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FAMILY COURT SHOULD NOT HAVE SUMMARILY DISMISSED MOTHER’S PETITION FOR CUSTODY OF CHILDREN LIVING OUT-OF-STATE WITHOUT FIRST DETERMINING WHETHER IT HAD EXCLUSIVE, CONTINUING JURISDICTION OVER CUSTODY ISSUES (SECOND DEPT).

The Second Department determined Family Court should not have dismissed mother’s petition seeking sole custody of the children, who lived out-of-state, without first making a ruling on whether it had continuing jurisdiction over custody issues:

On November 22, 2016, the Family Court issued an order (hereinafter the custody order) awarding, inter alia, joint legal custody of the subject children to the mother and the children’s godmother, with primary physical custody and final decision-making authority to the godmother. …

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified in article 5-A of the Domestic Relations Law, a court in this State which has made an initial custody determination has exclusive, continuing jurisdiction over that determination until it finds, as is relevant here, that it should relinquish jurisdiction because the child does not have a “significant connection” with New York, and “substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76-a[1][a] …). …

… Family Court should not have summarily dismissed the mother’s petition on the ground that the children had been living with the godmother in Pennsylvania, without considering whether it had exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a (1) … , and affording the mother an opportunity to present evidence as to that issue … . Matter of Hodge v Hodges-Nelson, 2020 NY Slip Op 02926, Second Dept 5-20-20

 

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SALE OF LAND ORIGINALLY SET ASIDE FOR A CEMETERY WITHOUT RESTRICTIONS CONSTITUTED AN ABANDONMENT OF THE CEMETERY-RELATED USE-RESTRICTIONS ON THE LAND (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, determined the (1907) restrictions on land originally set aside for use as a cemetery had been abandoned (by the sale of the land in 1908) and the single-family residential zoning restrictions subsequently imposed on the land were enforceable, despite the repurchase of the land by the operator of the cemetery:

“A holder of a deed of a cemetery lot . . . acquires only a privilege or license, exclusive of others, to make interments in the lot purchased, only so long as the lot remains a cemetery” … . However, such privilege or license may be extinguished upon abandonment of the cemetery use … . * * *

… “[W]here a cemetery has been so neglected as entirely to lose its identity as such, and is no longer known, recognized, and respected by the public as a cemetery, it may be said to be abandoned” … . Moreover, an affirmative act that “undoes the character and association” of the cemetery “and leaves the land subject to sale or to legal partition . . . loses its sacredness as a resting place for the dead” … . …

Here, the 1908 sale of the 33-acre parcel … to … a private individual, which included the 12.5-acre parcel at issue, constituted an affirmative act of abandonment of the cemetery use of that property. The petitioner failed to submit any evidence to establish a continuous and uninterrupted relationship between itself and the persons or entities that owned the property from 1908 to 1971, when it reacquired the property … . Matter of Ferncliff Cemetery Assn. v Town of Greenburgh, 2020 NY Slip Op 02925, Second Dept 5-20-20

 

TAKING A LEAVE OF ABSENCE FROM A POSITION ON THE COUNTY BOARD OF ELECTIONS TO RUN FOR STATE SENATE IS NOT THE EQUIVALENT OF RESIGNING FROM THE BOARD OF ELECTIONS, WHICH IS REQUIRED BY THE ELECTION LAW; THE DESIGNATING PETITION SHOULD HAVE BEEN INVALIDATED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the designating petition of LaLota should have been invalidated under the provisions of the Election Law. LoLota was a Commissioner of the Suffolk County Board of Elections. He took a “leave of absence” from that position to allow him to seek office as a State Senator. The Second Department held that taking a leave of absence was not the equivalent of resigning, which is required by the Election Law:

The purpose of the statute is readily apparent—to prevent the conflict of interest, and potential abuse of authority, that would arise if a person is simultaneously both a candidate for public office and an election commissioner charged with the responsibility for overseeing the casting and canvassing of votes for that office. The concern that the statute addresses would not be assuaged by an election commissioner simply stepping aside momentarily while reserving the right to act as commissioner at any time of his or her own choosing. Additionally, because the Deputy Commissioner is appointed by, and serves at the pleasure of, the Commissioner … , LaLota’s designation of his deputy to act for him during his leave of absence does not serve to ameliorate the conflict of interest concerns against which the statute seeks to guard. Matter of LaLota v New York State Bd. of Elections, 2020 NY Slip Op 02905, Second Dept 5-15-20

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, TERMINATED THE GUARDIANSHIP OF AN INCAPACITATED PERSON WITHOUT HOLDING A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, terminated the guardianship of an incapacitated person (IP) without holding a hearing:

In April 2016, Fanny K. commenced this proceeding pursuant to Mental Hygiene Law article 81 seeking to be appointed as the guardian to manage Angeliki K.’s property located in Greece. After a hearing, the Supreme Court determined that Angeliki K. (hereinafter the IP) was incapacitated within the meaning of Mental Hygiene Law article 81 and appointed Fanny K. (hereinafter the guardian) as the guardian of her property. In September 2018, due to the IP’s health problems and resultant inability to communicate in English, the IP was admitted to an assisted living and rehabilitation facility in Athens, Greece. In November 2018, the guardian moved for leave to change the IP’s place of abode from New York to the assisted living and rehabilitation facility, with the IP continuing to maintain her permanent residence in New York. The court, without a hearing, denied the motion and, sua sponte, terminated the guardianship due to a lack of a continuing nexus between the guardianship and New York.

The Supreme Court should not have, sua sponte, terminated the guardianship, without a hearing, as a guardianship may be terminated “only on application of a guardian, the incapacitated person, or any other person entitled to commence a proceeding under Mental Hygiene Law article 81 with a hearing on notice” (… see Mental Hygiene Law §§ 81.36[b], [c] …). Matter of Angeliki K. (Fanny K.), 2020 NY Slip Op 02786, Second Dept 5-13-20

 

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MANUFACTURER AND SELLER OF THE PRODUCT WHICH ALLEGEDLY INJURED INFANT PLAINTIFF CANNOT SUE THE PARENTS FOR CONTRIBUTION ON A THEORY OF NEGLIGENT SUPERVISION OF THE INFANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the third-party complaint brought by the defendant manufacturer and seller of a humidifier against the parents of the injured child, alleging negligent supervision of the child, should have been dismissed:

In March 2014, the then-10-month-old infant plaintiff allegedly was injured when she knocked over a humidifier and hot water spilled onto her foot. The infant’s father had placed the humidifier on the living room floor before leaving the apartment with the infant’s five-year-old sibling. The infant’s mother was in the living room when the accident occurred. In August 2014, this action to recover damages for the infant’s injuries was commenced against the defendants, which allegedly manufactured and sold the humidifier. In December 2015, the defendants commenced a third-party action against the parents for contribution. …

There is no legally cognizable cause of action to recover damages for injuries suffered by a minor child against his or her parent for negligent supervision … . Additionally, where a secondary right of contribution is dependent upon “the parent’s alleged failure to perform a duty owing to the plaintiff child, the absence of the primary cause of action defeats the . . . third-party complaint” … . Although there is an exception when the parent’s conduct implicates a duty owed to the public at large … , the acts complained of in the third-party complaint were encompassed within the intrafamily immunity for negligent supervision … . Martinez v Kaz USA, Inc., 2020 NY Slip Op 02776, Second Dept 5-13-20

 

WIRES WHICH CAUSED PLAINTIFF TO TRIP AND FALL WERE INTEGRAL TO THE WORK BEING PERFORMED AND CANNOT THEREFORE BE CONSIDERED DEBRIS WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 241(6) cause of action should have been dismissed. Plaintiff fell when his foot became entangled in electrical wires hanging from the ceiling. The wires were integral to the work being performed. Therefore the Industrial Code provision prohibiting the accumulation of debris did not apply. However the common law negligence (dangerous condition) cause of action properly survived summary judgment:

To prevail on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff “must set forth a violation of a specific rule or regulation promulgated by the Commissioner of the Department of Labor” … . Here, the plaintiff alleged a violation of 12 NYCRR 23-1.7(e)(2), which requires that “[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.” However, 12 NYCRR 23-1.7(e)(2) is “inapplicable [where] the material over which [a plaintiff] alleges he [or she] tripped was integral to the work being performed” … . Martinez v 281 Broadway Holdings, LLC, 2020 NY Slip Op 02773, Second Dept 5-13-20

 

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DIFFERENT STANDARDS OF PROOF OF EMPLOYMENT DISCRIMINATION UNDER THE NY CITY HUMAN RIGHTS LAW, AS OPPOSED TO THE NY STATE HUMAN RIGHTS LAW, EXPLAINED IN SOME DEPTH; PLAINTIFF’S CAUSE OF ACTION FOR GENDER DISCRIMINATION UNDER THE NY CITY HUMAN RIGHTS LAW ON A THEORY OF A HOSTILE WORK ENVIRONMENT REINSTATED (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Brathwaite Nelson, reversing (modifying) Supreme Court, determined plaintiff’s cause of action for gender discrimination on a theory of a hostile work environment under the NY City Human Rights Law should not have been dismissed. The Second Department held that the “materially adverse” change in employment conditions, which applies to the NY State Human Rights Law, does not apply to the NY City Human Rights Law. The standard under the NY City Human Rights Law is a showing that plaintiff was subject to an unfavorable change or treated less well than other employees on the basis of a protected characteristic. The Second Department took pains to explain the different standards of proof under the State and City Human Rights Laws:

… [U]nder the City Human Rights Law, in order to demonstrate liability, a plaintiff need not establish that she or he was subjected to a “materially adverse” change to terms and conditions of employment, but only that she or he was subject to an unfavorable change or treated less well than other employees on the basis of a protected characteristic … . * * *

The alleged comment by Denesopolis [plaintiff’s boss], that he did not “like women on this job because they have babies,” plainly expresses a view of the role of women in the workplace. Considering the totality of the circumstances, which include the plaintiff’s testimony that Denesopolis expressed displeasure upon learning of her transfer to his unit as a pregnant woman, and then again at her second pregnancy, we cannot say that this is a “truly insubstantial case” as a matter of law. In addition, while it might be inferred that the incidents in which Denesopolis publicly reprimanded the plaintiff and referred to her as an “empty suit” and “Sergeant do nothing” were related to deficiencies in her performance as a sergeant, on the defendants’ motion for summary judgment, we must view the facts in the light most favorable to the plaintiff. A jury could agree with the plaintiff that the conduct was based upon her pregnancies and conclude that the plaintiff was subject to a workplace in which she was treated less well than others because of her gender. Accordingly, the cause of action alleging gender discrimination on a theory of a hostile work environment under the City Human Rights Law must be reinstated.  Golston-Green v City of New York, 2020 NY Slip Op 02768, Second Dept 5-13-20

 

DEFENDANT’S EXCUSE WAS NOT REASONABLE; MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate a default judgment should not have been granted. The excuse was not reasonable:

A defendant seeking to vacate a default in answering a complaint must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see CPLR 5015[a][1] …). Here, the defendant’s proffered excuse that its president failed to open and review the contents of a package following its personal delivery upon him, and that the summons and verified complaint may inadvertently have been discarded thereafter, were insufficient to demonstrate a reasonable excuse for the default … . Elderco, Inc. v Kneski & Sons, Inc., 2020 NY Slip Op 02766, Second Dept 5-13-20

 

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PROOF OF DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION WAS NOT IN ADMISSIBLE FORM; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The evidence of defendants’ default was not in admissible form:

To establish its prima facie entitlement to summary judgment in a mortgage foreclosure action, a plaintiff must submit the mortgage, the unpaid note, and evidence of the mortgagor’s default … . A default is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form … .

Here, Ostermann [plaintiff’s vice president], in her affidavit, did not specifically state that she had personal knowledge of the default. Moreover, to the extent that her knowledge was based on her review of business records, she did not identify what records she relied on and she did not attach them to her affidavit. Thus, the plaintiff failed to submit evidence in admissible form to establish the defendants’ default … . Since the plaintiff failed to establish, prima facie, that the defendants had defaulted on the subject note, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answers, and for an order of reference … . Deutsche Bank Natl. Trust Co. v McGann, 2020 NY Slip Op 02765, Second Dept 5-13-20

 

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A DEFENSE WITNESS HELD OUT AS DISINTERESTED AND OBJECTIVE WAS IN FACT EMPLOYED BY THE DEFENDANTS; PLAINTIFFS’ MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiffs’ motion to set aside the jury verdict in this personal injury case should have been granted. One of the issues in the trial was the identity of the party which left a pipe in a tunnel. Plaintiff alleged he was injured when he tripped over the pipe. Defendants presented a witness, Dudin, who testified the defendants were not responsible for leaving the pipe in the tunnel. Dudin was represented as a disinterested witness when, in fact, he was employed by the defendants:

Pursuant to CPLR 4404(a), a trial court may order a new trial “in the interest of justice.” “A motion pursuant to CPLR 4404 (a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . In considering such a motion, “[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'” … .

Here, the record reveals that the defendants affirmatively represented to the jury that Dudin was a disinterested, objective witness, notwithstanding that he was employed by the defendants at the time of trial. During summation, the defendants’ counsel stated that Dudin was “with the construction manager,” and that he was “not on [the defendants’] payroll,” but rather was a representative of the DEP [Department of Environmental Protection]. Additionally, the defendants’ counsel stated that, “you heard from Mr. Dudin, who is with the DEP now, this is not [the defendants’] stuff” in the tunnel. Counsel specifically referred to Dudin as “an objective witness” who “has no dealings with [the defendants],” and stated that he was “there to help the [injured] plaintiff.” Under the circumstances, we find that the jury should have had the opportunity to consider Dudin’s status as an employee of the defendants in assessing his credibility and in determining whether this relationship biased or influenced the witness’s testimony … . D’Amato v WDF Dev., LLC, 2020 NY Slip Op 02761, Second Dept 5-13-20

 

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