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FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT).

The Second Department, reversing Family Court, determined it was in the best interests of the child to free the child for adoption without the consent of father. Mother’s parental rights had terminated, but the court-appointed evaluator testified the relationship with father was positive and should not be terminated. The Second Department held that other evidence which supported freeing the child for adoption was not given sufficient weight:

“This Court will not disturb a Family Court’s determination regarding the best interests of the child unless it lacks a sound and substantial basis in the record” … . Here, the hearing court’s finding that it would be in the best interests of the child to remain in foster care instead of being freed for adoption lacks such a sound and substantial basis. The finding was based primarily on the opinions offered by the court-appointed evaluator, who recommended that the foster mother have custody of the child because she raised him since he was an infant, she has an “extremely close bond” with him, and she is able to take care of the child’s special needs. While the evaluator also opined that the child has a “very positive relationship” with the father, and that it would not be in the best interests of the child to sever that relationship by freeing the child for adoption, the evaluator conceded that the foster mother and the father view each other with “significant distrust,” that the child “hears conflicting information” from the foster mother and the father, that the child “senses their anger and conflict,” and that the conflict was “very stre not determinative … . Based on the record before us, we find that the hearing court gave undue weight to the evaluator’s conclusions with regard to the benefits of the child’s relationship with the father … and failed to accord sufficient weight to the impact on the child of long-term foster care, which would continue to expose him to the distrust between the foster mother and the father, and deprive the child of “a permanent, nurturing family relationship” …  .

Moreover, the Family Court did not give sufficient weight to testimony from the assigned case planner and the foster mother that the child repeatedly had contact with the birth mother during his visits with the father, in violation of the court’s directive precluding such contact with the birth mother. Similarly, the evaluator did not consider either the possibility that the father was exposing the child to the birth mother or the effects on the child of continued contact with the birth mother, information vital to assessing the best interests of the child. Matter of Jasiah T.-V. S.J. (Joshua W.–Shatesse J.), 2018 NY Slip Op 08020, Second Dept 11-21-18

FAMILY LAW (FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT))/EVIDENCE (FAMILY LAW, FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT))/SOUND AND SUBSTANTIAL BASIS (FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT))

FATHER, WHO WAS INCARCERATED, SHOULD HAVE BEEN PRODUCED FOR THE PROCEEDING TO APPOINT A GUARDIAN FOR THE CHILD, NEW HEARING ORDERED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined father, who was incarcerated, had a fundamental right to be heard in the guardianship proceeding and shouild have been produced in court:

The order, after a hearing at which the father was neither present nor represented, and upon the mother’s consent, granted the petition of Krystle L. B. to be appointed permanent guardian of the subject child. …

An incarcerated parent has a fundamental right to be heard in a proceeding impacting the care and control of his or her child … . Here, the incarcerated father’s rights were violated when the Family Court elected to hear and determine the guardianship petition without producing the father in court or affording him an opportunity to be heard.

Accordingly, we reverse the order appealed from, and remit the matter … for a hearing at which the father’s constitutional right to be heard will not be abridged and a new determination thereafter on the guardianship petition. Matter of Krystle L.B. v Crystal L.W., 2018 NY Slip Op 08019, Second Dept 11-21-18

FAMILY LAW (FATHER, WHO WAS INCARCERATED, SHOULD HAVE BEEN PRODUCED FOR THE PROCEEDING TO APPOINT A GUARDIAN FOR THE CHILD, NEW HEARING ORDERED (SECOND DEPT))/GUARDIANSHIP (FATHER, WHO WAS INCARCERATED, SHOULD HAVE BEEN PRODUCED FOR THE PROCEEDING TO APPOINT A GUARDIAN FOR THE CHILD, NEW HEARING ORDERED (SECOND DEPT))

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SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT).

The Second Department, modifying (reversing) Supreme Court in this action for divorce, determined that defendant’s motion to preclude plaintiff from introducing certain evidence at trial because of the failure to comply with discovery orders should have been granted. Defendant’s request for attorney’s fees was properly denied, however, because plaintiff is the less-monied spouse:

A court may prohibit a party “from producing in evidence designated things or items of testimony” if the party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126[2] …). Before a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious … . The willful and contumacious character of a party’s conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse for these failures, or (2) the failure to comply with court-ordered discovery over an extended period of time … .

Here, the defendant demonstrated that the plaintiff failed to comply with court-ordered discovery over an extended period of time. The willful and contumacious character of the plaintiff’s conduct may be inferred from her failure to respond to the defendant’s letter … , despite two court orders directing her to do so, and her failure to proffer any excuse for her failure. Accordingly, that branch of the defendant’s motion which was to preclude the plaintiff from producing physical evidence or testimony at trial relating to certain limited items previously requested but not disclosed should have been granted.

We agree, however, with the Supreme Court’s denial of that branch of the defendant’s motion which was to direct the plaintiff to pay interim counsel fees in the sum of $5,000, since the plaintiff is the less-monied spouse … . Maliah-Dupass v Dupass, 2018 NY Slip Op 08018, Second Dept 11-21-18

FAMILY LAW (DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/DIVORCE (SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/CIVIL PROCEDURE (DISCOVERY, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/CPLR 3126 (DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/EVIDENCE (CIVIL PROCEDURE, PRECLUSION, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/ATTORNEYS (FAMILY LAW, DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))

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COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the complaint stated a cause of action for legal malpractice and should not have been dismissed. The court explained that whether the action would survive a subsequent summary judgment motion is not to be considered. The complaint alleged plaintiff was injured by a pizza delivery driver and the attorneys failed to sue the employer (Dominos):

“On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed” … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . …

Here, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the plaintiff stated a cause of action to recover damages for legal malpractice … . The evidentiary submissions did not establish that a material fact alleged in the complaint is not a fact at all and that no significant dispute exists regarding it … . Contrary to the defendants’ contention, the plaintiff was entitled to commence this legal malpractice action even though the underlying personal injury action was still pending, as the legal malpractice action accrued, at the latest, in November 2014 … . Lopez v Lozner & Mastropietro, P.C. , 2018 NY Slip Op 08017, Second Dept 11-21-18

ATTORNEYS (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LEGAL MALPRACTICE (COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (MOTIONS TO DISMISS,  COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/DISMISS COMPLAINT, MOTION TO (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3211 (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined a question of fact whether the injured plaintiff was an employee or an independent contractor (and therefore a question of fact whether the Workers’ Compensation was plaintiff’s exclusive remedy) must ruled on by the Workers’ Compensation Board before the courts can get involved:

Where the availability of workers’ compensation benefits “hinges upon questions of fact or upon mixed questions of fact and law, the parties may not choose the courts as the forum for resolution of the questions, but must look to the Workers’ Compensation Board for such determinations”… . “The question of whether a particular person is an employee within the meaning of the Workers’ Compensation Law is usually a question of fact to be resolved by the Workers’ Compensation Board” … . Here, in light of the affidavit of the defendant’s employee, who stated that he trained the plaintiff, supervised the plaintiff closely, set the plaintiff’s hours on the days the plaintiff worked, and directed the plaintiff’s work, there is a question of fact regarding whether the plaintiff was the defendant’s employee on the date of the accident. Accordingly, because “there is a question of fact as to whether the plaintiff has a valid negligence cause of action against the defendant,” “[t]hat determination must be made in the first instance by the Workers’ Compensation Board …”. Findlater v Catering by Michael Schick, Inc., 2018 NY Slip Op 07702, Second Dept 11-14-18

WORKERS” COMPENSATION (WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT))/EMPLOYMENT LAW (WORKERS’ COMPENSATION, WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT))/INDEPENDENT CONTRACTORS (WORKERS’ COMPENSATION, WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT))/CIVIL PROCEDURE (WORKERS’ COMPENSATION, WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT))

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THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the jury should have been instructed to stop deliberating on other counts if they found the justification defense to have been proven. The Second Department further determined that the facts justified a jury instruction on the temporary and innocent possession of a weapon:

Here, we agree with the defendant that the Supreme Court’s jury charge in conjunction with the verdict sheet failed to convey to the jury that if it found the defendant not guilty based on justification as to assault in the first degree, then “it should simply render a verdict of acquittal and cease deliberation, without regard to” assault in the second degree … . Thus, the court’s instructions, together with the verdict sheet, may have led the jurors to conclude that deliberation on each assault count … required reconsideration of the justification defense, even if they had already acquitted the defendant of assault in the first degree based on justification… . Since we cannot say with any certainty and there is no way of knowing whether the acquittal on assault in the first degree was based on a finding of justification, a new trial is necessary … . In light of the defendant’s acquittal on the charge of assault in the first degree, the highest offense for which the defendant may be retried is assault in the second degree … . …

Here, viewing the evidence in the light most favorable to the defendant, the evidence sufficiently supported the defense of temporary and lawful possession of a weapon … . The defendant testified that he picked up a kitchen knife from the floor only after Grandu jumped on his back, at which point Herron was hitting the defendant in the head with her hands and with a pan while Grandu restrained the defendant. Although the defendant then stabbed Grandu with the knife, “should a jury believe that the defendant’s use of the knife was justified, such use would have been lawful, and not utterly at odds with [the defendant’s] claim of” temporary and innocent possession … . People v Fletcher, 2018 NY Slip Op 07747, Second Dept 11-14-18

CRIMINAL LAW (THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))/JUSTIFICATION (CRIMINAL LAW, THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))/TEMPORARY INNOCENT POSSESSION OF A WEAPON (CRIMINAL LAW, THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))/WEAPON, POSSESSION OF (THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))

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DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT).

The Second Department determined defendant’s motion to vacate her conviction on ineffective assistance grounds was properly denied. The prosecution presented 13 medical professional in support of its shaken baby case, but defense counsel did not present a medical expert:

Instead, trial counsel obtained the written report of a medical expert before the trial and retained a pediatric neurologist as a consulting expert, whom he consulted as issues arose during trial. During cross-examination of the People’s witnesses, trial counsel elicited testimony that supported the defendant’s theory of the case that the infant sustained injuries prior to being left at the defendant’s home.  * * *

Generally, whether to call an expert is a tactical decision … . In many instances, cross-examination of the People’s expert will be sufficient to expose defects in an expert’s presentation … . “As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance” … . …

The record shows that trial counsel made efforts to investigate the medical issues in this case. He effectively cross-examined the People’s witnesses, including the experts, and elicited testimony that was damaging to the People’s case. The fact that the defense did not call its own expert witnesses was the result of trial counsel’s legal strategy that the best way to defend this case was through impeachment of the People’s witnesses. Under the particular circumstances of this case, trial counsel provided effective representation … . People v Caldavado, 2018 NY Slip Op 07743, Second Dept 11-14-18

CRIMINAL LAW (ATTORNEYS, EVIDENCE, DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/INEFFECTIVE ASSISTANCE (DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/EVIDENCE (EXPERT MEDICAL OPINION, SHAKEN BABY CASE, DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/EXPERT OPINION (CRIMINAL LAW, SHAKEN BABY, DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))

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LAID OFF AT-WILL EMPLOYEE’S WHISTLEBLOWER (LABOR LAW 740) AND FRAUDULENT INDUCEMENT CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT). ​

The Second Department determined plaintiff’s whistleblower (Labor Law 740) and fraudulent inducement causes of action were properly dismissed. Plaintiff’s allegations did not meet the statutory criteria of Labor Law 740 and at-will employees who are laid off generally can not bring an action alleging fraudulent inducement:

[Labor Law 740] provides, in relevant part, that “[a]n employer shall not take any retaliatory personnel action against an employee because such employee . . . discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation” that either “creates and presents a substantial and specific danger to the public health or safety, or . . . constitutes health care fraud” (Labor Law § 740[2][a]).

While the plaintiff in a whistleblower action must prove, at trial, that an actual violation of law, rule, or regulation occurred … , it is not necessary, for pleading purposes, that the plaintiff identify in the complaint the specific law, rule, or regulation that the defendant allegedly violated … .

Here, while the amended complaint sufficiently alleges a violation of law, rule, or regulation, it fails to allege any substantial and specific danger to the public health or safety resulting from such violation … . …

“New York law is clear that absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired,” and the Court of Appeals has “repeatedly refused to recognize exceptions to, or pathways around, these principles” … . Hence, as a general rule, at-will employees may not claim that they were induced to accept their position based on the belief that they would enjoy continued employment …, “even where the circumstances pertain to a plaintiff’s acceptance of an offer of a position rather than his or her termination” … . Since the plaintiff failed to allege any injury independent of termination of her employment, she cannot recover damages for what is, at most, an alleged breach of contract in the guise of a tort … . Coyle v College of Westchester, Inc., 2018 NY Slip Op 07699, Second Dept 11-14-18

EMPLOYMENT LAW (LAID OFF AT-WILL EMPLOYEE’S WHISTLEBLOWER (LABOR LAW 740) AND FRAUDULENT INDUCEMENT CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT))/WHISTLEBLOWERS  (LAID OFF AT-WILL EMPLOYEE’S WHISTLEBLOWER (LABOR LAW 740) AND FRAUDULENT INDUCEMENT CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT))/LABOR LAW 740 (WHISTLEBLOWERS, LAID OFF AT-WILL EMPLOYEE’S WHISTLEBLOWER (LABOR LAW 740) AND FRAUDULENT INDUCEMENT CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT))/FRAUDULENT INDUCEMENT (EMPLOYMENT LAW, AT-WILL EMPLOYEE, (LAID OFF AT-WILL EMPLOYEE’S WHISTLEBLOWER (LABOR LAW 740) AND FRAUDULENT INDUCEMENT CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT))/AT-WILL EMPLOYEES  (LAID OFF AT-WILL EMPLOYEE’S WHISTLEBLOWER (LABOR LAW 740) AND FRAUDULENT INDUCEMENT CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT))

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STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, IMMIGRATION LAW VIOLATIONS ARE NOT CRIMES, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Scheinkman, considering a matter of first impression, determined state and local law enforcement officers are not authorized to effect civil immigration arrests in connection with ICE [Immigration and Customs Enforcement] detainers. The matter came before the court as a habeas corpus petition. The petition alleged that the continued detention (in county jail) of Frances, a citizen of India who had been in the US since his visa expired in 1996, after his criminal sentence was complete, was illegal. Although Frances was in ICE custody at the time of the appeal, Frances’s circumstance was deemed likely to recur and the appeal was therefore heard as an exception to the mootness doctrine:

Following the conclusion of his court proceeding, at which he was sentenced to time served, [Frances] was handcuffed and taken to a courthouse holding cell by members of the Sheriff’s Office …  . … [B]ased on the ICE warrant, … Francis was regarded by the Sheriff as being in the custody of ICE. Francis was placed in a jail cell rented by ICE. * * *

Illegal presence in the country, standing alone, is not a crime… ; it is a civil violation that subjects the individual to removal … . The federal process for removing someone from the country is a civil administrative matter, not a criminal one … . * * *

New York statutes do not authorize state and local law enforcement to effectuate warrantless arrests for civil immigration law violations. An arrest without a warrant is permitted where an individual “has committed or is believed to have committed an offense and who is at liberty within the state” under certain circumstances prescribed by statute (CPL 140.05). County sheriffs and their deputies are police officers (see CPL 1.20[34]), as are members of the state police, county police, and municipal police. * * *

The narrow issue in this case is whether New York law permits New York state and local law enforcement officers to effectuate civil immigration arrests, and not whether federal civil immigration officers have the authority to effectuate such arrests. Nor do we decide any issues under federal law deputizing state and local law enforcement officers to act as federal immigration officers. … [W]e conclude that the Sheriff’s policy … directing the retention of prisoners, who would otherwise be released, pursuant to ICE detainers and administrative warrants is unlawful … . People ex rel. Wells v DeMarco, 2018 NY Slip Op 07740, Second Dept 11-14-18

IMMIGRATION LAW (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/MUNICIPAL LAW (IMMIGRATION LAW, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/APPEALS (IMMIGRATION LAW, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/MOOTNESS DOCTRINE (APPEALS, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/IMMIGRATION AND CUSTOMS ENFORCEMENT (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/ICE (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/DETAINERS (ICE, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/CIVIL IMMIGRATION ARRESTS  (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/CRIMINAL LAW (IMMIGRATION LAW VIOLATIONS ARE NOT CRIMES, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))

,

EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT).

The Second Department determined the evidence did not support the finding that mother neglected the child by failing to provide adequate shelter:

We agree with the Family Court’s finding that the petitioner established, by a preponderance of the evidence, that the mother failed to provide the child with proper supervision and guardianship. The evidence demonstrated that she placed the child in near proximity to narcotics and to the very dangerous activity of narcotics trafficking, which posed an imminent danger to the child’s physical, mental, and emotional well-being… .

However, we disagree with the Family Court’s finding that the petitioner established, by a preponderance of the evidence, that the mother neglected the child by failing to supply the child with adequate shelter based on the unsanitary conditions of the home. While the evidence adduced at the fact-finding hearing demonstrated that the home was in a general state of disarray, it did not establish unsanitary or unsafe conditions such that the child’s physical, mental, or emotional condition was impaired or in imminent danger of impairment … . Matter of Majesty M. (Brandy P.), 2018 NY Slip Op 07726, Second Dept 11-14-18

FAMILY LAW (NEGLECT, EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT))/NEGLECT (EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT))

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