You are here: / Third Department

Tag Archive for: Third Department

, ,

RESPONDENT, WHO HAD BEEN ADJUDICATED A JUVENILE DELINQUENT, WAS NOT GIVEN SUFFICIENT INFORMATION BEFORE ADMITTING TO A PROBATION VIOLATION, THE PETITION WAS DISMISSED; THE ERROR DID NOT REQUIRE PRESERVATION AND THE APPEAL WAS NOT MOOT BECAUSE OF THE COLLATERAL CONSEQUENCES OF A JUVENILE DELINQUENCY ADJUDICATION (THIRD DEPT).

The Third Department, dismissing the petition, determined that respondent, who had been adjudicated a juvenile delinquent, was not provided sufficient information before admitting to a probation violation. Because of the collateral consequences of a “juvenile delinquent” adjudication, the appeal is not moot, even though the period of respondent’s custody and care under the Office of Children and Family Services had expired. In addition, the error did not required preservation:

Initially, we note that preservation of this claim was not required … . Family Ct Act § 321.3 (1) requires a court to advise a respondent of his or her right to a fact-finding hearing and to question both the respondent and his or her parent, if present, as to whether the respondent committed the act contained in the admission, whether the respondent is voluntarily waiving his or her right to a fact-finding hearing, and whether the respondent is aware of the possible specific dispositional orders … . The May 2018 allocution did not meet these statutory requirements. Although Family Court did advise respondent, to some extent, regarding his rights, the failure to meet the statutory mandates rendered the allocution inadequate. Critically, although respondent’s mother was present, the court failed to question her regarding respondent’s waiver of the fact-finding hearing … or about his failure to attend counseling. Instead, respondent was merely asked whether he had sufficient time to speak to his parents about the allocution … . Moreover, the court did not determine whether respondent and his mother understood the possible specific dispositional orders that might result from his allocution … . Although it was stated that placement outside the home was an available option, the court did not “ascertain whether [respondent] and his parent[] were aware of the full extent of such a disposition” … . Matter of Elijah X., 2019 NY Slip Op 07464, Third Dept 10-17-19

 

, ,

PLAINTIFF’S EXPERT’S AFFIDAVIT, ALTHOUGH POORLY DRAFTED, RAISED A QUESTION OF FACT WHETHER DEFENDANTS DEPARTED FROM THE STANDARD OF CARE FOR A SPINAL FUSION PROCEDURE, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the expert affidavit submitted in opposition to defendants’ motion for summary judgment, although not well-drafted, raised a question of fact whether defendants’ departed from the standard of care for the placement of hardware in a spinal fusion procedure:

… [P]laintiff submitted the expert affidavit of a board-certified orthopedic surgeon, who opined, based upon his review of the relevant medical records and radiological images, including a CT scan taken shortly after the surgery, that Pedersen had improperly positioned the L4 pedicle screws into the L3-L4 facet joint and that such improper placement constituted a deviation from the standard of care that ultimately caused Yerich to develop spinal and foraminal stenosis at L3-L4. Plaintiffs’ expert asserted that placing pedicle screws through the facet joints causes “damage[ to] the joint, reduces movement, [and] makes the spine unstable[,] which results in . . . spinal stenosis and foraminal stenosis requiring fusion,” as happened here. Although plaintiffs’ expert affidavit is not a model of precise drafting, when viewed in the light most favorable to plaintiffs …, we find that plaintiffs’ expert affidavit raises a question of fact as to whether Pedersen improperly positioned the L4 pedicle screws through the facet joint, thereby causing injury. Yerich v Bassett Healthcare Network, 2019 NY Slip Op 07466, Third Dept 10-17-19

 

METHODS FOR DETERMINING WEEKLY WORKERS’ COMPENSATION BENEFITS FOR SHORT-TERM EMPLOYMENT EXPLAINED, MATTER REMITTED FOR THE GATHERING OF EVIDENCE AND RE-CALCULATION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the benefits to be provided to the injured worker, based upon only 78 days of employment may have been wrongly calculated and remitted the matter:

Following a hearing, a Workers’ Compensation Law Judge (hereinafter WCLJ) established claimant’s average weekly wage as $933.14, which was arrived at by dividing his total earnings ($12,130.76) by the number of weeks worked (13). The employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) sought administrative review. Upon that review, the Workers’ Compensation Board determined that claimant’s average weekly wage should have been calculated pursuant to Workers’ Compensation Law § 14 (3), using a 200 multiplier, and that, so calculated, claimant’s average weekly wage was $598.15. * * *

Under Workers’ Compensation Law § 14 (2), the average annual earnings of a six-day worker is 300 “times the average daily wage or salary . . . which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed.” The carrier did not submit payroll records for similar employees or otherwise assert that such records were unavailable … . In the absence of such information, we cannot determine whether the Board properly rejected the method set forth in Workers’ Compensation Law § 14 (2) before resorting to Workers’ Compensation Law § 14 (3) to calculate claimant’s average weekly wage. Matter of Molina v Icon Parking LLC, 2019 NY Slip Op 07467, Third Dept 10-17-19

 

THE VALIDITY OF THE WILL SHOULD NOT HAVE BEEN DETERMINED AT THE STAGE WHEN THE PETITION FOR PROBATE WAS PRESENTED FOR FILING (THIRD DEPT).

The Third Department, reversing Surrogate’s Court, determined that the validity of the will should not have been determined at the stage when the petition to probate the will was presented for filing:

The question presented to Surrogate’s Court was not whether the purported will should be admitted to probate, but only whether the petition seeking probate of the subject will should have been accepted for filing. It appears that, in presenting their respective positions regarding the motion, the parties addressed, in detail, the validity of the will and whether it was properly executed and, in turn, Surrogate’s Court’s well-intentioned decision addressed those arguments and denied probate. That decision was premature (see SCPA 304, 1402 [1], [2]; 22 NYCRR 207.16 … ). There is a difference between accepting a probate petition for filing and admitting a will to probate. The former merely commences the legal proceeding to determine the validity of a purported will; the latter is but one possible outcome of that process. Here, Surrogate’s Court should have granted petitioner’s motion, directed the Surrogate’s Court Clerk to accept the petition and accompanying papers for filing, issued the appropriate citations and proceeded according to the procedures set forth in SCPA article 14. Matter of Noichl, 2019 NY Slip Op 07468, Third Dept 10-17-19

 

,

INSUFFICIENT PROOF OF THE TESTING USED TO DETERMINE THE SUBSTANCES WERE CONTRABAND DRUGS, POSSESSION OF DRUGS CHARGE ANNULLED (THIRD DEPT).

The Third Department annulled the possession of drugs charge because the proof of the testing procedures used on the substances alleged to be drugs was insufficient:

When positive results of a test of suspected contraband drugs are used as evidence at a disciplinary hearing, 7 NYCRR 1010.5 (d) directs that certain documents, including “a statement of the scientific princip[les] and validity of the testing materials and procedures used,” be included in the record. This required document does not appear in the record, nor was it provided to petitioner despite his specific request and objections. Further, testimony from the testing officer offered no evidence of the procedures used. In view of the foregoing, that part of the determination finding petitioner guilty of possessing drugs is not supported by substantial evidence and must be annulled … . Matter of McFarlane v Annucci, 2019 NY Slip Op 07123, Third Dept 10-3-19

 

RESTITUTION ORDERED AT SENTENCING (ABOUT $45OO) WAS ABOUT $500 HIGHER THAN THE AMOUNT AGREED TO IN THE PLEA DEAL, DEFENDANT SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEA (THIRD DEPT).

The Third Department, over a two-justice dissent, determined that defendant is entitled to the opportunity to withdraw his plea because the amount of restitution ordered by the sentencing judge was about $500 higher than the amount ($4100) agreed to in the plea deal:

… “[A] sentencing court may not impose a more severe sentence than one bargained for without providing the defendant the opportunity to withdraw his or her plea” … . Because the restitution imposed exceeds the amount presented by the People to which defendant agreed at the time of the plea and he seeks, among other things, vacatur of the plea, we deem it appropriate to exercise our interest of justice jurisdiction to take corrective action … . Accordingly, we remit the matter for the purpose of allowing defendant to either accept the enhanced restitution amount or give defendant an opportunity to withdraw his plea … . People v Waldron, 2019 NY Slip Op 07116, Third Dept 10-3-19

 

, ,

APPELLANT WAS NOT AGGRIEVED BY SUPREME COURT’S DECISION WHICH DENIED HER MOTION WITHOUT PREJUDICE PENDING FURTHER DISCOVERY; THEREFORE THE APPEAL MUST BE DISMISSED (THIRD DEPT).

The Third Department determined the plaintiff’s Joan and Christopher Porco were not aggrieved by Supreme Court’s ruling and therefore could not appeal it. The underlying action alleges Civil Rights Law (right to privacy) violations related to a film made by defendant about a crime committed by Christopher Porco. The complaint alleged the film had been republished making the action timely. Supreme Court denied the motion without prejudice to try again after discovery:

Christopher Porco is not an aggrieved party. Defendant’s motion sought dismissal of only those claims asserted by Joan Porco. In other words, defendant did not seek any relief against Christopher Porco. Supreme Court likewise did not grant defendant any relief against him. Accordingly, Christopher Porco has no basis to appeal from the February 2018 order.

Regarding Joan Porco, Supreme Court held that she could not rely on the relation back doctrine for her claims in the amended complaint to be timely asserted. The court nonetheless denied defendant’s motion without prejudice to renew upon completion of discovery after considering plaintiffs’ republication argument. … Accordingly, the court neither granted defendant any affirmative relief against Joan Porco nor withheld any affirmative relief requested by Joan Porco. Indeed, the only affirmative relief sought by Joan Porco was for leave to serve a second amended complaint, which the court granted and is not contested on appeal. Because Joan Porco was not granted incomplete relief, the exception to the aggrievement requirement … does not apply in this case.

Furthermore, a party is not aggrieved when his or her interests are only remotely or contingently affected by the order appealed from … . Although Joan Porco’s claims are subject to dismissal in the future given that Supreme Court denied defendant’s motion without prejudice to renew, it is possible that defendant may never seek to renew its motion. And, even if defendant did move to renew, we can only surmise at this juncture how the court would decide it. Finally, to the extent that Joan Porco is dissatisfied with the court’s rationale concerning the relation back doctrine, such dissatisfaction does not make her an aggrieved party … . Porco v Lifetime Entertainment Servs., LLC, 2019 NY Slip Op 07122, Third Dept 10-3-19

 

FATHER’S SUSPENDED JAIL SENTENCE FOR FAILURE TO PAY CHILD SUPPORT ARREARS SHOULD NOT HAVE BEEN REVOKED WITHOUT PROVIDING FATHER THE OPPORTUNITY TO PRESENT EVIDENCE RE: HIS INABILITY TO PAY (THIRD DEPT).

The Third Department, reversing Family Court, determined father’s suspended jail sentence should not have been revoked without an inquiry into father’s inability to pay the child support arrears:

… [T]he Warren County Department of Social Services, acting on behalf of the mother, submitted a request for an order of commitment based upon the father’s failure to comply with the support order or pay the arrears. The father … filed a petition seeking modification of the support order based upon his ongoing medical issues. During a hearing on the modification petition, it was revealed that the father’s child support obligation had ended and that he was seeking an adjustment to pay the arrears until he could return to work. It was also disclosed that the proceedings on the order of commitment had been adjourned pending the father’s sale of certain real property. … When these proceedings resumed, the father indicated that he did not have a contract to sell the real property or any means to pay the child support arrears. Family Court adjourned the proceedings to enable the father to undergo surgery, but directed him to return to court with a certified check for the child support arrears in the amount of $12,467.57. When the father did not appear in court on the adjourned date, Family Court issued a warrant and an order of commitment directing respondent’s confinement in jail for 60 days. …

We agree with the father that Family Court erred in revoking the suspension of his jail sentence without first affording him the opportunity to present evidence on his inability to pay the arrears (see Family Ct Act § 433 [a] …). … [T]he record does not reflect that Family Court conducted the necessary evidentiary hearing or undertook a sufficient inquiry as to the father’s inability to pay the child support arrears. Matter of Eddy v Eddy, 2019 NY Slip Op 06825, Third Dept 9-26-19

 

THE WORKER’S COMPENSATION AWARD SHOULD NOT HAVE BEEN APPORTIONED BETWEEN THE COMPENSABLE INJURY AND A PREEXISTING CONDITION WHICH DID NOT AFFECT CLAIMANT’S ABILITY TO WORK (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the award should not have been apportioned between claimant’s compensable injury and his preexisting MS condition:

As a general rule, apportionment is not applicable as a matter of law where the preexisting condition was not the result of a compensable injury and the claimant was able to effectively perform his or her job duties at the time of the work-related accident despite the preexisting condition” … . “Significantly, degeneration and infirmities which have not previously produced disability are not a proper basis for reduction of compensation” … . …

… [C]laimant’s MS, although not diagnosed until after the work-related accident, was a preexisting condition. There is no evidence whatsoever that claimant’s MS precluded him from performing the duties of his employment. As there is no evidence of an apportionable disability prior to the … accident, apportionment of claimant’s award is, as a matter of law, inappropriate … . Matter of Whitney v Pregis Corp., 2019 NY Slip Op 06828, Third Dept 9-26-19

 

,

PETITIONER’S REQUEST FOR TWO WITNESSES SHOULD NOT HAVE BEEN DENIED, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering new hearing, determined petitioner’s request to call witnesses should not have been denied:

… [T]he Hearing Officer improperly denied petitioner’s request to call as witnesses the two inmates who were housed on each side of his cell, as their potential testimony was highly relevant to petitioner’s defense that he was in his cell during the time of the underlying incident … . However, inasmuch as the Hearing Officer acted in good faith in denying the request on the ground of relevancy, petitioner’s regulatory right to call witnesses was violated and a new hearing on these charges, rather than expungement, is the appropriate remedy … . Matter of Parker v Annucci, 2019 NY Slip Op 06658, Third Dept 9-19-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy