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Natural Mother Appointed Guardian of Her Children to Facilitate Undocumented Children’s Pursuit of Special Immigrant Juvenile Status

In a full-fledged opinion by Justice Chambers, the Second Department reversed Family Court and awarded mother guardianship of her children so the undocumented children could pursue special immigrant juvenile status (SIJS) to become lawful residents of the United States.  In El Salvador the children had been threatened with death if they did not join a local gang, and the children’s grandmother had been killed by the gang:

The Immigration and Nationality Act, which established SIJS (see 8 USC § 1101[a][27][J]; Pub L 101-649, § 153, 104 US Stat 4978 [101st Cong, 2d Sess, Nov 29, 1990]), employs “a unique hybrid procedure that directs the collaboration of state and federal systems” … . The child, or someone acting on his or her behalf, must first petition a state juvenile court to issue an order making special findings of fact that the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Further, a state juvenile court must find that reunification with one or both parents is not viable due to parental abuse, neglect, abandonment, or a similar basis, and that it is not in the child’s best interests to be returned to his or her home country … . 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 … . In addition, to be eligible for SIJS, the child must be unmarried and under 21 years of age (see 8 CFR 204.11[c][1], [2]). Ultimately, the Secretary of the Department of Homeland Security must consent to the grant of SIJS… . The Secretary’s consent ensures that the child is seeking SIJS for the purpose of obtaining relief from abuse, neglect, or abandonment, and not primarily for the purpose of obtaining lawful permanent residency status … . Since ultimately the Secretary must give consent, the Family Court “is not rendering an immigration determination” … .

In the case before us, there are sufficient allegations in the guardianship petitions and supporting papers to suggest that naming the mother as guardian of the subject children would be in their best interests … . * * * Naming the mother as guardian of the children may potentially enable the children to pursue legal status in the United States. If legal status is granted, the children may avoid being separated from their mother and instead keep their family intact and safe, away from the perils present in El Salvador … . In sum, assuming the truth of the allegations, we disagree with the Family Court’s conclusion that there is “no reason” to appoint the mother as guardian of the children. Matter of Marisol NH 2014 NY Slip Op 00664, 2nd Dept 2-5-14

The Second Department reached the same conclusion in another case decided the same day: Matter of Maura AR-R (Santos FR), 2014 NY Slip Op 00669, 2nd Dept 2-5-14

 

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Subcontractor Which Does Not Supervise or Control Injured Worker May Be Liable Under Common Law Negligence Where It Creates an Unreasonable Risk of Harm

In the course of a decision which discussed several Labor Law issues, the Second Department noted when a subcontractor (here MCN) may be held liable under common law negligence, even where the subcontractor has no authority to supervise or control the injured party’s work:

A subcontractor may be held liable for negligence where the work it performed created the condition that caused the plaintiff’s injury, even if it did not possess any authority to supervise or control the plaintiff’s work or work area … . In response to MCN’s prima facie showing with respect to this cause of action, the plaintiff raised a triable issue of fact as to whether MCN’s employee created an unreasonable risk of harm that was a proximate cause of the plaintiff’s injuries… . Van Nostrand v Race & Rally Constr Co Inc, 2014 NY Slip Op 00651, 2nd Dept 2-5-14

 

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Analytical Criteria Re: Res Judicata and the Interpretation of a Release Explained

The Second Department, in grappling with the effect of stipulations and a release stemming from divorce proceedings, explained the principles of res judicata (precluding mother’s action for payment of Bar Mitzvah fees) and the interpretation of a release (allowing mother’s action for teen tour expenses):

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation” … . Under New York’s transactional approach to res judicata, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” … . Here, the Family Court properly granted the father’s objection to that portion of the Support Magistrate’s order which awarded the mother reimbursement of Bar Mitzvah fees. The father presented evidence showing that the mother’s claim against him arose from the same operative facts as a claim which was decided on the merits in the Supreme Court matrimonial action, in which she sought, inter alia, a finding of contempt against him for his nonpayment of the same Bar Mitzvah fees. The father thus demonstrated that the claim for Bar Mitzvah fees that was asserted against him in this proceeding could have been raised in the Supreme Court action. Thus, this claim was properly dismissed as barred by the doctrine of res judicata.

… ” A release is a contract, and its construction is governed by contract law'” … . Where a release is unambiguous, the intent of the parties must be ascertained from the plain language of the agreement … . Here, the mother established her prima facie entitlement to judgment as a matter of law on her claim for reimbursement of the teen-tour expenses. In opposition, the father failed to raise a triable issue of fact as to whether the claim was barred by the release contained in the parties’ stipulation of settlement. That release contained an exception that clearly and unambiguously allowed either party to pursue claims seeking to enforce the terms of the stipulation of settlement, as well as all prior stipulations entered into by the parties. This exception was applicable to the mother’s claim in this proceeding for reimbursement of teen-tour expenses. Viewed in its entirety, the terms of the stipulation of settlement make clear that it was not intended to preclude the mother’s claim in this regard. Matter of Singer v Windfield, 2015 NY Slip Op 00890, 2nd Dept 2-4-14

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Doctrine of Collateral Estoppel Applied In Civil Suit Alleging Sexual Abuse Where Defendant Pled Guilty to Offenses Described in the Civil Suit

The Second Department determined the doctrine of collateral estoppel applied where the issues raised in a civil suit, based upon allegations of sexual abuse to which the defendant pled guilty, were identical to the offenses described in the plea transcript. The doctrine, however, did not apply to the civil allegation of rape because the defendant did not plead guilty to rape:

“Where a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from litigating the issue of his liability” … . The doctrine applies whether the conviction resulted from a plea or a trial … . “The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action” … . “The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination” … . Morrow v Gallagher, 2014 NY Slip Op 00489, 2nd Dept 1-29-14

 

Society Supporting Protection of Preservation Area Had Standing to Challenge Waiver Allowing Business to Operate in Area

The Second Department determined that the petitioners had standing to challenge the planning commission’s determination that the respondents should be granted a hardship waiver (Environmental Conservation Law 57-0121(10)) to continue a commercial landscaping and horticultural services business in a preservation area (Long Island Central Pine Barrens).  Richard Amper, in his capacity as Executive Director of the Long Island Barrens Society, Inc, opposed the granting of the waiver and brought the underlying Arcticle 78 proceeding.  The Second Department determined the respondent had met the requirements for a hardship waiver.  On the question of standing, the Second Department wrote:

…[T]he Supreme Court erred in holding that the petitioners lacked standing to challenge the determination. Whether an organization or association has standing involves the application of the three-pronged test set forth in Society of Plastics Indus. v County of Suffolk (77 NY2d 761). As pertinent to this appeal, the first prong of that test requires that the organization or association demonstrate that “one or more of its members would have standing to sue” as an individual (id. at 775). An individual has standing where he or she “would suffer direct harm, injury that is in some way different from that of the public at large” (id. at 774) and “the in-fact injury of which [he or she] complains . . . falls within the zone of interests,’ or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted” (id. at 773 …). In Matter of Save the Pine Bush, Inc. v Common Council of City of Albany (13 NY3d 297), the Court of Appeals held that, in land-use and environmental cases, “a person who can prove that he or she uses and enjoys a natural resource more than most other members of the public has standing . . . to challenge government actions that threaten that resource” (id. at 301). Here, the petitioners established that Amper, in both his individual and professional capacities, uses and enjoys the Pine Barrens to a greater degree than most other members of the public. The fact that Amper lives some distance from the property in question is not dispositive (see id. at 305…). Further, the petitioners established that the threatened injury to Amper caused by development within the core preservation area of the Central Pine Barrens falls within the zone of interests sought to be protected by the Long Island Pine Barrens Protection Act of 1993 (L 1993, ch 262) (hereinafter the Act) … . Thus, Amper has standing to sue individually, and his standing satisfied the first prong of the test for the Society’s organizational standing. The Society meets the second and third prongs of the organizational standing test, namely that its interests in the instant proceeding are germane to its purposes, and that “neither the asserted claim nor the appropriate relief requires the participation of the individual members.” Therefore, the Society also has standing to challenge the Commission’s determination (id. at 775). Matter of Long Is Pine Barrnes Socy, Inc v Central Pine Barrens Joint Planning & Policy Commn, 2014 NY Slip Op 00511, 2nd Dept 1-29-14

 

Parked Garbage Truck Furnished Condition for the Accident, But Was Not Proximate Cause of the Accident

The Second Department determined plaintiff’s complaint was properly dismissed because the accident was caused by plaintiff’s failure to see what he should have seen.  Plaintiff’s vehicle struck a garbage truck which was stopped partially in the roadway:

Although the issue of proximate cause is generally one for the jury …, liability may not be imposed upon a party who “merely furnished the condition or occasion for the occurrence of the event” but was not one of its causes … . Here, the defendants demonstrated their entitlement to judgment as a matter of law by presenting evidentiary proof that [defendant’s] conduct in stopping his truck partially in the roadway merely furnished the condition for the accident, but was not a proximate cause thereof… . Lee v D Daniels Contr Ltd, 2014 NY Slip Op 00487, 2nd Dept 1-29-14

 

There Can Be More than One Proximate Cause/Defendants Did Not Establish Freedom from Comparative Fault

The Second Department determined that Supreme Court should not have dismissed causes of action against a restaurant and a valet parking service.  Plaintiff’s decedent was struck and killed as she attempted to cross the street when defendant driver passed cars double-parked in front of the restaurant:

” There can be more than one proximate cause of an accident'” … . Thus, ” the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law'” … . The issue of comparative negligence is generally one for the trier of fact … .

Contrary to the Supreme Court’s determination, [the restaurant] and the [parking service] defendants each failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them. On this record, even assuming, arguendo, that the actions of [the driver] and the decedent were negligent and were proximate causes of the accident, the evidence submitted by [the restaurant] and the [parking service] defendants, in support of their motion and cross motion, respectively, failed to eliminate all triable issues of fact as to whether those defendants were free from comparative fault….  Spadaro v Parking Sys Plus, Inc, 2014 NY Slip Op 00494, 1st Dept 1-29-14

 

Contract of Adhesion/Unconscionable-Contract Cause of Action Should Have Survived Summary Judgment

The Second Department determined a hearing was required on respondents’ motion to dismiss the cause of action which alleged a contract of adhesion.  The action was brought against the respondents-operators of “three-quarter houses” by residents who had committed their housing allowances to the operators only to find themselves (according to the complaint) “living in abject and overcrowded conditions with no support services on site:”

A contract of adhesion contains terms that are unfair and nonnegotiable and arises from a disparity of bargaining power or oppressive tactics'” … . ” A determination of unconscionability generally requires a showing that the contract was both procedurally and substantively unconscionable when made'” … .

“In determining the conscionability of a contract, no set weight is to be given any one factor; each case must be decided on its own facts” … . “However, [in general, it can be said that] procedural and substantive unconscionability operate on a sliding scale; the more questionable the meaningfulness of choice, the less imbalance in a contract’s terms should be tolerated and vice versa” … . ” The determination of unconscionability is a matter of law for the court to decide'” … . ” Where there is doubt . . . as to whether a contract is fraught with elements of unconscionability, there must be a hearing where the parties have an opportunity to present evidence with regard to the circumstances of the signing of the contract, and the disputed terms’ setting, purpose and effect'” … . ” However, [w]here the significant facts germane to the unconscionability issue are essentially undisputed, the court may determine the issue without a hearing'” … . “Thus, on a motion for summary judgment, [t]he question . . . then is whether the record presents an issue as to the existence of unconscionability which should not be resolved without a hearing'”… . * * *

…[T]he plaintiffs submitted … affidavits of residents who signed the agreements in question and who stated that they signed the subject agreements under conditions that were procedurally unconscionable. Under these circumstances, a hearing was warranted on the issue of unconscionability, and as such, summary judgment should have been denied… .  David v #1 Mktg Serv Inc, 2014 NY Slip Op 00477, 2nd Dept 1-29-14

 

Parolees May Move for Resentencing Under the Drug Law Reform Act

In a full-fledged opinion by Justice Cohen, the Second Department determined that parolees are “in custody” within the meaning of the 2011 amendments to the Drug Law Reform Act and, therefore, parolees may move for resentencing under the act:

In 2011, a New York State budget enactment consolidated and modernized several state agencies and created new departments (see L 2011, ch 62). This legislation merged the New York State Department of Correctional Services and the New York State Division of Parole into a single agency, the New York State Department of Corrections and Community Supervision (see id.). At that time, CPL 440.46(1) was amended by changing “department of correctional services” to “department of corrections and community supervision,” so that now “[a]ny person in the custody of the department of corrections and community supervision,” otherwise qualified, could apply to be resentenced (CPL 440.46[1]). People v Brown, 2014 NY Slip Op 00524, 2nd Dept 1-29-14

 

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“Undue Influence” and “Fraud” Criteria Explained Re: Objections to Probate of a Will

The Second Department, in affirming Surrogate’s Court’s dismissal of objections to the probate of a will, explained the criteria for a demonstration of “undue influence” and “fraud:”

“An objectant contesting the admission of a propounded instrument to probate based on the alleged exercise of undue influence must show that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist'” … . “An objectant seeking to establish that a will is the product of fraud has the burden of proving by clear and convincing evidence that the proponent of the will knowingly made false statements to the testator to induce him or her to make a will which disposed of property in a manner different from that in which the testator would otherwise have disposed of the property” … . The petitioners demonstrated their prima facie entitlement to judgment as a matter of law by showing, among other things, that the will had been duly executed, that the decedent possessed testamentary capacity, and that no undue influence or fraud had been exercised upon the decedent … . In opposition, the objectants failed to submit any evidence, beyond conclusory allegations and speculation, that the petitioners actually exercised undue influence over the decedent or that any fraudulent statements were made to the decedent, that the proponents of the made statements they knew to be false, or that any such statements caused the decedent to change his will… . Matter of Mele, 2014 NY Slip Op 00512, 2nd Dept 1-29-14

 

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