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Grandfather Did Not Have Standing to Seek Visitation With Grandchildren—Analytical Criteria Explained

The Second Department determined Family Court properly concluded that the grandfather did not have standing to seek visitation with the grandchildren.  The analytical criteria include the nature and extent of the grandparent-grandchild relationship and the nature and the basis for the parents’ objection to visitation.  Here the grandfather failed to demonstrate mother frustrated his attempts to visit the grandchildren. Mother objected only to the grandfather being accompanied by the grandmother during visits:

In considering whether a grandparent has standing to petition for visitation based upon “circumstances show[ing] that conditions exist which equity would see fit to intervene” (Domestic Relations Law § 72[1]), “the essential components to the inquiry are the nature and extent of the grandparent-grandchild relationship’ and the nature and basis of the parents’ objection to visitation'” … . “In cases where such a relationship has been frustrated by a parent, the grandparent must show, inter alia, that he or she has made a sufficient effort to establish [a relationship with the child], so that the court perceives [the matter] as one deserving the court’s intervention'” … . ” The evidence necessary will vary in each case but what is required of grandparents must always be measured against what they could reasonably have done under the circumstances'” … .

Here, the Family Court properly determined that the grandfather lacked standing to seek visitation with the grandchildren … . The grandfather failed to demonstrate that the mother frustrated his visitation with the grandchildren … . Indeed, it is undisputed that the mother had asked the grandfather to visit with the grandchildren, and that he only refused because the mother did not want the grandmother to accompany him. Matter of Troiano v Marotta, 2015 NY Slip Op 02979, 2nd Dept 4-8-15

 

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Plaintiff Was Properly Allowed to File a Late Notice of Claim—Criteria Explained

The Second Department determined plaintiff was properly allowed to file a late notice of claim in a medical malpractice action.  Plaintiff’s baby died in utero days after the plaintiff had gone to the hospital complaining of decreased fetal movement and was assured all was well. Plaintiff asked the hospital repeatedly for the autopsy report, beginning shortly after the baby died. The autopsy report was finally provided many months later.  Within a few days of receiving the autopsy report, the plaintiff sought permission to file a late notice of claim. The Second Department noted that the hospital had acquired actual notice of the substance of the claim within 90 days (demonstrated by the medical records), plaintiff’s inability to gain access to the autopsy report was a reasonable excuse for the delay, and the hospital was not prejudiced by the six-month delay because witnesses remained available and there was no showing memories had faded:

In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider all relevant circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits (see General Municipal Law § 50-e[5]..). “While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance” … . “A petition for leave to serve a late notice of claim is addressed to the sound discretion of the court” … . * * *

…[T]he petitioner made a sufficient showing that HHC had actual knowledge of the essential facts constituting her claims within 90 days of accrual or within a reasonable time thereafter. “In medical malpractice cases, when the medical records themselves contain facts that detail both the procedures used and the claimant’s injuries, and suggest that the relevant public corporation may be responsible for those injuries, the public corporation will be held to have had actual knowledge of the essential facts constituting the claim” … . The Supreme Court noted that the petition would have been stronger had she submitted an expert affirmation in support of it, but the court nonetheless concluded that the basic facts underlying the malpractice claims could be gleaned from the petitioner’s medical records. We agree. Matter of Rojas v New York City Health & Hosps. Corp., 2015 NY Slip Op 02975, 2nd Dept 4-8-15

 

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Subcontractor Could Not Recover From Property Owners Absent Proof the Owners Consented to Pay the Subcontractor—Owners Hired the General Contractor Who In Turn Hired the Subcontractor

The Second Department determined the property owners were not liable in quasi contract to a subcontractor. The property owners demonstrated the subcontractor was not working for them, but rather worked for the general contractor hired by the owners. The mere fact that the owners consented to the work done by the subcontractor, and were benefitted by it, is not enough to demonstrate unjust enrichment. The subcontractor must show the owners consented to pay the subcontractor for the work:

“[A] property owner who contracts with a general contractor does not become liable to a subcontractor on a quasi contract theory unless it expressly consents to pay for the subcontractor’s performance” … . “The mere fact that the [owners] consented to the improvements and received some benefit from the [subcontractor’s] activities is insufficient to recover on such a theory; the [subcontractor] must also show that it was working for the [owners] when it performed its work resulting in unjust enrichment” … . Sears Ready Mix, Ltd. v Lighthouse Mar., Inc., 2015 NY Slip Op 02955, 2nd Dept 4-8-15

 

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Prosecutor Acted as an Unsworn Witness and Improperly Suggested Defendant Committed Offenses With Which He Was Not Charged—Conviction Reversed in the Interest of Justice

The Second Department determined defendant’s weapon-possession conviction must be reversed because of the misconduct of the prosecutor.  Although the errors were not preserved by objection, the court invoked its “interest of justice” power to reach the issue.  The prosecutor functioned as an unsworn witness by indicating, during cross-examination of the defendant, that her office had called a restaurant to find out the closing time and using that information to impeach the defendant’s testimony. The prosecutor, in her summation, accused the defendant of lying based on the unsworn “restaurant closing-time” information she had put on the record.  In addition, the prosecutor suggested that defendant intended to use the weapon to harm someone and had committed multiple gun-possession offenses, unsupported claims not relevant to the charged offense:

The prosecutor improperly functioned as an unsworn witness when she cross-examined the defendant regarding the closing time of a restaurant in Brooklyn … .  The police officers who conducted the traffic stop testified on their direct examinations that the traffic stop occurred at 9:35 p.m. On his direct examination, in contrast, the defendant testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m., while he and the other occupants of the vehicle were on their way to a restaurant in Brooklyn. During the prosecutor’s cross-examination of the defendant, she improperly suggested facts not in evidence when she implied that the District Attorney’s office had called the restaurant to ascertain its hours of operation, and asked the defendant whether he testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m. because he knew that the restaurant was not open at 9:35 p.m. … . During summation, the prosecutor again improperly implied, without having submitted any evidence about the closing time of the restaurant, that the defendant had lied about what he was doing at the time of the traffic stop … .

Further, the prosecutor made improper remarks during summation which suggested that the defendant possessed the weapon with an intent to use it to harm someone, even though this was not an element of the crime for which the defendant was on trial … . Similarly, the prosecutor’s questioning of the defendant about one of his tattoos was improper and led to the inflammatory and unsupported inference that the defendant had previously used the weapon to harm someone … . It was also improper for the prosecutor to argue during summation that the defendant had learned certain information during the pretrial hearing even though there was no evidence to support this assertion … .

In addition, the prosecutor’s statement during summation that the defendant did not make any sudden movements during the traffic stop because he had already “played out this exact scenario in his mind . . . every time he left his house with that gun” was improper speculation, without any basis in the record, that the defendant had committed multiple gun possession offenses prior to the subject incident which led to his arrest … .People v Rowley, 2015 NY Slip Op 02988, 2nd Dept 4-8-15

 

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Defendant’s Admissions Re: Uncharged Sex Offenses Justified Upward Departure from the Presumptive Level—Criteria for Upward Departures Explained

In a risk assessment proceeding pursuant to the Sex Offender Registration Act (SORA), the Second Department affirmed the SORA court’s upward departure from the presumptive risk level (level two to level three).  The court explained the general criteria for upward departures. First the court must determine if the People have articulated, as a matter of law, a legitimate aggravating factor. And second, the court must determine if the factor has been demonstrated by clear and convincing evidence.  If those two criteria are met, departure is discretionary. Here the defendant’s admission that he had sexually abused two young girls eight years before the commission of the charged offenses was deemed a legitimate aggravating circumstance not adequately taken into account by the risk assessment guidelines:

A court is permitted to depart from the presumptive risk level if “special circumstances” warrant departure (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). An upward departure is permitted only if the court concludes “that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” … . In determining whether an upward departure is permissible and, if permissible, appropriate, a SORA court must engage in a multi-step inquiry. First, the court must determine whether the People have articulated, as a matter of law, a legitimate aggravating factor. Next, the court must determine whether the People have established, by clear and convincing evidence, the facts supporting the existence of that aggravating factor in the case before it. Upon the People’s satisfaction of these two requirements, an upward departure becomes discretionary. If, upon examining all of circumstances relevant to the offender’s risk of reoffense and danger to the community, the court concludes that the presumptive risk level would result in an underassessment of the risk or danger of reoffense, it may upwardly depart (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4…).

Here, the People satisfied their burden. An offender’s commission of uncharged sex crimes may constitute an appropriate aggravating factor for purposes of an upward departure if, as here, those uncharged sex crimes have not been accounted for in the Risk Assessment Instrument … . People v DeWoody, 2015 NY Slip Op 02946, 2nd Dept 4-8-15

 

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City’s Possession of Property Seized Upon Arrest, But Which Was No Longer Needed by the People in Connection with the Case, Was Held by the City as a Bailee—the Bailment Did Not Originate in a Contractual Relationship—Therefore the One-Year-Ninety-Days General Municipal Law Statute of Limitations, Not the Six-Year Contract Statute of Limitations, Applied—Action Was Time-Barred

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that the City was a bailee with respect to its possession of defendant’s computers seized upon defendant’s arrest.  When the district attorney determined the computers were no longer needed in connection with defendant’s case, defendant was told he could pick them up.  When the defendant attempted to do so, he was told the computers had been destroyed.  The defendant then sued the city under a bailment theory.  The suit was timely if the six-year statute of limitations for contract actions applied, but untimely if the one-year-90-days statute of limitations in the General Municipal Law applied.  The court determined that the bailment did not result from a contractual relationship (seizure upon arrest).  Therefore the General Municipal Law statute of limitations for actions against the city alleging negligent damage to property applied and the action was time-barred:

Here, the evidence submitted by the City in support of its motion established, prima facie, that the claim between the parties did not originate by virtue of a contractual relationship. The City took control of the plaintiff’s property only in connection with his arrest. Hence, … it cannot be said that the liability alleged by the plaintiff in the complaint “had its genesis in [a] contractual relationship of the parties” … . “A contract cannot be implied in fact where the facts are inconsistent with its existence” … . While the City’s act of taking possession of the plaintiff’s personal property created a bailment, it has been recognized that a bailment does not necessarily and always arise from a contractual relationship … . Thus, as General Municipal Law § 50-i(1) applies to all causes of action against the City seeking to recover damages for injury to property because of negligence or a wrongful act, and the complaint asserts that the City destroyed the plaintiff’s property, the 1-year-and-90-day statute of limitations, not the 6-year limitations period, applies to this action. Wikiert v City of New York, 2015 NY Slip Op 02960, 2nd Dept 4-8-14

 

Failure to Provide Statutory Notice of a Motion to Enter a Default Judgment to a Defendant Who Has Appeared in the Case Is a Jurisdictional Defect Rendering the Default Judgment a Nullity

The Second Department, in a full-fledged opinion by Justice Cohen, determined the failure to give a defendant, who has appeared in an action, notice of a motion to enter a default judgment is a defect which deprives the court of subject matter jurisdiction (rendering the default judgment a nullity pursuant to CPLR 5015 (a) (4)).  The issue is one of first impression in the Second Department and the Second Department declined to follow a contrary ruling in the 3rd Department. When the defendant previously appeared in the case, the defendant failed to demonstrate a reasonable excuse for failure to answer the complaint. Therefore, although the plaintiff’s failure to provide the notice required by CPLR 3215 (g) (1) mandated vacatur of the default judgment, it did not, under the facts, relieve the appellant of the underlying default. Upon notice of a future motion to enter a default judgment, the defendant here may contest only the sufficiency of the factual allegations in the motion and the amount of damages:

The question of whether vacatur of the default judgment pursuant to CPLR 5015(a)(4) is appropriate where the moving party fails to notify the defendant of its motion for leave to enter a default judgment as provided by CPLR 3215(g)(1) is one of first impression in this Court. Under CPLR 5015(a)(4), a rendering court may relieve a moving party of such an order if it lacked the jurisdiction to render it in the first place. Here, it is uncontested that the Supreme Court had personal jurisdiction over the appellant, as well as jurisdiction over the subject matter in this case. However, for the reasons set forth below, we hold that the failure of the plaintiffs to give notice to the appellant of their motion for leave to enter a default judgment pursuant to CPLR 3215(g)(1) deprived the Supreme Court of jurisdiction to entertain the motion, and the court should have vacated the default judgment pursuant to CPLR 5015(a)(4). * * *

…[W]e hold that the failure to provide a defendant who has appeared in an action with the notice required by CPLR 3215(g)(1), like the failure to provide proper notice of other kinds of motions, is a jurisdictional defect that deprives the court of the authority to entertain a motion for leave to enter a default judgment. While this defect requires vacatur of the judgment, it does not, standing alone, entitle the appellant to be relieved of the underlying default upon which judgment is sought, and to defend the action on the merits … . Since the appellant has failed to establish a basis to be relieved from his underlying default in failing to answer, that underlying default remains intact. Accordingly, the appellant is entitled only to statutory notice of any future motion for leave to enter a default judgment. Upon such a future motion, the appellant may not seek to relitigate the issue of whether he is entitled to be relieved of his underlying default in failing to answer. Rather, as relevant to this case, the appellant may oppose entry of a default judgment to the limited extent of contesting the sufficiency of the proof of facts submitted by the plaintiffs in support of the motion, and contesting damages.  Paulus v Christopher Vacirca, Inc., 2015 NY Slip Op 02944, 2nd Dept 4-8-15

 

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Community College Foundation, a Not-for-Profit Corporation, Failed to Utterly Refute the Allegation that It Was a Public Entity Subject to FOIL Requests

After petitioners’ Freedom of Information Law (FOIL) request for documents was denied by the Nassau County Community College Foundation (Foundation), petitioners brought an Article 78 proceeding to compel production. The Foundation is a not-for-profit-corporation formed to support the community college. The Foundation argued that it was not a public agency and therefore was not subject to FOIL requests.  Supreme Court dismissed the petition.  The Second Department reversed, finding that the documents submitted by the Foundation did not utterly refute the allegation that the Foundation had the attributes of a public entity. The Second Department noted that public agencies subject to FOIL include “any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature” … .

FOIL “was enacted to promote open government and public accountability’ and imposes a broad duty on government to make its records available to the public'” … . All “public agencies” are subject to FOIL … . An “agency” is “any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature” … .Matter of Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 2015 NY Slip Op 02972, 2nd Dept 4-8-15

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Cause of Action Based Upon Limited Sight Condition (Line of Sight Blocked by Tree) Should Have Been Dismissed—No Written Notice of the Condition/Cause of Action Based Upon Allegations the Town Created the Dangerous Intersection by the Painting of Roadway Lines and the Absence of a Traffic Control Device Not Subject to the Written Notice Requirement/Because There Was No Study of the Intersection, the Town Could Not Demonstrate Its Entitlement to Qualified Immunity

The plaintiff was injured in a motor vehicle accident at an intersection.  The plaintiff sued the town alleging that an evergreen tree created a limited sight condition, and further alleging the painting of roadway lines and the absence of a traffic control device created a dangerous condition.  The Second Department determined the “limited sight condition” cause of action against the town should have been dismissed because there was no showing the town had written notice of the problem.  The cause of action based upon the roadway lines and the absence of a traffic control device properly survived dismissal because the written notice requirement does not apply to dangerous conditions alleged to have been created by the municipality.  The court further held that the town’s “qualified immunity” defense was not demonstrated because there was no showing the town relied upon the results of a study addressing the conditions at the intersection… :

Supreme Court properly denied that branch of the Town’s motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged that the Town negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection. The prior written notice provision of the Town Code does not apply to a claim that a municipality allegedly created a defect or hazard through an affirmative act of negligence …, such as the Town’s allegedly negligent act of painting certain street lines, or to a claim that the municipality failed to provide appropriate traffic control devices at an intersection … .

The Town also failed to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection, based upon the defense of qualified immunity. “It has long been held that a municipality owe[s] to the public the absolute duty of keeping its streets in a reasonably safe condition. While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the municipality’s planning and decision-making functions. Thus, in the field of traffic design engineering, a municipality is accorded a qualified immunity from liability arising out of a highway planning decision” … . “However, the doctrine of qualified immunity will not apply where the municipality has not conducted a study which entertained and passed on the very same question of risk” … . Here, the evidence presented by the Town failed to establish that it undertook a study which entertained and passed on the question of risk that is at issue in this case … . Poveromo v Town of Cortlandt, 2015 NY Slip Op 02950, 2nd Dept 4-8-15

 

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Allegations of Abuse of a Student by a School Bus Monitor Raised Questions of Fact Re: Negligent Supervision of the Student, Negligent Supervision and Training of the Monitor, and Whether the Monitor Was Acting Within the Scope of Her Employment

The Second Department, reversing Supreme Court, determined the defendant school district’s motion for summary judgment should not have been granted.  The complaint alleged a school bus monitor physically and mentally abused plaintiffs’ son, a student with severe mental disabilities.  The court determined the school did not establish it was unaware of the monitor’s propensity for the alleged misconduct (there was evidence of prior complaints). For that reason, the causes of action for negligent supervision of plaintiffs’ son and negligent supervision and training of the monitor should not have been dismissed. The court further determined the school did not demonstrate the actions taken by the monitor were within the scope of her employment, so the cause of action for negligent supervision and training of the monitor was viable.  The court noted that a negligent supervision and training cause of action would be precluded if the employee were shown to have acted within the scope of her employment, but suit under a “respondeat superior” theory would be possible:

Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information … . Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable … .

Contrary to the Supreme Court’s determination, the school defendants failed to establish, prima facie, that the school district had no specific knowledge or notice of [the monitor’s] propensity to engage in the misconduct alleged. ***

For the same reason, the Supreme Court erred in directing the dismissal of the plaintiffs’ second cause of action insofar as it alleged negligent supervision and training of [the monitor]. A necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury … . * * *

“Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training”.  … [T]he school defendants did not establish, prima facie, that [the monitor] was acting within the scope of her employment during the alleged incidents. Consequently, the plaintiffs were not precluded from claiming that the school district was negligent in its supervision and training of [the monitor]. Timothy Mc. v Beacon City School Dist., 2015 NY Slip Op 02942, 2nd Dept 4-8-15

 

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