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A FAMILY RELATIONSHIP WITH THE VICTIM, STANDING ALONE, DOES NOT WARRANT AN UPWARD DEPARTURE FROM THE SORA RISK ASSESSMENT GUIDELINES (SECOND DEPT).

The Second Department, reversing Supreme Court’s imposition of an upward departure from the SORA risk assessment guidelines, explained that the existence of a family relationship with the victim, standing alone, does not warrant an upward departure:

People seek an upward departure, they must identify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the Guidelines, and prove the facts in support of the aggravating factor by clear and convincing evidence … .

Here, as we held in People v Rodriguez (_____ AD3d _____, 2021 NY Slip Op 03475 [2d Dept]), the existence of a familial relationship between the offender and the victim, standing alone, does not constitute an aggravating factor for purposes of granting an upward departure. That relationship has already been taken into account by the Guidelines … , in which the board deliberately excluded familial relationships from the assessment of points on the RAI [risk assessment instrument] and expressly determined that intrafamilial offenders do not pose a comparatively higher risk of recidivism or danger to the community … . People v Velasquez, 2021 NY Slip Op 03625, Second Dept 6-9-21

 

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THE BASES FOR THE UPWARD DEPARTURE WERE ALREADY TAKEN INTO ACCOUNT BY THE SORA RISK ASSESSMENT GUIDELINES; UPWARD DEPARTURE REVERSED (SECOND DEPT).

The Second Department, reversing County Court’s upward departure from the SORA guidelines, determined the bases for the departure had been taken into account by the guidelines:

County Court lacked the discretion to upwardly depart from the presumptive risk assessment level because the People failed, as a matter of law, to identify an aggravating factor that was not adequately taken into account by the Guidelines. In seeking an upward departure from the presumptive risk assessment level established at the hearing, the People relied upon the defendant’s prior conviction of public lewdness and indications in the record suggesting that he had not accepted responsibility for his sexual misconduct. The defendant’s prior conviction of public lewdness constituted a misdemeanor sex crime, which is already accounted for under risk factor 9 of the Guidelines … . Similarly, an offender’s lack of acceptance of responsibility is accounted for under risk factor 12 … . ​People v Mott, 2021 NY Slip Op 03621, Second Dept 6-9-21

 

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THE PEOPLE PRESENTED INSUFFICIENT PROOF ON RISK FACTORS 2 AND 4, REQUIRING A 45 POINT REDUCTION (SECOND DEPT).

The Second Department, reducing defendant’s risk assessment by 45 points, without explaining the facts, determined the People did not submit sufficient evidence on two risk factors:

Supreme Court improperly assessed 25 points under risk factor 2 (sexual contact with victim) and 20 points under risk factor 4 (continuing course of sexual misconduct), as the People failed to establish by clear and convincing evidence … that the defendant engaged in sexual contact with the victims or that, under the theory of accessorial liability, he shared the intent of the victims’ clients in engaging in sexual contact … . People v Canady, 2021 NY Slip Op 03618, Second Dept 6-9-21

 

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A FAMILIAL RELATIONSHIP BETWEEN THE SEX OFFENDER AND THE VICTIM (HERE DEFENDANT’S YOUNG STEPDAUGHTER) DOES NOT INCREASE THE RISK TO THE PUBLIC AND THEREFORE CANNOT, STANDING ALONE, BE THE BASIS FOR AN UPWARD DEPARTURE FROM THE RISK ASSESSMENT GUIDELINES (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Mastro, determined the existence of a family relationship between the sex offender and the victim (here the defendant’s young stepdaughter) cannot, standing alone, be the basis for an upward departure from the risk assessment guidelines. The purpose of the risk assessment is to assess the threat posed to the public by a defendant. Abuse of a family member, as opposed to a stranger, does not pose a greater risk to the public:

… [T]he inclusion of familial relationships in … risk factor [7] was … expressly considered—and deliberately rejected—by the Board based on its determination that offenders who victimize family members do not pose the same risk of recidivism or danger to the community as offenders who target strangers. * * *

Inasmuch as the Board has already determined in the Guidelines that a familial relationship between an offender and his or her victim does not warrant the imposition of points on the RAI [risk assessment instrument] because it poses a comparatively lower risk of reoffense and danger to the public, that relationship, without more, likewise will not constitute an appropriate aggravating factor to justify an upward departure to a higher risk level. People v Rodriguez, 2021 NY Slip Op 03475, Second Dept 6-2-21

 

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COLLATERAL ESTOPPEL PRECLUDED THE GENERAL CONTRACTOR’S INDEMNIFICATION ACTION AGAINST A SUBCONTRACTOR BECAUSE THE SUBCONTRACTOR HAD BEEN GRANTED SUMMARY JUDGMENT IN THE UNDERLYING PERSONAL INJURY ACTION BROUGHT BY THE GENERAL CONTRACTOR’S EMPLOYEES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that Conrad Geoscience Corp was not required to indemnify Kento, the general contractor for the removal of contaminated soil. Kento had hired Conrad to draw up environmental safety plans. The underlying lawsuit was brought by four Kento dump truck drivers who experienced dizziness during work and were treated at a hospital. Conrad won its motion for summary judgment in the underlying action because it did not exercise and supervisory control over the work done by the Kento employees. Collateral estoppel precluded Kento’s indemnification action against Conrad:

Several days prior to the Supreme Court’s denial of Conrad’s motion for summary judgment in this action, the court had granted that branch of Conrad’s motion, made in the underlying action commenced by the Ketco employees, which was for summary judgment dismissing the complaint in that action insofar as asserted against it. That determination was affirmed by this Court in a prior appeal, in which we concluded, “Conrad submitted evidence that, as the entity charged with creating environmental safety plans, it exercised no supervisory authority at the highway construction project work site and owed no duty of care to the plaintiffs. In opposition, the plaintiffs failed to raise a triable issue of fact” … . Based upon Ketco’s concession in its papers submitted in opposition to Conrad’s motion for summary judgment in this action, Conrad contends, in effect, that Ketco is collaterally estopped from seeking contractual indemnification against it. “Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity” … . Privity may be found where a nonparty to a prior litigation has “a relationship with a party to the prior litigation such that his [or her] own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of, the rights of the party to the prior litigation” … . Here, we agree with Conrad’s contention that, under the circumstances, Ketco, which was clearly in privity with the Ketco employees, is bound by the prior determination of Conrad’s nonliability for the Ketco employees’ alleged injuries. New York State Thruway Auth. v Ketco, Inc., 2021 NY Slip Op 03462, Second Dept 6-2-21

 

PLAINTIFF’S LETTER TO THE COURT REQUESTING SANCTIONS WAS NOT SUFFICIENT TO NOTIFY DEFENDANTS OF THEIR ALLEGED FRIVOLOUS CONDUCT; MONETARY SANCTIONS REVERSED; MATTER REMITTED FOR PLAINTIFF TO MAKE A MOTION TO WHICH DEFENDANTS MAY RESPOND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined sanctions for allegedly frivolous conduct should not have be imposed without a motion on notice and an opportunity to respond:

Pursuant to 22 NYCRR 130-1.1, a court, in its discretion, after a reasonable opportunity to be heard, may impose sanctions against a party or the attorney for a party, or both, for frivolous conduct … . “The form of the hearing shall depend [on] the nature of the conduct and the circumstances of the case” … . Conduct may be deemed frivolous if it is “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another,” or “asserts material factual statements that are false” … . In determining if sanctions are appropriate, the court looks at the broad pattern of conduct by the offending attorneys or parties … .

Here, the appellants contend, inter alia, that the Supreme Court improvidently exercised its discretion in imposing a sanction upon them without affording them an opportunity to be heard. We agree. Under the particular circumstances of this case, the appellants should have received notice of their alleged offending conduct by way of a motion made on notice containing allegations of fact, and should have been given an opportunity to respond. The letter to the court from the plaintiff … , in which sanctions were requested, was insufficient to provide the defendants with notice of their alleged offending conduct. Muhametaj v Town of Orangetown, 2021 NY Slip Op 03460, Second Dept 6-2-21

 

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THE DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION CLAIMED THEY DID NOT HAVE POSSESSION OF THE VENOGRAM USED TO DIAGNOSE A BLOCKAGE IN A VEIN IN DEFENDANT’S LEG; PLAINTIFF’S APPLICATION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice action should not have been granted, and the application for sanctions for spoliation of evidence should not have been denied. The doctors claimed to no longer have possession of a venogram used to diagnose the blockage of a vein:

… [T]he plaintiff sufficiently established that the defendant doctors lost or destroyed the venogram imaging. The record demonstrates that it was the defendant doctors’ regular practice to record the results of venograms, that the defendant doctors had recorded the plaintiff’s other tests, and that the defendant doctors offered no explanation for the absence of the venogram imaging … . Moreover, the plaintiff established that the venogram imaging was relevant and necessary to the prosecution of the action. Contrary to the defendant doctors’ contention, the handwritten notation on the plaintiff’s treatment notes indicating the results of the venogram was not an adequate substitute. Accordingly, the Supreme Court should have granted the plaintiff’s application to impose sanctions on the defendant doctors to the extent of directing an adverse inference charge against those defendants at trial with regard to the missing evidence … . Loccisano v Ascher, 2021 NY Slip Op 03451, Second Dept 6-2-21

 

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THE J.H.O./REFEREE WAS NOT AUTHORIZED BY CPLR 3104 OR ANY ORDER ISSUED BY THE COURT TO CONSIDER AN ALLEGED DEFICIENCY IN THE AMENDED BILL OF PARTICULARS; THE ISSUE PRESENTED A QUESTION OF LAW WHICH COULD NOT HAVE BEEN AVOIDED BELOW, THEREFORE IT MAY BE RAISED FOR THE FIRST TIME ON APPEAL; ORDER STRIKING THE COMPLAINT VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Judicial Hearing Officer (J.H.O)/Referee did not have the authority to grant defendants motion to strike the complaint on the ground the amended bill of particulars did not comply with prior court orders. A bill of particulars is not part of any disclosure procedure which CPLR 3104 authorizes a referee to supervise. Because this is question of law could not have been avoided if brought up below, the issue can be raised for the first time on appeal:

“Since a bill of particulars is not a disclosure device but a means of amplifying a pleading, the present dispute over the contents of the [plaintiffs’ amended] bill[s] of particulars is not part of any disclosure procedure that CPLR 3104 authorizes a referee to supervise” … . Since CPLR 3104 did not authorize the J.H.O./Referee to determine the defendants’ separate motions, among other things, to strike the complaint insofar as asserted against each of them based upon the defendants’ objections to the plaintiffs’ amended bills of particulars, and there exists no order of reference authorizing the J.H.O./Referee to determine the defendants’ motions, the J.H.O./Referee was without authority to determine the defendants’ separate motions, inter alia, to strike the complaint insofar as asserted against each of them … . Kramarenko v New York Community Hosp., 2021 NY Slip Op 03450, Second Dept 6-2-21

 

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QUESTIONS OF FACT WHETHER THE SCHOOL PERSONNEL PROPERLY INSTRUCTED INFANT PLAINTIFF ON THE USE OF THE ZIP LINE FROM WHICH SHE ALLEGEDY FELL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school’s motion for summary judgment in this negligence supervision case should not have been granted. The infant plaintiff, C.G., allegedly was injured when she fell of a zip line. The were questions of fact about whether C.G. was properly instructed on the use of zip line:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … “A school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent” … . The duty to provide adequate supervision includes the duty to instruct students as to the safe use of playground equipment …

As the plaintiff correctly contends, the defendants’ submissions failed to eliminate triable issues of fact as to whether C. G. was adequately instructed on the safe use of the zip line prior to her fall and whether the instruction that students were allowed to have another student “give them a head start push” across the zip line was appropriate. Genova v Town of Clarkstown, 2021 NY Slip Op 03444, Second Dept 6-2-21

 

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THE EXECUTIVE ORDERS SUSPENDING OR MODIFYING THE LAW IN RESPONSE TO COVID-19 TOLLED THE TIME-LIMIT FOR FILING AN APPEAL UNTIL WITHIN 30 DAYS OF NOVEMBER 2, 2020 (SECOND DEPT).

The Second Department determined the Executive Orders suspending or modifying laws to accommodate the disruption caused by COVID-19 tolled the time limitation for the taking of an appeal until within 30 days of November 2, 2020:

The respondents contend that even though Executive Order (A. Cuomo) No. 202.8 … purported to toll the limitations periods, Governor Cuomo did not have the statutory authority to do so, as Executive Law § 29-a, while expressly granting the Governor the authority to suspend statutes, does not expressly grant the Governor the authority to “toll” them. This contention is unpersuasive. … Executive Law § 29-a(2)(d) provides that an order issued pursuant thereto “may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions.” This language in Executive Law § 29-a(2)(d) indicates that the Governor is authorized to do more than just “suspend” statutes during a state disaster emergency; he or she may “alter[ ]” or “modif[y]” the requirements of a statute, and a tolling of time limitations contained in such statute is within that authority … .

Furthermore, although the seven executive orders issued after Executive Order (A. Cuomo) No. 202.8 … did not use the word “toll,” those executive orders all either stated that the Governor “hereby continue[s] the suspensions, and modifications of law, and any directives, not superseded by a subsequent directive,” made in the prior executive orders … or contained nearly identical language to that effect … . Since the tolling of a time limitation contained in a statute constitutes a modification of the requirements of such statute within the meaning of Executive Law § 29-a(2)(d), these subsequent executive orders continued the toll that was put in place by Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8). Brash v Richards, 2021 NY Slip Op 03436, Second Dept 6-2-21

 

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