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FORMER SISTERS-IN-LAW WHO LIVED ONE MILE APART AND SAW EACH OTHER FREQUENTLY FOR 30 YEARS HAD AN “INTIMATE RELATIONSHIP” WHICH SUPPORTED THE FAMILY OFFENSE PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the long-term relationship (as sisters-in-law) qualified as an “intimate relationship” which supports a family offense proceeding:

For purposes of Family Court Act article 8, “members of the same family or household” is defined to include “persons related by consanguinity or affinity,” and “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … …

… [T]he petitioner demonstrated that the parties had been in an “intimate relationship” within the meaning of Family Court Act § 812(1)(e), so as to confer subject matter jurisdiction upon the court. Beyond expressly excluding from the definition of “intimate relationship” a “casual acquaintance” and “ordinary fraternization between two individuals in business or social contexts” … , “the Legislature left it to the courts to determine, on a case-by-case basis, what qualifies as an ‘intimate relationship’ within the meaning of Family Court Act § 812(1)(e)” … . Factors to consider include “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … .

… [T]he petitioner demonstrated that the parties had known each other for more than 30 years, that they had a close relationship as sisters-in-law for most of this period, during which they lived within one mile of one another, frequently had dinner together, engaged in social activities in each other’s homes, attended most holiday celebrations together, supported each other during times of devastating family illnesses, and assisted each other with their respective children … . Matter of Eno v Illovsky, 2023 NY Slip Op 01506, Second Dept 3-22-23

Practice Point: A family offense proceeding can be brought in Family Court only if there was an “intimate relationship” between petitioner and respondent. Here petitioner and respondent had been sisters-in-law for 30 years. lived a mile apart and had seen each other frequently. Their relationship was an “intimate relationship” within the meaning of the Family L

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THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT SUIT AGAINST THE STATE SUFFICIENTLY ALLEGED WHEN THE ABUSE OCCURRED (SECOND DEPT). ​

The Second Department, reversing (modifying) the Court of Claims in this Child Victims Act (CVA) suit, determined the notice of claim sufficiently alleged the time when the alleged sexual abuse of claimant took place in a state psychiatric center. The court noted that the respondeat superior cause of action should be dismissed because any sexual abuse by a state employee would not be within the scope of employment as a matter of law:

… [T]he Court of Claims incorrectly determined that the claimant was required to allege the exact date on which the sexual abuse occurred … . The claimant’s allegations, including that the abuse occurred in 1993 while she was 14 years old and attending a gym class at Sagamore, were sufficient to satisfy the “time when” requirement of Court of Claims Act § 11(b) in this claim brought pursuant to the CVA … . Wagner v State of New York, 2023 NY Slip Op 01546, Second Dept 3-22-23

Practice Point; Here in this Child Victims Act suit, the allegation that the sexual abuse took place in 1993, when claimant was 14 and attending gym class met the “time when” requirement for a notice of claim.

 

RECOVERY OF A $280,000 SETTLEMENT PURPORTEDLY PAID TO DEFENDANTS BY PLAINTIFF IS BARRED BY THE STRUCTURED SETTLEMENT PROTECTION ACT WHICH REQUIRES COURT APPROVAL PRIOR TO PAYMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint seeking to recover settlement funds ($280,000) purportedly made to the defendants should have been dismissed. The settlement was never approved by a court in violation of the Structured Settlement Protection Act (SSPA) (General Obligations Law 5-1701):

… [D]efendants demonstrated that the complaint fails to state a cause of action, on the ground that the plaintiff’s claims are prohibited by the SSPA. Enacted in 2002, the purpose of the SSPA … was to establish “procedural safeguards for those who sell settlements that are awarded as a result of litigation,” due to a recognition that “[m]any of the people who receive such settlements are being compensated for very serious, debilitating injuries, and have been unfairly taken advantage of in the past by the businesses that purchase their settlements” … . “Under this law, transfers such as the one at issue are prohibited unless approved by a court of competent jurisdiction based upon express findings … that the transfer is in the best interest of the payee and that the discount rate, fees and expenses used to determine the net amount advanced are fair and reasonable” (… General Obligations Law § 5-1706). In circumstances … where payment for a structured settlement transfer is made to the payee prior to the court’s approval of the transfer, whether intentionally or due to a mistaken belief that the transfer had already been approved, a proposed transferee must seek nunc pro tunc approval of the transfer, and such approval is not guaranteed … . Pinnacle Capital, LLC v O’Bleanis, 2023 NY Slip Op 01540, Second Dept 3-22-23

Practice Point: The Structured Settlement Protection Act (General Obligations Law 5-17-1 et seq) requires court approval of structured settlements. If, as here, there was no court approval before plaintiff purportedly paid the funds to defendants, the plaintiff seeking to recover the funds from the defendants may be out of luck.

​ THE MISDEMEANOR INFORMATION WAS BASED ON THE POLICE OFFICER’S UNEXPLAINED CONCLUSION THE DOCUMENT WAS FORGED AND DID NOT ALLEGE FACTS TO SUPPORT ALL THE ELEMENTS OF THE OFFENSE; CONVICTION REVERSED AND INFORMATION DISMISSED (SECOND DEPT).

The Second Department, reversing the conviction and dismissing the misdemeanor information, determined the factual allegations in the information were not sufficient to provide notice of the charged offense. The information relied on the police officer’s conclusory statement that the document was forged:

Where … an allegation “involves a conclusion drawn by a police officer that involves the exercise of professional skill or experience, some explanation concerning the basis for that conclusion must be evident from the accusatory instrument” … .

… [T]he information failed to include sufficient factual allegations regarding the basis for the officer’s conclusion that the “Texas buy tag” was forged. Mere reliance on “his training in the detection and identification of forged instruments” is insufficient. Although the officer made reference to the use of “Z-finest,” he did not explain what “Z-finest” is or how it helped him determine that the tag was forged. Further, he did not explain or describe the Texas “buy tag.” These allegations are too conclusory to meet the prima facie case requirement on the issue of whether the buy tag was a forgery … .

… [E]ven assuming that the information sufficiently alleged that the buy tag was a forgery, the information failed to provide sufficient factual allegations to “establish a presumption that [the] defendant had knowledge of the forged nature of the instrument” … . People v Rodriguez, 2023 NY Slip Op 01535, Second Dept 3-22-23

Practice Point: A misdemeanor information must include factual allegations which support every element of the charged offense. Here the police officer’s unexplained conclusion the document was forged was insufficient. In addition the element requiring knowledge the document was forged was not addressed by the factual allegations. The conviction was reversed and the information dismissed.

 

VEHICLE AND TRAFFIC LAW 1192(2) (DWI) IS A LESSER INCLUDED OFFENSE OF VEHICLE AND TRAFFIC LAW 1192(2-A) (AGGRAVATED DWI) (SECOND DEPT). ​

The Second Department noted that driving while intoxicated in violation of Vehicle and Traffic Law 1192(2) is a lesser included offense of aggravated driving while intoxicated in violation of Vehicle and Traffic Law 1192 (2-a):

… [D]riving while intoxicated in violation of Vehicle and Traffic Law § 1192(2) is a lesser included offense of aggravated driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2-a) (see CPL 300.30[4] … ). A verdict of guilt upon the greater count is deemed a dismissal of every lesser count (see CPL 300.40[3]). Accordingly, we vacate the conviction of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2) and the sentence imposed thereon, and dismiss that count of the indictment … .  People v Watson, 2023 NY Slip Op 01538, Second Dept 3-22-23

Practice Point: Vehicle and Traffic Law 1192(2) (DWI) is a lesser included offense of Vehicle and Traffic Law 1192(2-a) (aggravated DWI).

 

PURSUANT TO THE MARIHUANA REGULATION AND TAXATION ACT (MRTA) (1) DEFENDANT’S MARIHUANA CONVICTION WAS PROPERLY VACATED (2) ANOTHER CONVICTION WAS PROPERLY SUBSTITUTED FOR THE VACATED CONVICTION (3) BUT COUNTY COURT COMMITTED REVERSIBLE ERROR BY FAILING TO CONSIDER WHETHER SUBSTITUTING ANOTHER CONVICTION SERVED THE INTEREST OF JUSTICE; MATTER REMITTED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing County Court, determined: (1) defendant’s marijuana conviction was properly vacated under the Marihuana Regulation and Taxation Act (MRTA); (2) once vacated, the court had the authority to substitute a conviction for the vacated conviction (which it did); but (3) the court committed reversible error by failing to consider whether substituting a conviction served the interest of justice. The matter was remitted for the “interest of justice” ruling:

… [T]he main questions presented are whether the County Court, having vacated the defendant’s conviction under Penal Law former article 221, had the authority pursuant to CPL 440.46-a(2)(b)(ii) to substitute a conviction under Penal Law article 222 for his vacated conviction, and whether the court failed to consider if it was not in the interests of justice to do so. We hold that the court, having vacated the defendant’s conviction under Penal Law former article 221, had the authority pursuant to CPL 440.46-a(2)(b)(ii) to substitute a conviction under Penal Law article 222 for his vacated conviction. We further hold that the court committed reversible error by failing to consider, as required by the statute, whether it was not in the interests of justice to substitute a conviction for an appropriate lesser offense. People v Graubard, 2023 NY Slip Op 01308, Second Dept 3-15-23

Practice Point: Under the Marihuana Regulation and Taxation Act (MRTA) persons convicted of marihuana offenses which have been eliminated or reduced may move to vacate the conviction. Once vacated, the statute allows the substitution of another conviction but the court must consider whether the substitution serves the interest of justice.

 

ALTHOUGH THE READY-FOR-TRIAL ANNOUNCEMENT WAS TIMELY, IT WAS ILLUSORY BECAUSE THE CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS HAD NOT BEEN FILED; INDICTMENT PROPERLY DISMISSED (SECOND DEPT).

The Second Department, affirming the “speedy trial” dismissal of the indictment, noted that, although the ready-for-trial announcement was timely, it was illusory because the certificate of compliance with discovery obligations had not been filed:

… County Court properly granted the defendant’s motion to dismiss the indictment. Contrary to the People’s contention, their October 28, 2020 statement of readiness, which, technically, was within the speedy trial time limit, was nevertheless illusory, as they never certified their compliance with their discovery obligation under CPL 245.20 in a certificate of compliance that they were required to file with the court before or at the time they announced their readiness for trial (see CPL 30.30[5]; 245.50[1], [3]). The People’s … statement of readiness was therefore insufficient to stop the running of the speedy trial clock … , and the statutory period to declare readiness had lapsed for speedy trial purposes as of the time the defendant moved to dismiss the indictment. People v Brown, 2023 NY Slip Op 01306, Second Dept 3-15-23

Practice Point: A timely ready-for-trial announcement is illusory if the certificate of compliance with discovery obligations has not been filed.

 

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​ THE JUDGE SHOULD HAVE HELD A HEARING IN THIS PARENTAL-ACCESS PROCEEDING AND SHOULD NOT HAVE RELIED ON A REPORT BY A FORENSIC EVALUATOR WHICH WAS NOT ADMITTED IN EVIDENCE (SECOND DEPT). ​

he Second Department, reversing Family Court, determined a hearing should have been held in this parental-access proceeding:

Custody and parental access determinations should “[g]enerally be made only after a full and plenary hearing and inquiry” … . “While the general right to a hearing in [parental access] cases is not absolute, where ‘facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,’ a hearing is required” … .

Here, the record demonstrates disputed factual issues so as to require a hearing on the issue of the mother’s parental access … . Further, the Family Court, in making its determination without a hearing, relied upon the report of the forensic evaluator, which had not been admitted into evidence, and the evaluator’s opinions and credibility were untested by the parties … . Matter of McCabe v Truglio, 2023 NY Slip Op 01299, Second Dept 3-15-23

Practice Point: Custody and parental-access determinations generally require hearings. Family Court should not rely on reports which have not been admitted in evidence.

 

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PLAINTIFF CHANGED LANES, CUT OFF DEFENDANT’S VEHICLE AND CRASHED INTO THE REAR OF THE CAR IN FRONT; DEFENDANTS MOVED FOR SUMMARY JUDGMENT PURSUANT TO THE EMERGENCY DOCTRINE; SUPREME COURT DENIED THE MOTION DESPITE PLAINTIFF’S FAILURE TO OPPOSE IT; THE SECOND DEPARTMENT AWARDED DEFENDANTS SUMMARY JUDGMENT PURSUANT TO THE EMERGENCY DOCTRINE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the PTM defendants’ motion for summary judgment in this rear-end collision case should have been granted. Plaintiff suddenly changed lanes, cut off the PTM defendants’ truck and then plaintiff struck the car in front. The emergency doctrine applied to the PTM defendants. It is worth noting that plaintiff did not oppose the PTM defendants’ motion:

… [T]he PTM defendants submitted an affidavit from Murrel [the driver of the PTM truck], which demonstrated, prima facie, that he had a nonnegligent explanation for striking the rear of the plaintiff’s vehicle and that he acted reasonably when he was faced with an emergency situation not of his own making … .  According to Murrel, prior to the accident, he was operating his vehicle behind Acevedo’s vehicle at a reasonable and safe distance. The plaintiff’s vehicle, suddenly and without warning, cut in front of Murrel’s vehicle and, seconds later, struck the rear of Acevedo’s vehicle and then came to a sudden stop. Due to traffic conditions, Murrel could not safely change lanes, and although he applied the brakes, he could not avoid colliding with the plaintiff’s vehicle. Martin v PTM Mgt. Corp., 2023 NY Slip Op 01285, Second Dept 3-15-23

Practice Point: The emergency doctrine provides a non-negligent explanation for a rear-end collision which warrants summary judgment. Here plaintiff changed lanes quickly and cut off defendants’ vehicle.

 

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CONFLICTING EVIDENCE OF THE WEATHER AT THE TIME OF THE ICE SLIP AND FALL PRECLUDED SUMMARY JUDGMENT BASED ON THE STORM-IN-PROGRESS RULE; IN ADDITION, THERE WAS EVIDENCE THE ICE WAS THERE FOR SOME TIME BEFORE THE FALL AND DEFENDANTS DID NOT DEMONSTRATE THEY LACKED ACTUAL OR CONSTRUCTIVE NOTICE OF IT; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this ice slip and fall case should not have been granted: There was conflicting evidence about the weather at the time of the accident, so the storm-in-progress defense was not established. There was evidence the ice was on the sidewalk for some time before the accident and defendants did not demonstrate they lacked actual or constructive notice of the condition:

Contrary to the Supreme Court’s determination, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint based on the storm in progress rule. The defendants submitted transcripts of the deposition testimony of the plaintiffs and the defendants’ representatives, who gave conflicting testimony as to the weather conditions at the approximate time of the accident … . In addition, the defendants’ submissions failed to eliminate all triable issues of fact as to whether the ice upon which the injured plaintiff slipped existed prior to the day of the accident and whether the defendants lacked actual or constructive notice of a preexisting condition… . Licari v Brookside Meadows, LLC, 2023 NY Slip Op 01284, Second Dept 3-15-23

Practice Point: In an ice slip and fall, conflicting evidence of the weather at the time of the fall will not support the storm-in-progress defense at the summary judgment stage. In addition, here there was evidence the ice was there for some time before the fall and defendants did not demonstrate the lacked actual or constructive notice of it. The defendants’ motion for summary judgment should not have been granted.

 

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