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THE PROOF DID NOT SUPPORT A FINDING THAT THE ASSAULT SECOND AND CRIMINAL POSSESSION OF A WEAPON THIRD CONVICTIONS WERE BASED ON SEPARATE AND DISTINCT ACTS, THEREFORE CONSECUTIVE SENTENCES WERE NOT WARRANTED; DEFENDANT SHOULD NOT HAVE BEEN ADJUDICATED A SECOND FELONY OFFENDER BASED ON A NEW JERSEY CONVICTION WHICH WAS NOT A FELONY IN NEW YORK (SECOND DEPT). ​

The Second Department, remitting the matter for resentencing, determined consecutive sentences were not supported by the proof and defendant should not have been adjudicated a second felony offender based upon a New Jersey conviction of burglary in the third degree which is not a felony under New York law:

The defendant contends that the Supreme Court erred in imposing consecutive sentences upon his convictions of assault in the second degree and criminal possession of a weapon in the third degree under count 7 of the indictment. Under Penal Law § 70.25(2), a sentence imposed “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other . . . must run concurrently” … . Further, “sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (id. [internal quotation marks omitted]). Here, the defendant correctly argues, and the People correctly concede, that because there was no designation of the alleged dangerous instrument used in committing the offense of assault in the second degree, the People failed to establish that this count and the charge of criminal possession of a weapon in the third degree under count 7 of the indictment were based upon separate and distinct acts … . Therefore, the court erred in sentencing the defendant to consecutive prison terms on the second-degree assault count and the criminal possession of a weapon in the third degree count with respect to his possession of pepper spray … .

Further, although the defendant failed to preserve for appellate review his contention that he was improperly sentenced as a second felony offender, we consider this issue in the exercise of our interest of justice jurisdiction (see CPL 470.15[6] … ). The defendant’s prior conviction of burglary in the third degree in New Jersey does not constitute a felony in New York for the purposes of enhanced sentencing … . People v Frank, 2024 NY Slip Op 05452, Second Dept 11-6-24

Practice Point: If the record does not demonstrated two convictions were based separate and distinct acts, consecutive sentences are not available.

Practice Point: The New Jersey “burglary third degree” offense is not a felony under New York law and cannot be the basis for second felony offender status.

 

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MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother had demonstrated a change in circumstances warranting a modification of custody:

… [T]he record reveals that, in support of her petition, the mother established more than conflict between the parties and difficulties in co-parenting. The evidence at the hearing showed that the parties’ relationship had deteriorated to the point that they do not communicate other than by text and do not engage in joint decision-making with respect to the child … . Therefore, joint legal custody is no longer feasible … .

The totality of the circumstances justifies modifying the stipulation so as to award sole legal and residential custody of the child to the mother. The mother has more involvement with the child’s needs on a day-to-day basis, and the record reflects that the mother made decisions regarding the child’s social and emotional needs … . Moreover, the Family Court failed to give sufficient weight to the strong preference of the child, who was 12 years old at the time of the hearing, to reside with the mother … .

Accordingly, the Family Court should have granted that branch of the mother’s petition which was to modify the stipulation so as to award her sole legal and residential custody of the child. Matter of Llanos v Barrezueta, 2024 NY Slip Op 05446, Second Dept 11-6-24

Practice Point: Consult this decision for some insight into the criteria for finding the relationship between mother and father had deteriorated to the point a modification of custody is warranted.​

 

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A 400-POUND DUCT LIFT TOPPLED OFF AN UNSTEADY RAMP AND STRUCK PLAINTIFF; ALTHOUGH THE LIFT DROPPED ONLY 10 TO 12 INCHES, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Plaintiff was struck by a 400 pound duct lift which toppled off an unsteady ramp. The lift fell only 10 to 12 inches, but met the criteria for a gravity-related accident covered by Labor Law 240(1):

… Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), as the defendants failed to satisfy their prima facie burden. Although the defendants submitted evidence establishing that the alleged elevation differential measured only 10 to 12 inches, given the heavy weight of the duct lift and the amount of force it was capable of generating, the elevation differential was not de minimis … . The plaintiff submitted evidence to show that he suffered harm that flowed directly from the application of the force of gravity to the duct lift … .

Moreover, the Supreme Court should have granted that branch of the plaintiff’s cross-motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The plaintiff submitted, inter alia, a transcript of his deposition testimony, which established, prima facie, that the defendants violated Labor Law § 240(1) by failing to provide an appropriate safety device, namely a secured ramp, to protect against the elevation-related hazard that was posed by maneuvering the heavy duct lift over the ramp … . Davila v City of New York, 2024 NY Slip Op 05433, Second Dept 11-6-24

Practice Point: A heavy object falling 10 to 12 inches from an unsteady ramp, striking plaintiff, is covered by Labor Law 240(1). The incident was caused by defendants’ failure to provided an adequately secured ramp.

 

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MOTHER MADE OUT A PRIMA FACIE CASE FOR RELOCATING WITH THE CHILD IN THIS CUSTODY PROCEEDING; CREDIBILITY ISSUES PLAY NO ROLE AT THE MOTION-TO-DISMISS STAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined mother had made out a prima facie case for relocating to a different county with the child. The petition for a modification of custody should not have been dismissed:

“In deciding a motion to dismiss a petition for failure to establish a prima facie case, the court must accept the petitioner’s evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom” … . “The question of credibility is irrelevant, and should not be considered” … .

Here, accepting the petitioner’s evidence as true and affording her the benefit of every favorable inference, the petitioner presented sufficient evidence to establish a prima facie case that relocating with the child to Bergen County might be in the child’s best interests … . At the hearing, the petitioner and her spouse testified that they wanted to relocate to Bergen County because they would have family support there and the child liked spending time with family members living in that area. The petitioner further testified that if she were permitted to relocate, she would continue the respondent’s parental access schedule set forth in the stipulation of settlement and would agree to additional parental access for the respondent. We note that the Family Court did not ascertain from the attorney for the child the position of the then 11-year-old child or conduct an in camera interview with the child … . Matter of Fortune v Jasmin, 2024 NY Slip Op 05443, Second Dept 11-6-24

Practice Point: In considering a motion to dismiss a petition for a modification of custody credibility issues are irrelevant.​

 

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DEFENDANTS DEMONSTRATED THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case were entitled to summary judgment, in part because they demonstrated they did not have actual or constructive notice of the water on the floor in the laundry room where plaintiff allegedly fell:

… [T]he defendants established, prima facie, that they maintained their premises in a reasonably safe condition and that they did not create the alleged hazardous condition or have actual or constructive notice of its existence … . In support of their motion, the defendants submitted, inter alia, a transcript of the deposition testimony of the plaintiff, who testified that she did not see any water when she was last in the laundry room approximately 40 minutes prior to the accident. The defendants also submitted evidence that the machine was serviced by a vendor three days prior to the incident and that when the vendor left the premises, the machine was in working condition. When the vendor inspected the machine again on the day of the accident, the vendor determined that the machine was in working condition and that any leak was caused by the use of too much soap. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants had actual notice of a recurring hazardous condition and, thus, could be charged with constructive notice of the subject condition. The plaintiff’s daughter’s affidavit submitted in opposition to the motion merely showed that the defendants had a general awareness that, at times, water leaked from the machine at issue … . Daniel v York Terrace, Inc., 2024 NY Slip Op 05432, Second Dept 11-6-24

Practice Point: In this slip and fall case, defendants demonstrated the area where plaintiff allegedly slipped and fell had been inspected 40 minutes prior to the fall and there was no water on the floor. In addition the defendants demonstrated the washing machine was serviced three days before the fall. That proof was sufficient to demonstrate, prima facie, that defendants did not have actual or constructive notice of the water on the floor.

 

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THE RECORD ON APPEAL DID NOT SUPPORT FAMILY COURT’S RULING MOTHER HAD FORFEITED HER RIGHT TO COUNSEL IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the record on appeal did not support Family Court’s ruling mother had forfeited her right to counsel in this termination-of-parental-rights proceeding.

​… Family Court granted a second application by the mother’s assigned counsel to be relieved and determined that the mother had forfeited her right to be assigned new counsel. The court’s determination was based upon, among other things, “suspicions” that the mother had been “involved” in a recent security compromise of the assigned counsel’s computer. The court also cited as a basis for its determination the fact that, over the course of the child protective proceeding and this proceeding, the mother had a total of three attorneys assigned to represent her or to act as her legal advisor. The record on appeal does not reflect how long the prior assigned attorneys represented the mother or why they ceased representing her. * * *

A respondent in a proceeding pursuant to Social Services Law § 384-b has the right to the assistance of counsel … . A party may forfeit the fundamental right to counsel by engaging in “‘egregious conduct,'” but only as a matter of “‘extreme, last resort'” … . Here, the record fails to clearly reflect that the mother engaged in the sort of egregious conduct that would justify a finding that she forfeited her right to assigned counsel … .

The deprivation of the mother’s right to counsel requires reversal without regard to the merits of her position … . Matter of Sa’Nai F. B. M. A. (Chaniece T.), 2024 NY Slip Op 05440, Second Dept 11-6-24

Practice Point: Consult this decision for some insight into the criteria for finding a party in a termination-of-parental-rights proceeding has forfeited the right to counsel.​

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DEFENDANTS IN THIS REAR-END COLLISION CASE WERE ENTITLED TO SUMMARY JUDGMENT; DEFENDANTS’ STOPPED VEHICLE WAS HIT FROM BEHIND AND PUSHED INTO PLANTIFF’S VEHICLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Menegos defendants were entitled to summary judgment in this rear-end collision case. The Menegos defendants demonstrated their vehicle had come to a stop behind plaintiff’s vehicle before it was struck from behind and pushed into plaintiff’s vehicle:

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . “‘A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence'” … . “Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation for the collision” … . Thus, in a three-vehicle chain-collision accident, the defendant operator/owner of the middle vehicle “may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle” … . Beltre v Menegos, 2024 NY Slip Op 05322, Second Dept 10-30-24

Practice Point: In a rear-end collision case, if a stopped car is hit from behind and pushed into the car in front, the driver of the stopped car is not negligent.

 

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IN A MEDICAL MALPRACTICE ACTION, A SPECULATIVE AND CONCLUSORY EXPERT AFFIDAVIT WILL NOT SUPPORT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Andre) was not entitled to summary judgment dismissing the medical malpractice action because defendant’s expert’s affidavit was “speculative and conclusory:”

The affidavit and supplemental affidavit of Andes’s expert physician, Reed E. Phillips, were insufficient to establish the absence of any departure from good and accepted medical practice … . Phillips’s opinion that Andes did not depart from the standard of care by failing, inter alia, to obtain the decedent’s prior medical records, to order a CT scan, MRI, or other imaging, and to timely diagnose the decedent with liver cancer, as well as his opinion that the decedent’s cancer was incurable by the time the decedent first treated with Andes, was speculative and conclusory and otherwise insufficient to demonstrate that Andes comported with good and accepted standards of practice in his care and treatment of the decedent or that any alleged departure was not a proximate cause of the decedent’s injuries and ultimate death … . Miller-Albert v EmblemHealth, 2024 NY Slip Op 05340, Second Dept 10-30-24

Practice Point: In medical malpractice cases, at the summary judgment stage, the action survives or fails based upon the quality of the expert affidavits. Conclusory or speculative assertions in expert affidavits have no probative value.

 

INSTALLING ELECTRIC CABLES IS CONSTRUCTION WORK WITHIN THE MEANING OF LABOR LAW 241(6); PLAINTIFF, WHO WAS STRUCK IN THE EYE BY A CABLE, SUFFICIENTLY DEMONSTRATED THE EYE-PROTECTION-EQUIPMENT REGULATION IN THE INDUSTRIAL CODE APPLIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant, Kamco, was not entitled to summary judgment dismissing plaintiff’s Labor Law 241(6) cause of action. Plaintiff (Lopez) alleged he was struck in the eye by an electrical cable as he was attempting to connect it. Plaintiff (Lopez) alleged Kamco violated the Industrial Code by failing to provide eye-protection equipment:

“‘[T]he courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work expansively. Under that regulation, construction work consists of [a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures'” … . Construction work pursuant to 12 NYCRR 23-1.4(b)(13) may include “the work of hoisting, land clearing, earth moving, grading, excavating, trenching, pipe and conduit laying, road and bridge construction, concreting, . . . equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose.”

… “In order to establish prima facie entitlement to summary judgment, a defendant must show that the plaintiff failed to identify a section of the Industrial Code that was allegedly violated, that any such section is insufficiently specific to support liability or is inapplicable to the facts of the case, or that the defendant complied with the requirements of the identified provision” … .

Here, since Lopez was engaged in the installation and furnishing of electrical cables, Kamco failed to establish, prima facie, that Labor Law § 241(6) was inapplicable to Lopez’s activities … . Kamco also failed to establish, prima facie, that 12 NYCRR 23-1.8(a) was inapplicable or that Lopez’s actions were the sole proximate cause of his alleged injuries, as Kamco failed to eliminate triable issues of fact as to whether Lopez was engaged in work that might endanger the eyes, whether approved eye protection was provided to Lopez on the date of the accident, and whether Kamco’s failure to require Lopez to wear safety goggles was a proximate cause of his alleged injuries … . Lopez v Kamco Servs., LLC, 2024 NY Slip Op 05338, Second Dept 10-30-24

Practice Point: Installing electric cables is construction work covered by Labor Law 241(6).

Practice Point: The Industrial Code provision requiring eye-protection-equipment may apply to plaintiff here who was struck in the eye by an electric cable.

 

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IN A CHILD VICTIMS ACT CASE AGAINST A TEACHER ALLEGED TO HAVE SEXUALLY ABUSED A STUDENT IN THE 60’S, THE BARE ALLEGATION IN THE COMPLAINT THAT THE EMPLOYER KNEW OR SHOULD HAVE KNOWN OF THE TEACHER’S PROPENSITY WAS NOT SUFFICIENT TO STATE A CAUSE OF ACTION; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the complaint did not state a cause of action for negligent retention or negligent supervision of a teacher alleged to have sexually abused plaintiff in the 60’s. An allegation which merely states a bare legal conclusion is not entitled to consideration on a motion to dismiss. Here the complaint alleged defendant employer, YCQ,  “knew or should have known of the employee’s propensity for the conduct which caused the injury:”

… [T]o sustain the cause of action sounding in negligent supervision of a child, the plaintiff was required to allege that YCQ “had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Similarly, “[a]n employer can be held liable under theories of negligent hiring, retention, and supervision where it is shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … .

Here, the complaint failed to state a cause of action alleging negligent retention of the religious studies teacher by YCQ and a cause of action alleging negligent supervision based upon YCQ’s failure to adequately supervise the plaintiff and/or the religious studies teacher, as the complaint did not sufficiently plead that YCQ knew or should have known of the religious studies teacher’s propensity for the type of conduct at issue … . While it is true that such causes of action need not be pleaded with specificity … , the complaint merely asserted the bare legal conclusion that YCQ “knew or should have known of [the religious studies teacher’s] propensity to sexually abuse minor students,” without providing any factual allegations that the religious studies teacher’s sexual abuse of the plaintiff was foreseeable … . Kessler v Yeshiva of Cent. Queens, 2024 NY Slip Op 05337, Second Dept 10-30-24

Practice Point: In a Child Victims Act case alleging negligent retention and negligent retention of a teacher who allegedly sexually abused a student, the bare allegation that the teacher’s employer knew or should have known of the teacher’s propensity was not enough to survive a motion to dismiss for failure to state a cause of action. Allegations which amount to bare legal conclusions will not be considered on a motion to dismiss.

 

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