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Two-Justice Dissent Argued Termination of Father’s Parental Rights Was Not In the Best Interests of the Child

The Second Department, over a two-justice dissent, determined father had abandoned the child and his parental rights were properly terminated. The dissent argued that, because of new facts revealed after the order appealed from was issued, and because the mother’s parental rights were not terminated, severing the child from his father was not in the child’s best interests:

FROM THE DISSENT

A petition to terminate parental rights on the ground of abandonment may be denied where, despite evidence that the parent abandoned the child during the six-month period prior to the filing of the petition, the record nevertheless demonstrates that termination would not be in the best interests of the child … . Here, my colleagues in the majority conclude that the father’s failure to take prompt action to assert paternity after the mother informed him that he might be the child’s father in the six months prior to the filing of the petition constituted abandonment. However, that finding does not mandate granting the petition to terminate parental rights where, as here, new facts arose after the filing of the petition, and after the issuance of the order appealed from, which demonstrate that termination of the father’s parental rights is not in the child’s best interests … . * * *

.[T]here are no facts in this record which indicate that a relationship between the child and his father will be harmful to the child … . * * * It appears from this record that terminating the father’s parental rights would serve no purpose other than to sever any potential ties between the child and his father and paternal kindred. Matter of Jake W.E. (Jonathan S.), 2015 NY Slip Op 07840, 2nd Dept 10-28-15

 

 

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Anti-Social Personality Disorder (ASPD) Alone Will Not Support Civil Commitment of Sex Offender

The Second Department noted that the diagnosis that a sex offender suffers from anti-social personality disorder (ASPD) is insufficient to justify civil commitment:

A diagnosis of anti-social personality disorder (hereinafter ASPD) “has so little relevance to the controlling legal criteria of Mental Hygiene Law § 10.03(i) that it cannot be relied upon to show mental abnormality for [Mental Hygiene Law] article 10 purposes” … . Since ASPD was the sole diagnosis underlying the jury’s finding that the appellant suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), the finding was not supported by legally sufficient evidence, and the petition must be dismissed … .  Matter of State of New York v Odell A., 2015 NY Slip Op 07851, 2nd Dept 10-28-15

 

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No Special Duty Owed by School District to Adult Employees

The Second Department affirmed the grant of summary judgment to defendant school district in a suit brought by a school bus driver injured by a student. Although the district owes a special duty to students, no such duty is owed to adult employees:

“Liability for a claim that a municipality negligently exercised a governmental function turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public'” … . While a school district owes a special duty to its students to adequately supervise them to prevent foreseeable injuries to fellow students, that duty does not extend to adults … . Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it did not owe the injured plaintiff a special duty … . Guerrieri v New York City Dept./Bd. of Educ., 2015 NY Slip Op 07816, 2nd Dept 10-28-15

 

Children’s Remaining in Foster Care Until Father’s Release from Prison Was Not a Sufficient Plan for the Children’s Future, Permanent Neglect Finding Proper

The Second Department determined a permanent neglect finding was proper. Children’s remaining in foster care until father’s release from prison was not a sufficient plan for the children’s future:

A parent’s incarceration does not obviate the obligation to develop a “realistic and feasible” plan for the children’s future … . A plan for children to remain in foster care throughout a parent’s incarceration and for a period of time thereafter as necessary to establish suitable living arrangements for the children is not a viable plan to secure permanency for the children … . Thus, “[t]he failure of an incarcerated parent to provide any realistic and feasible’ alternative to having the children remain in foster care until the parent’s release from prison . . . supports a finding of permanent neglect” … .

Here, the father failed to provide any feasible plan for the subject children other than continued foster care until after he was released from prison and had time to “get on [his] feet.” Accordingly, despite the petitioner’s diligent efforts to encourage and strengthen the parental relationship, the father failed to adequately plan for the children’s future, and the Family Court’s finding of permanent neglect was supported by clear and convincing evidence … . Matter of Jenna K. (Jeremy K.), 2015 NY Slip Op 07843, 2nd Dept 10-28-15

 

Identically Worded Misbehavior Reports Re: Different Inmates Were Inherently Incredible

The Second Department determined the inmate’s disciplinary determination must be annulled. Identically worded reports, concerning different inmates, signed by at least three different reporting officers, were “inherently incredible:”

The misbehavior report in this case was in the form of a first-person narrative, which provided a number of factual details about the reporting officer as well as the petitioner, including the direction from which the officer arrived at the scene, the exact location from which the officer first observed the disturbance, his personal observation of the petitioner “yelling and shouting,” the officer’s inability to hear the petitioner’s exact words, and the number of direct orders the officer gave the petitioner.

Ordinarily, such a particularized statement would be sufficiently relevant and probative to constitute substantial evidence supporting the determination … . Here, however, the petitioner successfully challenged the reliability of the report by showing that identically worded reports (except for the name and identifying information of the subject inmate) were signed by at least three different reporting officers.

While it is entirely plausible that several inmates, in the course of a disturbance, may have engaged in substantially similar misbehavior, we find it inherently incredible that several officers could have experienced the same particularized encounter with a number of different inmates. We further note that the hearing officer twice precluded the petitioner from asking the reporting officer whether he had actually written the unsworn report. Matter of Jackson v Annucci, 2015 NY Slip Op 07842, 2nd Dept 10-28-15

 

Church Had No Special Relationship With Plaintiff, Church Had No Authority to Exercise Control Over Conduct of Man Who Injured Plaintiff/Therefore Church Did Not Owe Plaintiff a Duty of Care

The Second Department determined the defendant church was properly granted summary judgment in a case stemming from an altercation between, Edward,  the husband of a church employee (Rhonda), and plaintiff, a pedestrian on a public sidewalk (presumably outside the church). It was alleged that Rhonda encouraged and facilitated an assault on plaintiff by Edward. The respondeat superior cause of action was properly dismissed because Rhonda was not acting within the scope of her employment during the altercation. And the negligence cause of action was properly dismissed because there was no special relationship between the church and the plaintiff, and, therefore, the church did not owe plaintiff a duty of care:

” For a defendant to be held liable in tort, it must have owed the injured party a duty of care'” … . “The existence and extent of a duty is a question of law” … .

“Generally, there is no duty to control the conduct of third persons to prevent them from causing injury to others,’ even where, as a practical matter, the defendant could have exercised such control … . A duty to control the conduct of others requires a special relationship: “a relationship between defendant and a third person whose actions expose plaintiff to harm such as would require the defendant to attempt to control the third person’s conduct; or a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others” … .

Here, the church made a prima facie showing of its entitlement to judgment as a matter of law dismissing the cause of action alleging negligence, insofar as asserted against it, by establishing that owed no duty to the plaintiff. Its submissions demonstrated that it had no relationship with the plaintiff, who was a pedestrian on a public sidewalk … . Further, the church established that it did not have the necessary authority or ability to exercise the requisite control over Edward’s conduct so as to give rise to a duty to control his conduct for the protection of off-premises pedestrians … . Rodriguez v Judge, 2015 NY Slip Op 07828, 2nd Dept 10-28-15

 

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Courts’ Limited Review Powers Re: an Administrative Determination Made After a Hearing Clearly Explained

In reversing Supreme Court’s annulment of the fire district board’s determination petitioner was not entitled to benefits pursuant to Municipal law 207-a (2), the Second Department explained the courts’ review powers in this context:

“Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence” … .  “Substantial evidence means more than a mere scintilla of evidence,’ and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides” … . “When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'” … . “Moreover, where there is conflicting expert testimony, in making a General Municipal Law § 207-a determination, a municipality is free to credit one physician’s testimony over that of another'” … . “Thus, even if conflicting medical evidence can be found in the record,’ the municipality’s determination, based on its own expert’s conclusions, may still be supported by substantial evidence” … . Matter of Delgrande v Greenville Fire Dist., 2015 NY Slip Op 07838, 2nd Dept 10-28-15

 

Criteria for Property Owner’s Liability for an Assault by an Intoxicated Guest Explained

The Second Department noted that the owners of property were not liable for injuries stemming an assault by an intoxicated guest at a party hosted by the property owners’ daughter.  The property owners demonstrated they were out of town when the party was held and did not know their daughter held such parties:

Under a theory of common-law negligence, a landowner may have responsibility for injuries caused by an intoxicated guest …, although liability may be imposed only for injuries that occurred on a defendant’s property, or in an area under the defendant’s control, where the defendant had the opportunity to supervise the intoxicated guest and was reasonably aware of the need for such control … . “Without the requisite awareness [of the risk or threat], there is no duty” … .

Here, the appellants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging common-law negligence insofar as asserted against them. The evidence submitted in support of the appellants’ motion demonstrated that they were out of town when the party took place at their home, that they had not authorized their daughter Monica to have a party, and that they were unaware of its occurrence. Moreover, the evidence demonstrated that they had no knowledge that, prior to the subject party, their daughter had thrown any parties while they were out of town at which individuals under the age of 21 were drinking alcohol. Thus, the appellants had no opportunity to control [the assailant’s] conduct, nor were they aware of the necessity therefor, both of which are prerequisites to imposing liability upon a landowner in these circumstances … . Heyman v Harooni, 2015 NY Slip Op 07818, 2nd Dept 10-28-15

 

Plaintiff’s Own Negligence Broke Any Causal Chain Between Defendant’s Negligence and Plaintiff’s Injury

The Second Department determined that, under the facts, proximate cause could be determined as a matter of law and plaintiff’s negligence was the superseding cause of his injury. When plaintiff was unable to access second floor offices defendant suggested that plaintiff go to the third floor and drop down to the second floor balcony. Plaintiff was injured doing so. The court held that plaintiff’s own negligence broke any causal chain between the defendant’s negligence and the injury:

“Generally, it is for the trier of fact to determine the issue of proximate cause” … . “However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” … .

Here, the evidence submitted by the … defendants in support of their motion established, prima facie, that the sole proximate cause of the accident was the injured plaintiff’s negligence in dropping himself down from the third floor balcony to the terrace on the second floor. Even assuming the truth of the plaintiffs’ allegations that the … defendants were negligent and that [a defendant] suggested that the injured plaintiff try to gain entry to the second floor offices by climbing down from the third floor balcony, the injured plaintiff’s reckless act of dropping down from a balcony to a terrace on the floor below broke any causal chain stemming from the Han defendants’ alleged negligence, and was itself the superseding cause of the injured plaintiff’s harm … . Sang Woon Lee v Il Mook Choi, 2015 NY Slip Op 07829, 2nd Dept 10-28-15

 

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Failure to Turn Over Impeachment Evidence Re: a Central Prosecution Witness Required Vacation of the Conviction

The Second Department determined County Court properly vacated defendant’s conviction.  The case against the defendant relied entirely on a statement taken by Detective Tavares.  The prosecution did not turn over to the defense evidence alleging Detective Tavares had procured a false confession (leading to a federal lawsuit):

The People have an obligation to disclose exculpatory evidence in their possession that is favorable to the defendant and material to his or her guilt or innocence … . “The prosecutor’s duty to exchange Brady material extends to the disclosure of evidence that can be used to impeach the credibility of a witness for the People whose testimony may be determinative of the defendant’s guilt” … . In order to establish a Brady violation, a defendant must prove: (1) the evidence at issue is favorable to him or her, (2) the evidence was suppressed by the prosecution, either willfully or inadvertently, and (3) prejudice arose because the suppressed evidence was material … .

Here, the crucial evidence against the defendant at trial was his statement admitting to the shooting, taken by Detective Ronald Tavares. There was no physical evidence connecting the defendant to the crime, and the eyewitnesses could not identify him. Given the importance of Detective Tavares’ testimony in establishing the defendant’s guilt, the Supreme Court properly determined that evidence concerning allegations that he had procured a false confession in an unrelated matter involving two police officers, which led to an internal affairs investigation of those officers and a federal lawsuit against, among others, Detective Tavares, was favorable to the defense and material … . The evidence was responsive to a defense demand and there is a reasonable possibility that the outcome of the trial would have differed had the evidence been produced … . Furthermore, the defendant sufficiently established that the prosecutor had actual knowledge of the allegations against Detective Tavares and the related investigation in the unrelated matter … . People v Hubbard, 2015 NY Slip Op 07858, 2nd Dept 10-28-15

 

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