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DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT).

The Second Department determined defendant was denied his right to counsel when defense counsel told the court he did not want to be a party to defendant’s motion to withdraw his guilty plea:

The defendant stated that he wished to withdraw his plea of guilty on the grounds that he was innocent and that he was coerced into pleading guilty. His attorney stated that he did not want to be a party to the motion. His attorney further stated: “I fought long and hard to get this. I thought we had this.” The court advised the defendant not to say anything further, and noted that the defendant could be charged with perjury. The court denied the defendant’s motion, and imposed sentence.

The defendant’s right to counsel was adversely affected when his attorney took a position adverse to the defendant with respect to his motion to withdraw his plea of guilty… . The Supreme Court should have assigned a different attorney to represent the defendant before it determined the defendant’s motion … . We further note that, in advising the defendant not to say anything further because he could be charged with perjury, the court deprived the defendant of the opportunity to present his contentions … . People v Sarner, 2018 NY Slip Op 08335, Second Dept 12-5-18

CRIMINAL LAW (RIGHT TO COUNSEL, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT))/RIGHT TO COUNSEL (CRIMINAL LAW,  DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT))

THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT).

The Second Department determined that a 2015 Court of Appeals decision holding that a jury cannot be instructed that it could find defendant guilty of both depraved indifference murder and intentional murder of a single victim should not be applied retroactively. Defendant was shooting at another when he struck and killed his accomplice:

In People v Dubarry (25 NY3d at 165), the Court of Appeals addressed “the novel question” of whether the defendant could be subject to multiple liability for a single homicide based on a theory of transferred intent. “The transferred intent theory, codified under Penal Law § 125.25(1), provides that where the resulting death is of a third person who was not the defendant’s intended victim, the defendant may nonetheless be held to the same level of criminal liability as if the intended victim were killed'” … . The Court in Dubarry concluded that the defendant “cannot be convicted of depraved indifference murder and intentional murder on a transferred intent theory in a case involving the death of the same person,” and, “[t]herefore, the trial court erroneously submitted to the jury both charges in the conjunctive rather than in the alternative” … . * * *

… Dubarry established new precedent and constitutes a new rule of law. Consequently, retroactivity analysis is required under this State’s rules … . “Whether a new rule of New York State law is to be given retroactive effect requires an evaluation of three factors: (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect on the administration of justice of retroactive application”… . “The second and third factors are, however, only given substantial weight when the answer to the retroactivity question is not to be found in the purpose of the new rule itself'” … . …

As to the first factor, the Court of Appeals in Dubarry clarified the proper application of the transferred intent theory, which should be employed, not to multiply criminal liability, “but to prevent a defendant who has committed all the elements of a crime (albeit not upon the same victim) from escaping responsibility for that crime” … . The Court’s purpose was to dispel confusion concerning the application of the separate mens rea of intent and depraved indifference to the same outcome … , and, similar to Policano, to make future homicide prosecutions more sustainable. Furthermore … , “nonretroactivity poses no danger of a miscarriage of justice” … . The other two Pepper factors also weigh in favor of nonretroactivity. … [T]hree of the departments of the Appellate Division permitted the submission of both intentional (transferred intent) and depraved indifference crimes in the conjunctive. Moreover, “[a]ffording retroactivity to [the] defendant would mean that every defendant to whose case it was relevant, no matter how remote in time and merit, would become [a] beneficiary'” … . People v Drayton, 2018 NY Slip Op 08323, Second Dept 12-5-18

CRIMINAL LAW (THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT))/DEPRAVED INDIFFERENCE MURDER (THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT))/TRANSFERRED INTENT  (THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT))

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DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT).

The Second Department noted that defendant driver’s allegation that plaintiff driver stopped suddenly in this rear end collision case was not sufficient to create a question of fact:

… [T]he plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability by averring that he was stopped at a red light for 45 seconds before the defendant’s vehicle struck the plaintiff’s vehicle in the rear… . In opposition, the defendant averred that the accident occurred after the plaintiff made a sudden stop in the middle of the road. However, the defendant did not submit any evidence as to the distance he had maintained from the plaintiff’s vehicle, or the speed at which he was traveling, prior to the collision. Without such evidence, the assertion that the plaintiff’s vehicle came to a sudden stop was insufficient to rebut the inference that the defendant was negligent … . Auguste v Jeter, 2018 NY Slip Op 08274, Second Dept 12-5-18

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR END COLLISIONS, DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT))/EVIDENCE (NEGLIGENCE, REAR END COLLISIONS, DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT))/TRAFFIC ACCIDENTS ( REAR END COLLISIONS, DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT))/REAR END COLLISIONS (DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT))

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TOWN SHOULD HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO BUILD A FENCE IN ACCORDANCE WITH A STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the town should be held in contempt for failure to erect a fence on town land in accordance with a stipulation. Plaintiff had requested the fence because people were crossing town land to trespass on plaintiff’s property:

“In order to sustain a finding of civil contempt, it is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes or prejudices the rights of a party” … .

In order to adjudicate a party in civil contempt, a court must find: (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the party against whom contempt is sought disobeyed the order, (3) that the party who disobeyed the order had knowledge of its terms, and (4) that the movant was prejudiced by the offending conduct… . The party seeking a finding of civil contempt must prove these elements by clear and convincing evidence … .

Here, the plaintiff established by clear and convincing evidence that the so-ordered stipulation clearly expressed an unequivocal mandate to construct a fence… , that the Town had knowledge of the stipulation and nevertheless disobeyed it, and that the plaintiff was prejudiced by the offending conduct.

In opposition, the Town failed to refute the plaintiff’s showing or to offer evidence of a defense such as an inability to comply with the order … . Palmieri v Town of Babylon, 2018 NY Slip Op 08317, Second Dept 12-5-18

CIVIL PROCEDURE (TOWN SHOULD HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO BUILD A FENCE IN ACCORDANCE WITH A STIPULATION (SECOND DEPT))/CONTEMPT (TOWN SHOULD HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO BUILD A FENCE IN ACCORDANCE WITH A STIPULATION (SECOND DEPT))/MUNICIPAL LAW (CONTEMPT, TOWN SHOULD HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO BUILD A FENCE IN ACCORDANCE WITH A STIPULATION (SECOND DEPT))

ABSENT A FINDING THE GUARDIAN OF THE PROPERTY OF AN INCAPACITATED PERSON FAILED TO PROPERLY DISCHARGE HER DUTIES, THE COURT SHOULD NOT HAVE ORDERED THE GUARDIAN TO PAY THE ACCOUNTANT WHO ASSISTED IN PREPARING THE FINAL ACCOUNT FROM HER OWN FUNDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, absent a showing of misconduct, the guardian of the property of an incapacitated person should not have been required to pay the accountant used to prepare the final account from her own funds:

A court is authorized to award “reasonable compensation” to a guardian (Mental Hygiene Law § 81.28[a]). The award of compensation “must take into account the specific authority of the guardian or guardians to provide for the personal needs and/or property management for the incapacitated person, and the services provided to the incapacitated person by such guardian” (id. ). However, “[i]f the court finds that the guardian has failed to discharge his or her duties satisfactorily in any respect, the court may deny or reduce the compensation which would otherwise be allowed” (Mental Hygiene Law § 81.28[b]).

Here, since the Supreme Court did not find that the guardian failed to discharge her duties satisfactorily in any respect, the court should not have directed the guardian to pay the accountant’s fee from her own funds … . Matter of Ruby T. (Carrion), 2018 NY Slip Op 08314, Second Dept 12-5-18

MENTAL HYGIENE LAW (ABSENT A FINDING THE GUARDIAN OF THE PROPERTY OF AN INCAPACITATED PERSON FAILED TO PROPERLY DISCHARGE HER DUTIES, THE COURT SHOULD NOT HAVE ORDERED THE GUARDIAN TO PAY THE ACCOUNTANT WHO ASSISTED IN PREPARING THE FINAL ACCOUNT FROM HER OWN FUNDS (SECOND DEPT))/GUARDIANS (MENTAL HYGIENE LAW, ABSENT A FINDING THE GUARDIAN OF THE PROPERTY OF AN INCAPACITATED PERSON FAILED TO PROPERLY DISCHARGE HER DUTIES, THE COURT SHOULD NOT HAVE ORDERED THE GUARDIAN TO PAY THE ACCOUNTANT WHO ASSISTED IN PREPARING THE FINAL ACCOUNT FROM HER OWN FUNDS (SECOND DEPT))

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PRIOR RULINGS ON APPEAL CONSTITUTE THE LAW OF THE CASE, SUPREME COURT RULING TO THE CONTRARY REVERSED (SECOND DEPT).

 

The Second Department determined the contested matters had already been ruled upon in a prior appeal and therefore constituted the law of the case which must be followed. The contrary ruling by Supreme Court was reversed:

“An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court . . . [and] operates to foreclose reexamination of [the] question absent a showing of subsequent evidence or change of law” … . On the prior appeal, this Court considered, and rejected, the arguments that Pascuitti [a resondent] was no longer a proper party to this proceeding and that the petitioner could not seek relief against the individual movants in the contempt motion … . The Town and the individuals movants have failed to make a sufficient showing to warrant reexamination of these issues… . Accordingly, based on the law of the case doctrine, we disagree with the Supreme Court’s determination granting the motion … . Matter of Norton v Town of Islip, 2018 NY Slip Op 08308, Second Dept 12-5-18

CIVIL PROCEDURE (APPEALS, LAW OF THE CASE, PRIOR RULINGS ON APPEAL CONSTITUTE THE LAW OF THE CASE, SUPREME COURT RULING TO THE CONTRARY REVERSED (SECOND DEPT))/APPEALS (LAW OF THE CASE, LAW OF THE CASE, PRIOR RULINGS ON APPEAL CONSTITUTE THE LAW OF THE CASE, SUPREME COURT RULING TO THE CONTRARY REVERSED (SECOND DEPT))/LAW OF THE CASE (PRIOR RULINGS ON APPEAL CONSTITUTE THE LAW OF THE CASE, SUPREME COURT RULING TO THE CONTRARY REVERSED (SECOND DEPT))/APPEALS (LAW OF THE CASE, LAW OF THE CASE, PRIOR RULINGS ON APPEAL CONSTITUTE THE LAW OF THE CASE, SUPREME COURT RULING TO THE CONTRARY REVERSED (SECOND DEPT))

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ALTHOUGH THE PLAINTIFF LIMITED LIABILITY COMPANY DID NOT EXIST AT THE TIME THE LEASE WAS SIGNED, DEFENDANT TOOK POSSESSION OF THE PROPERTY, UNDER THE DOCTRINE OF INCORPORATION BY ESTOPPEL, DEFENDANT CANNOT ESCAPE LIABILITY FOR BREACH OF THE LEASE (SECOND DEPT). ​

The Second Department determined that the doctrine of incorporation by estoppel was properly applied in this  breach of contract (lease) case. Although plaintiff limited liability company did not exist at the time the lease was signed, defendant took possession of the property. Defendant was therefore estopped from escaping liability under the lease based on the nonexistence of plaintiff limited liability company:

“Since a nonexistent entity cannot acquire rights or assume liabilities, a corporation which has not yet been formed normally lacks capacity to enter into a contract”… . However, a corporation may be deemed to exist and possess the capacity to contract pursuant to the doctrine of incorporation by estoppel … . The doctrine of incorporation by estoppel, or corporation by estoppel, is based on the principle that “one who has recognized the organization as a corporation in business dealings should not be allowed to quibble or raise immaterial issues on matters which do not concern him [or her] in the slightest degree or affect his [or her] substantial rights” … . TY Bldrs. II, Inc. v 55 Day Spa, Inc., 2018 NY Slip Op 08345, Second Dept 12-5-18

CORPORATION LAW (INCORPORATION BY ESTOPPEL, ALTHOUGH THE PLAINTIFF LIMITED LIABILITY COMPANY DID NOT EXIST AT THE TIME THE LEASE WAS SIGNED, DEFENDANT TOOK POSSESSION OF THE PROPERTY, UNDER THE DOCTRINE OF INCORPORATION BY ESTOPPEL, DEFENDANT CANNOT ESCAPE LIABILITY FOR BREACH OF THE LEASE (SECOND DEPT))/LIMITED LIABILITY COMPANY LAW (INCORPORATION BY ESTOPPEL, ALTHOUGH THE PLAINTIFF LIMITED LIABILITY COMPANY DID NOT EXIST AT THE TIME THE LEASE WAS SIGNED, DEFENDANT TOOK POSSESSION OF THE PROPERTY, UNDER THE DOCTRINE OF INCORPORATION BY ESTOPPEL, DEFENDANT CANNOT ESCAPE LIABILITY FOR BREACH OF THE LEASE (SECOND DEPT))/CONTRACT LAW  (INCORPORATION BY ESTOPPEL, ALTHOUGH THE PLAINTIFF LIMITED LIABILITY COMPANY DID NOT EXIST AT THE TIME THE LEASE WAS SIGNED, DEFENDANT TOOK POSSESSION OF THE PROPERTY, UNDER THE DOCTRINE OF INCORPORATION BY ESTOPPEL, DEFENDANT CANNOT ESCAPE LIABILITY FOR BREACH OF THE LEASE (SECOND DEPT))/LANDLORD-TENANT (INCORPORATION BY ESTOPPEL, ALTHOUGH THE PLAINTIFF LIMITED LIABILITY COMPANY DID NOT EXIST AT THE TIME THE LEASE WAS SIGNED, DEFENDANT TOOK POSSESSION OF THE PROPERTY, UNDER THE DOCTRINE OF INCORPORATION BY ESTOPPEL, DEFENDANT CANNOT ESCAPE LIABILITY FOR BREACH OF THE LEASE (SECOND DEPT))/ESTOPPEL  (INCORPORATION BY ESTOPPEL, ALTHOUGH THE PLAINTIFF LIMITED LIABILITY COMPANY DID NOT EXIST AT THE TIME THE LEASE WAS SIGNED, DEFENDANT TOOK POSSESSION OF THE PROPERTY, UNDER THE DOCTRINE OF INCORPORATION BY ESTOPPEL, DEFENDANT CANNOT ESCAPE LIABILITY FOR BREACH OF THE LEASE (SECOND DEPT))

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FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT).

The Second Department, reversing Family Court, determined that Hawaii should not have been found to be the more appropriate forum for this custody proceeding without first assuring that all the findings made in Hawaii were vacated. Mother had moved to Hawaii and her custody proceedings there were completed before the Hawaii court was alerted by Family Court of father’s custody proceedings in New York. Hawaii never had subject matter jurisdiction so the matter was sent back to Family Court for a fresh ruling on whether New York is an inconvenient forum:

… [G]iven the substance of its discussions with the Hawaii Court, the Family Court’s determination to engage in an inconvenient forum analysis under Domestic Relations Law § 76-f(1) was an improvident exercise of discretion. Since New York was the child’s home state pursuant to the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] , the Hawaii Court lacked subject matter jurisdiction to make determinations on the mother’s child custody petition… . When the Family Court conferred with the Hawaii Court, the Hawaii Court informed the Family Court that the father was personally served with the mother’s custody petition, which suggested that the Hawaii Court determined that it had personal jurisdiction over the father. But, having been informed of the facts establishing that New York was the child’s home state, the Hawaii Court did not acknowledge its own lack of subject matter jurisdiction to have issued orders regarding child custody … . “A judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived” … . In the absence of any indication that the Hawaii Court vacated those orders, the Family Court should not have determined that the Hawaii Court was a more appropriate forum. Indeed, the father did not participate in any of the proceedings in Hawaii and there was no certainty that Hawaii would permit the father to not only reopen the hearings previously held in order to submit his own testimony and evidence, but also, that he would be given an opportunity to challenge the evidence already submitted, including to cross-examine the mother. Matter of Montanez v Tompkinson, 2018 NY Slip Op 08305, Second Dept 12-5-18

FAMILY LAW (FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))/CUSTODY (FAMILY LAW, FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))/FORUM NON CONVENIENS (FAMILY LAW, FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))/CIVIL PROCEDURE (FAMILY LAW, FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))/Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (FAMILY LAW, FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))/JURISDICTION (FAMILY LAW, FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))/SUBJECT MATTER JURISDICTION (FAMILY LAW, FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))

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ARBITRATOR, NOT THE COURTS, MUST FIRST DETERMINE WHETHER THE MATTER IS ARBITRABLE, CITY HAD ISSUED NEW PROTOCOLS FOR FIRST RESPONDERS, THE UNION FILED A GRIEVANCE ARGUING THE NEW PROTOCOLS MUST BE THE SUBJECT OF ARBITRATION, AN ARBITRATOR MUST DECIDE WHETHER THE ISSUE IS COVERED BY THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, held that whether the public sector employment matter was arbitrable under the terms of the collective bargaining agreement (CBA) must first be determined by the arbitrator, not the courts. The city had issued new protocols for first responders in the EMS program concerning active shooters, animal bites, suspicious packages, medical emergencies associated with criminal activity, etc. The union brought a grievance arguing that their members were not adequately trained for the new protocols and the issues should be the subject of arbitration:

“… [A] dispute between a public sector employer and an employee is only arbitrable if it satisfies a two-prong test” … . ” Initially, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance'” … . ” If there is no prohibition against arbitrating, the court must examine the parties’ collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute'” … .

When deciding whether a dispute is arbitrable, “the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute” (CPLR 7501). “Even an apparent weakness of the claimed grievance is not a factor in the court’s threshold determination. It is the arbitrator who weighs the merits of the claim” … .

Here, it is undisputed that there is no statutory, constitutional, or public policy prohibition to arbitration of the grievance. Therefore, the only issue is whether the parties in fact agreed to arbitrate the dispute. Where, as here, the relevant arbitration provision of the CBA is broad, if the matter in dispute bears a reasonable relationship to some general subject matter of the CBA, it will be for the arbitrator and not the courts to decide whether the disputed matter falls within the CBA … .

In this case, Local 628’s grievance alleged that the City violated Article 33.1 of the CBA, which mandates that the EMS program be kept at the highest level of professional standards based upon the standards in place at the time of the agreement, by issuing General Order 4-15, which increased the call protocols and subjected its members to calls for which they are not trained and lack necessary equipment. Therefore, the grievance is reasonably related to at least one provision in the CBA, and the Supreme Court should have denied the petition to permanently stay arbitration. Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2018 NY Slip Op 08294, Second Dept 12-5-18

ARBITRATION (ARBITRATOR, NOT THE COURTS, MUST FIRST DETERMINE WHETHER THE MATTER IS ARBITRABLE, CITY HAD ISSUED NEW PROTOCOLS FOR FIRST RESPONDERS, THE UNION FILED A GRIEVANCE ARGUING THE NEW PROTOCOLS MUST BE THE SUBJECT OF ARBITRATION, AN ARBITRATOR MUST DECIDE WHETHER THE ISSUE IS COVERED BY THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT))/EMPLOYMENT LAW (ARBITRATOR, NOT THE COURTS, MUST FIRST DETERMINE WHETHER THE MATTER IS ARBITRABLE, CITY HAD ISSUED NEW PROTOCOLS FOR FIRST RESPONDERS, THE UNION FILED A GRIEVANCE ARGUING THE NEW PROTOCOLS MUST BE THE SUBJECT OF ARBITRATION, AN ARBITRATOR MUST DECIDE WHETHER THE ISSUE IS COVERED BY THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT))/CONTRACT LAW (COLLECTIVE BARGAINING AGREEMENT, ARBITRATOR, NOT THE COURTS, MUST FIRST DETERMINE WHETHER THE MATTER IS ARBITRABLE, CITY HAD ISSUED NEW PROTOCOLS FOR FIRST RESPONDERS, THE UNION FILED A GRIEVANCE ARGUING THE NEW PROTOCOLS MUST BE THE SUBJECT OF ARBITRATION, AN ARBITRATOR MUST DECIDE WHETHER THE ISSUE IS COVERED BY THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT))/MUNICIPAL LAW (EMPLOYMENT LAW, ARBITRATOR, NOT THE COURTS, MUST FIRST DETERMINE WHETHER THE MATTER IS ARBITRABLE, CITY HAD ISSUED NEW PROTOCOLS FOR FIRST RESPONDERS, THE UNION FILED A GRIEVANCE ARGUING THE NEW PROTOCOLS MUST BE THE SUBJECT OF ARBITRATION, AN ARBITRATOR MUST DECIDE WHETHER THE ISSUE IS COVERED BY THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT))/COLLECTIVE BARGAINING AGREEMENT (MUNICIPAL LAW, ARBITRATOR, NOT THE COURTS, MUST FIRST DETERMINE WHETHER THE MATTER IS ARBITRABLE, CITY HAD ISSUED NEW PROTOCOLS FOR FIRST RESPONDERS, THE UNION FILED A GRIEVANCE ARGUING THE NEW PROTOCOLS MUST BE THE SUBJECT OF ARBITRATION, AN ARBITRATOR MUST DECIDE WHETHER THE ISSUE IS COVERED BY THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT))

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POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff police officer was patrolling defendants’ property (at defendants’ request) when he slipped and fell an on outside stairway. Both the negligence cause of action and the General Municipal Law 205-a cause of action presented questions of fact. The section 205-a cause of action was properly based upon an alleged violation of the Property Maintenance Code of New York State:

The injured plaintiff’s mere inability to identify the precise nature of the slippery substance upon which he alleges he fell “cannot be equated with” a failure to identify the cause of his fall … . The defendants … failed to establish, prima facie, that they lacked constructive notice of the alleged hazardous substance on the step … , that the lighting for the area was adequate, and that the lack of a handrail on the steps was not a hazardous condition that may have been a proximate cause of the injuries … . …

The defendants … failed to demonstrate, prima facie, that Property Maintenance Code of New York State (2010) § 306.1, which requires a handrail on “[e]very exterior and interior flight of stairs having more than four risers,” did not apply to the location where the injured plaintiff’s accident occurred. …

… [W]e agree with the Supreme Court that the plaintiffs were not entitled to summary judgment on the issue of liability  … . The plaintiffs failed to demonstrate, prima facie, the defendants’ “neglect, omission, willful or culpable negligence” in violating Property Maintenance Code of New York State … . Moreover, the plaintiffs failed to eliminate all material issues of fact regarding whether the alleged hazardous condition actually existed. Furthermore, to the extent that the cause of action is predicated upon a violation of Property Maintenance Code of New York State… , the plaintiffs’ proffered evidence … failed to establish, prima facie, that the injured plaintiff’s accident resulted directly or indirectly from the absence of a handrail … . Stancarone v Sullivan, 2018 NY Slip Op 08344, Second Dept 12-5-18

NEGLIGENCE (POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/POLICE OFFICERS (SLIP AND FALL, POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/GENERAL MUNICIPAL LAW 205-a (POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/EVIDENCE (SLIP AND FALL, POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/PROPERTY MANAGEMENT CODE OF NEW YORK STATE (SLIP AND FALL, POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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