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PLAINTIFF ALLEGEDLY TRIPPED OVER CONSTRUCTION DEBRIS IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION, INDEMNIFICATION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE DEFENDANTS COULD NOT DEMONSTRATE THEY WERE FREE FROM NEGLIGENCE, BUT THE CONTRIBUTION CAUSE OF ACTION PROPERLY SURVIVED, CRITERIA FOR INDEMNIFICATION AND CONTRIBUTION EXPLAINED IN SOME DEPTH (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that the contractual and common law indemnification causes of action against defendant STAT should have been dismissed, but the contribution cause of action properly survived summary judgment. Plaintiff alleged he slipped and fell on construction debris and brought actions under Labor Law 240 (1) and 241 (6). The indemnification causes of action should have been dismissed because the defendants (Granite and Kulka) would not be able to prove they were free from negligence. The contribution claim was viable because STAT employees played some role in the accumulation of the debris:

STAT demonstrated that Granite and Kulka had certain responsibilities with respect to the removal of the construction debris and, thus, that they would not be able to prove themselves free from negligence in the event that the injured plaintiff was successful on his claims against Granite (seeGeneral Obligations Law § 5-322.1 ,,,). For this same reason, STAT established its prima facie entitlement to judgment as a matter of law dismissing the common-law indemnification third third-party cause of action and cross claim against it … .

However, we agree with the Supreme Court's determination to deny those branches of STAT's motion which were for summary judgment dismissing Granite's third third-party cause of action for contribution and Kulka's cross claim for contribution. As opposed to indemnification, which shifts the entire liability to the negligent party, “where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy” … . In the context of a construction site accident, where a plaintiff's injuries arise not from the manner in which the work was performed but rather due to an allegedly dangerous condition present thereat, liability under a common-law negligence theory “may be imposed upon a subcontractor where it had control over the work site and either created the allegedly dangerous condition or had actual or constructive notice of it” … . Fedrich v Granite Bldg. 2, LLC, 2018 NY Slip Op 06717, Second Dept 10-10-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ALLEGEDLY TRIPPED OVER CONSTRUCTION DEBRIS IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION, INDEMNIFICATION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE DEFENDANTS COULD NOT DEMONSTRATE THEY WERE FREE FROM NEGLIGENCE, BUT CONTRIBUTION CAUSE OF ACTION PROPERLY SURVIVED, CRITERIA FOR INDEMNIFICATION AND CONTRIBUTION EXPLAINED IN SOME DEPTH (SECOND DEPT))/INDEMNIFICATION (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ALLEGEDLY TRIPPED OVER CONSTRUCTION DEBRIS IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION, INDEMNIFICATION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE DEFENDANTS COULD NOT DEMONSTRATE THEY WERE FREE FROM NEGLIGENCE, BUT CONTRIBUTION CAUSE OF ACTION PROPERLY SURVIVED, CRITERIA FOR INDEMNIFICATION AND CONTRIBUTION EXPLAINED IN SOME DEPTH (SECOND DEPT))/CONTRIBUTION (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ALLEGEDLY TRIPPED OVER CONSTRUCTION DEBRIS IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION, INDEMNIFICATION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE DEFENDANTS COULD NOT DEMONSTRATE THEY WERE FREE FROM NEGLIGENCE, BUT CONTRIBUTION CAUSE OF ACTION PROPERLY SURVIVED, CRITERIA FOR INDEMNIFICATION AND CONTRIBUTION EXPLAINED IN SOME DEPTH (SECOND DEPT))/CONTRACT LAW (INDEMNIFICATION, LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ALLEGEDLY TRIPPED OVER CONSTRUCTION DEBRIS IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION, INDEMNIFICATION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE DEFENDANTS COULD NOT DEMONSTRATE THEY WERE FREE FROM NEGLIGENCE, BUT CONTRIBUTION CAUSE OF ACTION PROPERLY SURVIVED, CRITERIA FOR INDEMNIFICATION AND CONTRIBUTION EXPLAINED IN SOME DEPTH (SECOND DEPT))/NEGLIGENCE (PLAINTIFF ALLEGEDLY TRIPPED OVER CONSTRUCTION DEBRIS IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION, INDEMNIFICATION CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE DEFENDANTS COULD NOT DEMONSTRATE THEY WERE FREE FROM NEGLIGENCE, BUT CONTRIBUTION CAUSE OF ACTION PROPERLY SURVIVED, CRITERIA FOR INDEMNIFICATION AND CONTRIBUTION EXPLAINED IN SOME DEPTH (SECOND DEPT))

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PETITIONER MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BY APPEALING THE DENIAL OF A BUILDING PERMIT BY THE TOWN BUILDING DEPARTMENT TO THE ZONING BOARD OF APPEALS BEFORE BRINGING A COURT ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner was required to exhaust its administrative remedies by appealing the town building department's ruling to the zoning board of appeals before bringing a court action. Petitioner's request for a permit to put in a convenience store in a rural use district had been denied by the building department:

… [T]he petitioner was required to exhaust its administrative remedies before commencing the instant proceeding/action. The petitioner's constitutional challenges to the Building Department's determination did not excuse the petitioner's failure to exhaust its administrative remedies through an appeal to the Zoning Board of Appeals… . Furthermore, the petitioner did not establish that the Building Department's determination was “wholly beyond its grant of power” or that the pursuit of administrative remedies would cause the petitioner irreparable injury … . Matter of Vineland Commons, LLC v Building Dept. of Town of Riverhead, 2018 NY Slip Op 06748, Second Dept 10-10-18

ZONING (PETITIONER MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BY APPEALING THE DENIAL OF A BUILDING PERMIT BY THE TOWN BUILDING DEPARTMENT TO THE ZONING BOARD OF APPEALS BEFORE BRINGING A COURT ACTION (SECOND DEPT))/CIVIL PROCEDURE (ZONING, PETITIONER MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BY APPEALING THE DENIAL OF A BUILDING PERMIT BY THE TOWN BUILDING DEPARTMENT TO THE ZONING BOARD OF APPEALS BEFORE BRINGING A COURT ACTION (SECOND DEPT))/ADMINISTRATIVE LAW (ZONING, CIVIL PROCEDURE (ZONING, PETITIONER MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BY APPEALING THE DENIAL OF A BUILDING PERMIT BY THE TOWN BUILDING DEPARTMENT TO THE ZONING BOARD OF APPEALS BEFORE BRINGING A COURT ACTION (SECOND DEPT))

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PROBATIONARY CITY EMPLOYEE WAS NOT GIVEN SEVEN DAYS NOTICE OF HIS TERMINATION, REMEDY IS TO PAY THE EMPLOYEE FOR THE SEVEN DAYS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner, a probationary city employee, was not given the requisite seven day's notice of termination. The remedy was to provide petitioner with seven days pay:

… [T]he petitioner correctly contends that, in terminating his employment, the City failed to comply with 4 NYCRR 4.5(b)(5)(iii). That regulation requires, among other things, that a probationer who is to be discharged from employment for unsatisfactory service receive written notice at least one week prior to termination (see 4 NYCRR 4.5[b][5][iii]). Here, the petitioner received written notice on the day his employment was terminated, and the City did not rebut the petitioner's assertion that he had not received oral notice prior to that date. Accordingly, it cannot be said that the City substantially complied with 4 NYCRR 4.5(b)(5)(iii)… .

Under the circumstances of this case, including that the petitioner was deprived of the required seven days' notice but was notified of his discharge prior to the expiration of his period of probation … , we deem it appropriate to award him the relief he has requested on appeal for the failure to comply with 4 NYCRR 4.5(b)(5)(iii), specifically, one day's pay, at the salary he was earning at the time of his discharge, for each of the seven days he was not provided the requisite notice … . The Court of Appeals has determined that such a remedy is appropriate in the analogous context in which a school authority fails to give a probationary teacher 30 days' written notice of termination, as required by Education Law § 3019-a … . Seven days of pay is what the petitioner would have received had the City complied with the applicable regulation by making the petitioner's discharge effective seven days after it provided the written notice. Matter of Santucci v City of Mount Vernon, 2018 NY Slip Op 06745, Second Dept 10-10-18

MUNICIPAL LAW (EMPLOYMENT LAW, PROBATIONARY CITY EMPLOYEE WAS NOT GIVEN SEVEN DAYS NOTICE OF HIS TERMINATION, REMEDY IS TO PAY THE EMPLOYEE FOR THE SEVEN DAYS (SECOND DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, PROBATIONARY CITY EMPLOYEE WAS NOT GIVEN SEVEN DAYS NOTICE OF HIS TERMINATION, REMEDY IS TO PAY THE EMPLOYEE FOR THE SEVEN DAYS (SECOND DEPT))

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ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT).

The Second Department determined summary judgment was properly granted to the elevator maintenance company in this (allegedly)”misaligned elevator” slip and fall case. The maintenance company demonstrated it did not have notice of the condition and plaintiffs did not demonstrate that the doctrine of res ipsa loquitur applied:

“An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found”… . Here, the defendant submitted sufficient evidence to establish, prima facie, that it did not have actual or constructive notice of a misleveling condition, and that it did not fail to use reasonable care to correct a condition about which it should have been aware … .

In opposition, the plaintiffs failed to raise a triable issue of fact. The affidavit of the plaintiffs' expert, which was speculative, lacking in foundation, and conclusory, was insufficient to raise a triable issue of fact … .

The doctrine of res ipsa loquitur was not applicable as the plaintiffs failed to demonstrate that the accident “was one that would not ordinarily occur in the absence of someone's negligence” … . Daconta v Otis El. Co., 2018 NY Slip Op 06716, Second Dept 10-10-18

NEGLIGENCE (ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT))/ELEVATORS (SLIP AND FALL, ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT))/SLIP AND FALL (ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT))/RES IPSA LOQUITUR  (ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT))

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PETITIONER’S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioner's request for leave to file a late notice of claim in a potential Labor Law 200, 240 (1) and 241 (6) action should not have been granted. Petitioner was struck by a falling plank when he was standing on a scaffold during renovation work at a school:

Although the petitioner made no attempt to proffer a reasonable excuse for the failure to serve a timely notice claim, “[n]either the presence nor absence of any one factor is determinative”; thus, “[t]he absence of a reasonable excuse is not necessarily fatal” … .

The petitioner failed to establish that the municipal parties acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual, or within a reasonable time thereafter. Notably, the record is devoid of evidence showing that any of the municipal parties was aware, prior to the commencement of this proceeding, that the petitioner's accident had occurred—let alone that the petitioner was claiming violations of Labor Law §§ 200, 240(1), and 241(6) … . Contrary to the petitioner's contention, a delay of four months following the expiration of the 90-day notice period does not constitute a “reasonable time” within the meaning of General Municipal Law § 50-e(5) … .

Further, the petitioner failed to present “some evidence or plausible argument” supporting a finding that the municipal parties were not substantially prejudiced by the four-month delay from the expiration of the 90-day statutory period … . Matter of Moroz v City of New York, 2018 NY Slip Op 06743, Second Dept 10-10-18

NEGLIGENCE (PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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TOWN DID NOT HAVE WRITTEN NOTICE OF A RUSTY DRAINAGE PIPE IN THE WATER AT A TOWN BEACH AND WAS THEREFORE NOT LIABLE FOR THE INJURY TO THE INFANT PLAINTIFF WHO CUT HIS FOOT ON THE PIPE WHEN WALKING IN THE WATER (SECOND DEPT). ​

The Second Department determined a rusty drainage pipe under the water at a town beach was a culvert within the meaning of the town code, requiring written notice of the condition before the town could be held liable for an injury, Infant plaintiff cut his foot on the pipe when he was walking in the water:

… [T]he Town demonstrated by the submission of the affidavit of its expert engineer, that the drainage pipe at issue is a culvert and, thus, falls within the ambit of the statute. In opposition, the plaintiffs failed to raise a triable issue of fact as to the nature of the subject drainage pipe.

“A municipality that has adopted a prior written notice law cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” … . “The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property” … .

Insofar as is relevant here, the Town established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not have prior written notice of the alleged defect through the submission of, inter alia, the affidavit of an employee of the Town's Department of Highways, who averred that his search of the Town's records revealed no prior written notice of any hazardous condition of the culvert where the accident occurred … . Coventry v Town of Huntington, 2018 NY Slip Op 06715, Second Dept 10-10-18

NEGLIGENCE (TOWN DID NOT HAVE WRITTEN NOTICE OF A RUSTY DRAINAGE PIPE IN THE WATER AT A TOWN BEACH AND WAS THEREFORE NOT LIABLE FOR THE INJURY TO THE INFANT PLAINTIFF WHO CUT HIS FOOT ON THE PIPE WHEN WALKING IN THE WATER (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, WRITTEN NOTICE, TOWN DID NOT HAVE WRITTEN NOTICE OF A RUSTY DRAINAGE PIPE IN THE WATER AT A TOWN BEACH AND WAS THEREFORE NOT LIABLE FOR THE INJURY TO THE INFANT PLAINTIFF WHO CUT HIS FOOT ON THE PIPE WHEN WALKING IN THE WATER (SECOND DEPT))

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TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER’S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER’S PROPERTY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, determined that the town's attempt to recover consulting fees and set up an escrow account in connection the petitioner's requests for a special use permit and a variance to construct an antenna for a ham radio exceeded the town's authority and was preempted by a federal regulation:

The petitioner is an amateur radio hobbyist who applied for a special use permit and an area variance that would allow him to construct a radio antenna structure on his property in the Town of LaGrange. The Town incurred more than $17,000 in legal consulting fees in connection with the applications, and informed the petitioner that he was required to reimburse the Town for these fees before any determination would be made with respect to the applications. The Town subsequently, as “an accommodation to the petitioner,” reduced the amount that it was demanding for previously incurred fees to the sum of $5,874, but also required the petitioner to maintain a minimum advance continuing escrow balance of at least $1,000 to cover the Town's future consulting costs in connection with the applications. We hold that, because the Town did not limit the consulting fees charged to the petitioner to those necessary to the decision-making function of the Town's Planning Board and Zoning Board of Appeals, the Town exceeded its State-granted authority by requiring payment of the consulting fees and, moreover, violated a rule promulgated by the Federal Communications Commission. Matter of Landstein v Town of LaGrange, 2018 NY Slip Op 06741, Second Dept 10-10-18

MUNICIPAL LAW (TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))/ZONING  (TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))/CONSTITUTIONAL LAW (PREEMPTION, MUNICIPAL LAW, TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))/SPECIAL USE PERMIT (TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))/VARIANCE (TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))/ANTENNA (TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))/RADIO (HAM RADIO ANTENNA, TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))

PETITION TO MODIFY VISITATION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined that mother's petition to modify a visitation order should not have been denied without a hearing:

” A party seeking to modify a prior visitation order must show that there has been a sufficient change in circumstances since the entry of the order such that modification is warranted to further the [child]'s best interests'” … . The best interests of the child must be determined by a review of the totality of the circumstances… , and “[s]upervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child” … . “Generally, where a facially sufficient petition has been filed, modification of a Family Ct Act article 6 custody and visitation order requires a full and comprehensive hearing at which a parent is to be afforded a full and fair opportunity to be heard” … . A decision regarding child custody and visitation should be based on admissible evidence …

Here, the Family Court should not have, without a hearing, in effect, denied the mother's petition and limited the mother to parental access with the child supervised by the YWCA … . Matter of King v Peters, 2018 NY Slip Op 06538, Second Dept 10-3-18

FAMILY LAW (PETITION TO MODIFY VISITATION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT))/VISITATION (FAMILY LAW, PETITION TO MODIFY VISITATION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT))

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NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD’S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department, reversing Family Court, determined that the proof did not support a finding that either parent had neglected the child. Apparently mother's boyfriend had spanked the child and bruising appeared over time. Mother had no reason to suspect her boyfriend would mistreat the child and the parents could not be faulted for not recognizing the significance of the bruising:

… [T]here was no evidence that the mother had any prior knowledge of the boyfriend's alleged propensity to mistreat the children, and there was no evidence that he had done so on any prior occasion. In fact, Sophia's medical records did not contain any indication of prior neglect, maltreatment, or abuse of any kind. As the DCFS's  [Dutchess County Department of Community and Family Service's] own expert testified at the hearing, “[Sophia] was a healthy little girl and this seemed to have happened out of the blue.” Under these circumstances, the mother did not neglect the children by leaving them in the boyfriend's care … .

Likewise, the mother's failure to recognize the significance of the pattern of bruising—which the medical expert conceded would not be apparent to a layperson—cannot be faulted. Moreover, the record supports both parents' position that the decision to wait until Tuesday morning to bring Sophia to the hospital was an acceptable course of action in light of all the surrounding circumstances (see Family Ct Act § 1012[f][i]…) Indeed, the medical evidence showed that no treatment was required for the bruising, and that both parents had promptly sought treatment for the unrelated ankle injury.

As for the father, the undisputed evidence showed that the bruising occurred before Sophia was brought to the father's residence for a weekend visit. Further, the evidence established that it was the mother—not the father—who had left the children in the boyfriend's care. When the father took custody of Sophia on Saturday, she did not appear to be in pain, and after monitoring her throughout the weekend, the father, in consultation with the mother, agreed that Sophia should be seen by her pediatrician on Monday. Matter of Alana H. (Caitlin M.), 2018 NY Slip Op 06534, Second Dept 10-3-18

FAMILY LAW (NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD'S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))/EVIDENCE (FAMILY LAW, NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD'S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))/NEGLECT (FAMILY LAW, NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD'S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))

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PARTIES’ CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT).

The Second Department determined the parties' consent to a DNA test did not eliminate the need for a hearing on the vacation of the the acknowledgment of paternity on the basis of fraud:

On November 22, 1998, an acknowledgment of paternity was executed with respect to the subject child, which contained the signatures of the mother and the father. Seventeen years later, the father filed the instant petition to vacate the acknowledgment of paternity on the ground of fraud, alleging, inter alia, “I do not believe that I have ever executed an acknowledgment” of paternity. Although the parties consented to a DNA test, the Family Court proceeded to conduct a hearing on the issue of whether the acknowledgment of paternity should be vacated on the ground of fraud. At the conclusion of the hearing, the court determined that the father failed to establish that the acknowledgment of paternity was fraudulently executed, and thus denied the father's petition. The father appeals.

Contrary to the father's contention, the parties' consent to a DNA test did not obviate the need for a hearing on the issue of whether the acknowledgment of paternity should be vacated on the ground of fraud. Where, as here, a party seeks to challenge an acknowledgment of paternity more than 60 days after its execution, “Family Court Act § 516-a(b) requires the court to conduct a hearing to determine the issues of fraud, duress, or a material mistake of fact [in the execution of the acknowledgment of paternity] before ordering a [genetic marker test]” … . Matter of Andrew E. v Angela N.S., 2018 NY Slip Op 06530, Second Dept 10-3-18

FAMILY LAW (PARTIES' CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT))/FRAUD (FAMILY LAW, PATERNITY, PARTIES' CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT))/PATERNITY (FRAUD, PARTIES' CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT))/DNA (PATERNITY, PARTIES' CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT))

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