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THE TRAFFIC STOP WAS A PROPER EXERCISE OF THE POLICE “COMMUNITY CARETAKING FUNCTION;” BUT THERE WAS NO SHOWING THE SUBSEQUENT QUESTIONING WHICH LED TO DEFENDANT’S DWI ARREST WAS “COMMENSURATE WITH ANY PERCEIVED NEED FOR ASSISTANCE;” INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing County Court and dismissing the indictment, determined the statements made to police after a traffic stop, including his refusal to submit to a breath test, should have been suppressed. Defendant was behind the police car when he flashed his lights several times. The police pulled over but defendant just drove past them. The police then followed the defendant, pulled him over and asked why he flashed his lights and whether he was ok. Defendant’s response was not in the record. After it was clear defendant gave the police a phony birth date, he was asked to step out of the car. At that point the police suspected he was intoxicated:

… [T]he Constitution “is not a barrier to a police officer seeking to help someone in immediate danger” … . Deemed the “community caretaking function[ ]” by the United States Supreme Court … , this concept recognizes that police do not just fight crime, but “perform varied public service roles, including protecting citizens from harm” … . The police’s community caretaking function is “‘totally divorced from the detection, investigation, or acquisition of evidence’ of criminal conduct” … .

The Court of Appeals has determined that the police may stop an automobile in an exercise of their community caretaking function if two criteria are met. “First, the officers must point to specific, objective, and articulable facts that would lead a reasonable officer to conclude that an occupant of the vehicle is in need of assistance. Second, the police intrusion must be narrowly tailored to address the perceived need for assistance. Once assistance has been provided and the peril mitigated, or the perceived need for assistance has been dispelled, any further police action must be justified under the Fourth Amendment and Article I, section 12 of the State Constitution” … .

​… [T]he People failed to establish … that the police intrusion in this matter was narrowly tailored to address the perceived need for assistance. Upon permissibly stopping the defendant’s vehicle, [Officer} Pavinski appropriately asked the defendant why he had flashed his lights and whether everything was okay. However, there is no evidence as to the defendant’s response to this inquiry. Without such evidence, and in light of [Officer} Spilotros’s testimony that the defendant did not appear to be in distress, the People have not demonstrated that the continued questioning of the defendant was an intrusion “commensurate with [any] perceived need for assistance” … . … [T]here is nothing in the record indicating that the officers had suspicions that the defendant was intoxicated until after they determined that he had lied about his birth date and asked him to exit the vehicle. People v Serrano, 2024 NY Slip Op 03833, Second Dept 7-17-24

Practice Point: The police can stop a vehicle if they believe the driver may be in distress (community caretaking function). But the subsequent questioning of the driver must address the perceived need for assistance and should stop once it is determined no assistance is required.

 

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RECORDS OF POLICE DISCIPLINARY PROCEEDINGS WHICH DID NOT RESULT IN DISCIPLINARY ACTION ARE PROPER SUBJECTS OF A FOIL REQUEST (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined records of police disciplinary proceedings which did not result in disciplinary action were a proper subject of petitioner’s FOIL request. The records had been denied on the ground disclosure would constitute an unwarranted invasion of personal property pursuant Public Officers Law 87(2)(b). Petitioner, who prevailed, was entitled to attorney’s fees:

… [C]ontrary to the respondents’ contention, the withheld records were not categorically exempt from disclosure. “[T]here is no categorical exemption from disclosure for unsubstantiated allegations or complaints of police misconduct” … . “Upon repealing Civil Rights Law § 50-a, the Legislature amended . . . Public Officers Law to specifically contemplate the disclosure of ‘law enforcement disciplinary records,’ which it defines to include ‘complaints, allegations, and charges against an employee'” … . “If the Legislature had intended to exclude from disclosure complaints and allegations that were not substantiated, it would simply have stated as much” … . “It did not, and instead included ‘complaints, allegations, and charges’ in its definition of disciplinary records, along with ‘the disposition of any disciplinary proceeding,’ without qualification as to the outcome of the proceeding” … .

Accordingly, disclosure of the withheld records was required unless those records “‘[fell] squarely within the ambit of one of [the] statutory exemptions … . Matter of New York Civ. Liberties Union v Village of Freeport, 2024 NY Slip Op 03824, Second Dept 7-17-24

Practice Point: Records of police disciplinary proceedings which did not result in disciplinary action are not exempt from a FOIL request.​

 

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THE CHILD DID NOT WANT PARENTAL ACCESS WITH FATHER; IT WAS AN ABUSE OF DISCRETION TO ORDER VISITATION WITH FATHER WITHOUT CONDUCTING AN IN CAMERA INTERVIEW OF THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined, under the circumstances of this case, it was an abuse of discretion to order father’s visitation with the child without an in camera interview of the child:

“Absent extraordinary circumstances, where visitation would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable visitation privileges” … . Although an appeal may be taken by the attorney for the child, “the child does not have full-party status and cannot veto a settlement reached by the parents and force a trial after the attorney for the child had a full [and] fair opportunity to be heard” … . However, “[t]he decision to conduct an in camera interview to determine the best interests of the child is within the discretion of the hearing court” … .

Under the circumstances of this case, the Family Court improvidently exercised its discretion in failing to conduct an in camera interview of the child, particularly given the child’s position, as stated by the attorney for the child, regarding his fear and hatred of the father, his expressed concerns about the father’s lifestyle, and his strong wishes not to have parental access with the father … . The record reflects that the child is of such an age and maturity that his preferences are necessary to create a sufficient record to determine what parental access would be in his best interests … . While the attorney for the child recounted the child’s objections on the record, in the absence of an in camera interview, the court did not have sufficient information to assess what parental access arrangement would be in the child’s best interests … . Matter of Dionis F. v Daniela Z., 2024 NY Slip Op 03822, Second Dept 7-17-24

Practice Point: Here the child objected to visitation with father. Visitation should not have been ordered without an in camera interview of the child.

 

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DISAGREEING WITH THE FIRST DEPARTMENT, THE SECOND DEPARTMENT HELD THAT DAMAGES FOR “PRE-IMPACT TERROR” ARE NOT APPROPRIATE IN A MED MAL CASE; HERE PLAINTIFF SUFFERED A HEART ATTACK IN 2008 AND DIED IN 2011 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in the med mal case, in a full-fledged opinion by Justice Maltese, determined the damages for “pre-impact terror” were not appropriate. Plaintiff suffered a heart attack in 2008 and died in 2011:

… [P]re-impact terror delineated as emotional pain and suffering as a separate item of damages is inappropriate in this medical malpractice and wrongful death action and would represent an inappropriate extension of the law with respect to this issue. Traditionally, damages for pre-impact terror have been awarded in cases involving motor vehicle accidents and other types of accidents … . Here, where the “impact” was the decedent’s heart attack, the damages for emotional pain and suffering cannot accurately be characterized as damages for pre-impact terror, because they were intended to compensate for the fear the decedent experienced after the heart attack occurred in January 2008 at Westchester Medical Center until his death more than three years later on October 27, 2011, at Yale-New Haven Hospital. Further, unlike a motor vehicle accident where the defendant driver causes the impact, the WMC defendants did not cause the decedent’s heart attack. To the extent that the Appellate Division, First Department, determined otherwise in Small v City of New York (213 AD3d 475), we decline to follow that decision. Molina v Goldberg, 2024 NY Slip Op 03818, Second Dept 7-17-24

Practice Point: Disagreeing with the First Department, the Second Department held damages for “pre-impact terror” are not appropriate in the med mal case.

 

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QUESTIONS OF FACT WHETHER DEFENDANT WAS AN OUT-OF-POSSESSION LANDLORD PRECLUDED SUMMARY JUDGMENT IN FAVOR OF THE LANDLORD IN THIS SLIP AND FALL CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this slip and fall case, determined there were questions of fact whether the landlord was an out-of-possession landlord:

“A property owner has a duty to maintain its premises in a reasonably safe condition” … . “That duty is premised on the landowner’s exercise of control over the property, as the person in possession and control of property is best able to identify and prevent any harm to others” … . “It has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property” … . “Thus, a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … .

… [D]efendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them on the ground that they were out-of-possession landlords. Although the defendants submitted a lease establishing that a tenant leased the entire office building and was responsible for the maintenance of vestibules and entrances, the defendants’ submissions also demonstrated that they maintained an office in the building and that, each work day, the defendants’ employee used the building entrance where the plaintiff’s slip and fall occurred. The defendants’ submissions further demonstrated that this employee would report any defects in the building to the building’s security, and the tenant would then remedy those defects. Under these circumstances, triable issues of fact exist as to the defendants’ control of the subject property and whether they were out-of-possession landlords … . Grullon v 57-115 Assoc., L.P., 2024 NY Slip Op 03811, Second Dept 7-17-24

Practice Point: Here, even though the lease made the tenant responsible for maintenance, the fact that the landlord had an office in the building raised a question of fact whether the landlord could escape liability for a slip and fall as an out-of-possession landlord.​

 

DEFENDANT PROPERTY-OWNER HAD ACTUAL KNOWLEDGE OF THE RECURRING RAINWATER LEAKS; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this slip and fall case:

… Karen Myers [was] the defendants’ supervisor caretaker assigned to the subject building. At her deposition, the plaintiff testified that, while walking in the hallway of the floor that she resided on, she slipped as a result of rainwater that had leaked into the building from an outside terrace. She also testified that during periods of rainfall, she had noticed water leaking into the hallway from underneath the terrace door on numerous occasions over the years she had resided in the building and had observed building employees mopping the area “a lot of times.” Myers testified that she had been aware of the recurring leak for at least one year prior to the plaintiff’s accident and that the only remedial measure taken by building employees in response was “spot mopping.” She conceded that the recurring leak caused a “slip and fall” “hazard,” which she expected employees to “mop up.” Based upon this testimony, the plaintiff “established as a matter of law that [the defendants] had actual knowledge of a recurring dangerous and defective condition and, therefore, could be charged with constructive knowledge of each specific recurrence of the condition, which was a proximate cause of the accident” … . Graham v New York City Hous. Auth., 2024 NY Slip Op 03810, Second Dept 7-17-24

Practice Point: A property-owner’s actual knowledge of a recurring dangerous condition which causes a slip and fall entitles plaintiff to summary judgment.

 

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THE DENTISTS’ FEE-SPLITTING AGREEMENT VIOLATED THE EDUCATION LAW; A COURT WILL NOT ENFORCE AN ILLEGAL CONTRACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint seeking to enforce an illegal contract should have been dismissed:

… [T]he plaintiff entered into an asset purchase agreement (hereinafter the APA) to sell certain assets of its dental practice to the defendant, a licensed dentist who retained his own separate practice. The APA specified a purchase price of $250,000. A portion of that amount was to be paid as a percentage of the monthly revenue generated by the plaintiff’s practice or, under certain conditions, a percentage of the revenue generated from a potential sale of the defendant’s separate practice. * * *

The defendant established his entitlement to dismissal of the causes of action alleging breach of contract and unjust enrichment pursuant to CPLR 3211(a)(7). As the defendant correctly contends, the APA constituted a voluntary prospective arrangement for the splitting of fees in violation of the Education Law because it required the defendant to pay the plaintiff a percentage of revenue generated by the plaintiff’s practice and, under certain conditions, the defendant’s own separate dental practice (see Education Law §§ 6509-a, 6530[19] …). “‘It is the settled law of this State (and probably of every other State) that a party to an illegal contract cannot ask a court of law to help him or her carry out his or her illegal object, nor can such a person plead or prove in any court a case in which he or she, as a basis for his or her claim, must show forth his or her illegal purpose'” … . “‘Where the parties’ arrangement is illegal the law will not extend its aid to either of the parties . . . or listen to their complaints against each other, but will leave them where their own acts have placed them'” … . Advanced Dental of Ardsley, PLLC v Brown, 2024 NY Slip Op 03804, Second Dept 7-17-24

Practice Point: A fee-splitting agreement between dentists violates the Education Law.

Practice Point: A court will not enforce an illegal contract.

 

IN 2017 PLAINTIFF MISSED A COURT-ORDERED DEADLINE FOR FILING A NOTE OF ISSUE; IN 2022 PLAINTIFF MADE A MOTION TO RESTORE THE ACTION TO THE ACTIVE CALENDAR; THE MOTION SHOULD HAVE BEEN GRANTED, RESTORATION IS AUTOMATIC UNDER THE CIRCUMSTANCES HERE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s 2022 motion to restore the action to the active calendar should have been granted without considering whether there is a reasonable excuse for the delay. In 2017, plaintiff had failed to meet a court-ordered deadline for filing a note of issue, but no 90-day notice had been served and there was no order dismissing the complaint pursuant to 22 NYCRR 202.27. In that circumstance restoration is automatic and there is no specific time frame for a motion to restore:

Pursuant to a compliance conference order dated April 5, 2017, the plaintiff was required to file a note of issue on or before December 8, 2017. The plaintiff did not file a note of issue by that date, and the action was marked “inactive.”

In November 2022, the plaintiff moved to restore the action to the active calendar. … Supreme Court denied the plaintiff’s motion without prejudice to renewal “upon proper papers,” including an affirmation detailing the reasons for the delay in moving for the relief requested. The plaintiff appeals from so much of the order as denied that branch of his motion which was to restore the action to the active calendar.

Where, as here, a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27 … .. Under these circumstances, a motion to restore the action to the calendar should be granted “without considering whether the plaintiff had a reasonable excuse for the delay or whether [he] engaged in dilatory conduct” … . “Moreover, since this action was pre-note of issue and could not properly be marked off the calendar pursuant to CPLR 3404, the plaintiff was not required to move to restore the action to the calendar within any specified time frame” … . Rosario v Scudieri, 2024 NY Slip Op 03769, Second Dept 7-10-24

Practice Point: If no 90-day notice has been served and there has been no dismissal pursuant to 22 NYCRR 202.27, restoration of an action to the active calendar is automatic, even five years beyond the court-ordered deadline for filing a note of issue.

 

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MOTHER BROUGHT A PETITION TO MODIFY CUSTODY AND ALLEGED SHE DID NOT CONSENT TO THE STIPULATION UNDERLYING THE EXISTING CUSTODY ORDER; BECAUSE THE STIPULATION WAS NOT IN THE RECORD AND ITS TERMS WERE NOT IN THE CUSTODY ORDER, A HEARING WAS REQUIRED (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing was required after mother alleged in her petition to modify custody she did not consent to the stipulation underlying the custody order. The stipulation was not part of the record and the custody order did not recount the terms of the agreement:

Pursuant to CPLR 2104, an agreement between parties is binding against them where, as here, it was reduced to the form of an order and entered. Since “settlement agreements must abide by the principles of contract law, ‘for an enforceable agreement to exist, all material terms must be set forth and there must be a manifestation of mutual assent'” … . CPLR 2104 does not require the parties or the court to place on the record an agreement between the parties that is reduced to an order. However, failing to do so makes the agreement open to collateral litigation … . Here, in light of the mother’s averment that she did not consent to the terms of the custody order, the fact that the terms of the settlement were not placed on the record, and the fact that there was no writing subscribed by the parties, there is an unresolved issue as to whether there was a manifestation of mutual assent to the terms set forth in the custody order. Matter of Izzo v Salzarulo, 2024 NY Slip Op 03751, Second Dept 7-11-24

Practice Point: If a custody order is based upon a stipulation which was not reduced to writing and the terms of the stipulation are not in the order, the order is subject to collateral litigation, here based on mother’s allegation she did not agree to the terms.

 

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EVIDENCE THE CHILD HAD RECANTED THE CHILD’S TESTIMONY THAT FATHER SEXUALLY ABUSED THE CHILD WAS VAGUE AND WAS NOT SUFFICIENT TO REBUT THE ABUSE FINDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the recantation evidence did rebut the prima facie evidence that father had sexually abused the child:

… [P]etitioner established by a preponderance of the evidence that the father sexually abused the child. The child’s testimony during the fact-finding hearing was consistent and detailed, and any minor inconsistencies “did not render such testimony unworthy of belief” … . The child’s testimony was sufficient to establish a finding of sexual abuse pursuant to Family Court Act § 1046(b)(i) … .

At the reopened fact-finding hearing, the mother of the father’s other children (hereinafter the witness) testified that the child recanted her allegations of abuse. The child did not testify at the reopened fact-finding hearing. “[A] child’s recantation of allegations of abuse does not necessarily require [the] Family Court to accept the later statements as true because it is accepted that such a reaction is common among abused children” … . “Rather, recantation of a party’s initial statement simply creates a credibility issue which the trial court must resolve” … . Here, even assuming that the witness’s testimony was credible, it was insufficient to warrant dismissal of the petition. The witness testified that she overheard the child telling other children that the child missed the father. After the witness confronted the child, the child told the witness that “she wished that she never lied . . . by saying that [the father] did those things.” The witness did not specify what “things” the child was referring to. During cross-examination, the witness testified that immediately after she asked the child “what did she mean by she lied,” the child indicated that “she never said that.” The witness also testified on cross-examination that she had previously confronted the child about the allegations against the father, and the child told the witness that “she was sure . . . that these things took place.” The alleged recantation as described by the witness was vague, and the witness’s testimony was insufficient to rebut the finding of abuse … . Matter of Kenyana D. (Kenneth D.), 2024 NY Slip Op 03746, Second Dept 7-10-24

Practice Point: Here the evidence the child had recanted the child’s testimony that father had abused the child was too vague to rebut the abuse finding.

 

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