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THE FOR CAUSE CHALLENGE TO THE PROSPECTIVE JUROR WHO WAS AN ASSISTANT DISTRICT ATTORNEY IN THE OFFICE PROSECUTING THE DEFENDANT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial, determined defense counsel’s for cause challenge to a juror who was an assistant district attorney in the office which was prosecuting the defendant should have been granted:

… [D]uring jury selection, the subject prospective juror informed the Supreme Court that she was presently working as an assistant district attorney, within the Queens County District Attorney’s Office, the same agency that was prosecuting the defendant, and that she was familiar with the prosecutor, the defense attorney, and the Justice. As the People correctly concede, the juror’s contemporaneous working relationship with the agency prosecuting the defendant required that juror’s dismissal for cause … . People v Cortes, 2022 NY Slip Op 02561, Second Dept 4-20-22

Practice Point: The for cause challenge to the prospective juror who was an assistant district attorney in the same office which was prosecuting the defendant should have been granted; new trial ordered.

 

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THE DOCUMENT LABELED A “SUPPLEMENTAL” BILL OF PARTICULARS WAS ACTUALLY AN “AMENDED” BILL OF PARTICULARS BECAUSE IT ADDED NEW INJURIES AFTER THE NOTE OF ISSUE WAS FILED; THE DEFENDANT’S MOTION TO STRIKE THE AMENDED BILL OF PARTICULARS SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this slip and fall case, determined the document labeled a “supplemental” bill of particulars was actually a post-note-of-issue “amended” bill of particulars which should not have been served without leave of the court:

… [T]he document that they denominated a “supplemental bill of particulars” … , was, in reality, an amended bill of particulars, as they sought to add new injuries (see CPLR 3043[b]). Accordingly, the Supreme Court erred in denying that branch of [defendant’s] motion which was to strike the amended bill of particulars … , denominated as a supplemental bill of particulars, which was served without leave of court and after the note of issue had been filed …  . Naftaliyev v GGP Staten Is. Mall, LLC, 2022 NY Slip Op 02556, Second Dept 4-20-22

Practice Point: A “supplemental” bill of particulars which adds new injuries after the note of issue is filed is actually an “amended” bill of particulars which can only be served with leave of the court.

 

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THE LOCAL LAW REQUIRING APPROVAL OF PROPOSED ALTERATIONS TO BUILDINGS IDENTIFIED AS “HISTORIC” IS NOT UNCONSTITUTIONAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a local law requiring permits for changes to buildings designated “historic” was not unconstitutional. The local law, the “Historic Building Preservation Law,” gave the town’s Historic Building Preservation Commission (HBPC) the power to approve or disapprove proposed alterations to historic buildings which were identified as such in a “Survey:”

“Legislative enactments enjoy a strong presumption of constitutionality . . . [and] parties challenging a duly enacted statute face the initial burden of demonstrating the statute’s invalidity beyond a reasonable doubt” … . “The exceedingly strong presumption of constitutionality applies . . . to ordinances of municipalities” … . The Fifth and Fourteenth Amendments to the United States Constitution guarantee due process protections for life, liberty, and property (see US Const Amends V, XIV). “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property” … .

… Here, the petitioners/plaintiffs failed to identify any constitutionally protected property interest that was implicated in the enactment of the 2017 local law and, thus, the petitioners/plaintiffs were not entitled to a hearing prior to the enactment of that law … . Contrary to the petitioners/plaintiffs’ contention, the 2017 local law did not require property owners to submit to warrantless searches of their properties in order to challenge a property’s classification or inclusion on the Survey. Matter of Santomero v Town of Bedford, 2022 NY Slip Op 02552, Second Dept 4-20-22

​Practice Point: A local law which designates certain buildings as “historic” and requires permits for alterations to the historic buildings is not unconstitutional.

 

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FAMILY COURT SHOULD HAVE MADE FINDINGS TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) SUCH THAT THE CHILD WOULD NOT BE RETURNED TO GUATEMALA (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have made findings to enable the child to petition for special immigrant juvenile status (SIJS) such that the child would not be returned to Guatemala:

… [A] special immigrant juvenile is a resident alien who … is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. … [F]or a child to qualify for SIJS, a court must find that reunification of the child with one or both parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law … , and that it would not be in the child’s best interests to be returned to his or her country of nationality or country of last habitual residence … . …

The Family Court should have granted that branch of the child’s motion which was for a specific finding that reunification with his father is not viable due to parental neglect. Based upon our independent factual review, the record demonstrates that the child’s father physically and emotionally mistreated the child, and prevented him from attending school for more than one year and on other occasions without a reasonable justification, and that the child’s mother failed to protect him from such mistreatment. Thus, the record supports the requisite finding that reunification with the child’s father is not viable due to parental neglect … . Matter of Jose F. M. P. (Francisco D. M. G.), 2022 NY Slip Op 02414, Second Dept 4-13-22

 

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CHANGED CIRCUMSTANCES BROUGHT TO THE APPELLATE COURT’S ATTENTION BY THE ATTORNEYS FOR THE CHILDREN RENDERED THE RECORD INSUFFICIENT FOR REVIEW OF THE CUSTODY RULING; MATTER REMITTED (SECOND DEPT).

The Second Department determined changed circumstances brought to the Second Department’s attention by the attorneys for children rendered the appellate record insufficient for review of Family Court’s custody ruling. The matter was remitted:

… [T]he Family Court determined that it was in the best interests of the children for the mother to have sole residential custody. However, the respective attorneys for the children, in their briefs submitted to this Court, have brought to this Court’s attention certain alleged new developments since the order under review was issued in June 2019. As the Court of Appeals has recognized, changed circumstances may have particular significance in child custody matters and may render the record on appeal insufficient to review whether a child custody determination is still in the best interests of the children … . Matter of Fitzsimmons v Fitzsimmons, 2022 NY Slip Op 02411, Second Dept 4-13-22

Practice Point: In a child custody case, changed circumstances may render the record on appeal insufficient. Here the attorneys for the children brought the changed circumstances to the attention of the appellate court in their briefs and the court remitted the matter to Family Court.

 

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FAMILY COURT IMPROPERLY DELEGATED TO FATHER THE COURT’S AUTHORITY TO DETERMINE MOTHER’S ACCESS TO THE CHILD (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined father should not have been given the power to suspend mother’s access to the child:

… [T]he Family Court erred in including two provisions in the order appealed from that effectively allow the father to determine whether parental access with the mother should be suspended. These provisions do not appear to give the mother the opportunity to judicially challenge the father’s determinations concerning her compliance with the Personalized Recovery Oriented Services (PROS) program or whether she had unsupervised parental access with the child … , and, consequently, constitute an improper delegation of authority by the Family Court to the father to determine when the child can have parental access time with the mother … . Matter of Felgueiras v Cabral, 2022 NY Slip Op 02410, Second Dept 4-13-22

Practice Point: Here Family Court should not have allowed father to control mother’s access to the child—an improper delegation of the court’s authority.

 

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AN ARBITRATOR’S DETERMINATION WILL NOT BE REVERSED BECAUSE OF AN ERROR OF LAW, BUT WILL BE REVERSED WHERE, AS HERE, IT IS IRRATIONAL (SECOND DEPT).

The Second Department, reversing the arbitrator, noted that an arbitrator’s determination will not be reversed because of an error of law, but will be reversed if the determination is irrational. Here the arbitrator’s determinations with respect to no-fault insurance coverage were deemed irrational:

“[A] master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator” … . “If the master arbitrator vacates the arbitrator’s award based upon an alleged error of ‘a rule of substantive law,’ the determination of the master arbitrator must be upheld unless it is irrational” … . …

The master arbitrator’s determination that a denial of liability based upon a failure to appear at an examination under oath constitutes a defense of lack of coverage, which is not subject to preclusion, is irrational … . Further, the master arbitrator’s application of 11 NYCRR 65-3.5(p) is irrational, as it effectively allows an insurer to avoid the statutory timeliness requirements set forth in 11 NYCRR 65-3.8(a). Where, as here, the initial request for an examination under oath is sent more than 30 days after receipt of the claim, the request is a nullity … , and the insurer’s failure to timely notice the examination under oath is not excused by 11 NYCRR 65-3.5(p) … . Matter of Advanced Orthopaedics, PLLC v Country-Wide Ins. Co., 2022 NY Slip Op 02406, Second Dept 4-13-22

Practice Point: An arbitrator’s determination will not be reversed because the arbitrator made an error of law. Only an irrational determination will be reversed by a court.

 

THE EIGHT-INCH WIDE BEAM CLAIMANT WAS MOVING ALONG WHEN HE FELL WAS THE FUNCTIONAL EQUIVALENT OF A SCAFFOLD, BRINGING THE ACTION WITHIN THE SCOPE OF LABOR LAW 240(1); THE SAFETY LINE PROVIDED TO CLAIMANT DID NOT PROTECT HIM FROM THE FALL; CLAIMANT WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined claimant’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Claimant, Lazo, was moving along an eight-inch wide, 17-foot long, beam suspended above a platform when he fell. He was attached to two safety lines which he had to detach and reattach to anchorage points. He fell while in the process of reattaching one of the lines. The second line did not prevent the fall:

Lazo would use a hook at the end of each safety line to secure it to various anchorage points on another horizontal beam located above him. To move across the beam, workers were instructed to unhook the first safety line from the first anchorage point, connect it to a second anchorage point, and then repeat this process with the second safety line. This effectively allowed workers to move along the beam while always having at least one safety line attached to an anchorage point. * * *

Lazo’s deposition testimony established, prima facie, that his accident was within the purview of Labor Law § 240(1), since the beam from which he fell was being used as the functional equivalent of a scaffold … . Lazo’s deposition testimony also established, prima facie, that his second safety line was attached to an anchorage point but was nevertheless insufficient to prevent him from falling … . Lazo v New York State Thruway Auth., 2022 NY Slip Op 02400, Second Dept 4-13-22

Practice Point: Here an eight-inch wide, 17 foot-long beam suspended eight feet above a platform was the functional equivalent of a scaffold. The fall from the beam therefore was within the scope of Labor Law 240(1).

 

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ABSENT A SHOWING OF GOOD CAUSE FOR THE DELAY, A MOTION TO SET ASIDE A VERDICT MADE MORE THAN 15 DAYS AFTER THE VERDICT WAS RENDERED SHOULD NOT BE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion to set aside the verdict as against the weight of the evidence should not have been granted because it was made more than 15 days after the jury verdict:

The Supreme Court should have denied the defendants’ motion pursuant to CPLR 4404(a) as untimely, as it was made more than 15 days after the jury verdict was rendered, without good cause shown for the delay … . Galarza v Heaney, 2022 NY Slip Op 02395, Second Dept 4-13-22

Practice Point: A motion to set aside a verdict made more than 15 days after the verdict was rendered, without a demonstration of good cause for the delay, should not be granted.

 

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HERE PLAINTIFF’S ATTORNEY OFFERED A DETAILED, CREDIBLE EXPLANATION OF THE LAW OFFICE FAILURE WHICH RESULTED IN MISSING THE DEADLINE FOR PROVIDING DISCOVERY, AS WELL AS THE DEMONSTRATION OF POTENTIALLY MERITORIOUS CAUSES OF ACTION; DEFENDANTS’ MOTIONS TO ENFORCE THE PRECLUSION ORDER SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s attorney offered a reasonable “law office failure” excuse for not complying with a discovery deadline (conditional order of preclusion):

“The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a detailed and credible explanation of the default at issue” … . “Conversely, where a claim of law office failure is conclusory and unsubstantiated or lacking in credibility, it should be rejected” … .

Here, in opposition to the defendants’ separate motions, inter alia, in effect, to enforce the conditional order, the plaintiff’s counsel provided a detailed and credible explanation of the law office error that resulted in the failure to comply with the conditional order … . The plaintiff also demonstrated potentially meritorious causes of action … . Fortino v Wheels, Inc., 2022 NY Slip Op 02393, Second Dept 4-13-22

​Practice Point: Here counsel offered a detailed, credible explanation for law office failure (failure to comply with a deadline for discovery). That explanation was coupled with the demonstration of potentially meritorious causes of action. Defendant’s motion to enforce the conditional preclusion order should not have been granted.

 

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