LEAVING THE CHILD WITH THE PETITIONERS, THE CHILD’S BROTHER AND SISTER-IN-LAW, FOR A LITTLE MORE THAN A MONTH DID NOT MEET THE “EXTRAORDINARY CIRCUMSTANCES” STANDARD FOR THE AWARD OF JOINT CUSTODY TO MOTHER AND PETITIONERS (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the award of joint custody of the child shared by mother and the child’s brother and sister-in-law (petitioners). The extraordinary circumstances required to award custody to nonparents were not demonstrated. Mother had left the child with the petitioners for a little more than a month before seeking the child’s return:

… [T]he court’s determination to award petitioners joint custody of the child along with herself and the father lacks a sound and substantial basis in the record inasmuch as petitioners failed to establish the existence of extraordinary circumstances. ” ‘[A]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances . . . The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child’ ” … . “A finding of extraordinary circumstances is rare, and the circumstances must be such that they ‘drastically affect the welfare of the child’ ” … . Such circumstances are not established by a mere showing that the nonparent “could do a better job of raising the child” … . Where a nonparent fails to establish extraordinary circumstances, “the inquiry ends” … .

… We conclude that petitioners failed to meet their burden of establishing that the mother “relinquished her superior right to custody” … . … [T]he mother’s decision to leave the child with petitioners for a little over a month before seeking his return did not amount to the type of prolonged separation that would evidence the mother’s abandonment of the child or her intent to do so … . Matter of Adams v John, 2024 NY Slip Op 02404, Fourth Dept 5-3-24

Practice Point: Here the child’s brother and sister-in-law were awarded joint custody of the child with mother after mother left the child with the petitioners for a little more than a month. The “extraordinary circumstances” standard for the award of custody to nonparents was not met.

 

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IN THIS PARTITION ACTION, THERE WAS NO PENDING MOTION FOR SUMMARY JUDGMENT AND THERE WAS NO INDICATION THE PARTIES HAD LAID THEIR PROOF BARE SUCH THAT THE COURT COULD CONSIDER GRANTING SUMMARY JUDGMENT; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the judge should not have granted summary judgment in the absence of a motion and a hearing. The underlying issue is whether the subject real property should be partitioned or sold at auction:

… [D]efendant and decedent made an oral motion for … a hearing on whether the property could be partitioned. Rather than decide that motion, the court directed the parties to exchange expert reports and set the matter down for a conference, at which time a hearing would be scheduled if the parties could not come to an agreement regarding partition. However, when the parties appeared for the scheduled conference, the court did not set a date for the hearing, but, instead, held the conference, and subsequently, in effect, granted summary judgment to plaintiffs. Because “there was no motion for summary judgment pending before the court at that time, . . . it was error for the court to grant such relief” … . Although a court “has the power to award summary judgment to a nonmoving party, predicated upon a motion for the relief by another party, it may not sua sponte award summary judgment if no party has moved for summary judgment . . . , unless it appears from a reading of the parties’ papers that they were deliberately charting a course for summary judgment by laying bare their proof” … . Here, contrary to plaintiffs’ contention, it does not appear that the parties were deliberately charting a course for summary judgment. Indeed, the only motion pending before the court was the oral motion of defendant and decedent for … a hearing. Therefore, we reverse … and remit the matter for a hearing on whether the property may be partitioned without undue prejudice and for an accounting. The accounting shall be held “before interlocutory judgment is rendered” (RPAPL 911 …). Smith v Smith, 2024 NY Slip Op 02478, Fourth Dept 5-3-24

Practice Point: Generally a judge cannot grant summary judgment absent a motion.

Practice Point: If the parties lay bare all their proof indicating they have charted a course for summary judgment (not the case here), the court may award summary judgment absent a motion.

 

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TRIAL TESTIMONY RENDERED SEVERAL COUNTS IN THIS SEXUAL ABUSE CASE DUPLICITOUS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction on several counts in this sexual abuse case, determined the trial testimony rendered the counts duplicitous:

… [T]he trial testimony rendered counts 4, 5, 7, and 8 duplicitous. ” ‘Even if a count facially charges one criminal act, that count is duplicitous if the evidence makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict’ ” … . A duplicitous count “may undermine the requirement of jury unanimity,” inasmuch as some jurors may find that defendant committed one criminal act under the count, while other jurors may find that defendant committed some other criminal act under the same count … .

At trial, the victim was unable to identify the number of times defendant touched her during the relevant time period. She testified that he touched her breasts “[a]t least two” times. The victim also testified that defendant put his fingers inside her vagina “[p]robably at least three” times and licked her vagina “[a]t least three times.” She further testified that when he touched her vagina, he would also touch her breasts, but she could not “remember the specifics” of each occurrence. Under the circumstances presented here, we conclude, with respect to counts 4, 5, 7, and 8, that “it is impossible to determine whether the jury reached a unanimous verdict on those counts . . . [and] impossible to determine whether defendant was convicted of an act for which he was not indicted” … . People v Hunt, 2024 NY Slip Op 02471, Fourth Dept 5-3-24

Practice Point: If the trial testimony makes it possible for the jury to convict based upon an allegation that was not part of the indictment, the conviction will be reversed.

 

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COUNTY-SHERIFF DISCIPLINARY RECORDS CREATED BEFORE THE 2020 REPEAL OF THE STATUTE WHICH EXEMPTED THEM FROM DISCLOSURE PURSUANT A FOIL REQUEST ARE NOW SUBJECT TO DISCLOSURE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the FOIL request for county-sheriff disciplinary records which were created before Civil Rights Law 50-a was repealed in 2020 must be disclosed. Civil Rights Law 50-a had exempted disciplinary records from disclosure:

Former section 50-a operated as an exception to the general rule that permitted public access through FOIL to certain government records, i.e., it exempted from disclosure “[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency” … . When section 50-a was repealed on June 12, 2020, that exception was removed. ” ‘A statute is not retroactive . . . when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events’ ” … . Likewise, it is not a retroactive application of the repeal of section 50-a to conclude that past police disciplinary records are no longer subject to that exception and are now subject to FOIL; it is merely a recognition that police departments faced with FOIL requests cannot rely on an exception that no longer exists to evade their prospective duty of disclosure … . Matter of Abbatoy v Baxter, 2024 NY Slip Op 02393, Fourth Dept 5-3-24

Practice Point: Here the statute protecting county-sheriff disciplinary records from disclosure pursuant to a FOIL request was repealed in 2020. Disciplinary records created prior to the repeal are now subject to disclosure.

 

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TERMINATION OF FATHER’S PARENTAL RIGHTS AFFIRMED; TWO DISSENTERS ARGUED THERE WAS NO ADMISSIBLE PROOF FATHER FAILED TO PLAN FOR THE CHILDREN’S FUTURE FOR ONE FULL YEAR (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, affirmed the termination of father’s parental rights. The dissenters argued there was no admissible proof that father failed to plan for the children’s future for one full year:

From the dissent:

We agree with the majority that petitioner met its burden of establishing that respondent father failed to plan for the children’s future from April 2021—when the father began hearing voices but failed to disclose it—through December 2021. However, inasmuch as petitioner failed to meet its burden of establishing by clear and convincing evidence that the father failed to plan for the children’s future for one full year …, we respectfully dissent.

To that end, the only evidence of a failure to plan for the children’s future from December 2020 to April 2021 was petitioner’s exhibit 5, a medical record that referenced the father’s admission to continued use of synthetic marihuana. However, that exhibit was withdrawn by petitioner as not properly authenticated and was thereafter never entered into evidence or placed into the record. Inasmuch as the record lacks other admissible evidence that the father failed to plan for the children’s future from December 2020 to April 2021, Family Court’s improper reliance upon facts outside the record is not harmless … , and petitioner failed to meet its burden by clear and convincing evidence … . Therefore, we would reverse the order and dismiss the petition against the father. Matter of Tori-Lynn L. (Troy L.), 2024 NY Slip Op 02440, Fourth Dept 5-3-24

Practice Point: One element of the proof necessary to terminate parental rights is the parent’s failure to plan for the children’s future for one full year.

 

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THE DEFENDANT INSURANCE COMPANY IS OBLIGATED TO DEFEND PLAINTIFF PEDIATRICIAN IN THE UNDERLYING ACTION BY A FORMER PATIENT ALLEGING SEXUAL ABUSE DURING A PHYSICAL EXAM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant insurance company was obligated to defend plaintiff pediatrician who stands accused of the sexual abuse of a former patient:

Supreme Court denied plaintiff’s [summary judgment] motion and granted defendant’s cross-motion [for summary judgment] on the grounds that the complaint in the underlying action did not assert claims arising from a “medical incident” or “professional services,” as those terms are defined in the subject insurance policy, and in any event that the policy’s exclusion for sexual assault precluded coverage. * * *

… [A]lthough the complaint in the underlying action primarily alleges that plaintiff sexually abused his former patient during a medical examination, it also contains “facts or allegations” that bring the claim “potentially within the protection purchased” for claims arising from professional services rendered by plaintiff, thus triggering the duty to defend … . For instance, the underlying complaint alleges that plaintiff improperly diagnosed, cared for and treated the former patient in question, and failed to provide her with “proper and appropriate pediatric care.” The underlying complaint further alleges that plaintiff inserted his finger into the former patient’s vagina “without gloves,” suggesting that perhaps such action would have been medically proper had plaintiff been wearing gloves. Without any context or details regarding the nature of the medical treatment being provided by plaintiff at the time of the alleged improper touching of the former patient, we cannot categorically conclude that the underlying complaint is devoid of facts or allegations that potentially bring the former patient’s claims within the protection purchased by plaintiff in the subject liability policy. Mscichowski v MLMIC Ins. Co., 2024 NY Slip Op 02391, Fourth Dept 5-3-24

Practice Point: As long as some of the allegations in a complaint arguably fall within the protection of the insurance policy, the insurer is obligated to defend the insured.

 

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17-YEAR-OLD’S ARE STATUTORILY EXCLUDED FROM THE CLASS OF VICTIMS UNDER PENAL LAW 263.11, TO WHICH DEFENDANT PLED GUILTY; RISK-LEVEL REDUCED FROM TWO TO ONE (FOURTH DEPT).

​The Fourth Department, reducing defendant’s SORA risk-level from two to one, determined the 17-year-old involved in the offense was statutorily excluded from the class of victims:

… [T]he court erred in assessing 20 points for the number of victims under risk factor 3 … . The court based its assessment on a determination that a 17-year-old was a victim of defendant’s conduct. However, 17-year-olds are statutorily excluded from the class of victims under Penal Law § 263.11, to which defendant pleaded guilty. When those points are removed, defendant has a total of 60 points, making him a presumptive level one risk. People v Cockrell, 2024 NY Slip Op 02439, Fourth Dept 5-3-24

Practice Point: 17-year-old’s are statutorily excluded from the class of victims under Penal Law 263.11.

 

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PETITIONER DEMONSTRATED THE CHILD WAS NEVER HARMED AND SHE HAD MADE SERIOUS AND SUCCESSFUL EFFORTS AT REHABILITATION; RE: PETITIONER’S EMPLOYMENT IN THE CHILDCARE FIELD, RESPONDENT NYS OFFICE OF CHILDEN AND FAMILY SERVICES IS PRECLUDED FROM INFORMING ANY PROVIDER OR LICENSING AGENCY THAT PETITIONER IS THE SUBJECT OF A CHILD MALTREATMENT REPORT (FOURTH DEPT).

The Fourth Department, in an Article 78 proceeding transferred by Supreme Court, determined the respondent NYS Office of Children and Family Services should not have ruled that “petitioner’s acts of child maltreatment are relevant and reasonably related to employment in the childcare field.” The Fourth Department therefore directed that respondent “shall be precluded from informing a provider or licensing agency which makes an inquiry that petitioner is the subject of an indicated child maltreatment report.” No child had ever been harmed by petitioner and petitioner demonstrated serious and successful rehabilitative efforts.

… [T]he record establishes that petitioner had taken actions to show that she “[is] able to deal positively with [the] situation or problem that gave rise to the previous incident(s) of child . . . maltreatment” … . As petitioner contends, the ALJ [Administrative Law Judge] failed to consider the evidence of psychological rehabilitation showing that she could deal positively with the trauma she suffered as a result of the domestic violence inflicted upon her by the father, which precipitated the indicated report. Petitioner’s marriage and family therapist submitted a letter explaining that petitioner had suffered from post-traumatic stress disorder “as a result of the relationship” with the father, but that petitioner “ha[d] made an enormous amount of progress and ha[d] reached her treatment goals,” and “in no way presented as an unfit parent” during the course of her treatment. The psychologist who performed a comprehensive evaluation and testing of petitioner opined that, despite having been “aggressively abused” by the father, there was no indication that petitioner harbored “resentments toward others,” petitioner showed “no defensiveness or tendency to distort the facts of the situation,” and petitioner scored “unusually low” on the potential for abuse scale, which demonstrated that petitioner had “none of the characteristics, personal status or problems with the child or family members that would raise the question of abusive potential on her part.” Petitioner also had a “significantly elevated score on the scale indicating . . . the tendency to maintain emotional stability and to adequately deal with interpersonal exchanges.” Moreover, the ALJ ignored petitioner’s testimony about her improved ability to deal positively with emotionally challenging situations and the letters from other individuals attesting to petitioner’s ability to properly parent the child. The record therefore indisputably establishes that petitioner is able to deal positively with the situation or problem that gave rise to the indicated report. Matter of Hastings v New York State Off. of Children & Family Servs., 2024 NY Slip Op 02436, Fourth Dept 5-3-24

Practice Point: A person who has been found to have committed acts of child maltreatment can petition the NYS Office of Children and Family Services for a ruling precluding the agency from informing any childcare provider of licensing agency of the maltreatment, thereby clearing the way for that person’s employment in the childcare field.

 

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THE MAJORITY CONCLUDED THE TRIAL JUDGE PROPERLY HANDLED ALLEGATIONS OF RACIAL BIAS WHICH INVOLVED HALF THE JURORS IN THIS MURDER CASE; TWO JUSTICES DISSENTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the trial judge correctly and adequately handled allegations of racial bias among the jurors. The decision is detailed and comprehensive and cannot be fairly summarized here:

From the dissent:

We recognize that “a trial court’s investigation of juror misconduct or bias is a delicate and complex task” … . On this record, however, the disclosure of alleged racial bias harbored by approximately half of the members of the jury warranted, at the very least, a question posed to each of the members of the panel of whether they could perform their duties as jurors without bias or prejudice. We also conclude that, in its voir dire of juror No. 10, the court did not explore whether juror No. 10 harbored any racial prejudice toward Black people, a prerequisite to determining whether she, in fact, could be unequivocally fair and impartial in deliberations. Under these circumstances, the court should also have determined on the record “whether the juror’s statements created a substantial risk of prejudice to the rights of the defendant by coloring the views of the other jurors as well as her own” … . People v Wiggins, 2024 NY Slip Op 01659, Fourth Dept 3-22-24

Practice Pont: Here a juror alleged half the jurors exhibited racial bias. The majority held the judge properly handled the question and properly determined defendant would get a fair trial. There was a two-justice dissent which argued further questioning of the jurors was required.

 

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