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Plaintiff Unable to Identify Cause of Fall

In reversing Supreme Court, the Second Department determined a slip and fall action against defendant (Trump Village) should have been dismissed because the plaintiff could not identify the cause of her fall:

” [A] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation'” … . Although “[p]roximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident, . . . mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action” … . Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation … . Ash v city of New York, 2013 NY Slip Op 05864, Second Dept 9-18-13

 

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Out-Of-Possession Landlord Not Liable for Slip and Fall

In affirming the grant of summary judgment to an out-of-possession landlord in a slip and fall case, the Second Department explained:

“An out-of-possession landlord’s duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession landlord, that it was not contractually obligated to maintain the subject parking lot, that it did not endeavor to maintain the subject parking lot, and that it did not owe the plaintiff a duty by virtue of any applicable statute or regulation … . Castillo v Wil-Cor Realty Co, Inc, 2013 NY Slip Op 05871, 2nd Dept 9-18-13

 

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Reinstatement of Charge Against Teacher After Dismissal of Charge in Arbitration Proper; Interlocutory Ruling by Arbitrator was “Final” in Effect/Courts Can Impose Higher Level of Scrutiny when Arbitration Mandated by Statute

The Second Department affirmed Supreme Court’s reinstatement of a charge against a teacher (Hogan) which had been dismissed by the arbitrator. The Second Department explained the criteria for court review of an interlocutory ruling of an arbitrator, noting that more scrutiny is appropriate in an arbitration mandated by statute:

Initially, we reject Hogan’s contention that the petition should have been dismissed because courts do not have the authority to review an interlocutory award dismissing one of the charges in an arbitration proceeding brought pursuant to Education Law 3020-a. As a general rule, a court lacks authority to entertain a petition to review an interlocutory ruling of an arbitrator on a procedural matter … . Here, however, the award sought to be reviewed is not one which involves “only a very limited procedural question” … . Rather, the award dismissed the most serious disciplinary charge preferred against Hogan, and the only one of the three charges which alleged that he was guilty of misconduct. The award is final as to that charge, and, if allowed to stand, would prevent the District from adducing evidence in support of the alleged misconduct at the hearing. Under these circumstances, the award dismissing Charge No. 1 can be viewed as a final determination subject to review under CPLR 7511 … .

Furthermore, the Supreme Court properly granted the District’s petition and reinstated Charge No. 1 against Hogan. Where, as here, the obligation to arbitrate arises through statutory mandate (see Education Law § 3020-a), the arbitrator’s determination is subject to closer judicial scrutiny than it would receive had the arbitration been conducted voluntarily … . The award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious … . Matter of Board of Educ of Hauppauge Union Free Sch Dist v Hogan, 2013 NY Slip Op 05816, 2nd Dept 9-11-13

 

Child Should Not Have Been Removed from Foster Parents in Favor of Maternal Uncle

In reversing Family Court’s determination the child should move to the home of her maternal uncle rather than remain with her foster parents for adoption, the Second Department wrote:

Once parental rights have been terminated, there is no presumption favoring the child’s biological family … . Moreover, while the law expresses a preference for keeping siblings together, the rule is not absolute and may be overcome where the best interests of each child lie in residing apart … . Here, as the children never shared a household, the Family Court erred in concluding that this consideration outweighed the benefit to Orianne of remaining in her foster home, where she has resided since infancy … . The record clearly reflects that Orianne has bonded with her foster family, and is healthy, happy, and well provided for … . Accordingly, the Family Court erred in determining that it was in Oriane’s best interests to move to the home of her maternal uncle rather than remain with her foster parents for the purpose of adoption, which, the record indicates, is the foster parents’ intent… . Matter of Ender MZ-P…, 2013 NY Slip Op 05829, 2nd Dept 9-11-13

 

Grant of Custody to Maternal Grandparents Rather than Parent Reversed

In reversing Family Court’s grant of custody to maternal grandparents, the Second Department wrote:

“In a custody proceeding between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persisting neglect, unfitness, or other like extraordinary circumstances” … . “For a third-party nonparent to gain custody of a child, he or she must first prove that extraordinary circumstances exist such that a parent has relinquished his or her superior right to custody” … . “Where extraordinary circumstances are present, the court must then consider the best interests of the child in awarding custody” … .  * * *

We agree with the Family Court that the petitioners, the maternal grandparents of the subject children, satisfied their burden of demonstrating the existence of “extraordinary circumstances,” necessitating a determination as to the best interests of the children … . However, considering the totality of the circumstances in this case .., we find that the Family Court’s determination awarding … custody … to the maternal grandparents is not supported by a sound and substantial basis in the record. The mother’s testimony indicated that, at the time of the hearing, she had abstained from drug use for more than 2½ years. The mother’s testimony also indicated that there were no recent incidents of domestic violence between her and Tardo [the father of one of the children]. Indeed, the Family Court noted in its order that the mother and Tardo are now “clean and sober,” three years having passed between their last instances of drug use and the date of the order, and that “there have been no reports of aggression.” The Family Court placed undue emphasis on the forensic evaluation, which was completed almost two years prior to the court’s determination. Additionally, while the Family Court did acknowledge the nature of James’s wishes, we conclude that the court failed to adequately consider those preferences … . We further note that the attorney for the children supports the mother’s position on appeal, at least insofar as advocating for the mother to have joint custody of both children. Matter of Noonan v Noonan, 2013 NY Slip Op 05824, 2nd Dept 9-11-13

 

 

Maintenance Should Not Have Been Granted in Absence of Proof of Standard of Living and Need for Maintenance

The Second Department determined Supreme Court abused its discretion by awarding maintenance in the absence of evidence of the parties’ standard of living and the plaintiff’s need for maintenance:

…[T]he Supreme Court’s award of maintenance to the plaintiff was an improvident exercise of its discretion since the award was made in the absence of any evidence of the parties’ standard of living during the marriage, and in the absence of evidence that the plaintiff, who is otherwise self-supporting, needs maintenance to sustain his pre-divorce standard of living. Additionally, the defendant’s reasonable needs preclude an award of maintenance to the plaintiff. Under these circumstances, the plaintiff should not have been awarded maintenance… .  Lucere v Lucere, 2013 NY Slip Op 05801, 2nd Dept 9-11-13

 

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In Personal Injury Case, Court Should Not Have Granted Mistrial When Objection Sustained, Lawyer Admonished and Curative Instruction Given

The Second Department reversed Supreme Court’s grant of a mistrial in a slip and fall case.  Plaintiff was injured playing basketball. Plaintiff objected to remarks made by defense counsel in summation which erroneously implied that the doctrine of primary assumption of risk applied.  The trial judge sustained the objection, admonished the lawyer, and gave a curative instruction. After the verdict for the defendant, Supreme Court granted plaintiff’s motion for a mistrial:

The Supreme Court erred in, in effect, granting the plaintiffs’ application for a mistrial since the court had previously properly sustained objections to the subject summation comments, openly admonished counsel, and provided curative instructions, thereby correcting any possible prejudice resulting from the subject summation comments … . Richardson v City of New York, 2013 NY slip Op 05810, 2nd Dept 9-11-13

 

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Refusal to Comply with Discovery Demand Supported Sanction of Dismissal of the Complaint

The Second Department determined Supreme Court had properly dismissed the complaint in a medical malpractice action because the plaintiffs refused to identify the mohel who had performed the circumcision of infant plaintiff.  In finding dismissal of the entire complaint an appropriate sanction, the court wrote:

“The Supreme Court has broad discretion in making determinations concerning matters of disclosure including the nature and degree of the penalty to be imposed under CPLR 3126” … . “The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious”… . Further, the court can infer that a party is acting willfully and contumaciously through his or her repeated failure to respond to demands or to comply with discovery orders … .  Silberstein v Maimonides Med Ctr, 2013 NY Slip Op 05813, 2nd Dept 9-11-13

 

Obstructing Governmental Administration Conviction Reversed—Police Not Engaged in “Authorized Conduct”

The Second Department reversed defendant’s conviction for obstructing governmental administration as against the weight of the evidence. The court determined there was not sufficient proof the police were engaged in authorized conduct at the time of the contact with the defendant:

“A person is guilty of obstructing governmental administration when he [or she] intentionally . . . prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference” (Penal Law § 195.05). Thus, a defendant may not be convicted of obstructing governmental administration unless it is established that the police were engaged in authorized conduct … . As determined by the Supreme Court, the initial chase of the defendant by the police was not supported by reasonable suspicion … . Further, in light of the defendant’s acquittal by the jury on the charges of criminal possession of a weapon in the second degree and criminal possession of a weapon in the fourth degree, which we may consider in conducting a weight of the evidence review … , the evidence, when properly weighed, did not prove, beyond a reasonable doubt, that the officer was performing an official function authorized by law when he tried to disarm the defendant following the chase … . Thus, the record reflects that, when considering whether the People satisfied the “performing an official function” element of the crime of obstructing governmental administration in the second degree, the jury failed to give the weight properly due to its credibility finding that the defendant was not in possession of a weapon … .  People v Small, 2013 NY slip Op 05842, 2nd Dept 9-11-13

 

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Mitigating Factor (12 Years Since Release) Did Not Warrant Downward Departure in SORA Proceeding

he Second Department affirmed Supreme Court’s refusal to depart downward in a SORA proceeding, even though the fact that defendant had not been convicted of any sex offenses in the 12 years following his release from prison was a mitigating factor not taken into account by the risk assessment guidelines:

… [T]he defendant requested that the Supreme Court downwardly depart from his designation as a presumptive risk level two sex offender. In that respect, the defendant demonstrated, by a preponderance of the evidence, that he had not been convicted of any sex offenses in the 12 years following his release from prison, which is a mitigating factor not adequately taken into account by the SORA Risk Assessment Guidelines … . Nevertheless, in light of the grievous nature of the defendant’s offense and, thus, the danger he poses to society should he reoffend, the Supreme Court did not improvidently exercise its discretion in declining to downwardly depart from the presumptive risk level (…Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 2 [2006]). People v Rivera, 2013 NY Slip Op 05808, 2nd Dept 9-11-13