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APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE.

The Second Department determined petitioner’s application to add more handguns to his pistol permit was properly denied based upon his criminal history, despite the dismissal of most of the charges. The court noted that the Article 78 proceeding was not the proper venue for attacking the constitutionality of the licensing scheme. That should be done in a declaratory judgment action:

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… [G]ood cause existed, based on the petitioner’s criminal history, to deny the petitioner’s application to amend his license to include additional handguns was not arbitrary and capricious, and should not be disturbed… . The fact that the majority of the petitioner’s arrests resulted in the dismissal of the charges against him, or were ultimately resolved in his favor, did not preclude the respondent from considering the underlying circumstances surrounding those arrests in denying the application … .

Moreover, the petitioner’s constitutional challenge to the licensing scheme is unfounded … . We further note that the petitioner’s contention that certain aspects of the licensing eligibility requirements of Penal Law § 400.00(1) unconstitutionally infringe upon his right to bear arms under the Second Amendment (US Const, 2d Amend) is not properly before this Court in an original proceeding pursuant to CPLR article 78, as a declaratory judgment action is the proper vehicle for challenging the constitutionality of a statute … . Matter of Jackson v Anderson, 2017 NY Slip Op 02985, 2nd Dept 4-19-17

 

PISTOL PERMITS (APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE)/CIVIL PROCEDURE  (APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE)/DECLARATORY JUDGMENT  (APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE)

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NOTICE OF CLAIM CANNOT BE AMENDED BY ADDING A NEW INJURY AND THEORY OF LIABILITY.

The Second Department determined the plaintiff’s motion to amend the notice of claim against the NYC Health and Hospitals Corporation was properly denied. A notice of claim cannot be amended by adding a new injury theory of liability:

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A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability … . Here, the proposed amendments to the notice of claim asserted a new injury and added a new theory of liability … . These amendments were not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . Castillo v Kings County Hosp. Ctr., 2017 NY Slip Op 02962, 2nd Dept 4-19-17

NEGLIGENCE (NOTICE OF CLAIM CANNOT BE AMENDED BY ADDING A NEW INJURY AND THEORY OF LIABILITY)/MEDICAL MALPRACTICE (NOTICE OF CLAIM CANNOT BE AMENDED BY ADDING A NEW INJURY AND THEORY OF LIABILITY)/MUNICIPAL LAW (NOTICE OF CLAIM CANNOT BE AMENDED BY ADDING A NEW INJURY AND THEORY OF LIABILITY)

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DEFENDANT ABUTTING LESSEE DID NOT AFFIRMATIVELY DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICE-SNOW CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendant (Chase) was not entitled to summary judgment in this abutting sidewalk slip and fall case. Although there was no statute or ordinance which imposed tort liability for failure to remove ice and snow on Chase as the abutting lessee, Chase did not affirmatively demonstrate that it did not exacerbate the ice-snow condition with its snow removal efforts:

The defendant J.P. Morgan Chase Bank, N.A. (hereinafter Chase), leased from [the owner] that portion of the building abutting the sidewalk. Under the terms of the lease and riders in effect at the relevant time, Chase was required to, inter alia, keep the sidewalks and curb in front of its premises clean and free from ice and snow. * * *

Administrative Code of the City of New York § 7-210 imposes a nondelegable duty on a property owner to maintain and repair the sidewalk abutting its property, and specifically imposes liability upon certain property owners for injuries resulting from a violation of the code provision … . In slip-and-fall cases on snow or ice, the general rule is that ” [t]he owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so'” … . “In the absence of a statute or ordinance imposing tort liability on the lessee, it can be held liable only if it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous” …

Here, there was no statute or ordinance which imposed tort liability on Chase for the failure to maintain the sidewalk abutting its leased portion of the premises. However, Chase failed to make a prima facie showing that it was free from negligence. Chase failed to eliminate triable issues of fact as to whether it undertook snow and ice removal efforts to clear the sidewalk on the date of the subject accident, or whether any snow and ice removal efforts undertaken by it created or exacerbated the icy condition which allegedly caused the plaintiff to fall … . Ramjohn v Yahoo Green, LLC. 2017 NY Slip Op 03028, 2nd Dept 4-19-17

NEGLIGENCE (DEFENDANT ABUTTING LESSEE DID NOT AFFIRMATIVELY DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICE-SNOW CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, SUMMARY JUDGMENT PROPERLY DENIED)/LANDLORD-TENANT (SIDEWALK SLIP AND FALL, DEFENDANT ABUTTING LESSEE DID NOT AFFIRMATIVELY DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICE-SNOW CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, SUMMARY JUDGMENT PROPERLY DENIED)/SLIP AND FALL (DEFENDANT ABUTTING LESSEE DID NOT AFFIRMATIVELY DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICE-SNOW CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, SUMMARY JUDGMENT PROPERLY DENIED)/SIDEWALKS (SLIP AND FALL, DEFENDANT ABUTTING LESSEE DID NOT AFFIRMATIVELY DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICE-SNOW CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, SUMMARY JUDGMENT PROPERLY DENIED)

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AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED FOR THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACOTRS IN ITS MOTION FOR SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined defendant auto repair shop (Auto Excellence) did not owe a duty to plaintiff who was injured driving a borrowed car. Plaintiff, who alleged the car was negligently repaired (causing injury), did not have a contractual relationship with the repair shop and did not allege any Espinal factors which could give rise to tort liability based on a contract. Because no Espinal factors were alleged there was no need for defendant to negate those factors in its motion papers:

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A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party … , the Court of Appeals recognized that exceptions to this rule apply (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced another party’s duty, in Espinal, to maintain the premises safely.

Here, Auto Excellence made a prima facie showing of its entitlement to judgment as a matter of law by offering proof that the plaintiff was not a party to the repair contract and, thus, Auto Excellence owed her no duty of care … . Contrary to the plaintiff’s contention, since the pleadings did not allege facts which would establish the applicability of any of the Espinal exceptions, Auto Excellence was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … . Koslosky v Malmut, 2017 NY Slip Op 02977, 2nd Dept 4-19-17

NEGLIGENCE (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)/CONTRACT LAW (TORT LIABILITY TO THIRD PARTY, (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)/CIVIL PROCEDURE (ESPINAL FACTORS, (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)

FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT.

The Second Department determined the plaintiff did not demonstrate the property owner’s failure to modify a five-inch high threshold in a brightly lit area created a dangerous condition. The building was constructed in 1924 and there was no showing the owner was required to bring the building up to code or to comply with the Americans with Disabilities Act. The court noted that the standards promulgated by the American Society for Testing and Materials were not  mandatory and could not be the basis for liability:

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… [The owner and property manager] demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that the threshold to the entrance of the premises was approximately five inches high and located in a brightly lit area, and therefore open and obvious and not inherently dangerous … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defect was actionable … . In his affidavit, the plaintiff’s expert architect did not dispute the fact that the premises were constructed in 1924, prior to the enactment of the building code, and cited no requirement that the premises be renovated to meet the building code enacted subsequent to its construction. Further, the Americans With Disabilities Act … standards, relied upon by the plaintiff’s expert, generally do not require renovation of buildings constructed prior to 1991 … , and the expert cited no evidence that any exceptions to that rule were applicable here. The expert’s reliance on standards promulgated by the American Society for Testing and Materials did not raise a triable issue of fact as to the liability of [the owner and property manager], since those standards are nonmandatory guidelines, a violation of which would not support a finding of liability … . Futter v Hewlett Sta. Yogurt, Inc., 2017 NY Slip Op 02970, 2nd Dept 4-19-17

NEGLIGENCE (FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)/PREMISES LIABILITY (FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)/SLIP AND FALL (FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)/AMERICANS WITH DISABILITIES ACT (PREMISES LIABILITY, FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)/OPEN AND OBVIOUS (PREMISES LIABILITY, FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)

WRONGFUL DEATH ACTION AGAINST DOCTOR WHO OVER-PRESCRIBED DRUGS TO PERSONS WHO MURDERED A PHARMACIST SHOULD HAVE BEEN DISMISSED.

The Second Department, reversing Supreme Court, determined a wrongful death cause of action brought on behalf of a pharmacist killed by persons addicted to prescription drugs should have been dismissed. The defendant-doctor, who allegedly over-prescribed the drugs, brought the motion to dismiss:

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The defendants David Laffer and Melinda Brady conspired to commit a robbery at Haven Drugs Pharmacy, where Raymond A. Ferguson, Jr. (hereinafter the decedent), was employed as a pharmacist. During the robbery, Laffer shot and killed the decedent. Ultimately, Laffer was convicted of murder in the first degree, and Brady was convicted of robbery in the first degree. In this action, the plaintiff, as the administratrix of the decedent’s estate, and individually, alleges that in the years leading up to these crimes, the defendant physician Stan Xuhui Li prescribed Laffer and Brady excessive amounts of addictive prescription pain medications, that Laffer and Brady became addicted to these medications, and that they committed their crimes as a result of their addictions. …

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The plaintiff does not allege that Li had “the authority or the ability to control Laffer” or Brady … , that Li had any relationship with the plaintiff or the decedent … , or that Li’s treatment of Laffer or Brady “necessarily implicate[d] protection of . . . identified persons foreseeably at risk because of a relationship with [the plaintiff or the decedent]” … . Accordingly, the complaint fails to state a cause of action sounding in negligence against Li … . Ferguson v Laffer, 2017 NY Slip Op 02967, 2nd Dept 4-19-17

 

NEGLIGENCE (WRONGFUL DEATH ACTION AGAINST DOCTOR WHO OVER-PRESCRIBED DRUGS TO PERSONS WHO MURDERED A PHARMACIST SHOULD HAVE BEEN DISMISSED)/PRESCRIPTION DRUGS (WRONGFUL DEATH ACTION AGAINST DOCTOR WHO OVER-PRESCRIBED DRUGS TO PERSONS WHO MURDERED A PHARMACIST SHOULD HAVE BEEN DISMISSED)/PHARMACISTS (WRONGFUL DEATH ACTION AGAINST DOCTOR WHO OVER-PRESCRIBED DRUGS TO PERSONS WHO MURDERED A PHARMACIST SHOULD HAVE BEEN DISMISSED)/FORESEEABILITY (WRONGFUL DEATH ACTION AGAINST DOCTOR WHO OVER-PRESCRIBED DRUGS TO PERSONS WHO MURDERED A PHARMACIST SHOULD HAVE BEEN DISMISSED)

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LATE NOTICE OF CLAIM PROPERLY DENIED, POSSESSION OF DECEDENT’S HOSPITAL RECORDS NOT ENOUGH TO DEMONSTRATE HOSPITAL’S TIMELY AWARENESS OF THE POTENTIAL CLAIM FOR CONSCIOUS PAIN AND SUFFERING.

The Second Department determined a petition for leave to file a late notice of claim against the NYC Health and Hospitals Corporation for conscious pain and suffering was properly denied. The court determined the hospital was not timely put on notice of the claim simply by its possession of the decedent’s hospital records:

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Contrary to the petitioner’s contention, the respondent did not acquire actual knowledge of the essential facts constituting the claim to recover damages for conscious pain and suffering within the requisite 90-day period or a reasonable time thereafter by virtue of its possession of hospital records relating to the decedent’s death … . A medical provider’s mere possession or creation of medical records does not establish that it had “actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on” the claimant … . Furthermore, the petitioner failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the lengthy delay in filing the petition … . Even assuming that the petitioner met its initial burden to show that the late notice will not substantially prejudice the respondent, and that the respondent failed to make “a particularized evidentiary showing that [it] will be substantially prejudiced if the late notice is allowed” in response … , upon consideration of the balance of the relevant factors (see General Municipal Law § 50-e[5]), the Supreme Court providently exercised its discretion in denying leave to serve a late notice of claim with respect to the cause of action alleging conscious pain and suffering … . Matter of Rosenblatt v New York City Health & Hosps. Corp., 2017 NY Slip Op 03004. 1st Dept 4-19-17

MUNICIPAL LAW (LATE NOTICE OF CLAIM PROPERLY DENIED, POSSESSION OF DECEDENT’S HOSPITAL RECORDS NOT ENOUGH TO DEMONSTRATE HOSPITAL’S TIMELY AWARENESS OF THE POTENTIAL CLAIM)/NOTICE OF CLAIM (MUNICIPAL LAW, LATE NOTICE OF CLAIM PROPERLY DENIED, POSSESSION OF DECEDENT’S HOSPITAL RECORDS NOT ENOUGH TO DEMONSTRATE HOSPITAL’S TIMELY AWARENESS OF THE POTENTIAL CLAIM)/NEGLIGENCE (MUNICIPAL LAW, LATE NOTICE OF CLAIM PROPERLY DENIED, POSSESSION OF DECEDENT’S HOSPITAL RECORDS NOT ENOUGH TO DEMONSTRATE HOSPITAL’S TIMELY AWARENESS OF THE POTENTIAL CLAIM)

BED OF A PICKUP TRUCK IS A PROPER PLATFORM WITHIN THE MEANING OF THE INDUSTRIAL CODE, PLAINTIFF’S RIDING ON THE BED OF THE PICKUP WHILE DOING DEMOLITION WORK, THEREFORE, DID NOT VIOLATE THE INDUSTRIAL CODE.

The Second Department, reversing Supreme Court, determined plaintiff’s riding in the back of a pick-up truck was not an Industrial Code violation. Plaintiff was injured when the truck came to an abrupt stop. He was instructed to ride in the back of the truck a short distance while moving debris to a dumpster. The Second Department held that the bed of the truck was a proper “platform” within the meaning of the Industrial Code and, therefore, plaintiff’s injury was not caused by an Industrial Code violation:

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… [T]he plaintiff asserted a cause of action pursuant to Labor Law § 241(6) predicated on an alleged violation of section 23-9.7(e) of the Industrial Code (12 NYCRR 23-9.7[e]), which reads as follows: “Riding. No person shall be suffered or permitted to ride on running boards, fenders or elsewhere on a truck or similar vehicle except where a properly constructed and installed seat or platform is provided.” The defendants separately moved, inter alia, for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against each of them, arguing that the platform of a pickup truck is a “properly constructed and installed . . . platform” within the meaning of section 23-9.7(e). The Supreme Court denied those branches of the motions.

“The interpretation of an Industrial Code regulation presents a question of law for the court” … . Moreover, in interpreting a regulation, this Court must assume that the promulgating agency ” did not deliberately place a phrase in the [regulation] which was intended to serve no purpose . . . and each word must be read and given a distinct and consistent meaning'” … .

Guided by the above principles, the word “platform” as used in subdivision (e) of section 23-9.7 must reasonably be read to include the platform of a pickup truck. While such a platform is normally intended for transporting cargo, the Vehicle and Traffic Law contemplates that it may also be used, without restriction, to carry people over distances of less than five miles (see Vehicle and Traffic Law § 1222). Thus, it is reasonable to interpret section 23-9.7(e) as excluding from its scope an activity that is not prohibited by Vehicle and Traffic Law § 1222.

Therefore, under the facts presented, the defendants established, prima facie, that the plaintiff could not establish a violation of section 23-9.7(e) of the Industrial Code. In opposition, the plaintiff failed to raise a triable issue of fact … . Pruszko v Pine Hollow Country Club, Inc., 2017 NY Slip Op 03025, 2nd Dept 4-19-17

 

LABOR LAW-CONSTRUCTION LAW (BED OF A PICKUP TRUCK IS A PROPER PLATFORM WITHIN THE MEANING OF THE INDUSTRIAL CODE, PLAINTIFF’S RIDING ON THE BED OF THE PICKUP WHILE DOING DEMOLITION WORK, THEREFORE, DID NOT VIOLATE THE INDUSTRIAL CODE)/PLATFORM (LABOR LAW-CONSTRUCTION LAW, INDUSTRIAL CODE, BED OF A PICKUP TRUCK IS A PROPER PLATFORM WITHIN THE MEANING OF THE INDUSTRIAL CODE, PLAINTIFF’S RIDING ON THE BED OF THE PICKUP WHILE DOING DEMOLITION WORK, THEREFORE, DID NOT VIOLATE THE INDUSTRIAL CODE)/TRUCKS (LABOR LAW-CONSTRUCTION LAW, BED OF A PICKUP TRUCK IS A PROPER PLATFORM WITHIN THE MEANING OF THE INDUSTRIAL CODE, PLAINTIFF’S RIDING ON THE BED OF THE PICKUP WHILE DOING DEMOLITION WORK, THEREFORE, DID NOT VIOLATE THE INDUSTRIAL CODE)

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CHILD’S OUT OF COURT STATEMENTS ABOUT FATHER’S ABUSE OF MOTHER SUFFICIENTLY CORROBORATED BY EVIDENCE FROM A PRIOR NEGLECT PROCEEDING, PETITION SHOULD NOT HAVE BEEN DISMISSED.

The Second Department, reversing Family Court, determined a child’s out of court statements about father’s physical abuse of mother was sufficiently corroborated by similar evidence concerning the children in a prior neglect proceeding:

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A preponderance of the evidence established that the father neglected the subject children by perpetrating acts of domestic violence against the mother in their presence … . Contrary to the Family Court’s determination, the child’s out-of-court statement was sufficiently corroborated. Family Court Act § 1046(a)(vi) provides, in part, that “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration.” Family Court Act § 1046(a)(i) provides, in part, that “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the respondent.” The child’s statement was corroborated by, among other evidence, proof of the father’s prior neglect of the children by perpetrating acts of domestic violence against the mother in their presence … . Additionally, contrary to the court’s further determination, the evidence was sufficient to establish that the father’s acts of domestic violence against the mother in the children’s presence impaired, or created an imminent danger of impairing, the children’s physical, mental, or emotional condition ,,, . Moreover, a negative inference is properly drawn from the father’s failure to testify ,,, , Matter of Jubilee S. (James S.), 2017 NY Slip Op 03006, 2nd Dept 4-19-17

FAMILY LAW (CHILD’S OUT OF COURT STATEMENTS ABOUT FATHER’S ABUSE OF MOTHER SUFFICIENTLY CORROBORATED BY EVIDENCE FROM A PRIOR NEGLECT PROCEEDING, PETITION SHOULD NOT HAVE BEEN DISMISSED)/EVIDENCE (FAMILY LAW, CHILD’S OUT OF COURT STATEMENTS ABOUT FATHER’S ABUSE OF MOTHER SUFFICIENTLY CORROBORATED BY EVIDENCE FROM A PRIOR NEGLECT PROCEEDING, PETITION SHOULD NOT HAVE BEEN DISMISSED)/HEARSAY (FAMILY LAW, CHILD’S OUT OF COURT STATEMENTS ABOUT FATHER’S ABUSE OF MOTHER SUFFICIENTLY CORROBORATED BY EVIDENCE FROM A PRIOR NEGLECT PROCEEDING, PETITION SHOULD NOT HAVE BEEN DISMISSED)

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PARTY FACING POSSIBLE INCARCERATION IN SUPPORT PROCEEDINGS IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL, FATHER HERE DID NOT RECEIVE MEANINGFUL REPRESENTATION.

The Second Department determined father had a right to meaningful assistance of counsel in proceedings stemming from a failure to pay court-ordered child support. The court further found father’s counsel was ineffective because no attempt was made to submit proof father could not work due to his mental illness:

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With respect to this proceeding, Family Court Act § 262(a)(vi) extends the right to counsel to “any person in any proceeding . . . in which an order or other determination is being sought to hold such person . . . in willful violation of a previous order of the court,” because such persons potentially may be incarcerated. The possibility of incarceration exists where a party fails to comply with a support order, since Family Court Act § 454(3) authorizes the court, upon a finding that a respondent “has willfully failed to obey any lawful order of support,” to “commit the respondent to jail for a term not to exceed six months.”

The statutory right to counsel afforded under Family Court Act § 262(a)(vi) would be “meaningless unless the assistance of counsel is effective” … . Accordingly, in support proceedings such as this one in which a party faces the potential of imprisonment and has a statutory right to counsel, we hold that the appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard.  Matter of Nassau County Dept. of Social Servs. v King, 2017 NY Slip Op 02992, 2nd Dept 4-19-17

 

FAMILY LAW (PARTY FACING POSSIBLE INCARCERATION IN SUPPORT PROCEEDINGS IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL, FATHER HERE DID NOT RECEIVE MEANINGFUL REPRESENTATION)/ATTORNEYS (FAMILY LAW, PARTY FACING POSSIBLE INCARCERATION IN SUPPORT PROCEEDINGS IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL, FATHER HERE DID NOT RECEIVE MEANINGFUL REPRESENTATION)/CHILD SUPPORT (PARTY FACING POSSIBLE INCARCERATION IN SUPPORT PROCEEDINGS IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL, FATHER HERE DID NOT RECEIVE MEANINGFUL REPRESENTATION)

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