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MOTHER’S MOTION TO RELOCATE WITH THE CHILDREN SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined mother’s motion to relocate with the children should not have been granted. Father argued relocation would limit his involvement with the children to only weekends:

Here, the Supreme Court’s determination that the plaintiff could relocate with the children was not supported by a sound and substantial basis in the record … , as the plaintiff did not establish by a preponderance of the evidence that the proposed relocation would serve the children’s best interests … . The plaintiff’s evidence that relocating would enhance her life and the children’s lives economically was tenuous at best … , and the court’s finding that the plaintiff could become self-supporting and contribute to the children financially if she relocated was thus speculative and not supported by a sound and substantial basis in the record … . Moreover, the relocation would negatively impact the quantity and quality of the children’s future contact with the defendant, which weighs against granting relocation in this case … . The defendant presented evidence of his involvement in the children’s daily lives, school, and extracurricular activities. If the plaintiff was permitted to relocate with the children to East Hampton, the defendant would no longer be able to see the children midweek or remain involved in their many activities … . Finally, the plaintiff did not establish by a preponderance of the evidence that her proposed relocation would enhance the children’s lives emotionally or educationally … . DeFilippis v DeFilippis, 2017 NY Slip Op 00147, 2nd Dept 1-11-17

FAMILY LAW (MOTHER’S MOTION TO RELOCATE WITH THE CHILDREN SHOULD NOT HAVE BEEN GRANTED)/RELOCATE (FAMILY LAW, MOTHER’S MOTION TO RELOCATE WITH THE CHILDREN SHOULD NOT HAVE BEEN GRANTED)

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WAIVER OF A-1 FELONY INDICTMENT INVALID, DESPITE GUILTY PLEA, WAIVER OF APPEAL AND FAILURE TO PRESERVE THE ERROR.

The Second Department determined the waiver of indictment, which included an A-1 felony, was invalid. The guilty plea, the waiver of the right to appeal and/or the failure to preserve the error did not preclude appeal of the issue:

CPL 195.10 provides, in relevant part, that “[a] defendant may waive indictment and consent to be prosecuted by superior court information when . . . the defendant is not charged with a class A felony punishable by death or life imprisonment.” Thus, the Court of Appeals has held: “[W]hen an accused is held for Grand Jury action upon a felony complaint that charges a class A felony . . . a waiver of indictment with respect to that felony complaint is unauthorized” … . Here, the felony complaint charged the defendant with criminal possession of a controlled substance in the first degree. That crime is a class A-I felony (see Penal Law § 220.21), which is punishable by an indeterminate sentence with a mandatory maximum term of life imprisonment (see Penal Law § 70.00[2][a]). Accordingly, the defendant could not waive indictment and agree to be prosecuted by superior court information … . People v Janelle,2017 NY Slip Op 00188, 2nd Dept 1-11-17

CRIMINAL LAW (WAIVER OF A-1 FELONY INDICTMENT INVALID, DESPITE GUILTY PLEA, WAIVER OF APPEAL AND FAILURE TO PRESERVE THE ERROR)/INDICTMENT, WAIVER OF (WAIVER OF A-1 FELONY INDICTMENT INVALID, DESPITE GUILTY PLEA, WAIVER OF APPEAL AND FAILURE TO PRESERVE THE ERROR)/APPEALS (CRIMINAL LAW, WAIVER OF A-1 FELONY INDICTMENT INVALID, DESPITE GUILTY PLEA, WAIVER OF APPEAL AND FAILURE TO PRESERVE THE ERROR)

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NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED.

The Second Department determined defendant’s motion to suppress the results of the blood-alcohol test and his statement should not have been granted. Although the police learned the name and phone number of defendant’s counsel before the test was administered, there was no evidence of the source of that information and no evidence counsel “entered” the case such that defendant should have been allowed to talk to his attorney before taking the test. The Second Department offered a concise explanation of the applicable law:

In People v Gursey (22 NY2d 224), the Court of Appeals held in this context that the police “may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand” (id. at 227…). The police have no duty to warn a defendant of this limited right before asking the defendant to submit to a blood alcohol test … . Violation of the limited right to consult with counsel will result in suppression of the test results … . * * *

“[A]n attorney enters’ a criminal matter and triggers the indelible right to counsel when the attorney or a professional associate of the attorney notifies the police that the suspect is represented by counsel” (People v Grice, 100 NY2d 318, 324). Notification given to the police by a third party, such as a member of the defendant’s family, is not sufficient to establish counsel’s entry into the case (see id. at 322 …). Although the holding in Grice related to the triggering of the indelible constitutional right to counsel, we see no reason to apply a less stringent rule for triggering the more limited right to consult with counsel before deciding whether to refuse a blood alcohol test. Indeed, the reasons for applying this clear rule as to entry of counsel for purposes of the constitutional right to counsel …, apply with equal force to the more limited Gursey right. People v Lucifero, 2017 NY Slip Op 00190, 2nd Dept 1-11-17

 

CRIMINAL LAW (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/DRIVING WHILE INTOXICATED (NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/ATTORNEYS (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/RIGHT TO COUNSEL (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/BLOOD ALCOHOL TEST (DWI, (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/SUPPRESS, MOTION TO (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)

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COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined the county’s motion for summary judgment was properly denied in this vehicle-accident case alleging the negligent failure to install a guardrail. The county did not demonstrate it was entitled to qualified immunity based upon a relevant highway-safety study of the area, and did not demonstrate the absence of a guardrail was not a proximate cause of plaintiff’s injuries:

A municipal defendant is entitled to qualified immunity “where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury” … . Here, the evidence presented by the County failed to establish that it undertook a study which entertained and passed on the very same question of risk that is at issue in this case … . …

… [T]he County failed to establish, prima facie, that it did not have a duty to place guardrails near the concrete headwall involved in the plaintiff’s accident. …

… [T]he County’s submissions failed to eliminate all triable issues of fact as to whether its alleged negligence in failing to place guardrails near the concrete headwall … was a substantial factor in aggravating the plaintiff’s injuries … . Bednoski v County of Suffolk, 2016 NY Slip Op 08832, 2nd Dept 12-28-16

 

NEGLIGENCE (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)/MUNICIPAL LAW (NEGLIGENCE, (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)/IMMUNITY (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)/HIGHWAYS (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)/GUARDRAILS (MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE IT WAS NOT LIABLE FOR FAILURE TO INSTALL A GUARDRAIL IN THIS VEHICLE-ACCIDENT CASE, SUMMARY JUDGMENT PROPERLY DENIED)

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SCHOOL NOT ENTITLED TO SUMMARY JUDGMENT, PLAINTIFF INJURED WHEN A STUDENT FELL ON TOP OF HIM.

The Second Department determined the school’s motion for summary judgment in this negligent supervision action was properly denied. The plaintiff student was injured when another student fell on top of him. There was evidence the student who injured plaintiff had been acting up for 10 minutes prior to the incident:

“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” … . Here, the defendants failed to demonstrate, prima facie, that they properly supervised the infant plaintiff or that their alleged negligent supervision was not a proximate cause of his injuries … . In support of their motion, the defendants submitted the infant plaintiff’s deposition testimony in which he asserted that the student who fell on top of him had been running around the gym throwing basketballs at another student before he fell on the infant plaintiff, and that this behavior had been transpiring, unimpeded, for approximately 10 minutes before the accident. Roth v Central Islip Union Free Sch. Dist., 2016 NY Slip Op 08894, 2nd Dept 12-28-16

NEGLIGENCE (SCHOOL NOT ENTITLED TO SUMMARY JUDGMENT, PLAINTIFF INJURED WHEN A STUDENT FELL ON TOP OF HIM)/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, SCHOOL NOT ENTITLED TO SUMMARY JUDGMENT, PLAINTIFF INJURED WHEN A STUDENT FELL ON TOP OF HIM)

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SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED IN THIS NEGLIGENT SUPERVISION ACTION BROUGHT BY INJURED STUDENT.

The Second Department determined the defendant school’s motion for summary judgment in this negligent supervision action was properly denied. The complaint alleged plaintiff’s fall was caused by students jumping up and down on a bridge:

… [T]he defendant, in support of its motion for summary judgment dismissing the complaint, failed to submit evidence sufficient to establish, prima facie, that it properly supervised the infant plaintiff or that its alleged negligent supervision was not a proximate cause of his injuries .. . J.M. v North Babylon Union Free Sch. Dist., 2016 NY Slip Op 08847, 2nd Dept 12-28-16

NEGLIGENCE (SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED IN THIS NEGLIGENT SUPERVISION ACTION BROUGHT BY INJURED STUDENT)/EDUCATION-SHOOL LAW (SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED IN THIS NEGLIGENT SUPERVISION ACTION BROUGHT BY INJURED STUDENT)

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DESPITE THE EXPRESS EXCLUSION OF LIABILITY TO THIRD PARTIES IN THE CONTRACT BETWEEN DEFENDANT SECURITY COMPANY AND DEFENDANT THEATER, THE COMPLAINT ALLEGED A COMMON-LAW DUTY OWED BY THE SECURITY COMPANY TO PLAINTIFF, THE SECURITY COMPANY ALLEGEDLY DIRECTED PLAINTIFF TO RESTRAIN A NONPARTY WHO THEN ASSAULTED AND INJURED PLAINTIFF.

The Second Department determined defendant Arrow Security, a company under contract with defendant theater, Paramount, to provide security for patrons, was not entitled to a dismissal of the complaint. Plaintiff, an employee of Paramount, alleged he was instructed by Arrow to restrain a person, John Doe, who was in the rear alley of the theater premises. Plaintiff alleged he was beaten and injured by John Doe. The contract between Arrow and Paramount specifically stated the contract did not create a duty owed to third parties. However, the court concluded the complaint stated a claim for common-law negligence because it was alleged Arrow directed plaintiff to restrain John Doe:

… Arrow failed to conclusively establish that it owed no common-law duty to the plaintiff. To the contrary, the allegations in the complaint, viewed in the light most favorable to the plaintiff … , set forth a cognizable legal theory under which Arrow could be found to have assumed a duty of care to the plaintiff by calling for and instructing him to investigate, restrain, and/or detain the intoxicated John Doe … . A duty of care may be assumed where a “defendant’s conduct placed plaintiff in a more vulnerable position than plaintiff would have been in had defendant done nothing” … , or where a defendant’s conduct “enhanced the risk that plaintiff faced, created a new risk or induced plaintiff to forego some opportunity to avoid risk” … . Garda v Paramount Theatre, LLC, 2016 NY Slip Op 08841, 2nd Dept 12-28-16

NEGLIGENCE (DESPITE THE EXPRESS EXCLUSION OF LIABILITY TO THIRD PARTIES IN THE CONTRACT BETWEEN DEFENDANT SECURITY COMPANY AND DEFENDANT THEATER, THE COMPLAINT ALLEGED A COMMON-LAW DUTY OWED BY THE SECURITY COMPANY TO PLAINTIFF, THE COMPLAINT ALLEGED THE SECURITY COMPANY DIRECTED PLAINTIFF TO RESTRAIN A NONPARTY WHO THEN ASSAULTED AND INJURED PLAINTIFF)/CONTRACT, TORT LIABILITY STEMMING FROM (DESPITE THE EXPRESS EXCLUSION OF LIABILITY TO THIRD PARTIES IN THE CONTRACT BETWEEN DEFENDANT SECURITY COMPANY AND DEFENDANT THEATER, THE COMPLAINT ALLEGED A COMMON-LAW DUTY OWED BY THE SECURITY COMPANY TO PLAINTIFF, THE COMPLAINT ALLEGED THE SECURITY COMPANY DIRECTED PLAINTIFF TO RESTRAIN A NONPARTY WHO THEN ASSAULTED AND INJURED PLAINTIFF)/ASSAULT (NEGLIGENCE, DESPITE THE EXPRESS EXCLUSION OF LIABILITY TO THIRD PARTIES IN THE CONTRACT BETWEEN DEFENDANT SECURITY COMPANY AND DEFENDANT THEATER, THE COMPLAINT ALLEGED A COMMON-LAW DUTY OWED BY THE SECURITY COMPANY TO PLAINTIFF, THE COMPLAINT ALLEGED THE SECURITY COMPANY DIRECTED PLAINTIFF TO RESTRAIN A NONPARTY WHO THEN ASSAULTED AND INJURED PLAINTIFF)/DUTY (NEGLIGENCE, DESPITE THE EXPRESS EXCLUSION OF LIABILITY TO THIRD PARTIES IN THE CONTRACT BETWEEN DEFENDANT SECURITY COMPANY AND DEFENDANT THEATER, THE COMPLAINT ALLEGED A COMMON-LAW DUTY OWED BY THE SECURITY COMPANY TO PLAINTIFF, THE COMPLAINT ALLEGED THE SECURITY COMPANY DIRECTED PLAINTIFF TO RESTRAIN A NONPARTY WHO THEN ASSAULTED AND INJURED PLAINTIFF)

DEFENDANT PROPERTY OWNER’S ACKNOWLEDGED AWARENESS OF THE SIDEWALK DEFECT IN THIS TRIP AND FALL CASE PRECLUDED SUMMARY JUDGMENT.

The Second Department determined the defendant abutting property owner’s motion for summary judgment in this sidewalk trip and fall action was properly denied. The court clearly explained the relationship between the applicable administrative code provision and the abutting property owners’ responsibility for maintaining a safe sidewalk. The plaintiff tripped over a raised sidewalk flag. The defendant’s own motion papers demonstrated he was aware of the defect for four years:

Section 7-210 of the Administrative Code of the City of New York (hereinafter the Administrative Code) imposes tort liability upon certain owners of real property, including the appellant, for injuries proximately caused by the failure of such owners to maintain the sidewalks abutting their property in a reasonably safe condition … . Section 7-210 of the Administrative Code does not, however, impose strict liability upon landowners for injuries arising from allegedly dangerous conditions on a sidewalk abutting their property … . Rather, the injured party has the obligation to prove the elements of negligence to demonstrate that the landowner is liable under this section of the Administrative Code … . Specifically, the injured party must establish (1) the existence of a duty on the landowner’s part as to the injured party, (2) a breach of this duty, and (3) a resulting injury to the injured party … . In support of a motion for summary judgment dismissing a cause of action pursuant to section 7-210 of the Administrative Code, the landowner has the initial burden of demonstrating, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . Nisimova v City of New York, 2016 NY Slip Op 08875, 2nd Dept 12-28-16

NEGLIGENCE (DEFENDANT PROPERTY OWNER’S ACKNOWLEDGED AWARENESS OF THE SIDEWALK DEFECT IN THIS TRIP AND FALL CASE PRECLUDED SUMMARY JUDGMENT)/SIDEWALKS (DEFENDANT PROPERTY OWNER’S ACKNOWLEDGED AWARENESS OF THE SIDEWALK DEFECT IN THIS TRIP AND FALL CASE PRECLUDED SUMMARY JUDGMENT)/SLIP AND FALL (SIDEWALKS, (DEFENDANT PROPERTY OWNER’S ACKNOWLEDGED AWARENESS OF THE SIDEWALK DEFECT IN THIS TRIP AND FALL CASE PRECLUDED SUMMARY JUDGMENT)

ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AND ALLEGED DEFENDANT FAILED TO STOP AT A STOP SIGN, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE.

The Second Department determined plaintiff’s motion for summary judgment in this vehicle-collision case was properly denied. Plaintiff had the right of way and alleged defendant did not stop at a stop sign. However, plaintiff did not demonstrate she was free from comparative fault:

… [T]he only evidence in admissible form submitted by the plaintiff in support of her motion was her own affidavit, in which she briefly alleged that the defendant driver had failed to stop at the stop sign governing traffic on Batchelder Street and yield to traffic on Avenue U. The plaintiff’s affidavit did not set forth other relevant circumstances, including the rate of speed at which she was traveling, where her vehicle was positioned when she allegedly observed the defendant driver fail to stop at the stop sign, and where her vehicle was positioned when the collision occurred. Accordingly, the plaintiff’s affidavit was insufficient to establish, prima facie, that the defendant driver’s alleged negligence was the sole proximate cause of the accident, and that she was free from comparative fault … . Kanfer v Wong, 2016 NY Slip Op 08851, 2nd Dept 12-28-16

NEGLIGENCE (ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AND ALLEGED DEFENDANT FAILED TO STOP AT A STOP SIGN, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE)/COMPARATIVE NEGLIGENCE (VEHICLE COLLISION, ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AND ALLEGED DEFENDANT FAILED TO STOP AT A STOP SIGN, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE)/ACCIDENTS, VEHICLE (ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AND ALLEGED DEFENDANT FAILED TO STOP AT A STOP SIGN, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE)/SUMMARY JUDGMENT (VEHICLE ACCIDENTS, ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AND ALLEGED DEFENDANT FAILED TO STOP AT A STOP SIGN, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE)

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NYC RENT STABILIZATION RULES DO NOT APPLY TO A BUILDING CONVERTED FROM COMMERCIAL TO RESIDENTIAL USE AFTER 1974.

The Second Department, in a full-fledged opinion by Justice Dickerson, determined the exemption from (New York City) rent stabilization rules for housing units constructed after January 1, 1974, applied to defendant’s post-1974 conversion of a commercial building to residential units:

… [Supreme Court] found that the defendant had made a prima facie showing that the complex was exempt from rent stabilization by demonstrating that its renovations had converted the complex from commercial to residential use, and that it had paid for a majority of the conversion costs. The court further found that the plaintiffs had failed to raise a triable issue of fact as to whether the complex was subject to rent stabilization. In this regard, the court reasoned that the 75% requirement of Rent Stabilization Code § 2520.11 did not apply where a commercial building was converted to residential use. We affirm. * * *

The plaintiffs contend that … they raised a triable issue of fact as to whether the defendant failed to replace 75% of the systems … in accordance with section 2520.11(e)(1) of the Rent Stabilization Code… . We disagree. The most natural reading of the … 75% requirement is that it is applicable in situations where an owner purports to substantially rehabilitate an existing residential building, and not in situations where a commercial building is converted to residential use. Bartis v Harbor Tech, LLC, 2016 NY Slip Op 08831, 2nd Dept 12-28-16

 

LANDLORD-TENANT (NYC RENT STABILIZATION RULES DO NOT APPLY TO A BUILDING CONVERTED FROM COMMERCIAL TO RESIDENTIAL USE AFTER 1974)/MUNICIPAL LAW (NYC RENT STABILIZATION RULES DO NOT APPLY TO A BUILDING CONVERTED FROM COMMERCIAL TO RESIDENTIAL USE AFTER 1974)/RENT STABILIZATION (NYC RENT STABILIZATION RULES DO NOT APPLY TO A BUILDING CONVERTED FROM COMMERCIAL TO RESIDENTIAL USE AFTER 1974)

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