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Objection to Molineux Evidence Not Preserved for Appeal

The Fourth Department noted that failure to request a limiting instruction with respect to Molineux evidence and the failure to object to the court’s failure to provide a limiting instruction rendered the issue unpreserved for appeal.  The Molineux evidence in this sexual abuse case was evidence of the physical (not sexual) abuse of the victim’s brother:

On appeal from a judgment convicting him following a jury trial of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]) and endangering the welfare of a child (§ 260.10 [1]), defendant contends that he is entitled to a new trial because Supreme Court neglected to give limiting instructions with respect to Molineux evidence establishing that he had subjected the victim’s brother to physical abuse (see People v Molineux, 168 NY 264). As defendant correctly concedes, that contention is unpreserved for our review because his attorney did not request a limiting instruction and failed to object to the court’s failure to provide one (see CPL 470.05 [2]…).    Because the Molineux evidence in question did not relate to prior sexual abuse, and because it appears from the record that defense counsel knew of the court’s failure to give limiting instructions and yet remained silent when the error could have been corrected, we decline to exercise our power to review that contention as a matter of discretion in the interest of justice … . People v Willians, 392, 4th Dept, 6-14-13

 

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Court’s Limited Role Re: Contract with Arbitration Clause Explained

In determining a dispute involving a lease must be resolved in arbitration, the Fourth Department explained the court’s limited role in this context:

Plaintiff …. commenced this action pursuant to RPAPL article 15 seeking, inter alia, “to compel the determination of claims to the real property described herein,” and defendant moved to compel arbitration under the lease and to stay the action. Supreme Court properly granted the motion. “Where parties have entered into an agreement containing a broad arbitration provision, the question of whether the arbitration clause governs a particular aspect of the controversy, as well as the determination of the merits of the dispute, are matters within the exclusive province of the arbitrator”….“Once it appears that there is, or is not[,] a reasonable relationship between the subject matter of the dispute and the general subject matter of the underlying contract, the court’s inquiry is ended. Penetrating definitive analysis of the scope of the agreement must be left to the arbitrators whenever the parties have broadly agreed that any dispute involving the interpretation and meaning of the agreement should be submitted to arbitration”…. Thus, contrary to plaintiff’s contention, it is not entitled to a judicial determination with respect to the continued force and effect of the lease, i.e., “the ultimate issue in this case” …, before submitting the matter to arbitration.  Gray v Talisman Energy USA Inc, 534, 4th Dept, 6-14-13

 

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Teacher Wrongly Denied Hearing Allowed by Education Law

The Fourth Department annulled a determination which suspended a tenured teacher for 30 days without pay finding she was wrongly denied a hearing:

[Under the collective bargaining agreement (CBA)] petitioner was entitled to choose whether to be disciplined under the procedures set forth in the CBA or those set forth in section [Education Law] 3020-a, which allowed petitioner to elect a hearing (see § 3020-a [c]). Respondents, however, incorrectly denied petitioner’s written request for a section 3020-a hearing. We therefore reverse the judgment, grant the petition, annul the determination, and we direct respondents to reinstate petitioner with back pay and benefits retroactive to the date of her suspension, and to remove all references to the discipline imposed from petitioner’s personnel file… .  Matter of Kilduff v Rochester City School District, 518, 4th Dept, 6-14-13

 

Question of Fact About Whether Plaintiff’s Actions Were Sole Proximate Cause of Fall—Plaintiff Was Using Stilts for Ceiling Work

The Fourth Department, over a two-justice dissent, determined there was a question of fact concerning whether plaintiff’s actions were the sole proximate cause of his fall.  Plaintiff was using stilts to do ceiling work and slipped on ice:

…[W]e conclude that there is a triable issue of fact whether plaintiff’s actions were the sole proximate cause of his injuries. Although plaintiff met his initial burden on the motion …, defendants raised a triable issue of fact by introducing evidence that he was directed not to work in the area where the ice was located.    Thus, “ ‘[u]nlike those situations in which a safety device fails for no apparent reason, thereby raising the presumption that the device did not provide proper protection within the meaning of Labor Law § 240 (1), here there is a question of fact [concerning] whether the injured plaintiff’s fall [resulted from] his own misuse of the safety device and whether such conduct was the sole proximate cause of his injuries’ ” … .  Nicometi v The Vineyards of Fredonia, Inc, 519, 4th Dept, 6-14-13

 

Mother’s Parental Rights Terminated Because of Her Mental Retardation

The Fourth Department affirmed Family Court’s termination of mother’s parental rights based upon her mental retardation. Matter of Joseph A.T.P. (Julia P.), 472, 4th Dept, 6-14-13

 

 

Award of Primary Custody to Father Reversed

In reversing Family Court and awarding primary physical custody to the mother and visitation to the father, the Fourth Department, over a dissent, wrote:

We agree with the mother and the AFC that the mother met her burden of establishing a change of circumstances. Since the original custody trial, each party has remarried and has had two additional children who are younger than the subject child, and the father has two step-children who are older than the subject child. The evidence established that the child felt isolated in the father’s home and indicated a strong desire to live with the mother. While a 10-year- old child’s preference regarding the parent with which he or she would like to reside is not dispositive, it is a factor to consider in determining whether there has been a change in circumstances … . The evidence further established that the child’s anxiety with respect to living with the father has progressed to the point where he has expressed to others his thoughts of harming the father and the father’s family, which led the parties to agree that the child needs counseling.  Matter of Cole v Nofri, 302, 4th Dept, 6-14-13

 

Visitation with Imprisoned Father Terminated

In affirming Family Court’s termination of visitation with the imprisoned father, the Fourth Department explained the operative principles:

“An order of visitation cannot be modified unless there has been a sufficient change in circumstances since the entry of the prior order [that], if not addressed, would have an adverse effect on the child[’s] best interests” … .“[W]hile not dispositive, the express wishes of older and more mature children can support the finding of a change in circumstances”… .. Here, the evidence establishes that, since the entry of the prior order and as the child has matured, she has developed a strong desire not to visit the father. Additionally, Family Court credited the mother’s testimony that the father was using visitation time to attempt to reconcile with the mother rather than to interact with their child. Thus, we conclude that there has been a sufficient change of circumstances to warrant “ ‘an inquiry into whether the best interests of the [child] warranted a change in custody’… .  * * * We recognize that “[v]isitation with a noncustodial parent is presumed to be in a child’s best interests even when the parent is incarcerated”….  In order to rebut the presumption, the party opposing visitation must establish by a preponderance of the evidence “that under all the circumstances visitation [with the incarcerated parent] would be harmful to the child’s welfare” … .  Matter of Rulinsky v West, 233, 4th Dept, 6-14-13

 

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“Negligent Ownership and Maintenance” vs “Negligent Abatement” Causes of Action in Lead-Paint Case

In a lead-paint damages case, the Fourth Department determined the landlord was entitled to summary judgment on the cause of action alleging negligent ownership and maintenance (lack of notice), but was not entitled to summary judgment on the cause of action alleging negligent abatement of the hazard:

To establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition” … .Defendant met his burden of establishing that he had no actual or constructive notice of the hazardous lead paint condition prior to an inspection conducted by the county department of health, and plaintiff failed to raise a triable issue of fact… .. Contrary to defendant’s contention, however, the court properly denied that part of his cross motion seeking summary judgment dismissing the second cause of action, which alleges negligent abatement of the lead-based paint hazard. Defendant failed to establish his prima facie entitlement to judgment as a matter of law with respect to that cause of action.  Pagan v Rafter, 210, 4th Dept, 6-14-13

 

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Late Notice of Claim Properly Allowed

In affirming the grant of a motion to serve a late notice of claim, the Fourth Department explained the relevant principles:

A notice of claim must be served within 90 days after the claim accrues, although a court may grant leave extending that time, provided that the application therefor is made before the expiration of the statute of limitations period of one year and 90 days (see General Municipal Law § 50-e [1] [a]; [5]).The decision whether to grant such leave “compels consideration of all relevant facts and circumstances,” including the “nonexhaustive list of factors” in section 50-e (5) ….The three main factors are “whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality” … “[T]he presence or absence of any one of the numerous relevant factors the court must consider is not determinative” …, and “[t]he court is vested with broad discretion to grant or deny the application”… .  Dalton v Akron Central Schools, 408, 4th Dept, 6-14-13

 

National Labor Relations Board Had First Crack at Collective Bargaining Agreement Matter Under Preemption Doctrine

The Fourth Department determined the National Labor Relations Board, under the doctrine of federal preemption of state law, had first crack at determining whether it had jurisdiction over a collective bargaining matter, as opposed to the NYS Public Employment Relations Board (PERB):

We agree with petitioners, however, that Supreme Court erred in determining that PERB properly exercised jurisdiction over those matters.    Inasmuch as the two collective bargaining matters “arguably” fall within the scope of the National Labor Relations Act (NLRA)…, the National Labor Relations Board (NLRB) has primary jurisdiction “to determine in the first instance” whether its jurisdiction preempts PERB’s jurisdiction …..  Under the circumstances of this case, and in the interest of judicial economy, we hold the case pending a determination of the NLRB whether the NLRA applies to the collective bargaining matters herein at issue and thus preempts PERB’s jurisdiction… . Buffalo United Charter School, et al v NYS Public Employment Relations Board, et al, 515, 4th Dept, 6-7-13

 

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