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LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE.

The Second Department determined the lessee of property abutting a sidewalk and the city (NYC) were entitled to summary judgment in this slip and fall case. The city argued it did not have prior written notice of the hole in the sidewalk. The lessee, El Fuerte, argued it did not create the dangerous condition, did not violate any statute or ordinance, and the lease imposed no duty to repair the sidewalk. With regard to the liability of the abutting property owner, the court noted that, although a curb cut and pedestrian ramp leading from a sidewalk to the street are not the responsibility of the abutting property owner, the defect here was not in the curb cut or ramp:

… [A] lessee of property which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty … . * * * … [A] provision of a lease which obligates a tenant to repair a sidewalk does not impose on the tenant a duty to a third party, such as the plaintiff. Martin v Rizzatti, 2016 NY Slip Op 05797, 2nd Dept 8-17-16

NEGLIGENCE (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/MUNICIPAL LAW (SIDEWALK SLIP AND FALL, LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/LANDLORD-TENANT (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/SIDEWALKS (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/SLIP AND FALL (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)

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INVESTIGATION OF CHILD ABUSE IS A DISCRETIONARY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION.

The Second Department determined the City of New York was immune from a suit alleging the negligent investigation of child abuse, leading to the child’s death two years later. The court also noted that New York does not recognize a cause of action for negligent investigation or prosecution:

… [T]he defendants contended and established that they engaged in discretionary conduct in investigating the report of abuse in 2003, and thus cannot be held liable for the manner in which the investigation was performed under the doctrine of governmental immunity … . A government’s performance of a governmental function, when discretionary in nature, cannot result in liability .. . Discretionary acts “involve the exercise of reasoned judgment which could typically produce different acceptable results” … . The defendants demonstrated that the subject investigation consisted of a series of discretionary acts … , and that this was not a situation in which no discretion or judgment was exercised. In any event, the defendants also demonstrated their prima facie entitlement to judgment as a matter of law by establishing that New York does not recognize a cause of action sounding in negligent investigation or negligent prosecution … . Hines v City of New York, 2016 NY Slip Op 05794, 2nd Dept 8-17-16

NEGLIGENCE (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/MUNICIPAL LAW (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/GOVERNMENTAL IMMUNITY (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/CHILD ABUSE (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/NEGLIGENT INVESTIGATION OF CHILD ABUSE (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)

CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT DID NOT COMPLY WITH THE CHILD SUPPORT STANDARDS ACT, PROVISIONS SHOULD HAVE BEEN VACATED.

The Second Department, reversing Supreme Court, determined the child support provisions of a stipulation of settlement (divorce) should have been vacated because the provisions did not comply with the Child Support Standards Act (CSSA):

Domestic Relations Law § 240(1-b)(h) requires a stipulation of settlement providing for a parent’s obligation to pay basic child support to contain recitals that the parties were advised of the CSSA and “that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded.” In the event that the stipulation of settlement deviates from the basic child support obligation provided for in the CSSA, the stipulation must also “specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount” (Domestic Relations Law § 240[1-b][h]). Child support provisions in stipulations or agreements that do not contain these recitals are invalid and unenforceable … .

Here, the child support provision in the parties’ stipulation of settlement did not include a calculation of basic child support pursuant to the CSSA or a recital that such calculation would result in the presumptively correct amount of child support … . In addition, that provision makes no distinction between the defendant’s obligation to pay basic child support and his obligation to pay other support for the child not required by statute, such as the child’s college tuition and other expenses incurred by the child after his 21st birthday. Young v Young, 2016 NY Slip Op 05809, 2nd Dept 8-17-16

 

FAMILY LAW (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT DID NOT COMPLY WITH THE CHILD SUPPORT STANDARDS ACT, PROVISIONS SHOULD HAVE BEEN VACATED)/CHILD SUPPORT STANDARDS ACT (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT DID NOT COMPLY WITH THE CHILD SUPPORT STANDARDS ACT, PROVISIONS SHOULD HAVE BEEN VACATED)

PROVISIONS OF POLICY MANUAL DID NOT CONSTITUTE ENFORCEABLE OBLIGATIONS.

The Second Department, reversing Supreme Court, determined defendants’ summary judgment motion should have been granted. Plaintiff employee’s argued they were entitled to severance pay in accordance a policy manual. Policy manuals which can be amended or withdrawn unilaterally do not obligate the employer unless there is a regular practice and reliance:

Provisions contained in company policy manuals which, like the one in this case, can be amended or withdrawn unilaterally, do not constitute enforceable obligations owing from an employer to its employees absent a showing of a regular practice by the employer to provide the benefits now claimed, the employee’s knowledge of the practice, and his or her reliance upon such practice as evidenced by accepting or continuing employment as a result thereof … . Cohen v National Grid USA, 2016 NY Slip Op 05786, 1st Dept 8-17-16

EMPLOYMENT LAW (PROVISIONS OF POLICY MANUAL DID NOT CONSTITUTE ENFORCEABLE OBLIGATIONS)/POLICY MANUAL (EMPLOYMENT LAW, PROVISIONS OF POLICY MANUAL DID NOT CONSTITUTE ENFORCEABLE OBLIGATIONS)

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TEACHER’S PETITION TO REVIEW DEPARTMENT OF EDUCATION’S JOB PERFORMANCE RATING SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION, CRITERIA EXPLAINED.

The Second Department determined Supreme Court should not have dismissed the teacher’s Article 78 petition seeking review of the NYC Department of Education’s (DOE’s) job performance rating. The court explained the review criteria in the context of a motion to dismiss the petition for failure to state a cause of action:

“On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7), all of the allegations in the petition are deemed true and the petitioner is afforded the benefit of every favorable inference” … . In determining such a motion, the sole criterion is whether the petition sets forth allegations [*2]sufficient to make out a claim that the determination sought to be reviewed was ” made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” … . When evidentiary material outside the pleading’s four corners is considered, and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one and, unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate … .

Applying this standard, the petition and the documents annexed to it establish a cognizable claim that the respondents’ determination was made in violation of lawful procedure, or was arbitrary and capricious or an abuse of discretion. Contrary to the respondents’ contention, the petitioner’s claim is not a mere disagreement as to whether the rating of “unsatisfactory” was deserved. Rather, as set forth in the petition, the petitioner alleges that the process used by the respondents in arriving at the rating was based on a failure to observe her entire class lesson, faulty background knowledge, and unlawful procedure. Matter of Kunik v New York City Dept. of Educ., 2016 NY Slip Op 05812, 2nd Dept 8-17-16

 

EDUCATION-SCHOOL LAW (TEACHER’S PETITION TO REVIEW DEPARTMENT OF EDUCATION’S JOB PERFORMANCE RATING SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION, CRITERIA EXPLAINED)/CIVIL PROCEDURE (TEACHER’S PETITION TO REVIEW DEPARTMENT OF EDUCATION’S JOB PERFORMANCE RATING SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION, CRITERIA EXPLAINED)/TEACHERS (TEACHER’S PETITION TO REVIEW DEPARTMENT OF EDUCATION’S JOB PERFORMANCE RATING SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION, CRITERIA EXPLAINED)

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FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL.

The Second Department, after finding the court’s allowing the wearing of T-shirts memorializing the murder victim and three (unpreserved) instances of prosecutorial misconduct harmless individually, the cumulative effect of the “harmless” errors was deemed sufficient to reversed defendant’s conviction:

On the second day of trial, defense counsel advised the Supreme Court that “quite a few members of the deceased’s family are present in the court, they are all wearing T-shirts with his photograph on it, displayed in a fairly prominent position on the front of their T-shirts.” Defense counsel requested that the court instruct the spectators to remove the T-shirts or turn them inside out. After asking the members of the audience to stand up for a moment so as to view the T-shirts, the court stated that there was no basis to limit their right to wear items or make a statement since they had a First Amendment right to do so. The court also stated: “It should be noted that the Court, in viewing the audience, saw nothing outstanding other than T-shirts with some pictures and some words. One of the picture[s] may be of the [victim], I can’t tell from this distance. But, at any rate, that’s my ruling for the record, over counsel’s objection.” * * *

The prosecutor improperly appealed to the jury’s sympathy by eliciting testimony from the victim’s mother that the victim’s wife was expecting a child and expressing sympathy for her loss … . * * *

That error was compounded when, during summation, the prosecutor improperly appealed to the jury’s sympathy by commenting that when the victim left his house on the night in question, he had no idea that he was “never going to see his family again” and “never going to be able to see his girlfriend again,” and stating that it was a “tragedy” that his “24-year-old life was taken away by this man here (indicating), [the defendant]” … . The prosecutor committed misconduct of a different sort during summation when, while playing a surveillance video introduced into evidence at trial, she identified certain barely visible figures on the screen as the victim and the defendant. Throughout the course of these comments, the Supreme Court repeatedly instructed the jury that it alone should assess the video and not rely on the prosecutor’s comments, but the prosecutor persisted in her characterization of the figures on the screen.  People v Holiday, 2016 NY Slip Op 05816, 2nd Dept 8-17-16

CRIMINAL LAW (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/ATTORNEYS (CRIMINAL LAW, FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/PROSECUTORIAL MISCONDUCT (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/HARMLESS ERROR (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/CUMULATIVE EFFECT OF INDIVIDUAL ERRORS (CRIMINAL LAW, (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)

PREJUDGMENT INTEREST NEED NOT BE PAID INTO THE COURT PURSUANT TO CPLR 2601 WHEN SUCH A PAYMENT IS MADE TO STOP THE ACCRUAL OF INTEREST.

The Second Department, reversing Supreme Court, determined defendant need not pay prejudgment interest when it paid the policy limits into the court pursuant to CPLR 2601 to stop the accrual of interest on that amount:

In this action to recover damages for medical malpractice, after a jury trial, a judgment was entered in favor of the plaintiffs and against, among others, the defendant New York Methodist Hospital (hereinafter NYMH) in the total present value sum of $13,815,290. In an order dated September 24, 2014, the Supreme Court granted NYMH’s motion pursuant to CPLR 2601, inter alia, for leave to pay the limits of its insurance policy, $7,500,000, into court in order to stop the accrual of interest on that amount. * * *

… CPLR 2601 does not mandate that any specific amount of money be paid into court or require that interest on the amount to be paid into court from the date of the verdict to the date of deposit be paid at or around the time of deposit. Therefore, NYMH was not required to pay into court an additional $619,520.55, which represented the accrued interest from the date of the verdict to the date of deposit. Accordingly, the order must be reversed. Sence v Atoynatan, 2016 NY Slip Op 05804, 2nd Dept 8-17-16

 

CIVIL PROCEDURE (PREJUDGMENT INTEREST NEED NOT BE PAID INTO THE COURT PURSUANT TO CPLR 2601 WHEN SUCH A PAYMENT IS MADE TO STOP THE ACCRUAL OF INTEREST)/PREJUDGMENT INTEREST (PREJUDGMENT INTEREST NEED NOT BE PAID INTO THE COURT PURSUANT TO CPLR 2601 WHEN SUCH A PAYMENT IS MADE TO STOP THE ACCRUAL OF INTEREST)/INTEREST (PREJUDGMENT INTEREST NEED NOT BE PAID INTO THE COURT PURSUANT TO CPLR 2601 WHEN SUCH A PAYMENT IS MADE TO STOP THE ACCRUAL OF INTEREST)

EVEN IF ANIMAL SHELTER FAILED TO INFORM PLAINTIFF OF THE DOG’S VICIOUS PROPENSITIES, THAT FAILURE WAS NOT THE PROXIMATE CAUSE OF THE DOG BITE; PLAINTIFF HAD AMPLE OPPORTUNITY TO OBSERVE THE VICIOUS PROPENSITIES PRIOR TO THE BITE.

The Second Department, reversing Supreme Court, determined defendant animal shelter could not be held liable for a dog bite, even if the shelter breached its duty to inform plaintiff, who adopted the dog, of the dog’s vicious propensities. The plaintiff observed the dog’s vicious propensities after bringing the dog home. Therefore, the animal shelter’s breach was not the proximate cause of the bite:

“For [two hundred] years … , the law of this state has been that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” … . “If such animal be delivered [by the owner] to another, he [or she] must inform such person of the animal’s vicious characteristics, so far as known, or ascertainable by the exercise of reasonable care. If such information be given, or the person to whom the animal is delivered knows, or before injury ascertains, the vicious character of the animal, the owner is not liable” … . The rationale for such rule is self-evident—informing a person who takes possession of an animal about the animal’s vicious propensities allows that person to take precautionary measures to protect himself or herself and others from harm caused by that animal’s vicious propensities.

Here, even if the defendant breached its duty to disclose the dog’s vicious propensities known to it, or “ascertainable by the exercise of reasonable care” at the time of the plaintiff’s adoption … , by failing to inform the plaintiff that the dog had previously bitten someone in the face, any such breach was not a proximate cause of the plaintiff’s injuries. The dog’s displays of aggressive behavior during the three and a half months the plaintiff owned it, and the fact that it first bit the plaintiff on July 13, 2012, gave the plaintiff sufficient knowledge of the dog’s vicious propensities before she was bitten again on September 3, 2012 … . Tighe v North Shore Animal League Am., 2016 NY Slip Op 05807, 2nd Dept 8-17-16

 

ANIMAL LAW (EVEN IF ANIMAL SHELTER FAILED TO INFORM PLAINTIFF OF THE DOG’S VICIOUS PROPENSITIES, THAT FAILURE WAS NOT THE PROXIMATE CAUSE OF THE DOG BITE; PLAINTIFF HAD AMPLE OPPORTUNITY TO OBSERVE THE VICIOUS PROPENSITIES PRIOR TO THE BITE)/DOG BITE (EVEN IF ANIMAL SHELTER FAILED TO INFORM PLAINTIFF OF THE DOG’S VICIOUS PROPENSITIES, THAT FAILURE WAS NOT THE PROXIMATE CAUSE OF THE DOG BITE; PLAINTIFF HAD AMPLE OPPORTUNITY TO OBSERVE THE VICIOUS PROPENSITIES PRIOR TO THE BITE)

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LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL.

The Second Department determined the jury was properly instructed to consider a tenant’s liability for a sidewalk slip and fall based upon the terms of the lease:

… [T]he Supreme Court properly submitted the issue of the tenant’s negligence to the jury. “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” … . Generally, the “provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party, such as the plaintiff” … . However, where a lease agreement is “so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk,” the tenant may be liable to a third party … . Here, the owner demonstrated that a rider to the subject lease requiring the tenant to, at its own cost and expense, keep and maintain the sidewalk “in thorough repair and good order,” was so comprehensive and exclusive as to entirely displace the owner’s duty to maintain the sidewalk … . Paperman v 2281 86th St. Corp., 2016 NY Slip Op 05747, 2nd Dept 8-10-16

NEGLIGENCE (SLIP AND FALL, LANDLORD-TENANT, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)/SLIP AND FALL (LANDLORD-TENANT, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)/SIDEWALKS (SLIP AND FALL, LANDLORD-TENANT, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)

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ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS.

The Second Department determined mother’s custody petition should not have dismissed. Although mother was presumptively entitled to custody as the sole surviving parent, she was seeking findngs which would allow the children to apply for special immigrant juvenile status (SIJS):

SIJS is a form of immigration relief that affords undocumented children a pathway to lawful permanent residency and citizenship … . 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, is unmarried, and has been legally committed to, or placed under the custody of, 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 native country or country of last habitual residence … . “Only once a state juvenile court has issued this factual predicate order may the child, or someone acting on his or her behalf, petition the United States Citizenship and Immigration Services [hereinafter USCIS] for SIJS” … . Ultimately, the determination of whether to grant SIJS to a particular juvenile rests with USCIS and its parent agency, the Department of Homeland Security. Thus, when making the requisite SIJS findings, the state or juvenile court is not actually “rendering an immigration determination” … . * * *

Here, although the mother was presumptively entitled to custody of the children as their surviving parent … , “[a] natural parent has standing to seek legal custody of his or her child” … , and “[u]nopposed petitions for custody brought by a natural parent have been granted” for SIJS purposes … .

Accordingly, the Family Court should not have dismissed the custody petition without conducting a hearing and considering the children’s best interests. Instead, the court should have proceeded to conduct a hearing on the petition, which sought a custody order as well as an order making the requisite declaration and special findings so as to enable the children to petition for SIJS … . Matter of Castellanos v Recarte, 2016 NY Slip Op 05755, 2nd Dept 8-10-16

 

FAMILY LAW (ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/IMMIGRATION LAW (ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/SPECIAL IMMIGRANT JUVENILE STATUS (ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)

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