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Child Should Have Been Placed with Grandmother—Placement Criteria Explained

The Second Department determined Family Court should not have denied the petition to place the child with the grandmother.  The court explained the placement procedure and criteria:

Family Court Act § 1017 sets out the steps to be followed in determining the appropriate placement of a child when the child is initially removed from his or her home. When the decision to remove the child was made, the DSS was obligated to locate the child’s relatives, including her grandmother, and inform them of the pendency of the proceeding and of the opportunity for becoming foster parents or for seeking custody or care of the child (see Family Ct Act § 1017[1]). The Family Court was then required to determine if the child could suitably reside with any such relative (see Family Ct Act § 1017[1][a], [b]). If a suitable relative existed, the Family Court would either place the child with that relative or with the local commissioner of social services with directions to allow the child to reside with that relative pending his or her approval as a foster parent (see Family Ct Act § 1017[2][a]). Only if no suitable relative could be located would the Family Court consider whether another placement would be appropriate (see Family Ct Act former § 1017[2][b]). With respect to an out-of-state relative, Social Services Law § 374-a requires that an ICPC home study must first be conducted before placing the child with that individual.

“One purpose of Family Court Act § 1017 is to help safeguard the infant’s physical, mental and emotional well-being. . . Placement with a suitable relative can help the child by maintaining family ties and reducing the trauma of removal. In making a determination of placement [the] Family Court must consider not only the custodian’s ability to provide adequate shelter, but all the facts and circumstances relevant to the child’s best interest” … . Matter of Paige G, 2014 NY Slip Op 05182, 2nd Dept 7-9-14

 

Portion of Assisted Outpatient Treatment (AOT) Order Not Supported by Testimony Should Not Have Been Included

The Second Department determined Supreme Court did not have the authority, under Mental Hygiene Law 9.60, to go beyond the treatment plan and recommendations testified about by the psychiatrist in a proceeding to order Raymond G to comply with Assisted Outpatient Treatment (AOT).  In the absence of any recommendations about Raymond G’s use of his car, the court ordered the impoundment of his car. The Second Department reversed that part of the AOT order and explained what can be included in an AOT order under the terms of the controlling statute:

Mental Hygiene Law § 9.60, commonly known as Kendra’s Law, “provides a framework for the judicial authorization of involuntary outpatient treatment programs for persons suffering from mental illnesses” (Matter of William C., 64 AD3d 277, 279). It sets forth, inter alia, the types of outpatient services that may be ordered by the court as part of an AOT plan, the requirements for the petition, and the procedures for a hearing on the petition (see Mental Hygiene Law § 9.60[a][1]; [e][2]-[3]; [h][1]). * * *

The statute requires that the petition be accompanied by an affirmation or affidavit of an examining physician who recommends AOT (see Mental Hygiene Law § 9.60[e][3][I]), and directs that the court “shall not order [AOT]” unless it is provided with a proposed written treatment plan developed by a physician appointed by the applicable community services or hospital director, which includes “all categories of services, as set forth in [§ 9.60(a)(1)], which such physician recommends that the [patient] receive,” “no later than the date of the hearing on the petition” (Mental Hygiene Law § 9.60[i][1]). Further, the statute provides that the court “shall not order [AOT] unless [the] physician appearing on behalf of [the] director testifies to explain the written proposed treatment plan [and] state[s] the categories of [AOT] recommended, the rationale for each such category, [and] facts which establish that such treatment is the least restrictive alternative” (Mental Hygiene Law § 9.60[i][3]).

Following the hearing, the court “may” order AOT if it finds by “clear and convincing evidence that the [patient] meets the criteria for [AOT], and there is no appropriate and feasible less restrictive alternative” (Mental Hygiene Law § 9.60[j][2]). The order must include specific findings “by clear and convincing evidence that the proposed treatment is the least restrictive treatment appropriate and feasible for the [patient],” and “state an [AOT] plan, which shall include all categories of [AOT], as set forth in [§ 9.60(a)(1)], which the [patient] is to receive” (Mental Hygiene Law § 9.60[j][2]). The order “shall not include any such category that has not been recommended in both the proposed written treatment plan and the [physician’s hearing] testimony” (Mental Hygiene Law § 9.60[j][2]).  Matter of Raymond G…, 2014 NY Slip Op 05183, 2nd Dept 7-9-14

 

Cause of Action Accruing Outside New York Brought by a Nonresident Deemed Untimely—Relevant Law Explained

In finding an action brought by a nonresident based upon a cause of action which accrued outside New York untimely, the Second Department explained the applicable law:

” [W]hen a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitation periods of both New York and the jurisdiction where the cause of action accrued'” … . When borrowing the foreign jurisdiction’s statute of limitations, its tolling provisions are also borrowed … .

Here, it is undisputed that the applicable limitations period is three years under either New York law or Kazakh law (see CPLR 214[2]; Kazakh Civil Code Article 178). In general, “the applicable Statute of Limitations is triggered once a cause of action accrues” … . “A cause of action accrues, for the purpose of measuring the period of limitations, when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court'” …. An action to recover for a liability created or imposed by statute must be instituted “according to the language of the statute generating the liability” … . Grynberg v Giffen, 2014 NY Slip Op 04901, 2nd Dept 7-2-14

 

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Proof Vehicle Was Stolen at the Time of the Accident Defeated Action Based Upon Vehicle-Owner’s Vicarious Liability

The Second Department determined defendant’s evidence that her vehicle had been stolen at the time of the accident entitled her to summary judgment in an action based upon the vehicle-owner’s vicarious liability:

Vehicle and Traffic Law § 388(1) provides that, with the exception of bona fide commercial lessors of motor vehicles, which are exempt from vicarious liability by virtue of federal law …, the owner of a motor vehicle shall be liable for the negligence of one who operates the vehicle with the owner’s express or implied consent … . This statute creates a presumption that the driver was using the vehicle with the owner’s express or implied permission …, which only may be rebutted by substantial evidence sufficient to show that the vehicle was not operated with the owner’s consent … . Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use … . Fuentes v Virgil, 2014 NY Slip Op 04899, 2nd Dept 7-2-14

 

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Amendment of Notice of Claim Including Substantive Changes to the Facts and New Theories of Liability Should Not Have Been Allowed—Original Notice of Claim Inadequate

The Second Department reversed Supreme Court finding that plaintiff’s motion to amend the notice of claim should have been denied and the complaint dismissed:

Amendments to notices of claim are appropriate only to correct good faith and nonprejudicial “technical mistakes, defects, or omissions, not substantive changes in the theory of liability” … . Here, the Supreme Court improvidently exercised its discretion in granting the plaintiff’s cross motion for leave to serve and file an amended notice of claim. The proposed amendments to the notice of claim included substantive changes to the facts, adding that the plaintiff was injured after he climbed a ladder to go over a fence, changing the situs of the accident, and identifying the plaintiff as a worker at the site. The proposed amendments to the notice of claim also added a theory of liability under the Labor Law. Such changes are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . Granting leave to serve and file the proposed amended notice of claim would prejudice the Housing Authority by depriving it of the opportunity to promptly and meaningfully investigate the claim … .

Moreover, the Supreme Court should have granted the Housing Authority’s motion to dismiss the complaint insofar as asserted against it on the ground that the notice of claim was inadequate. A notice of claim must provide timely notice of the essential facts and legal theories supporting the claims alleged in the complaint … . The test of the sufficiency of a notice of claim is whether it includes enough information to enable the defendant to promptly investigate the allegations at issue … . The plaintiff’s original notice of claim did not sufficiently apprise the Housing Authority of the relevant facts or legal theories supporting the plaintiff’s claims to enable the Housing Authority to promptly and adequately investigate the allegations at issue in the complaint, resulting in prejudice to the Housing Department … . Ahmed v New York City Hous Auth, 2014 NY Slip Op 04883, 2nd Dept 7-2-14

 

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Village’s Actual Notice of a Sidewalk Defect Does Not Override Written Notice Requirement

The Second Department determined that actual notice of a defect in a sidewalk does not override the requirement of written notice. The abutting landowner had notified Village personnel of the defect orally and the Village architect had indicated the defect would be repaired:

The Village established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the affidavit of its Village Clerk, who averred that her search of the Village’s records revealed no prior written notice of any hazardous condition on the sidewalk where the accident occurred … . In opposition, the plaintiff and the homeowners failed to raise a triable issue of fact. Their submissions failed to show that the Village affirmatively created the alleged hazardous condition …, or caused the alleged hazardous condition to occur by its special use of the sidewalk …. Actual notice of the alleged hazardous condition does not override the statutory requirement of prior written notice of a sidewalk defect … . Velho v Village of Sleepy Hollow, 2014 NY Slip Op 04916, 2nd Dept 7-2-14

 

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Family Court Should Have Determined Child Eligible to Apply for Special Immigrant Juvenile Status

The Second Department reversed Family Court finding that an order making the requisite Special Immigrant Juvenile Status findings should have been granted:

Here the Family Court properly found that the child is under the age of 21, unmarried, and that it would not be in his best interests to be returned to Honduras … . In addition, inasmuch as the Family Court granted the guardianship petition, the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i)… . However, contrary to the court’s determination, based upon our independent factual review, we find that the record, including detailed affidavits from the child, fully supports the petitioner’s contention that, because his father neglected and abandoned him, reunification with his father is not a viable option … . The fact that the child’s mother did not also neglect and abandon him does not preclude the issuance of the order requested … . Matter of Miguel C, -N, 2014 NY Slip Op 04923, 2nd Dept 7-2-14

Same result in Matter of Gabriela Y U M…, 2014 NY Slip Op 04937, 2nd Dept 7-2-14

 

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Court’s Refusal to Allow Defendant to Inspect His Laptop Computer, Evidence from Which Was Central to the People’s Case, Was Reversible Error

The Second Department determined that denial of defendant’s request to inspect his laptop computer, from which evidence was extracted to prosecute him, was reversible error:

The trial court erred in denying the defendant’s motion to compel the People to provide the defendant with the opportunity to inspect the laptop computer that was seized from his home and for an adjournment of the trial, in order to permit the defense to examine that computer (see CPL 240.20[1][f]…). The defendant was entitled to inspect the laptop computer, pursuant to CPL 240.20(1)(f), and the defendant made a timely demand to inspect the laptop computer (see CPL 240.20[1][f]…).

Further, the laptop computer was central to the People’s case against the defendant; the People’s expert witness testified, at length, as to his examination of the laptop computer, the evidence that was extracted from that computer, and the basis for his conclusion that such evidence was accessed from or uploaded to the internet by the defendant. Additionally, the prosecution provided no reason for its failure to provide the computer to the defense. Under these circumstances, this error warrants reversal … . People v Naran, 2014 NY Slip Op 04969, 2nd Dept 7-2-14

 

Defendant Not Afforded Right to Testify Before Grand Jury—Indictment Dismissed

The Second Department determined the indictment must be dismissed (without prejudice) because the defendant was not afforded his right to testify before the grand jury:

CPL 190.50(5) provides that a defendant has a right to appear and testify before a grand jury if he or she serves written notice of his or her intent to do so upon the District Attorney before an indictment is filed. “[T]he opportunity to testify prior to any Grand Jury vote is qualitatively different from and more advantageous than the opportunity to testify . . . after the Grand Jury ha[s] committed itself to a vote based on the prosecution’s ex parte presentment of evidence” … . Thus, a defendant who provides timely notice “prior to the prosecution’s presentment of evidence and prior to the Grand Jury vote on an indictment [is] entitled to testify before the vote” … .

Where, as here, the defendant has been arraigned upon an undisposed felony complaint, the People must notify the defendant of the grand jury proceeding and accord him or her a reasonable time to appear (see CPL 190.50[5][a]…). Here, the People’s notice pursuant to CPL 190.50 indicated that the defendant was “scheduled to testify” before the grand jury on June 8, 2010, and that his testimony was required to have been given before 5:00 p.m. on that date. The record reveals that the defendant provided the People with written notice of his intent to testify before the grand jury pursuant to CPL 190.50, at the latest, by 3:37 p.m. on June 7, 2010. Thus, the defendant provided the People with the requisite notice more than 24 hours in advance of his proposed appearance. Under these circumstances, the defendant was entitled to testify prior to the grand jury’s vote. People v Ellison, 2014 NY Slip Op 04957, 2nd Dept 7-2-14

 

Court’s Failure to Conduct an Inquiry After Learning of a Juror’s Comments During Trial Indicating Her Lack of Impartiality Required Reversal

The Second Department determined that the trial judge had been made aware of information raising the possibility that a juror would not be impartial and erred in not conducting an inquiry:

The Court of Appeals, in People v Buford (69 NY2d 290, 299), set forth the basic framework to be followed when conduct occurs during a trial that may be the basis for disqualifying a juror. The court should conduct an in camera inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case … . In addition, the “trial court’s reasons for its ruling should be placed on the record . . . [and] the court may not speculate as to possible partiality of the juror” … . Although the Court of Appeals acknowledged that an “in camera inquiry may not be necessary in the unusual case . . . where the court, the attorneys, and defendant all agree that there is no possibility that the juror’s impartiality could be affected and that there is no reason to question the juror” (People v Buford, 69 NY2d 299 n 4), here, defense counsel wanted the juror to be questioned.

The Supreme Court erred in failing to conduct an in camera “probing and tactful inquiry” (id. at 299) of juror number seven, during the trial, when it was alleged that he had stated “the evidence speaks for itself or they got themsel[ves] into this situation” …, and subsequently, after deliberations had commenced, when it was alleged that juror number seven had engaged in flirtatious conduct with someone connected to the defendant as well as someone connected to the codefendant … . Since the court’s general inquiry of the jurors with respect to the first incident failed to meet the requirements of Buford …, and no inquiry at all was made with respect to the later incidents …, it is unknown whether the juror held an opinion that affected his ability to be impartial … . Such an error is not subject to harmless error analysis and, thus, the conviction must be reversed … . People v Henry, 2014 NY Slip Op 04962, 2nd Dept 7-2-14

 

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