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AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED.

The Second Department determined Family Court’s award of sole legal and physical custody to mother was not supported by the record. The court noted that the preference of the children was not adequately considered:

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“Since the Family Court’s custody determination is largely dependent upon an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents, its determination should not be disturbed unless it lacks a sound and substantial basis in the record”… . “However, an appellate court would be seriously remiss if, simply in deference to the finding of a trial judge, it allowed a custody determination to stand where it lacked a sound and substantial basis in the record”… .

In this case, the Family Court’s determination awarding the mother sole legal and physical custody of the children does not have a sound and substantial basis in the record. Specifically, the court’s finding that the mother was “better equipped to meet the physical, mental and emotional needs of the children” was not supported by the record. The record also fails to support the court’s determination that the father did not indicate a willingness to co-parent with the mother. In addition, while a child’s expressed preference in a custody proceeding is not determinative, it is some indication of what is in the child’s best interests, particularly where, as here, the court’s interview with the sons demonstrated their level of maturity and ability to articulate their preferences … . Here, although the children indicated a preference for living with the father, the court merely indicated that it understood their positions without explaining its reasons for rejecting them … . Matter of Tofalli v Sarrett, 2017 NY Slip Op 04125, 2nd Dept 5-25-17

 

FAMILY LAW (AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED)/CUSTODY (FAMILY LAW, AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED)/APPEALS (FAMILY LAW, AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED)

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ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED.

The Second Department determined the zoning board of appeals properly issued a negative declaration pursuant to the State Environmental Quality Review Act (SEQRA) and properly issued a substantial setback variance. The court explained its limited role in assessing the propriety of actions taken by zoning boards:

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“[I]t is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively” … . While courts must review the record to determine if the agency identified the relevant areas of environmental concern, took a “hard look” at them, and made a “reasoned elaboration” of the basis for its determination … , “[n]othing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency’s choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence” … .

Contrary to the petitioner’s contention, the Planning Board took the required hard look at the project proposal and set forth well-reasoned explanations for finding that the project would not result in any significant adverse environmental impacts. …

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In determining whether to grant an area variance, a zoning board of appeals is required to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted … . A zoning board must also consider “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” … .

Here, the record establishes that the Zoning Board considered and properly weighed the relevant factors in determining to grant the area variance. Although the variance is indisputably substantial, there is no evidence that granting the variance would produce an undesirable change in the character of the neighborhood or have an adverse effect or impact on the physical and environmental conditions in the neighborhood or district, that the benefit to the applicant could be achieved by other means, or that the applicant’s difficulty was self-created … . Matter of Beekman Delamater Props., LLC v Village of Rhinebeck Zoning Bd. of Appeals, 2017 NY Slip Op 04112, 2nd Dept 5-24-17

ZONING (ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED)/ENVIRONMENTAL LAW (SETBACK VARIANCE, ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED)/VARIANCES (ZONING, ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED)

ABSENCE OF A COMMA, STANDING ALONE, WAS NOT ENOUGH TO DICTATE THE MEANING OF A CODE PROVISION.

The Second Department determined the absence of a comma from a code provision could not be the sole basis for an interpretation of its meaning. The code provision listed a number of activities that required a license:

That Code section provides, “No person shall . . . engage in . . . a home service business after January first two thousand thirteen . . . unless he [or she] is licensed therefore pursuant to this title.” Section 21-25.1(3) of the Code defines the term “home service.” It states, in part, that ” [h]ome service’ shall include, but not be limited to, repair, carpet and floor cleaning, installation of decorative goods, upholstery including repair and cleaning, . . . gutter cleaning, window cleaning, general cleaning, . . . roof and/or house washing, other than power washing and junk/debris/rubbish/estate cleanouts.” * * *

“[P]unctuation . . . is subordinate to the text and is never allowed to control its plain meaning, but when the meaning is not plain, resort may be had to those marks . . . in order to make the author’s meaning clear” … . “Punctuation may perhaps be resorted to when no other means can be found of solving an ambiguity, but not in cases where no real ambiguity exists except what punctuation itself creates” … . Contrary to the petitioners’ contention, the plain meaning of section 21-25.1(3) is that those who are engaged in “junk/debris/rubbish/estate cleanouts” must be licensed, at least to the extent that they are currently engaged, or have been engaged in such business since January 1, 2013, in Nassau County.  Matter of Elenson v Nassau County, 2017 NY Slip Op 04116, 2nd Dept 5-24-17

 

STATUTES (ABSENCE OF A COMMA, STANDING ALONE, WAS NOT ENOUGH TO DICTATE THE MEANING OF A CODE PROVISION)/PUNCTUATION (STATUTORY INTERPRETATION, ABSENCE OF A COMMA, STANDING ALONE, WAS NOT ENOUGH TO DICTATE THE MEANING OF A CODE PROVISION)

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CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT.

The Second Department determined the last occupant of a campsite (Reinoso), as well as the county which owned the campgrounds, were not entitled to summary judgment in and action brought by an eight-year-old boy who was burned when he stepped into a pit of hot coals:

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… [T]he plaintiffs raised a triable issue of fact as to whether Reinoso was the party who left the hot embers on the ground … .

Further, it has long been the rule in New York that “[l]andowners in general have a duty to act in a reasonable manner to prevent harm to those on their property” … . “In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control”… . Here, the evidence submitted by the County defendants in support of their motion for summary judgment failed to eliminate all triable issues of fact as to whether they exercised “ordinary and reasonable care in maintaining the campgrounds in a reasonably safe condition so as to prevent foreseeable injury” … . Holohan v County of Suffolk, 2017 NY Slip Op 04104, 2nd Dept 5-24-17

 

NEGLIGENCE (CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT)/MUNICIPAL LAW (COUNTY-OWNED CAMPGROUNDS, CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT)/CAMPGROUNDS (CHILD BURNED BY HOT EMBERS IN A CAMPSITE, NEITHER THE LAST OCCUPANT OF THE CAMPSITE NOR THE LANDOWNER (THE COUNTY) WAS ENTITLED TO SUMMARY JUDGMENT)

PROOF OF GENERAL CLEANING PRACTICES NOT SUFFICIENT TO DEMONSTRATE A LACK OF NOTICE OF THE WET AREA WHERE PLAINTIFF SLIPPED AND FELL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff slipped on a wet area of a carpeted stairwell. Defendants’ evidence of general cleaning practices was not enough to demonstrate a lack of constructive notice of the condition:

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Among other things, deposition testimony submitted by the defendants demonstrated that, although the building superintendent and property manager inspected the building on a regular basis, there was no specific schedule for the inspections and there were no records of inspections. Further, there was no cleaning schedule for the stairways and, if someone made a complaint about a dangerous condition on a stairway, the superintendent would not write that down. “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … . Perez v Wendell Terrace Owners Corp., 2017 NY Slip Op 04156, 2nd Dept 5-24-17

NEGLIGENCE (PROOF OF GENERAL CLEANING PRACTICES NOT SUFFICIENT TO DEMONSTRATE A LACK OF NOTICE OF THE WET AREA WHERE PLAINTIFF SLIPPED AND FELL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (PROOF OF GENERAL CLEANING PRACTICES NOT SUFFICIENT TO DEMONSTRATE A LACK OF NOTICE OF THE WET AREA WHERE PLAINTIFF SLIPPED AND FELL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

DEFENDANT STORE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS TRACKED-IN-WATER SLIP AND FALL CASE.

The Second Department, reversing Supreme Court, determined defendant store was not entitled to summary judgment in this tracked-in-water slip and fall case. The slip and fall was in the “card isle” of the store, not at the entrance. The court explained that proof of general cleaning practices, as opposed to when the area was last cleaned or inspected, will not support summary judgment:

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While a defendant is not required to cover all of its floors with mats, or to continuously mop up all moisture resulting from tracked-in rain … , a defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action … . …

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“To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the evidence submitted by the defendants in support of their motion, including transcripts of the deposition testimony of the plaintiff and of the manager of the store at the time of the accident, was insufficient to establish, prima facie, that they did not have constructive notice of the alleged condition that allegedly caused the plaintiff to fall. The store manager stated that the store, which was open 24 hours a day, did not have set times when inspections were conducted, and that he did not know the last time that the card aisle had been inspected prior to the incident or what it looked like within a reasonable time prior to the incident. Under the circumstances, viewing the evidence in the light most favorable to the plaintiff, the defendants failed to establish, prima facie, that the condition that allegedly caused the plaintiff to fall was not visible and apparent and that it had not been there for a sufficient period of time for the defendants to have discovered and remedied it … . Hickson v Walgreen Co., 2017 NY Slip Op 04103, 2nd Dept 5-24-17

 

NEGLIGENCE (DEFENDANT STORE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS TRACKED-IN-WATER SLIP AND FALL CASE)/SLIP AND FALL (DEFENDANT STORE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS TRACKED-IN-WATER SLIP AND FALL CASE)/WATER, TRACKED IN (SLIP AND FALL, DEFENDANT STORE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS TRACKED-IN-WATER SLIP AND FALL CASE)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IRRESPECTIVE OF WHETHER PLYWOOD FELL WHILE HOISTED OR DURING INSTALLATION.

The Second Department determined plaintiff was properly awarded summary judgment on his Labor Law 240(1) cause of action irrespective of whether the plywood which struck him fell when it was being hoisted or when workers were about to install it:

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The single decisive question in determining whether Labor Law § 240(1) is applicable is whether the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential … . “[F]alling object” liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured …  but also where the plaintiff demonstrates that, at the time the object fell, it “required securing for the purposes of the undertaking” … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the defendant failed to provide an adequate safety device to protect him and that this failure was a proximate cause of his injuries. This is so whether the sheet of plywood fell as it was being hoisted because it was not properly secured while it was being pulled up to the roof, as testified to by the plaintiff … , or whether the sheet of plywood fell from the hands of the plaintiff’s coworkers on the roof as it was being installed or about to be installed due to a failure to secure it, a theory advanced by the defendant … . Escobar v Safi, 2017 NY Slip Op 04099, 2nd Dept 5-24-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IRRESPECTIVE OF WHETHER PLYWOOD FELL WHILE HOISTED OR DURING INSTALLATION)/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IRRESPECTIVE OF WHETHER PLYWOOD FELL WHILE HOISTED OR DURING INSTALLATION)

INSURED’S FAILURE TO TIMELY NOTIFY INSURER OF THE ACTION AGAINST THE INSURED RELIEVED THE INSURER OF ANY OBLIGATION TO SATISFY THE JUDGMENT AGAINST THE INSURED.

The Second Department determined the insured’s delay in notifying the insurer of the action against the insured relieved the insurer of the obligation to satisfy the judgment against the insured. The Second Department further noted that the delay in disclaiming coverage was justified by the insurer’s need to investigate:

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Where an insurance policy requires that notice of an occurrence be given “as soon as practicable,” notice must be given within a reasonable time in view of all of the circumstances … . “The insured’s failure to satisfy the notice requirement constitutes a failure to comply with a condition precedent which, as a matter of law, vitiates the contract'” …. “However, circumstances may exist that will excuse or explain the insured’s delay in giving notice, such as a reasonable belief in nonliability” … . It is the insured’s burden to demonstrate the reasonableness of the excuse … .

Here, the defendant Scottsdale Insurance Comp any (hereinafter Scottsdale) established its prima facie entitlement to judgment as a matter of law. Scottsdale demonstrated that its insured knew of the occurrence immediately and received a letter of representation from the plaintiff’s attorney in June 2008, but waited until September 25, 2009, to notify Scottsdale … . Since the subject policy was issued prior to the amendment to Insurance Law § 3420, Scottsdale was not required to show that it was prejudiced by the failure to give timely notice in order to satisfy its prima facie burden … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the insured’s delay in notifying Scottsdale was reasonable based upon its good faith belief in nonliability … . Ramlochan v Scottsdale Ins. Co., 2017 NY Slip Op 04159, 2nd Dept 5-24-17

 

INSURANCE LAW (INSURED’S FAILURE TO NOTIFY INSURER OF THE ACTION AGAINST THE INSURED RELIEVED THE INSURER OF ANY OBLIGATION TO SATISFY THE JUDGMENT AGAINST THE INSURED)

ANY GROUND FOR A DISCLAIMER NOT MENTIONED IN THE DISCLAIMER LETTER IS WAIVED.

The Second Department determined that the insurer’s (Merchant’s) disclaimer letter did not identify the basis for the disclaimer relied upon in this declaratory judgment action. Therefore the defense ultimately relied upon was waived:

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When an insurer disclaims coverage for death or bodily injury arising out of an accident, “the notice of disclaimer must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” … . “An insurer’s justification for denying coverage is strictly limited to the ground stated in the notice of disclaimer” … . “Thus, an insurer waives any ground for denying coverage that is not specifically asserted in its notice of disclaimer, even if that ground would otherwise have merit” … .

In its disclaimer letter, Merchants stated, in relevant part, that Ability was not named as an additional insured under the insurance policy, a statement that was factually incorrect. Contrary to Merchants’ contention, the exclusion upon which Merchants now relies was not mentioned in its disclaimer letter and, therefore, any argument based on that exclusion has been waived … . Ability Transmission, Inc. v John’s Transmission, Inc., 2017 NY Slip Op 04087, 2nd Dept 5-24-17

 

INSURANCE LAW (ANY GROUND FOR A DISCLAIMER NOT MENTIONED IN THE DISCLAIMER LETTER IS WAIVED)/DISCLAIMER (INSURANCE LAW, ANY GROUND FOR A DISCLAIMER NOT MENTIONED IN THE DISCLAIMER LETTER IS WAIVED)

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SECOND RISK ASSESSMENT PROCEEDING, IN A DIFFERENT COUNTY, BASED UPON THE SAME RISK ASSESSMENT INSTRUMENT, SHOULD NOT HAVE BEEN HELD.

The Second Department determined the second risk assessment hearing should not have been held. Defendant had pled guilty to offenses in two counties and was given concurrent sentences. Using the same risk assessment instrument (RAI) one court (New York County) assessed defendant at level two and the second court (Rockland County) subsequently assessed defendant at level three. The Rockland County proceeding was dismissed:

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… [T]he result reached by the County Court in the Rockland County SORA proceeding conflicted with the result reached by the Supreme Court in the New York County SORA proceeding even though the same RAI was utilized in both proceedings. Recently, the Court of Appeals instructed that in order to prevent conflicting conclusions based upon the same RAI, “one—and only one—sentencing court should render a risk level determination based on all conduct contained in the RAI” … . Accordingly, the Rockland County SORA proceeding must be dismissed … . People v Katz, 2017 NY Slip Op 04154, 2nd Dept 5-24-17

CRIMINAL LAW (SECOND RISK ASSESSMENT PROCEEDING, IN A DIFFERENT COUNTY, BASED UPON THE SAME RISK ASSESSMENT INSTRUMENT, SHOULD NOT HAVE BEEN HELD)/SEX OFFENDER REGISTRATION ACT (SORA) (SECOND RISK ASSESSMENT PROCEEDING, IN A DIFFERENT COUNTY, BASED UPON THE SAME RISK ASSESSMENT INSTRUMENT, SHOULD NOT HAVE BEEN HELD)

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