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PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE ALLEGED DEFENDANT DRIVER WAS DEFENDANT COMPANY’S EMPLOYEE AND WAS ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE TIME OF THE ACCIDENT; DEFENDANT COMPANY FAILED TO DEMONSTRATE THE DRIVER WAS AN INDEPENDENT CONTRACTOR, NOT AN EMPLOYEE; THE FACT THAT THE EMPLOYMENT CONTRACT USES THE TERM “INDEPENDENT CONTRACTOR” IS NOT DISPOSITIVE OF THE ISSUE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant employer in this traffic accident case did not demonstrate the defendant driver was an independent contractor as opposed to an employee acting within the scope of employment:

… [Plaintiff] allegedly was injured when a vehicle he was operating collided with a vehicle owned and operated by the defendant Luis F. Leal. * * * The plaintiffs alleged … that Leal was [defendant] Publishers’ employee, and that Leal was acting within the scope of his employment at the time of the accident. …

“The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his [or her] servant within the scope of employment. Conversely, the general rule is that an employer who hires an independent contractor is not liable for the independent contractor’s negligent acts” … . “[T]he critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results” … . “Factors relevant to assessing control include whether the worker (1) worked at his [or her] own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll and (5) was on a fixed schedule” … . “The fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive” … . Whether an actor is an independent contractor or an employee is usually a factual issue for a jury … . Brielmeier v Leal, 2024 NY Slip Op 02163, Second Dept 4-24-24

Practice Point: An employer may be responsible for the negligence of an employee, but is not responsible for the negligence of an independent contractor. The fact that the employment contract uses the term “independent contractor” is not dispositive. The relevant criteria are explained.

 

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CHARTER SCHOOLS ARE NOT SUBJECT TO THE NOTICE OF CLAIM REQUIREMENTS IN THE EDUCATION LAW AND GENERAL MUNICIPAL LAW; PLAINTIFF-STUDENT, WHO HAD BEEN BULLIED AND WAS PUSHED TO THE FLOOR BY ANOTHER STUDENT, RAISED QUESTIONS OF FACT SUPPORTING THE NEGLIGENT SUPERVISION CAUSE OF ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Iannacci, determined (1) charter schools are not subject to the notice of claim requirements of the Education Law and the General Municipal Law, and (2) plaintiff student, who allegedly had been bullied and was pushed to the floor by another student when the hallway was unsupervised, raised questions of fact supporting the negligent supervision cause of action:

Since charter schools are independent from school districts with respect to civil liability, financial obligations, and liability insurance coverage, it stands to reason that the extraordinary safeguards of prelitigation notification of claims applicable to school districts, municipalities and other wholly public entities would not apply to charter schools. * * *

The evidence presented triable issues of fact as to whether there were monitors present in the hallway at the time of the incident as required by the School’s policies and procedures and whether the presence of such monitors could have prevented the alleged pushing incident … . A. P. v John W. Lavelle Preparatory Charter Sch., 2024 NY Slip Op 02205, Second Dept 4-24-24

Practice Point: Charter schools are not subject to the notice-of-claim requirement in the Education Law and General Municipal Law; i.e., a plaintiff suing a charter school for negligence need not file or serve a notice of claim as a condition precedent.

 

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WHERE ALLEGATIONS IN A PETITION TO MODIFY CUSTODY ARE CONTROVERTED, THE PETITION SHOULD NOT BE RULED UPON WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing should have been held in this modification of parental access proceeding. Family Court granted father’s petition without a hearing, despite the parties’ controverted allegations:

“Although [a] parent seeking a change of custody is not automatically entitled to a hearing, custody determinations should [g]enerally be made only after a full and plenary hearing and inquiry” … . “‘This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child'” … . “Accordingly, [w]hen the allegations of fact in a petition to change custody are controverted, the court must, as a general rule, hold a full hearing” … .

Here, the Family Court erred in granting the father’s modification petition to the extent of awarding him certain parental access without a hearing and without inquiring into the best interests of the children, especially in light of the parties’ controverted allegations … . Matter of Valedon v Naqvi, 2024 NY Slip Op 02059, Second Dept 4-17-24

Practice Point: As a general rule, controverted allegations in a petition to modify custody require a hearing.

 

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BECAUSE A CONTEMPORARY REPORT PROVIDED THE CITY WITH NOTICE OF THE NATURE OF THE SLIP AND FALL, THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DESPITE THE LACK OF A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim in this slip and fall case should have been granted. The line-of-duty report provided the city with timely knowledge of the nature of the claim and demonstrate the city would not be prejudiced by the delay in filing the notice. Where a defendant has timely knowledge of the incident, the lack of a reasonable explanation for failing to timely file is often overlooked:

The line-of-duty injury report’s specificity regarding the location and circumstances of the incident, permitted the City to readily infer that a potentially actionable wrong had been committed … .

Further, as the petitioner has shown the City’s actual knowledge of the essential facts underlying the claim, the petitioner’s failure to provide a reasonable excuse for the delay in serving the notice of claim was not fatal to her claim … .

… [A]s the City acquired timely knowledge of the essential facts constituting the claim, the petitioner met her initial burden of showing that the City would not be prejudiced by the late notice of claim … . In response …, the City has failed to provide particularized evidence establishing that the late notice substantially prejudiced its ability to defend the claim on the merits … . Matter of Steward v City of New York, 2024 NY Slip Op 02058, Second Dept 4-17-24

Practice Point: If the municipal defendant has timely notice of the nature of the incident (here by virtue of a contemporary report) and the city cannot demonstrate prejudice, a petition for leave to file a late notice of claim should be granted, even in the absence of a reasonable excuse for failing to timely file.

 

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THE SECOND DEPARTMENT JOINED THE FIRST AND THIRD DEPARTMENTS IN HOLDING THAT THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT APPLIES TO A NEW YORK RESIDENT WHO WAS ABUSED OUT-OF-STATE (SECOND DEPT).

The Second Department, joining the First and Third Departments, determined an action brought under the Child Victims Act by a person who was a resident of New York at the time the cause of action accrued can take advantage of the extended statute of limitations (CPLR 214-g) even where the wrongful conduct occurred out-of-state:

The plaintiff alleges that, when he was a resident of New York, he was the victim of childhood sexual abuse committed against him by Philip Foglietta, a football coach, while attending summer football camp in Vermont in 1972 and in Massachusetts in 1973 and 1975. * * *

… [W]e agree with the Appellate Division, First and Third Departments, that a plaintiff’s residence in New York at the time his or her claims or causes of action accrued is sufficient to bring those claims or causes of action within the purview of CPLR 214-g, even where, as here, the wrongful conduct underlying the New York resident’s causes of action occurred out-of-state … . * * *

The appellants’ focus on the location of the alleged wrongdoing is misplaced in this context, because the subject of CPLR 214-g is not the wrongful conduct itself, but rather the statute of limitations or notice of claim requirements that barred some New Yorkers from recovering damages for the underlying wrongdoing. CPLR 214-g did not criminalize or penalize behavior that was previously lawful, nor did it create a new private right of action. Rather, the statute revived prior claims or causes of action that already existed but were barred either because of the expiration of the applicable statute of limitations or the plaintiff’s failure to file a timely notice of claim (see id. § 214-g). Smith v Pro Camps, Ltd., 2024 NY Slip Op 02074, Second Dept 4-17-24

Practice Point: The Child Victims Act extends the statute of limitations for a plaintiff who was a New York resident at the time the cause of action accrued, even if the abuse took place in another state.

 

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A FORUM SELECTION CLAUSE IN AN INSURANCE POLICY WHICH VIOLATES NEW YORK LAW IS NOT ENFORCEABLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, determined that the forum selection clause in an insurance policy which violates New York law is not enforceable. The opinion is comprehensive and discusses several substantive civil procedure, contract law, corporation law, insurance law, workers’ compensation law and public policy issues which cannot fairly be summarized here:

This action is just one of many such actions commenced across the country alleging that the defendant Applied Underwriters, Inc. (hereinafter Applied Underwriters), and affiliated entities, all subsidiaries of Berkshire Hathaway, Inc., deceptively circumvented state laws and regulations in the marketing and sale of an unlawful workers’ compensation insurance program. Here, the defendants seek to enforce a forum selection clause, in favor of Nebraska, contained in an insurance policy that New York State regulators have found violates New York law. While parties are generally free to select a forum in which to resolve their contractual disputes, here, where it is alleged by the plaintiff, and found by New York State regulators, that New York law has been violated, a foreign corporation may not profit from such violation to the detriment of New York employers and workers. The forum selection clause contained in an illegal insurance policy is not enforceable. As a matter of public policy, New York companies shall not be compelled to litigate in Nebraska to vindicate their rights. Air-Sea Packing Group, Inc. v Applied Underwriters, Inc., 2024 NY Slip Op 02032, Second Dept 4-17-24

Practice Point: A forum selection clause (designating Nebraska as the forum) in an insurance policy which violates New York law is not enforceable.

 

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ALTHOUGH ARTICLE 3 OF THE FAMILY COURT ACT PROHIBITS CONSIDERATION OF A NEW YORK JUVENILE DELINQUENCY ADJUDICATION IN A SORA RISK-LEVEL ASSESSEMENT, CONSIDERATION OF A NEW JERSEY JUVENILE DELINQUENCY ADJUDICATION IS NOT PROHIBITED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Brathwaite Nelson, determined that, although a New York juvenile delinquency adjudication under article 3 of the Family Court Act cannot be considered in a SORA risk-level determination, a New Jersey juvenile delinquency adjudication can be considered:

Although the express language in the Guidelines provides that a juvenile delinquency adjudication constitutes proof for the assessment of points under risk factors 8 and 9, in People v Campbell (98 AD3d 5), this Court held that a juvenile delinquency adjudication rendered under Family Court Act article 3 could not properly be considered in a SORA proceeding. * * *

… [T]his Court’s holding in Campbell does not preclude a SORA court from considering the defendant’s New Jersey adjudication. As discussed above, the prohibition in Campbell rested on the language of Family Court Act § 381.2 … . The Legislature, while protecting Family Court Act article 3 proceedings, has also identified the age of a sex offender at the time of the first sex offense to be a factor “indicative of high risk of repeat offense” to be considered under the Guidelines … , in addition to the nature of prior offenses … . While an adjudication or statements made to the court or an officer in a Family Court Act article 3 proceeding may not be used as proof at a SORA hearing, the People are not precluded from establishing the underlying conduct by other means … . The defendant’s juvenile delinquency adjudication was not rendered under New York’s Family Court Act article 3, and, thus, the provisions of the Family Court Act … do not apply to it. People v Hart, 2024 NY Slip Op 02071, Second Dept 4-17-24

Practice Point: A New York juvenile delinquency adjudication cannot be considered in a SORA risk-level assessment because of a prohibition in the Family Court Act. Because the Family Court Act does not apply to a New Jersey juvenile delinquency determination, and because New Jersey does not have a similar prohibition, the New Jersey adjudication can be considered in a New York SORA risk-level assessment.

 

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ACQUITTAL ON THE RAPE AND FORCIBLE TOUCHING CHARGES RENDERED THE “ENDANGERING THE WELFARE OF A CHILD” CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s “endangering the welfare of a child” conviction, determined defendant’s acquittal on the rape and forcible touching charges rendered the conviction “against the weight of the evidence:”

In conducting our weight of the evidence review, we consider the jury’s acquittal on other counts, and, under the circumstances of this case, find the jury’s acquittal on the other counts supportive of a reversal of the conviction on the count of endangering the welfare of a child … . Here, the defendant was charged with, but acquitted of, rape in the second degree, rape in the third degree, and forcible touching, and the alleged conduct that formed the basis of those charges was essentially the same alleged conduct that formed the basis of the charge of endangering the welfare of a child. Once the jury discredited the complainant’s testimony with respect to the charges of rape and forcible touching, the record was devoid of any evidence that the defendant “knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old” … , as charged on the count of endangering the welfare of a child. People v Liston, 2024 NY Slip Op 02066, Second Dept 4-17-24

Practice Point; Defendant was acquitted of the rape and forcible touching charges which were based on the same allegations as was the conviction on the “endangering the welfare of a child” charge. The conviction, therefore, was “against the weight of the evidence.”

 

A YOUTHFUL OFFENDER MUST CONSENT TO COMMUNITY SERVICE IMPOSED AS PART OF A SENTENCE (SECOND DEPT).

The Second Department, modifying the sentence imposed by County Court, noted that the defendant youthful offender did not consent to community service as part of his sentence, as required by the Penal Law:

… [A] court may require a defendant, as a condition of a sentence of probation, to “[p]erform services for a public or not-for-profit corporation, association, institution[,] or agency” (Penal Law § 65.10[2][h]; cf. CPL 170.55). However, a community service condition “may only be imposed upon conviction of” certain types of crimes, including a “class E felony, or a youthful offender finding replacing any such conviction, where the defendant has consented to the amount and conditions of such service” … . …

… [T]he defendant correctly asserts that “the record is . . . devoid of any indication that [he] actually consented to the terms and conditions of community service imposed at the time of sentencing” … . The comments of defense counsel at sentencing did not provide the requisite consent, as defense counsel’s suggestion of community service was made in the context of arguing that a term of incarceration was unwarranted. In any event, even if defense counsel’s statements could be construed as providing the defendant’s “consent to the possibility of community service . . . , there is no proof whatsoever on the record that [the] defendant consented to the amount and conditions of the community service actually imposed by [the] County Court, which is what is specifically required by [Penal Law § 65.10(2)(h)]” … . People v Joseph D., 2024 NY Slip Op 02064, Second Dept 4-17-24

Practice Point: Penal Law 65.10 requires the consent of a youthful offender to community service as part of a sentence.

 

PLAINTIFF IS THE SUCCESSOR IN INTEREST TO THE PLAINTIFF IN A PRIOR IDENTICAL ACTION WHICH WAS DISMISSED FOR FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND ORDERS; THE INSTANT ACTION IS PRECLUDED BY THE DOCTRINE OF RES JUDICATA (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff 120 Lexington Ave Corp, as the successor in interest to 122-24 Lexington Ave Corp, was precluded from bringing the action by the doctrine of res judicata. A nearly identical action by 122-24 Lexington Ave Corp had been dismissed based upon plaintiff’s failure to comply with discovery demands and orders, which is deemed a dismissal on the merits:

Plaintiff concedes that it is the successor in interest to 122-24 Lexington Avenue Corp., an entity whose nearly identical case against Wesco was dismissed in May 2021 for failure to comply with discovery demands and court orders after the court had issued a conditional preclusion order. Because plaintiff is the successor to 122-24 Lexington, it is in privity with that entity and is bound by prior adjudications against it … . Furthermore, a dismissal based on a failure to provide discovery in the face of a preclusion order is considered an award on the merits, and thus is given res judicata effect … . 120 Lexington Ave. Corp. v Wesco Ins. Co., 2024 NY Slip Op 02004, First Dept 4-16-24

Practice Point: An action which was dismissed because plaintiff failed to comply with discovery demands and orders bars a subsequent action pursuant to the doctrine of res judicata.

 

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