The Second Department determined that cleaning out gutters is not work covered under Labor Law 240(1):
Although Labor Law § 240(1) applies to commercial “cleaning” which is not part of construction, demolition, or repair …, such as commercial window washing and sandblasting …, it does not apply to work that is incidental to regular maintenance, such as clearing gutters of debris … . Hull v Fieldpoint Community Assn Inc, 2013 NY Slip Op 06837, 2nd Dept 10-23-13
In a full-fledged opinion by Justice Roman, the Second Department determined that in order to qualify for the special immigrant juvenile provision of the Immigration and Nationality Act (8 USC 1101), which provides a gateway to permanent residency for undocumented children who have been abused, neglected or abandoned, the juvenile need only demonstrate that reunification with one (not both) of his or her parents “is not viable due to abuse, neglect, abandonment, or a similar basis found under State law…”:
…Susy established that reunification with her father was not viable due to abandonment (see 8 USC § 1101[a][27][J][i]…). The Family Court, as evidenced by its comments at the hearing, denied Susy’s application for a special findings order on the ground that the viability of reunification with Susy’s mother rendered Susy ineligible for SIJS. However, we disagree with the Family Court’s interpretation of the reunification component of the statute.
“To interpret a statute, we first look to its plain language, as that represents the most compelling evidence of the Legislature’s intent” … . Under the plain language of the statute, to be eligible for SIJS, a court must find that “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law” (8 USC § 1101[a][27][J][i] [emphasis added]). We interpret the “1 or both” language to provide SIJS eligibility where reunification with just one parent is not viable as a result of abuse, neglect, abandonment, or a similar State law basis… . Matter of Marcelina M-Gv Israel S, 2013 NY Slip Op 06868, 2nd Dept 10-23-13
The Second Department determined a cause of action for malpractice in treating plaintiff’s decedent for depression prior to her committing suicide should not have been dismissed:
Here, the complaint sought damages for conscious pain and suffering arising from Family Services’ alleged negligence in treating the decedent’s depression during the period between October 19, 2005, and the time of her death about 10 days later. That cause of action states a cognizable legal theory sounding in professional malpractice … .
Further, EPTL 11-3.2(b), referred to as the “survival statute” …, provides that “[n]o cause of action for injury to person . . . is lost because of the death of the person in whose favor the cause of action existed.” A cause of action based on personal injuries which survives the death of the decedent is distinct from a cause of action to recover damages for wrongful death … . Accordingly, the cause of action to recover damages for conscious pain and suffering predicated on alleged acts of professional malpractice committed between October 19, 2005, and October 28, 2005, survived the decedent’s death, and damages for such pain and suffering may be recoverable by her estate … . Stolarski v Family Servs of Westchester Inc, 2013 NY Slip Op 06850, 2nd Dept 10-23-13
In affirming the denial of the summary judgment motion brought by the defendant abutting landowner in a sidewalk slip and fall case, the Second Department noted that an abutting landowner is not responsible for defects in a tree well, and the allegation that a condition is open and obvious only raises a question of fact about plaintiff’s possible contributory negligence. Vigil v City of New York, 2013 NY Slip Op 06853, 2nd Dept 10-23-13
In a medical malpractice action, the Second Department determined there was a question of fact about whether an implied physician-patient relationship existed:
Liability for medical malpractice may not be imposed in the absence of a physician-patient relationship … . A physician-patient relationship is created when professional services are rendered and accepted for purposes of medical or surgical treatment … . An implied physician-patient relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional … . Whether a physician’s proffer of advice furnishes a sufficient basis upon which to conclude that an implied physician-patient relationship has arisen is ordinarily a question of fact for a jury … . Thomas v Hermoso, 2013 NY Slip Op 06852, 2nd Dept 10-23-13
n affirming the grant of summary judgment to the defendant, the Second Department explained the standard of care applicable to a train operator. Plaintiff’s decedent was struck by the train:
The complaint in this case alleged that the defendants acted negligently and thereby caused the death of the plaintiff’s decedent, who was struck by a train owned and operated by the defendants. “[A] train operator may be found negligent if he or she sees a person on the tracks from such a distance and under such other circumstances as to permit him [or her], in the exercise of reasonable care, to stop before striking the person” … . In support of their motion for summary judgment dismissing the complaint, the defendants submitted evidence, including the deposition testimony of the operator of the train involved in the subject accident, that he was operating the train at a lawful speed and was approximately one car length away when he first observed the decedent, who was intoxicated, trespassing on the tracks. The train operator immediately applied the emergency brakes and sounded the horn, but at that point, it was impossible to avoid the collision. The evidence submitted by the defendants established, prima facie, that they were not negligent in the happening of the accident as a matter of law … . Neenan v Quinton, 2013 NY Slip Op 06843, 2nd Dept 10-23-13
In finding the resort to contempt for failure to make payments pursuant to a judgment in a matrimonial action was appropriate, the Second Department explained the criteria:
Pursuant to Domestic Relations Law § 245, where a spouse fails to make payments of money pursuant to an order or judgment entered in a matrimonial action, the aggrieved spouse may apply to the court to punish the defaulting spouse for contempt, but only if “it appears presumptively, to the satisfaction of the court,” that payment cannot be enforced by other means such as enforcement of a money judgment or an income execution order (Domestic Relations Law § 245…). In order to punish the defaulting spouse for contempt, the aggrieved spouse is not required to exhaust all alternative remedies; proof that alternative remedies would be ineffectual is sufficient … . Here, the defendant satisfied that burden… . Longman v Longman, 2013 NY Slip Op 06664, 2nd Dept 10-16-13
In finding the defendant did not effectively waive his right to appeal, the Second Department explained:
…[T]he record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The defendant’s purported waiver of the right to appeal is unenforceable, as the record does not indicate that he had ” a full appreciation of the consequences'” of such waiver … . While the defendant signed a written waiver, a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … . Accordingly, in the absence of a knowing, voluntary, and intelligent waiver of the right to appeal, the defendant retained his right to challenge the denial of that branch of his omnibus motion which was to suppress identification testimony… . People v Crawford, 2013 NY Slip Op 06705, 2nd Dept 10-16-13
The Second Department reversed defendant’s convictions on sexual offenses as against the weight of the evidence:
The testimony of the prosecution’s witnesses failed to provide a credible foundation for the defendant’s convictions due to numerous inconsistencies and contradictions. * * *
…[T]the prosecution’s witnesses testified that the defendant and the mother separated in 2002, and, at the time, the defendant had already moved out of the home where the abuse allegedly took place. Thus, many of the alleged incidents of abuse took place after the defendant had moved out of the home and no longer had a key to it. From 2003 to 2005, a restraining order that the mother obtained against the defendant was in effect, and the mother confirmed that, during one period of time in 2004, the defendant conducted all of his visits with the children outside of the home. The testimony of the prosecution’s witnesses was generally inconsistent as to whether, during the other visits, the defendant stayed alone with the children in the mother’s home, or whether the grandmother or the mother was always present. In any event, although the younger stepdaughter alleged that the defendant molested her twice per week between 2000 and 2004, the trial testimony clearly established that the defendant’s access to the children was often limited after he moved out of the mother’s home in 2002. People v McMitchell, 2013 NY Slip Op 06713, 2nd Dept 10-16-13
In reversing the defendant’s robbery conviction as against the weight of the evidence, the Second Department determined the fact that defendant’s hand was in his pocket did not support the “threat to use immediate physical force” element of the offense:
This Court has held that where an unarmed person “positions his hand in his pocket in a manner that is intended to convey to his victim the impression that he is holding a firearm,” that qualifies as displaying what appears to be a gun … . Since the defendant here admitted to knowingly entering the warehouse with the intent to commit a crime therein, the acquittal of burglary in the second degree could only be based upon the People’s failure to prove that the defendant displayed what appeared to be a firearm, or, in other words, upon the People’s failure to prove that the defendant positioned his hand in his pocket in a manner intended to convey to the complainants the impression that he was holding a gun.
The trial court’s factual finding that the defendant did not display what appeared to be a firearm is supported by the record. The trial court, however, failed to give that finding the proper weight with respect to the crime of robbery in the third degree … . If the People failed to prove that the defendant displayed what appeared to be a firearm by holding his hand in his pocket, then there was no basis on which the trial court could conclude that the defendant’s conduct of holding his hand in his pocket constituted a threat to use immediate physical force upon the complainants in order to overcome their resistance. Accordingly, the verdict of guilt with respect to robbery in the third degree was against the weight of the evidence, and we vacate that conviction and the sentence imposed thereon… . People v Johnson, 2013 NY Slip Op 06709, 2nd Dept 10-16-13
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