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FAMILY COURT COULD NOT ALLOW VISITATION WHILE A CRIMINAL ORDER OF PROTECTION IS IN PLACE.

The Second Department determined that Family Court properly denied mother’s motion for kinship visitation because a criminal court order of protection was in place:

As a general rule, the “Family Court does not have jurisdiction to countermand the provisions of a criminal court order of protection” … . Thus, where a criminal court order of protection bars contact between a parent and child, the parent may not obtain visitation until the order of protection is vacated or modified by the criminal court … . However, the criminal court has authority to determine whether its order of protection is “subject to” subsequent Family Court orders, and where the criminal court order of protection “expressly contemplates future amendment of its terms by a subsequent Family Court order pertaining to custody and visitation,” the Family Court is not precluded from granting custody or visitation by the terms of the order of protection … . Here, since the Supreme Court’s temporary order of protection dated April 1, 2016, did not state that it was “subject to” subsequent Family Court orders, the Family Court had no basis to permit “kinship visitation” supervised by the maternal grandmother. Matter of Rihana J.H. (Quianna J.), 2017 NY Slip Op 01202, 2nd Dept 2-15-17

FAMILY LAW (FAMILY COURT COULD NOT ALLOW VISITATION WHILE A CRIMINAL ORDER OF PROTECTION IS IN PLACE)/VISITATION (FAMILY LAW, FAMILY COURT COULD NOT ALLOW VISITATION WHILE A CRIMINAL ORDER OF PROTECTION IS IN PLACE)/CRIMINAL LAW (FAMILY LAW, ORDER OF PROTECTION, FAMILY COURT COULD NOT ALLOW VISITATION WHILE A CRIMINAL ORDER OF PROTECTION IS IN PLACE)/ORDER OF PROTECTION (FAMILY LAW,  FAMILY COURT COULD NOT ALLOW VISITATION WHILE A CRIMINAL ORDER OF PROTECTION IS IN PLACE)

FATHER SHOULD NOT HAVE BEEN AWARDED SOLE CUSTODY IN THE ABSENCE OF A HEARING.

The Second Department, reversing Supreme Court, determined father should not have been awarded sole custody without a hearing:

The Supreme Court erred in awarding the father sole custody of the child in the absence of a hearing to determine the best interests of the child. “[A] court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … . The court failed to do so here. Furthermore, the issue of custody was not discussed at the … court appearances that resulted in the issuance of the final order of custody and visitation. Under these circumstances, the mother’s motion to vacate the final order of custody and visitation … , should have been granted. Matter of Fraser v Fleary, 2017 NY Slip Op 01197, 2nd Dept 2-15-17

FAMILY LAW (FATHER SHOULD NOT HAVE BEEN AWARDED SOLE CUSTODY IN THE ABSENCE OF A HEARING)/CUSTODY (FAMILY LAW, FATHER SHOULD NOT HAVE BEEN AWARDED SOLE CUSTODY IN THE ABSENCE OF A HEARING)

WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY.

The Second Department determined plaintiff wife was entitled to a share of husband’s separate property that was commingled with marital funds, as well as a share of the appreciation of husband’s separate property. Husband, a firefighter, received an award from the September 11th Victim Compensation Fund, which was placed in a joint checking account and then used to buy investment property:

… [S]eparate property that is commingled, for example, in a joint bank account, loses its character of separateness and a presumption arises that each party is entitled to a share of the funds … . “That presumption, however, may be overcome by clear and convincing evidence, either direct or circumstantial, that the account was created only as a matter of convenience” … . The presumption may also be overcome by evidence that the account, although joint, is managed solely by one party … , or that the funds were deposited into the joint account only briefly … . In this case, the Supreme Court correctly determined that by depositing the proceeds of the award into the parties’ joint account, the defendant’s separate property lost its character of separateness and a presumption arose that each party was entitled to a share of the funds, which was not rebutted. …

The record supports the Supreme Court’s determination that the direct and indirect contributions of the plaintiff, as the nontitled spouse, contributed to the appreciation in the value of the defendant’s separate properties. Therefore, the plaintiff was entitled to a share of that appreciation … . Brown v Brown, 2017 NY Slip Op 01175, 2nd Dept 2-15-17

 

FAMILY LAW (WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY)/SEPARATE PROPERTY (FAMILY LAW, (WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY)/MARITAL PROPERTY (WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY)

FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL.

The Second Department, reversing defendant’s conviction, determined the facts elicited at this murder trial, viewed in the light most favorable to the defendant, warranted charges to the jury on manslaughter second and criminally negligent homicide. Because the possession of a weapon charge was directly related to the homicide charge, a new trial on the criminal possession of a weapon count was also necessary:

Under the facts adduced at the trial, the Supreme Court erred in failing to charge manslaughter in the second degree … and criminally negligent homicide … when requested by the defendant. Although a witness testified that, in the course of a physical altercation, the defendant pulled a gun from his back waist area and shot the decedent, the defendant testified that the decedent brandished the gun, that the two men struggled over the weapon, and that the gun accidentally went off during the struggle. Viewed in the light most favorable to the defendant, there was a reasonable view of the evidence that the defendant may have been guilty of the lesser crimes and not the greater … . Therefore, the failure to charge manslaughter in the second degree and criminally negligent homicide compromised the defendant’s right to a fair trial.

In addition, the failure to charge manslaughter in the second degree, which is defined as “recklessly” causing the death of another person …, had a prejudicial effect with respect to the defendant’s conviction of criminal possession of a weapon in the second degree, which is defined as possession of “any loaded firearm” … . The defendant’s possession of the weapon is factually related to the shooting and, thus, given the underlying factual relationship between the crimes, the defendant is entitled to a new trial on the count of criminal possession of a weapon in the second degree … . People v Davis, 2017 NY Slip Op 01223, 2nd Dept 2-15-17

 

CRIMINAL LAW (FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL)/LESSER INCLUDED OFFENSES (CRIMINAL LAW, FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL)/JURY INSTRUCTIONS (CRIMINAL LAW, FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL)

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DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES.

The Second Department determined defendant should be given the opportunity to move to vacate his guilty plea on the ground he was not informed of the deportation consequences:

The defendant contends that his plea of guilty was not knowing, voluntary, and intelligent because the record demonstrates that the Supreme Court never advised him of the possibility that he would be deported as a consequence of his plea. In People v Peque (22 NY3d 168), the Court of Appeals held that, as a matter of fundamental fairness, due process requires that a court apprise a noncitizen pleading guilty to a felony of the possibility of deportation as a consequence of the plea of guilty … . A defendant seeking to vacate a plea based on this defect must demonstrate that there is a reasonable probability that he or she would not have pleaded guilty and would instead have gone to trial had the court warned of the possibility of deportation … .

Here, the record does not demonstrate that the Supreme Court mentioned the possibility of deportation as a consequence of the defendant’s plea. People v Singh, 2017 NY Slip Op 01235, 2nd Dept 2-15-17

 

CRIMINAL LAW (DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES)/DEPORTATION (CRIMINAL LAW, DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES)

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FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS IN THIS MEDICAL MALPRACTICE ACTION.

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ answers in this medical malpractice action should have been struck because of the failure to turn over the names of defendants’ employees and failure to obey court orders during discovery:

The Supreme Court properly inferred the willful and contumacious character of the defendants’ conduct from their repeated failures over an extended period of time, without an adequate excuse, to comply with the plaintiff’s discovery demands and the court’s discovery orders … . This conduct included: (1) misrepresenting that the surgical booker Marcia Barnaby was no longer employed by the Hospital; (2) failing to disclose Anthony Pastor as a surgical booker; and (3) failing to timely and fully comply with the court’s order to produce an affidavit from Schiff in the form required by the court. “[P]arties, where necessary, will be held responsible for the failure of their lawyers to meet court-ordered deadlines and provide meaningful responses to discovery demands” … . * * *

Here, contrary to the Supreme Court’s determination, we find that the imposition of monetary sanctions was insufficient to punish the defendants and their counsel for their willful and contumacious conduct in failing to timely and fully respond to discovery demands and court orders. Lucas v Stam, 2017 NY Slip Op 01190, 2nd Dept 2-15-17

 

CIVIL PROCEDURE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/NEGLIGENCE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/ATTORNEYS (NEGLIGENCE, DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/MEDICAL MALPRACTICE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/DISCOVERY (MEDICAL MALPRACTICE, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)

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PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED.

The Second Department, reversing Supreme Court, determined a protective order prohibiting any non-attorney from accompanying plaintiff to a physical examination should not have been issued:

A plaintiff “is entitled to be examined in the presence of [his or] her attorney or other legal representative, as well as an interpreter, if necessary, so long as they do not interfere with the conduct of the examination[ ]” … . Here, the defendant failed to meet his burden of establishing that the plaintiffs’ representative would improperly interfere with the conduct of the injured plaintiff’s physical examination … . Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was for a protective order precluding any non-attorney from accompanying the injured plaintiff in the examination room during his physical examination. Henderson v Ross, 2017 NY Slip Op 01186, 2nd Dept 2-15-17

CIVIL PROCEDURE (PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED)/NEGLIGENCE (PHYSICAL EXAMINATION, PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED)/PHYSICAL EXAMINATION (NEGLIGENCE, PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED)/DISCOVERY (NEGLIGENCE, PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED)

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CLAIM; QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY.

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff, who was not wearing a harness, had fallen through a skylight. The anchor points for harnesses had not yet been installed. The employer’s motion for summary judgment dismissing the property owner’s third-party complaint seeking indemnification was, however, properly denied. The Workers’ Compensation Law allows suit only when the injury is grave (not so here) or where there is a written indemnification agreement. Here there was an indemnification agreement entered after the accident. There was a question of fact whether the agreement was intended to be effective retroactively:

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that he was not provided with necessary protection from the gravity-related risk of his work and that the absence of the necessary protection was a proximate cause of his injuries … .

… An employer may be held liable for contribution or indemnification only when its employee has sustained a grave injury as defined by the Workers’ Compensation Law or when there is a “written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution or indemnification of the claimant” … . The Workers’ Compensation Law does not bar indemnification or contribution pursuant to a written agreement that was entered into after the employee’s injury and which the parties agree will have retroactive effect … . “[I]ndemnity contracts are to be strictly construed to avoid reading into them duties which the parties did not intend to be assumed” … . Therefore, an indemnity contract will not be held to have retroactive effect “unless by its express words or necessary implication it clearly appears to be the parties’ intention to include past obligations” … . Cacanoski v 35 Cedar Place Assoc., LLC, 2017 NY Slip Op 00956, 2nd Dept 2-8-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CLAIM, QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY)/WORKERS’ COMPENSATION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CLAIM, QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY)/CONTRACT LAW (WORKERS’ COMPENSATION LAW, INDEMNIFICATION AGREEMENT, QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY)

CORRIDOR FORMED BY LUMBER AND MATERIALS PILED ON EITHER SIDE WAS A PASSAGEWAY WITHIN THE MEANING OF THE INDUSTRIAL CODE, DEFENDANT LIABLE UNDER LABOR LAW 241 (6).

The Second Department determined a two to three-foot wide corridor created by lumber and materials piled on either side was a “passageway” within the meaning to the industrial code. Plaintiff was injured when he tripped while carrying materials along the corridor. The Court of Claims properly found defendant liable under Labor Law 241 (6):

The claimant filed a claim pursuant to Labor Law § 241(6) alleging a violation of 12 NYCRR 23-1.7(e)(1), which provides in relevant part that “[a]ll passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.” …

“Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers” … . “In order to recover damages on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards” … . To establish liability under Labor Law § 241(6), a plaintiff or a claimant must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case … . Contributory and comparative negligence are valid defenses to a Labor Law § 241(6) claim … . Aragona v State of New York, 2017 NY Slip Op 00954, 2nd Dept 2-8-17

 

LABOR LAW-CONSTRUCTION LAW (CORRIDOR FORMED BY LUMBER AND MATERIALS PILED ON EITHER SIDE WAS A PASSAGEWAY WITHIN THE MEANING OF THE INDUSTRIAL CODE, DEFENDANT LIABLE UNDER LABOR LAW 241 (6))

BASEMENT OFFICE DID NOT CAUSE DEFENDANT TO LOSE THE HOMEOWNER’S EXEMPTION TO LIABILITY UNDER THE LABOR LAW.

The Second Department determined the defendant property owner was entitled to the homeowners’ exemption from liability under the Labor Law, despite the fact that the residence included an office used for defendant’s business:

Owners of one- or two-family dwellings are exempt from liability under Labor Law § 241(6) unless they directed or controlled the work being performed … . “The exception was enacted to protect those people who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against the absolute liability”… .

… [T]he use of a portion of the defendant’s residence for commercial purposes did not automatically cause him to lose the protection of the exemption. The presence of an office in the basement did not detract from the building’s primary use as a residence, and the defendant’s commercial activity was incidental thereto … .

… The defendant’s alleged discussion with the injured plaintiff about the scope of the project and the defendant’s request to install a shelf and support beam were insufficient to transform the defendant from a legitimately concerned homeowner into a de facto supervisor, because these acts, without any specific direction as to how the injured plaintiff was to accomplish his tasks, do not constitute direction or control over the manner or method of the injured plaintiff’s work … . Levy v Baumgarten, 2017 NY Slip Op 00963, 2nd Dept 2-8-17

 

LABOR LAW-CONSTRUCTION LAW (BASEMENT OFFICE DID NOT CAUSE DEFENDANT TO LOSE THE HOMEOWNER’S EXEMPTION TO LIABILITY UNDER THE LABOR LAW)/HOMEOWNER’S EXEMPTION (LABOR LAW, BASEMENT OFFICE DID NOT CAUSE DEFENDANT TO LOSE THE HOMEOWNER’S EXEMPTION TO LIABILITY UNDER THE LABOR LAW)

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