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Where There Are Sharp Factual Disputes, Forensic Evaluations Are Required for a Guardianship Determination

In a case with sharp factual disputes, the Second Department determined Family Court should not have decided the issue of guardianship without the aid of forensic evaluations:

The Family Court erred in deciding the issue of guardianship without the aid of forensic evaluations of Stephanie, Shanika, and Jada. Although forensic evaluations are not always necessary, such evaluations may be appropriate where there exist sharp factual disputes that affect the final… . Under the circumstances of this case, the record is inadequate to determine the best interests of the child, particularly as there was no expert assessment of the psychological impact of separating Jada from Shanika. In addition, given Stephanie’s allegations of alcohol abuse by Shanika, and Shanika’s allegations of alienation by Stephanie and Stephanie’s current partner, forensic evaluations of Stephanie, Shanika, and Jada are proper to aid in the resolution of these factual issues.  Matter of Shanika M v Stephanie G, 2013 NY Slip Op 05460, 2nd Dept 7-24-13

 

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Mother Did Not Stipulate to Order of Reference; Therefore Referee Only Had Power to Hear and Report

The Second Department determined mother did not stipulate to the order of reference (referring the custody and visitation proceeding to a referee) in the manner required by CPLR 2104.  Therefore, although the order of reference authorized the referee to “hear and determine the parties’ rights to custody … and visitation…,” absent the parties’ consent to the reference, the referee only had the power to hear and report.

…[T]he mother did not consent to the reference merely by participating in the proceeding without expressing her desire to have the matter tried before a judge… .

Accordingly, the Court Attorney Referee had no jurisdiction to determine, but only to hear and report, with respect to the parties’ respective petition and cross petition regarding custody and visitation…. Thus, the Court Attorney Referee’s decision … must be deemed a report (see CPLR 4320[b]), and the matter must be remitted for further proceedings pursuant to CPLR 4403 before a judge of the Family Court.  Matter of McClarin v Valera, 2013 NY Slip Op 05461, 2nd Dept 7-24-13

 

Father’s Petition to Relocate to North Carolina Properly Denied

The Second Department determined Family Court had properly denied father’s petition for permission to relocate to North Carolina.  A prior consent order had awarded joint legal custody with primary physical custody to the father.  The father, who is in the military, was transferred from West Point to Fort Bragg in North Carolina.  The court explained the applicable (relocation) considerations as follows:

“Relocation may be allowed if the custodial parent demonstrates, by a preponderance of the evidence, that the proposed move is in the child’s best interests”…. When evaluating whether a proposed move is in the child’s best interest, “the factors to be considered include, but are not limited to, each parent’s reasons for seeking or opposing the move, the quality of the relationships between the children and each parent, the impact of the move on the quantity and quality of the children’s future contact with the noncustodial parent, the degree to which the lives of the custodial parent and the children may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the children through suitable visitation arrangements” … . Although a multitude of factors may be considered, “ the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern’”…. Matter of Hirtz v Hirtz, 2013 NY Slip Op 05457, 2nd Dept 7-24-13

 

Out of State Visitation for All School Breaks and Three-Day Weekends (In Addition To Summers) Should Not Have Been Granted

The Second Department determined Family Court correctly awarded visitation with the father in Kentucky for the entire summer, but should not have awarded visitation with the father in Kentucky for school breaks and three-day weekends throughout the year:  In remitting the matter for re-working the The visitation, the court wrote:

The provision of the visitation schedule which, in addition to the summer visitation, awards the father visits in Kentucky during school breaks for “every Thanksgiving, Christmas, winter, mid-winter, spring, and Easter,” effectively deprives the mother “of any significant quality time” with the children, and is therefore “excessive… . While that provision takes into account the children’s need to spend time with the father and his family, it does not take into account the importance of their relationship with the mother and her extended family, in that it deprives the children of contact “during times usually reserved for family gatherings and recreation” … . We note that the court-appointed forensic evaluator recommended that the parties share parenting time during major holidays such as Thanksgiving, Christmas, and Easter. There was no contrary evidence that awarding all parenting time during these holidays to the father furthers the children’s best interests. The opinions of experts “are entitled to some weight” …, and, under the circumstances presented here, the Family Court should have awarded equal parenting time to the parties for these school breaks. Accordingly, we remit the matter to the Family Court to set forth a new visitation schedule regarding “Thanksgiving, Christmas, winter, mid-winter, spring, and Easter” that apportions those school breaks equally between the parties.  Matter of Felty v Felty, 2013 NY Slip Op 05454, 2nd Dept 7-24-13

 

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Family Offense of Disorderly Conduct Not Proven—No Proof of Public Inconvenience, Annoyance, or Alarm

In a full-fledged opinion by Justice Skelos, the Second Department determined the wife’s allegations against her husband did not demonstrate the family offense of disorderly conduct.  The wife alleged the husband tried to push her down stairs, twisted her arm and pushed her against a wall. Under the Penal Law, disorderly conduct requires an intent to cause or the reckless creation of a risk of causing public inconvenience, annoyance or alarm.  However, Family Court Act section 812 provides: “For purposes of this article, disorderly conduct included disorderly conduct not in a public place.”  The Second Department determined that, even in the context of a family offense proceeding, the “public inconvenience, annoyance or alarm” element must be proven:

We … hold that, even where the conduct at issue is alleged to have occurred in a private residence, in order for a petitioner to meet his or her burden of establishing the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. The intent to cause, or recklessness in causing, public harm, is the mens rea of the offense of disorderly conduct … . The plain language of the subject provision of Family Court Act § 812, in contrast, provides only that the conduct need not occur in a public place (see Family Ct Act § 812). The plain language of Family Court Act § 812 therefore pertains only to the actus reus of the offense—specifically, the place where it is committed—and does not speak to the mens rea of the offense. Indeed, since Family Court Act § 812 does not specify an alternative culpable mental state, if the mens rea provided for in the Penal Law were not applicable in family offense proceedings, it is unclear what the mens rea of this family offense would be. * * *

One can certainly contemplate conduct occurring in a private residence that is intended to cause, or evinces a reckless disregard of causing, public harm. Such conduct might include, for example, a loud fight, or a loud argument with disturbing content, occurring in an apartment building late at night, or under other circumstances where the public may reasonably be expected to hear or see the altercation. As the Court of Appeals has observed, “the risk of public disorder does not have to be realized,” in order to infer that an individual intended to cause, or recklessly disregarded the risk of causing, such a threat… . Matter of  Cassie v Cassie, 2013 NY Slip Op 05446, 2nd Dept 7-24-13

 

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E-Mail Met All Criteria for a Stipulation of Settlement Including the “Subscribed Writing” Requirement

In a full-fledged opinion by Justice Sgroi, the Second Department determined an e-mail message satisfied the criteria of CPLR 2104 as a binding and enforceable stipulation of settlement.

The e-mail, written by plaintiff’s counsel, read:

“Per our phone conversation today, May 3, 2011, you accepted my offer of $230,000 to settle this case. Please have your client executed [sic] the attached Medicare form as no settlement check can be issued without this form.

“You also agreed to prepare the release, please included [sic] the following names: Xerox Corporation, Gelco Corporation, Mitchell G. Maller and Sedgwick CMS. Please forward the release and dismissal for my review. Thanks Brenda Greene.”

The court determined the phrase “Thanks Brenda Greene” rendered the e-mail a subscribed writing:

…[W]e hold that where, as here, an email message contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature, such an email message may be deemed a subscribed writing within the meaning of CPLR 2104 so as to constitute an enforceable agreement. Forcelli v Gelco Corp, 2013 NY Slip Op 05437, 2nd Dept 7-24-13

 

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Review Criteria for Municipal Disability Hearing Explained

The Second Department, in an Article 78 proceeding, explained the review criteria where there has been a disability hearing (re: a firefighter) held by a municipality pursuant to General Municipal Law 207-a:

Judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the determination is supported by substantial evidence (see CPLR 7803[4]…). Substantial evidence means more than a “mere scintilla of evidence,” and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides … .

When there is conflicting evidence or different inferences may be drawn, “the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists”… .. Moreover, where there is conflicting expert testimony, in making a General Municipal Law § 207-a determination, a municipality is “free to credit one physician’s testimony over that of another” … . Thus, even if “conflicting medical evidence can be found in the record,” the municipality’s determination, based on its own expert’s conclusions, may still be supported by substantial evidence… . Matter of Solano v City of Mount Vernon, 2013 NY Slip Op 05322, 2nd Dept 7-17-13

 

Labor Law 240(1) Action Not Implicated by Portion of Ceiling Falling

The Second Department determined a Labor Law 240(1) action should have been dismissed.  As plaintiff was attempting to paint the ceiling while standing on a ladder, a portion of the ceiling fell, causing injury.  In explaining why section 240 does not apply to the facts, the court wrote:

Labor Law § 240(1) requires property owners and contractors to provide workers with “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection” to the workers (Labor Law § 240[1]). The purpose of the statute is to protect against “such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured”…. “With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured'”… . Thus, to recover damages for violation of the statute, a “plaintiff must show more than simply that an object fell causing injury to a worker” … . The plaintiff must show that, at the time the object fell, it was “being hoisted or secured” (id. at 268) or “required securing for the purposes of the undertaking”… . Flossos v Waterside Redevelopment Co LP, 2013 NY Slip Op 05297, 2nd Dept 7-17-13

 

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Firefighter Rule Prohibiting Negligence Suit by Injured Police Officer Applied/Action Under Municipal Law 205-e Allowed

In a full-fledged opinion by Justice Leventhal, the Second Department determined a police officer who was injured when she fell off the back of a flat bed truck while loading police barricades could not sue in negligence (based on the firefighter rule) but could sue under General Municipal Law 205-e based on an alleged violation of Labor Law 27-a (which imposes a general duty to provide a safe work environment):

Re: the applicability of the firefighter rule:

…[T]he firefighter rule provides that “[p]olice and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment” …. The rule bars a police officer’s or a firefighter’s recovery ” when the performance of his or her duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury'” … * * *

While loading a flatbed truck may not be a task that is typically associated with police work, the alleged accident occurred while the plaintiff was on a police vehicle, loading police barriers, and while she was assigned to the barrier truck detail, a location and job detail to which she was exposed solely as a result of her duties as a police officer… .  * * *

Re: the viability of the General Municipal Law 205-e cause of action:

As observed by the Court of Appeals, the Legislature has, on several occasions, “sought to ameliorate the harsh effects of the [firefighter] rule” …. To that end, in 1935, the Legislature first enacted General Municipal Law § 205-a, which created a cause of action for firefighters who, while in the line of duty, are injured as a result of violations of statutes or regulations (see General Municipal Law § 205-a; L 1935, ch 800, § 2; L 1936, ch 251, § 1). In 1989, the Legislature enacted General Municipal Law § 205-e in direct response to Santangelo v State of New York (71 NY2d 393), which ,,,had extended the firefighter rule to police officers… .  * * *

…[T]he plaintiff has alleged that the defendants’ Labor Law § 27-a(3)(a)(1) violation is a predicate for her General Municipal Law § 205-e cause of action. Section 205-e does not stand alone and must be predicated on a violation of a separate legal requirement. …[T]he Court of Appeals, in addressing the various amendments to General Municipal Law § 205-e, has stated “that we should apply this provision expansively’ so as to favor recovery by police officers whenever possible”… .

Since section 27-a provides an objective standard by which the actions or omissions of a public employer, such as the City, can be measured for purposes of liability, Labor Law § 27-a(3)(a)(1) can serve as a predicate for a section 205-e claim… .  Gammons v City of New York, 2013 NY Slip Op 05298, Second Dept 7-17-13

 

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Children Were Not “Dependent on Court;” They Therefore Did Not Meet Criteria for Statutory Path to Lawful Permanent Residency in US

In a full-fledged opinion by Justice Cohen, the Second Department determined that two children born in Hong Kong, and living with their father in New York, did not meet the “dependency-on-the-family-court” requirement such that they could petition for special immigrant juvenile status (SJIS) pursuant to 8 USC1101 (which provides undocumented children with a gateway to lawful permanent residency in the US).  The court explained:

In New York, a child may request that the Family Court, recognized as a juvenile court (see 8 CFR 204.11[a]), issue an order making special findings and a declaration so that he or she may petition the United States Citizenship and Immigration Services for SIJS … . Specifically, the findings of fact must establish that: (1) the child is under 21 years of age; (2) the child is unmarried; (3) the child is dependent upon a juvenile court or legally committed to an individual appointed by a State or juvenile court; (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis; and (5) it is not in the child’s best interests to be returned to his or her home country (see 8 USC § 1101[a][27][J][ii]; 8 CFR 204.11[c]). With the declaration and special findings, the eligible child may then seek the consent of the Department of Homeland Security for SIJS (see 8 USC § 1101[a][27][J][iii]).  * * *

The requirement that a child be dependent upon the juvenile court or, alternatively, committed to the custody of an individual appointed by a State or juvenile court, ensures that the process is not employed inappropriately by children who have sufficient family support and stability to pursue permanent residency in the United States through other, albeit more protracted, procedures. In this case, there has been no need for intervention by the Family Court to ensure that the appellants were placed in a safe and appropriate custody, guardianship, or foster care situation, and the appellants have not been committed to the custody of any individual by any court….

While the appellants met all of the other requirements for SIJS, the Family Court correctly determined that the dependency requirement had not been satisfied. A child becomes dependent upon a juvenile court when the court accepts jurisdiction over the custody of that child, irrespective of whether the child has been placed in foster care or a guardianship situation… . The Family Court has only granted applications for SIJS special findings where dependency upon the court was established by way of guardianship, adoption, or custody.  Matter of Hei Ting C, 2013 NY Slip Op 05310, 2nd Dept 7-17-13

 

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