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Dispositional Hearing Should Have Been Held After Neglect Finding

In a neglect proceeding, the Second Department noted a dispositional hearing was required before entering a dispositional order:

…Family Court erred in issuing the orders of disposition without first conducting a dispositional hearing (see Family Ct Act §§ 1045, 1047[a], 1052[a]…). “A dispositional hearing must be held as a condition precedent to the entry of a dispositional order” … . “A dispositional hearing is required so as to permit the Family Court to make an informed determination, from amongst the dispositional alternatives, which is consistent with the best interests of the . . . children” … . At a dispositional hearing, “due process requires that the parties be provided an adequate opportunity to offer evidence” (…see Family Ct Act § 1011). Here, the Family Court did not allow the mother to testify, failed to adduce any evidence from the father, to whom it released two of the children, and conducted no inquiry into dispositional alternatives before making its determination.  Matter of Monique M, 2013 NY Slip Op 06577, 2nd Dept 10-9-13

 

Funeral-Expense Award from NYS Crime Victims Board Should Not Have Been Reduced by 50% Based on the Victim’s Alleged Involvement in Criminal Activity

The Second Department determined that the reimbursement of funeral expenses from the NYS Crime Victims Board should not have been reduced by 50% on the ground that the victim engaged in conduct contributing to the crime.  The court wrote:

… [G]eneral knowledge that narcotics sellers are subject to a greater risk of being violently murdered is not sufficient to supply a record-based relationship between the subject homicide and the victim’s alleged conduct. Under the particular circumstances of this case, the [Office of Victim Services] determination affirming the decision reducing the petitioner’s award by 50% based upon a finding that the victim engaged in culpable conduct “logically and rationally related to the crime by which the victim was victimized” (9 NYCRR 525.3[b]) was “taken without sound basis in reason or regard to the facts”… . Matter of Cox v Office of Victim Servs, 2013 NY Slip Op 06566, 2nd Dept 10-9-13

 

Charging Lien on Settlement Award Allowed—Attorney Withdrew By Mutual Consent

In affirming the validity a charging lien on a settlement award on behalf of an attorney who had withdrawn from the case upon mutual consent the Second Department wrote:

“Pursuant to Judiciary Law § 475, [w]hen an action is commenced, the attorney appearing for a party obtains a lien upon his or her client’s causes of action . . . This lien attaches to any final order or settlement in the client’s favor'” … . ” Where an attorney’s representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains his or her right to enforce the statutory lien'” … . Here, the plaintiff established, prima facie, that his representation … was terminated upon mutual consent, and that there had been no misconduct, discharge for cause, or unjustified abandonment on his part. Tangredi v Warsop, 2013 NY Slip Op 06559, 2nd Dept 10-9-13

 

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Valid Cause of Action Stated in Slip and Fall Suit Against Abutting Property Owner for Obstruction in Sidewalk (Gas Cap Cover)

The Second Department reversed Supreme Court and determined the slip and fall complaint stated a cause of action against the owner of property abutting a sidewalk.  In the sidewalk was a gas cap cover, owned by a utility, and concrete on top of the gas cap created raised area which was alleged to have caused plaintiff to fall.  A Long Beach City Ordinance imposed a duty upon abutting landowners to remove obstructions. The defendant relied heavily on cases construing New York City’s sidewalk law, which differed from the more broadly worded Long Beach ordinance:

The Charter imposes broad obligations on abutting landowners with respect to the condition of sidewalks, and also provides for tort liability on those landowners:

“The owner . . . of lands fronting or abutting on any street . . . shall make, maintain and repair the sidewalk . . . adjoining his lands and shall keep such sidewalk . . . free and clear of and from snow, ice and all other obstructions. Such owner . . . shall be liable for any injury or damage by reason of omission, failure or negligence to make, maintain or repair such sidewalk . . . or to remove snow, ice or other obstructions therefrom, or for a violation or nonobservance of the ordinances relating to making, maintaining and repairing sidewalks . . . and the removal of snow, ice and other obstructions from sidewalks” (Charter § 256 …).

The Code of Ordinances of the City of Long Beach defines “sidewalk” as “any portion of a street between the curbline and the adjacent property line, intended for the use of pedestrians, excluding parkways” (Code of Ordinances of the City of Long Beach § 1-2). Here, the gas cap was located entirely within a sidewalk flag and was level with the sidewalk, and therefore apparently was intended to be traversed by pedestrians. Thus, the plaintiff contends, the concrete above the gas cap is covered by Long Beach’s sidewalk law, at least to the extent that it may have been an “obstruction” on the sidewalk. Klau v Belair Bldg LLC, 2013 NY Slip Op 06548, 2nd Dept 10-9-13

 

Triable Issues of Fact in Lawsuit Against Bus Company and Property Owner for Slip and Fall on a Speed Bump

In reversing Supreme Court and reinstating the complaint, the Second Department determined there were triable questions of fact whether plaintiff was negligently allowed to step off a bus onto a speed bump, causing her to fall, and whether the property owner (JQ) allowed a dangerous condition (speed bump) to exist:

The [bus company] defendants failed to establish, prima facie, that they fulfilled the duty to alighting passengers to stop at a place where they may safely disembark and leave the area … . Triable issues of fact exist as to whether the driver was aware, or reasonably should have been aware, of the presence of a speed bump in the subject location, whether the speed bump constituted a dangerous condition, and whether the driver should have stopped the bus at the designated stop or another location not adjacent to a speed bump … . There is also a triable issue of fact as to whether the driver failed to see that which should have been seen through the reasonable use of one’s senses and was, therefore, negligent… . The injured plaintiff’s failure to positively state whether sand on the speed bump contributed to her fall was not fatal to her cause of action, because the evidence was sufficient to permit a finding based on logical inferences from the record, and not speculation alone, that the placement of the bus was a proximate cause of the accident, regardless of whether there was sand on the speed bump … .

The JQ defendants, as owners and operators of the office complex, which was open to the public, had a nondelegable duty to provide the public with reasonably safe premises and a safe means of ingress and egress … . This duty may not be delegated by the owner to its agents or employees, or to an independent contractor … . The plaintiffs need not establish that the JQ defendants had notice of the alleged dangerous condition, as it was allegedly created by the JQ defendants or their agent … . The JQ defendants failed to establish, prima facie, that they did not create a dangerous condition on the premises in placing the speed bump, or causing it to be placed, in the subject location. There are triable issues of fact as to whether the speed bump constituted a dangerous condition or was readily visible to a disembarking bus passenger, given its location near the bus stop, and given the conflicting testimony as to whether the speed bump was painted yellow … . Furthermore, triable issues of fact exist as to whether the circumstances were such as to render the subject speed bump a trap for the unwary … . Some visible hazards, because of their nature or location, are likely to be overlooked. The facts here do not warrant concluding as a matter of law that the speed bump was so obvious that it would necessarily have been noticed by any careful observer, so as to make any warning superfluous… . Grizzell v JQ Assoc LLC, 2013 NY Slip Op 06544, 2nd Dept 10-9-13

 

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Primary Assumption of Risk Prohibited Suit by Student Softball Player Injured When Struck by the Ball

The Second Department determined an eighth-grade experienced softball player assumed the risk of being hit by the ball, noting that the supervisor’s temporary absence from the field was not the proximate cause of the injury.  The court provided a thorough explanation of the primary assumption of risk doctrine:

Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity … . Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation … . Since the determination of the existence and scope of a duty of care requires “an examination of plaintiff’s reasonable expectations of the care owed him [or her] by others” …, the plaintiff’s consent does not merely furnish the defendant with a defense, it eliminates the duty of care that would otherwise exist. Accordingly, when a plaintiff assumes the risk of participating in a sporting event, “the defendant is relieved of legal duty to the plaintiff; and being under no duty, he [or she] cannot be charged with negligence” … . It is not necessary to the application of the doctrine that the injured plaintiff should have foreseen the exact manner in which the injury occurred “so long as he or she is aware of the potential for injury of the mechanism from which the injury results”… . Cruz v Longwood Cent Sch Dist, 2013 NY Slip Op 06541, 2nd Dept 10-9-13

 

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ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT).

The Second Department, reversing Family Court, determined the attorney for a child with Down syndrome and profound disabilities could continue to make medical and foster care decisions for the child after the child turned 18. Therefore, Family Court’s sua sponte appointment of a guardian was unnecessary:

We disagree with the Family Court’s determination to deny the child’s motion to relieve the guardian ad litem. Family Court Act §§ 1016, 1087, and 1090(a), and 22 NYCRR 7.2(d)(3), read in conjunction with each other, authorize the attorney for the child to represent the child’s interests in this matter, substitute its judgment for that of the child, and provide consent for the child to remain in foster care, thereby rendering the appointment of a guardian ad litem unnecessary … . Matter of Elliot Z. (Joseph Z.), 2018 NY Slip Op 06547, Second Dept 10-3-18

FAMILY LAW (ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))/ATTORNEYS (FAMILY LAW, ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))/GUARDIANS (FAMILY LAW, ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))

Failure to Inquire About Defendant’s Understanding of Intoxication Defense Required Vacation of Guilty Plea

The Second Department determined defendant’s guilty plea should be vacated because the defendant could not recall the events due to his intoxication and the court made no inquiry about whether the defendant was aware of the significance of his intoxication (a possible intoxication defense):

The defendant pleaded guilty to assault in the second degree (see Penal Law § 120.05). At the plea allocution, the defendant indicated that he had a very limited recollection of the incident, but admitted his guilt based on photographs, police reports, and witness statements. The County Court acknowledged that the defendant could not recollect the incident because he had been drinking alcoholic beverages at the time of the assault, and that the defendant’s alleged intoxication at the time of the incident could negate the intent element of the crime of assault in the second degree (see Penal Law §§ 15.25, 120.05). While defense counsel stated that he had discussed “a possible intoxication defense” with the defendant and that the defendant understood it, the court made no inquiry of the defendant to ensure that he was aware of the significance of his claim of intoxication … . The court’s failure to conduct any such inquiry of the defendant requires vacatur of the defendant’s plea of guilty… . People v Jiminez, 2013 Slip Op 06386, 2nd Dept 10-2-13

 

Papers Sufficient to Require Suppression Hearing—No Need to Allege Expectation of Privacy Where Police Act Illegally

In finding defendant’s papers were sufficient to require a suppression hearing (re: the suppression of a gun), the Second Department noted that the defendant was not required to demonstrate he had a legitimate expectation of privacy in the area the gun was found because the motion alleged the gun was seized as a result of illegal police conduct:

A motion to suppress evidence must state the grounds of the motion and contain sworn allegations of fact supporting such grounds (see CPL 710.60[1]…). “It is fundamental that a motion may be decided without a hearing unless the papers submitted raise a factual dispute on a material point which must be resolved before the court can decide the legal issue” (…see CPL 710.60[3][b],,,). In testing the sufficiency of a defendant’s factual allegations, a court should consider “(1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information” … .

Here, the allegations in the defendant’s papers, when considered in the context of the information provided by the People, raised a factual dispute requiring a hearing … . Contrary to the People’s contention, the defendant’s motion papers contained the requisite sworn allegations of fact … . Moreover, the defendant was not required to demonstrate that he had a legitimate expectation of privacy in the area where the gun was found …, since, under both the defendant’s and the People’s versions of events, the dispositive issue was whether the gun was recovered as a direct result of unlawful police action …. In light of the foregoing, the County Court should not have denied suppression without conducting a hearing. Accordingly, we remit the matter to the County Court, Suffolk County, for a hearing and a new determination thereafter of that branch of the defendant’s motion which was to suppress physical evidence.  People v Jennings, 2013 NY Slip Op 06384, 2nd Dept 10-2-13

 

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Police Violated Defendant’s Constitutional Rights by Pushing Door Open and Entering Apartment When Defendant Answered the Door—The “Payton” Violation (a Warrantless Arrest Inside Home) Mandated Suppression of Defendant’s Statement

Over a two-justice dissent, the Second Department determined defendant was arrested pursuant to a Payton violation (a warrantless arrest inside defendant’s home) and his subsequent statement should have been suppressed. The police were at defendant’s door with the complainant who told the police defendant had assaulted her.  When defendant opened the door, the complainant identified him as the assailant.  The defendant tried to shut the door, but the police pushed their way in and arrested him. The trial court felt there was no Payton violation the defendant’s attempt to shut the door after the identification was akin to “fleeing” or “exigent circumstances.”  The Second Department, in a full-fledged opinion by Justice Balkin, disagreed and wrote:

In Payton v New York (445 US 573), the United States Supreme Court announced a clear and easily applied rule with respect to warrantless arrests in the home: “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant” (Payton v New York, 445 US at 590). The rule under the New York Constitution is the same (see NY Const, art 1, § 12; People v Levan, 62 NY2d 139, 144). Payton and Levan require suppression of the defendant’s statement under the clear, undisputed facts of this case.

Certainly, if the defendant’s encounter with the police had begun outside his home, or even on the threshold of it, the defendant could not have avoided arrest by fleeing into his home (see United States v Santana, 427 US 38, 43). But, contrary to the hearing court’s characterization, the defendant’s attempt to close his door was not “akin” to “fleeing”; he had never left the constitutionally protected interior of his home in the first place, even partially, so he did not flee “into” his home … . People v Gonzales, 2013 NY Slip Op 06381, 2nd Dept 10-2-13

 

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