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MOTION FOR FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED.

The Second Department determined Family Court should have granted the child’s motion for findings to allow him to petition for special immigrant juvenile status:

Pursuant to 8 USC § 1101(a)(27)(J) … and 8 CFR 204.11, a special immigrant is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law … , and that it would not be in the juvenile’s best interests to be returned to his or her previous country of nationality or country of last habitual residence … .

Based upon our independent factual review, we find that reunification of the child with one or both of his parents is not a viable option due to parental abandonment … , and that it would not be in his best interests to return to India … . Matter of Varinder S. v Satwinder S., 2017 NY Slip Op 00987, 2nd Dept 2-8-17

 

FAMILY LAW (MOTION FOR FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED)/IMMIGRATION LAW  (MOTION FOR FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED)/SPECIAL IMMIGRANT JUVENILE STATUS (MOTION FOR FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED)

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SCHOOL NOT LIABLE FOR OFF PREMISES ASSAULT.

The Second Department determined the school’s motion for summary judgment was properly granted. Plaintiff and her father were allegedly assaulted 30 to 100 feet beyond the entrance to the infant plaintiff’s school by students from the school:

With respect to the contention that the defendants may be liable for the infant plaintiff’s injuries, a school’s duty is coextensive with, and concomitant with, its physical custody and control over a child …. “When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly  free to reassume control over the child’s protection, the school’s custodial duty also ceases” … . “As a result, where a student is injured off school premises, there can generally be no actionable breach of a duty that extends only to the boundaries of school property” … . Here, the defendants established, prima facie, that they may not be held liable for the infant plaintiff’s injuries since, at the time of the subject incident, the infant plaintiff was no longer in their custody or under their control and was, thus, outside the orbit of their authority … .

Nor is there a basis to impose liability upon the defendants for the injuries sustained by the infant plaintiff or her father for failure to provide adequate security, since the defendants demonstrated that they did not affirmatively assume a duty to protect either plaintiff from criminal activity which occurred off the school premises … . Hernandez v City of New York, 2017 NY Slip Op 00962, 2nd Dept 2-8-17

 

EDUCATION-SCHOOL LAW (SCHOOL NOT LIABLE FOR OFF PREMISES ASSAULT)/NEGLIGENCE (SCHOOL NOT LIABLE FOR OFF PREMISES ASSAULT)/ASSAULT (NEGLIGENCE, SCHOOL NOT LIABLE FOR OFF PREMISES ASSAULT)

FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department, in a case remitted after reversal by the Court of Appeals, determined the trial judge’s failure to respond to the deliberating jury’s request for a witness’s (Richard’s) testimony by reading both the direct and the cross deprived defendant of a fair trial. The Second Department had previously found the error to be a mode of proceedings error that required reversal in the absence of an objection. The Court of Appeals held the error was not a mode of proceedings error. On remand the Second Department addressed the unpreserved error in the interest of justice:

Although the defendant’s contentions regarding the jury note are unpreserved for appellate review, as no objections were raised (see CPL 470.05[2]), we reach them in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]). Under the circumstances of this case, the trial court’s failure to meaningfully respond to the jury note requesting a readback of Richards’ testimony deprived the defendant of a fair trial … . ” [A] request for a reading of testimony generally is presumed to include cross-examination which impeaches the testimony to be read back, and any such testimony should be read to the jury unless the jury indicates otherwise'” ,,, . Richards was the only witness to the argument and the shooting, other than the complainant and the defendant. Richards’ cross-examination testimony included testimony that was relevant to the defense, directly impeached significant portions of his direct examination testimony, and was detrimental to the prosecution. As a result, the trial court’s readback of only Richards’ direct examination testimony in response to the jury’s request seriously prejudiced the defendant … . People v Morris, 2017 NY Slip Op 01007, 2nd Dept 2-8-17

CRIMINAL LAW (FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/JURY NOTES (CRMINAL LAW, FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

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CPLR 205 (a), WHICH ALLOWS SIX MONTHS FOR RECOMMENCING AN ACTION AFTER DISMISSAL, APPLIES TO FORECLOSURE PROCEEDINGS, EVEN WHEN THE CURRENT HOLDER OF THE NOTE IS A SUCCESSOR IN INTEREST TO THE PARTY WHICH STARTED THE FORECLOSURE ACTION.

The Second Department, in a full-fledged opinion by Justice Maltese, determined the six-month extension of a statute of limitations provided by CPLR 205 (a) applied in this foreclosure action. The court summarized the rulings as follows:

Under certain conditions, CPLR 205(a) provides an additional six months in which to recommence a prior action that has been dismissed on grounds other than voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a final judgment on the merits. The first question in this case is whether a prior action to foreclose the same mortgage was dismissed for neglect to prosecute, a category of dismissal that renders CPLR 205(a) inapplicable. We answer this question in the negative, concluding that the prior action was not dismissed for neglect to prosecute.

The second question is more novel. We must determine whether the plaintiff in this mortgage foreclosure action, which was assigned the note and mortgage during the pendency of the prior foreclosure action, is entitled to the savings provision—or grace period—of CPLR 205(a) even though the prior action was commenced by a prior holder of the note. … [W]e conclude that a plaintiff in a mortgage foreclosure action which meets all of the other requirements of the statute is entitled to the benefit of CPLR 205(a) where, as here, it is the successor in interest as the current holder of the note. Wells Fargo Bank, N.A. v Eitani, 2017 NY Slip Op 01015, 2nd Dept 2-8-17

 

CIVIL PROCEDURE (CPLR 205 (a), WHICH ALLOWS SIX MONTHS FOR RECOMMENCING AN ACTION AFTER DISMISSAL, APPLIES TO FORECLOSURE PROCEEDINGS, EVEN WHEN THE CURRENT HOLDER OF THE NOTE IS A SUCCESSOR IN INTEREST TO THE PARTY WHICH STARTED THE FORECLOSURE ACTION)/FORECLOSURE (CPLR 205 (a), WHICH ALLOWS SIX MONTHS FOR RECOMMENCING AN ACTION AFTER DISMISSAL, APPLIES TO FORECLOSURE PROCEEDINGS, EVEN WHEN THE CURRENT HOLDER OF THE NOTE IS A SUCCESSOR IN INTEREST TO THE PARTY WHICH STARTED THE FORECLOSURE ACTION)

BENEFICIARIES OF TRUST ENTITLED TO EXAMINE TRUSTEE ABOUT MATTERS RELATING TO ADMINISTRATION OF THE TRUST, BUT NOT APPOINTMENT OF THE TRUSTEE.

The Second Department determined the trust beneficiaries were entitled to examine the trustee about matters relating to administration of the trust but not matters related to his appointment as trustee:

SCPA 2211(2) provides, in pertinent part, that “[t]he fiduciary may be examined under oath by any party to the proceeding either before or after filing objections, if any, to the account, as to any matter relating to his or her administration of the estate.” The Surrogate’s Court providently exercised its discretion in granting the trustee’s motion for a protective order pursuant to CPLR 3103 vacating a notice of deposition served upon him by the trust’s beneficiaries … to the extent of vacating so much of the notice of deposition as sought to examine him as to “the manner in which he and Donald J. Farinacci became or were nominated as successor trustees and Donald J. Farinacci renounced such appointment,” as those issues exceeded the scope of SCPA 2211(2) … . However, under SCPA 2211(2), the trust beneficiaries were entitled to examine the trustee under oath “as to any matter relating to his or her administration of the estate.” Accordingly, the court erred in vacating the entirety of the notice of deposition … . Matter of Jane D. Ritter Revocable Living Trust., 2017 NY Slip Op 00647, 2nd Dept 2-1-17

TRUSTS AND ESTATES (BENEFICIARIES OF TRUST ENTITLED TO EXAMINE TRUSTEE ABOUT MATTERS RELATING TO ADMINISTRATION OF THE TRUST, BUT NOT APPOINTMENT OF THE TRUSTEE)/SURROGATE’S COURT PROCEDURE ACT (BENEFICIARIES OF TRUST ENTITLED TO EXAMINE TRUSTEE ABOUT MATTERS RELATING TO ADMINISTRATION OF THE TRUST, BUT NOT APPOINTMENT OF THE TRUSTEE)

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WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION.

The Second Department, reversing Supreme Court, determined the negligent hiring and retention cause of action against a nursing home (Sunrise Manor) alleging improper care of a resident should have been dismissed. When it is alleged an employee acted within the scope of employment, the respondeat superior theory applies and a negligent hiring and retention cause of action will not lie:

Supreme Court should have granted that branch of Sunrise Manor’s motion which was for summary judgment dismissing the fourth cause of action, which was to recover damages for negligent hiring and retention, insofar as asserted against it. “Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training” … . Here, in opposition to Sunrise Manor’s prima facie showing that its employees were acting within the scope of their employment, the plaintiff failed to raise a triable issue of fact. While an exception exists to the above general principle where the plaintiff seeks punitive damages from the employer “based on alleged gross negligence in the hiring or retention of the employee” … , here, that exception is inapplicable because the Supreme Court granted that branch of Sunrise Manor’s motion which was for summary judgment dismissing the cause of action seeking punitive damages. Henry v Sunrise Manor Ctr. for Nursing & Rehabilitation, 2017 NY Slip Op 00634, 2nd Dept 2-1-17

NEGLIGENCE (WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION)/EMPLOYMENT LAW (NEGLIGENCE, WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION)/NEGLIGENT HIRING AND RETENTION (WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION)

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STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department determined summary judgment should not have been granted to the school in this negligent supervision case. Plaintiff was injured while horsing around during gym class:

At the beginning of gym class, prior to attendance being taken, the infant plaintiff ran toward a fellow classmate, placed his hands on his shoulders, and jumped over him. The classmate asked the infant plaintiff to do it again, and the infant plaintiff jumped over the classmate again, without incident. The classmate then asked the infant plaintiff to jump over him once again, and when the infant plaintiff attempted to do so, “something popped” in his knee, which caused him to fall to the gym floor and allegedly sustain an injury. At the time of the incident, two teachers were nearby; however, neither saw the incident occur. The infant plaintiff stated that about four to five minutes elapsed between the first and third time he jumped over his classmate. A teacher, however, stated that class began at 1:11 p.m., and that the incident occurred at approximately 1:20 p.m. * * *

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . Contrary to the defendant’s contention, it failed to establish, prima facie, that it adequately supervised the plaintiff or that, even if it had, the incident occurred in such a short span of time that it could not have been prevented by the most intense supervision … . Cruz-Martinez v Brentwood Union Free Sch. Dist., 2017 NY Slip Op 00626, 2nd Dept 2-1-17

 

NEGLIGENCE (STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/EDUCATION-SCHOOL LAW (STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SUPERVISION (EDUCATION-SCHOOL LAW, STUDENT INJURED HORSING AROUND IN GYM CLASS, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

DEFENDANT MADE A SUDDEN LEFT TURN IN FRONT ACROSS PLAINTIFF’S RIGHT OF WAY, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff moped operator should have been granted summary judgment in this traffic accident case. Defendant made a sudden left turn crossing plaintiff’s right of way:

The plaintiff established his entitlement to judgment as a matter of law by demonstrating, prima facie, that the defendant driver violated Vehicle and Traffic Law § 1141 when he suddenly made a left turn directly into the path of the moped operated by the plaintiff, who had no time to avoid the impact, when it was not reasonably safe to do so, and that this violation was the sole proximate cause of the accident … . Mei-Hua Gao v Makrinos, 2017 NY Slip Op 00639, 2nd Dept 2-1-17

NEGLIGENCE (DEFENDANT MADE A SUDDEN LEFT TURN IN FRONT ACROSS PLAINTIFF’S RIGHT OF WAY, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED)/TRAFFIC ACCIDENTS (DEFENDANT MADE A SUDDEN LEFT TURN IN FRONT ACROSS PLAINTIFF’S RIGHT OF WAY, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED)

EVIDENCE OF GENERAL CLEANING PRACTICES NOT ENOUGH TO DEMONSTRATE LACK OF CONSTRUCTIVE NOTICE IN A SLIP AND FALL CASE.

The Second Department determined defendant’s motion for summary judgment in this slip and fall case was properly denied. Defendant offered evidence only of its general cleaning practices rather than specific evidence when the area was lasted cleaned or inspected:

Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition that caused the plaintiff to fall. The deposition testimony of the defendant’s caretaker, submitted in support of the motion, did not establish when the accident site was last inspected in relation to the plaintiff’s fall. The caretaker merely testified about general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, which is insufficient to establish a lack of constructive notice … . Jeremias v Lake Forest Estates, 2017 NY Slip Op 00635, 2nd Dept 2-1-17

NEGLIGENCE (EVIDENCE OF GENERAL CLEANING PRACTICES NOT ENOUGH TO DEMONSTRATE LACK OF CONSTRUCTIVE NOTICE IN A SLIP AND FALL CASE)/SLIP AND FALL (EVIDENCE OF GENERAL CLEANING PRACTICES NOT ENOUGH TO DEMONSTRATE LACK OF CONSTRUCTIVE NOTICE IN A SLIP AND FALL CASE)

QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the city (NYC) did not demonstrate there was no question of fact whether plaintiff tripped over a portion of the sidewalk (for which the city would not be liable) or a tree well (for which the city would be liable):

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner, absent certain exceptions not relevant to this case … . However, a tree well does not fall within the applicable Administrative Code definition of “sidewalk” and, thus, “section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells” … . Antonyuk v Brightwater Towers Condo Homeowners’ Assn., Inc., 2017 NY Slip Op 00619, 2nd Dept 2-1-17

NEGLIGENCE (QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/SIDEWALKS (QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/TREE WELLS (QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (QUESTION OF FACT WHETHER PLAINTIFF TRIPPED OVER A SIDEWALK DEFECT OR A TREE WELL DEFECT, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)

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