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Family Court Did Not Have Sufficient Information to Terminate Father’s Visitation

In finding that Family Court did not have enough information to determine whether the termination of father’s visitation was in the child’s best interest, in part because the court did not talk to the child in camera, the Second Department wrote:

A court may modify a visitation order upon a showing of changed circumstances and that modification is in the best interests of the child…. “A noncustodial parent is entitled to meaningful visitation, and denial of that right must be based on substantial evidence that visitation would be detrimental to the welfare of the child”…. A trial court’s determination that the best interests of the child warrants termination of visitation will not be set aside unless it lacks a sound and substantial basis in the record…. “Although a child’s wishes are not determinative, his or her wishes, age, and maturity should be given considerable weight” … . “Generally, visitation should be decided after a full evidentiary hearing to determine the best interests of the children. However, a hearing is not necessary where the court possesses adequate relevant information to make an informed determination of the children’s best interests”….  Here, the Family Court did not possess adequate relevant information to determine whether the termination of the father’s visitation with the child was in the child’s best interest. For instance, although the attorney for the child indicated that the child, who was then 13 years old, did not wish to visit the father, the court failed to conduct an in camera examination of the child to ascertain the child’s views.  Matter of Zubizarreta v Hemminger, 2013 NY Slip Op 04617, 2nd Dept, 6-19-13

 

Refusal to Allow DSS Workers Into Apartment Did Not Constitute Neglect

The Second Department reversed Family Court’s neglect determination against father.  The sole basis for the neglect finding was father’s refusal to let DSS Emergency Services workers into his apartment, which, the father explained, was based upon his fear the workers were not who they claimed they were:  The Second Department wrote:

“To establish neglect pursuant to section 1012(f)(i)(B) of the Family Court Act, the petitioner must prove, by a preponderance of the evidence, that (1) the child’s physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, and (2) the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship”…. Any determination that a child is a neglected child must be based on a preponderance of the evidence (see Family Ct Act § 1046;…).   Here, while the DSS properly sought access to Joshua under its order of supervision, it failed to prove at the fact-finding hearing by a preponderance of the evidence that the father neglected Joshua…. The evidence did not establish that Joshua’s physical, mental, or emotional condition was impaired, or was in imminent danger of becoming impaired, as a result of the father’s refusal to allow the DSS Emergency Services workers into his apartment. Moreover, the evidence established that the DSS Emergency Services workers found Joshua to be clean, healthy, and safe. Matter of Joshua J, 2013 NY Slip Op 04606, 2nd Dept, 6-19-13

 

Even though Mother Properly Awarded Custody, Father Should Have Been Awarded Decision-Making Authority Re: Education

In affirming Family Court’s award of sole custody to mother, the Second Department determined the father should have been awarded decision-making authority for the child’s education:

When joint custody is not possible because of the antagonistic relationship between the parties…, it may be appropriate, depending upon the particular circumstances of the case, to award some custodial decision-making authority to the noncustodial parent…. The division of authority should be made in a manner intended to take advantage of the strengths and abilities of the noncustodial parent with respect to a particular dimension of child-rearing…. The Family Court’s determination that it would be in the child’s best interests to award the mother decision-making authority with respect to the child’s education is not supported by a sound and substantial basis in the record. The father researched educational options for the subject child at every stage of his schooling. Once the child started school and began receiving homework assignments, the father supervised his homework, took part in school-related activities, and remained involved with his schooling at every stage. The father contacted the child’s teachers regarding issues of concern. Jacobs v Young, 2013 NY Slip Op 04607, 2nd Dept, 6-19-13

 

Driver Stalled in Moving Lane of Traffic Not Negligent Re: Rear-End Collision

In finding Supreme Court should have dismissed the complaint against a driver (Mabella) who was struck from behind when stopped, due to mechanical trouble, in a moving lane of traffic, the Second Department explained:

Mabella established his prima facie entitlement to judgment as a matter of law through his submission of the deposition testimony of the parties, which demonstrates that his vehicle was fully stopped when it was struck in the rear by the Maldonado vehicle…. Although his vehicle was stopped in a moving lane of traffic, Mabella established that this was due to mechanical failure and not the result of any fault on his part…. The plaintiff and the defendants who opposed Mabella’s motion failed to raise a triable issue of fact regarding Mabella’s alleged fault in the happening of the accident. Prosen v Mabella, 2013 NY Slip Op 04589, 2nd Dept, 6-19-13

TRAFFIC ACCIDENTS

 

 

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Liability Criteria Re: Tenant for Slip and Fall on Abutting Public Sidewalk Explained

In dismissing a cause of action in a slip and fall case against a tenant based upon the alleged condition of an abutting public sidewalk (in which a pair of metal doors leading to the basement of the rented premises were set), the Second Department explained the relevant legal principles as follows:

An owner or occupier of land which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition…, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting owner or lessee “ either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the owner or lessee the obligation to maintain the sidewalk which imposes liability upon that party for injuries caused by a violation of that duty’”…. To recover from a tenant which occupies premises abutting a sidewalk under the theory that the tenant has a special use of the sidewalk, the tenant must be in exclusive possession and control of the alleged special-use area…, and the plaintiff must demonstrate that the special use caused the defective condition which proximately caused his or her injuries….  O’Toole v City of Yonkers, 2013 NY Slip Op 04585, 2nd Dept, 6-19-13

 

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Amendment to Notice of Claim to Add Second Hospital Should Have Been Allowed

In reversing Supreme Court’s denial of petitioner’s application to amend the notice of claim (to add a second hospital) in a wrongful death action against the New York City Health & Hospitals Corporation, the Second Department wrote:

The petitioner’s decedent … was severely beaten on November 10, 2010. He was taken first to Queens Center Hospital and soon thereafter transferred to Elmhurst Hospital for surgery, which took place the same day. The decedent died at Elmhurst Hospital a few days later. The petitioner alleged that the respondents’ employees either did not begin the surgery soon enough or did not perform the surgery correctly. In either event, all of the acts and omissions alleged to have been negligent took place on November 10, 2010. The petitioner’s original notice of claim did not mention Elmhurst Hospital, but the petitioner timely sought leave to amend the notice of claim to, inter alia, add allegations regarding the treatment at Elmhurst Hospital. The Supreme Court denied the relief sought by the petitioner.  All of the conduct alleged to have been negligent took place at the two named hospitals on the same day. Moreover, the respondents’ records noted the decedent’s transfer from Queens Center Hospital to Elmhurst Hospital and detailed all of the treatment rendered that day. The respondents could not have been prejudiced by the proposed amendment of the notice of claim and, under the circumstances, there was no need to treat that amendment as the assertion of a new claim (see General Municipal Law § 50-e[6];…).  Matter of Bingsen Xu v New York City Health & Hosps Corp, 2013 NY 04601, 2nd Dept, 6-19-13

 

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Plaintiff’s Lack of Knowledge About Contract Breaches Did Not Toll Statute of Limitations

The Second Department determined plaintiff’s lack of knowledge about alleged annual breaches of contract by the village for which he served as police commissioner was not the result of fraud and, therefore, the 18-month statute of limitations for each breach was not tolled:

Pursuant to CPLR 9802, “no action shall be maintained against the village upon or arising out of a contract of the village unless the same shall be commenced within eighteen months after the cause of action therefor shall have accrued, nor unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued.” Where the claim is for the payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff possesses a legal right to demand payment…. Here, as the Village correctly contends, the causes of action alleging breach of contract accrued at the end of each year that the plaintiff allegedly was not paid in accordance with his contract…. Since this action was not commenced until September 28, 2011, the Village established, prima facie, that the action was time-barred to the extent that the plaintiff sought to recover damages accruing prior to March 28, 2010, that is, 18 months prior to the commencement of the action…. In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations had been tolled or was otherwise inapplicable, or whether he actually commenced the action within the applicable limitations periods…. Contrary to the plaintiff’s contention, his lack of knowledge that the several breaches had occurred did not toll the running of the limitations period… Reid v Incorporated Vil of Flora Park, 2013 NY Slip Op 04321, 2nd Dept, 6-12-13

 

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Submission of Intentional and Depraved Indifference Murder to Jury in Conjunctive Rather than Alternative Okay

The Second Department determined the trial court did not err when it submitted intentional murder and depraved indifference murder to the jury in the conjunctive, rather than the alternative, because more than one potential victim was present:

The defendant, relying on People v Molina (79 AD3d 1371), contends that the submission of the counts of intentional murder (and attempted murder) and depraved indifference murder to the jury in the conjunctive, rather than in the alternative, violated his right to due process. However, the defendant’s contention is without merit. “Where, as here, more than one potential victim was present at the shooting, a defendant may be convicted of both counts because he or she may have possessed different states of mind with regard to different potential victims”…. To the extent that the Appellate Division, [3rd] Department, held differently in Molina, we disagree and decline to follow that holding. People v Dubarry, 2013 NY Slip Op 04354, 2nd Dept, 6-12-13

 

Relationships Among Subtenancy, Prime Tenancy and Landlord Explained

The Second Department explained the relationships among a subtenancy, the prime tenancy and the landlord as follows:

“As a general rule, where a landlord and prime tenant enter into an agreement to voluntarily terminate the paramount lease, the subtenant becomes the immediate tenant of the original lessor, and the interest of the subtenant and terms of the sublease continue as if no termination had occurred”…. “However, because a sublease is dependent upon and limited by the terms and conditions of the paramount lease from which it is carved, a subtenancy may be terminated by the expiration of the term of the prime tenant, or a re-entry by the landlord for a condition broken”….  380 Yorktown Food Corp v 380 Downing Dr, LLC, 2013 NY Slip Op 04327, 2nd Dept, 6-12-13

 

Criteria for Award of Support for Education

The Second Department explained the criteria for the award of support for a child’s college education as follows:

“Unlike the obligation to provide support for a child’s basic needs, support for a child’s college education is not mandatory'”…. “Instead, absent a voluntary agreement, whether a parent is obligated to contribute to a child’s college education is dependent upon the exercise of the court’s discretion in accordance with Domestic Relations Law § 240(1-b)(c)(7)’ …, and an award will be made only “as justice requires”‘”…. “[A] court must give due regard to the circumstances of the case and the respective parties, as well as both the best interests of the child and the requirements of justice” ….  Silverstein v Silverstein, 2013 NY Slip Op 04323, 2nd Dept, 6-12-13

 

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