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FATHER’S SUSPENDED JAIL SENTENCE FOR FAILURE TO PAY CHILD SUPPORT ARREARS SHOULD NOT HAVE BEEN REVOKED WITHOUT PROVIDING FATHER THE OPPORTUNITY TO PRESENT EVIDENCE RE: HIS INABILITY TO PAY (THIRD DEPT).

The Third Department, reversing Family Court, determined father’s suspended jail sentence should not have been revoked without an inquiry into father’s inability to pay the child support arrears: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

 

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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

 

DAUGHTER’S PETITION TO BE APPOINTED GUARDIAN FOR HER MOTHER, WHO HAS DEMENTIA AND ALZHEIMER’S, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the petition by one of respondent’s daughters, seeking to be appointed guardian, should not have been denied without a hearing. Respondent is 89 and has been diagnosed with dementia and Alzheimer’s disease and lives with her other daughter, Elizabeth ZZ. Petitioner alleged that Elizabeth had been prohibiting communication and visitation with her mother:

Given the record before us, we find that the allegations set forth in the subject petition, as supplemented by the supporting affidavits affixed to the parties’ motion papers and the court evaluator’s report and subsequent status updates, create a genuine question of fact as to respondent’s alleged incapacity, her ability to understand and appreciate the nature and consequences of her condition and functional limitations and whether the arrangements that have been put in place for her personal and property needs were the product of Elizabeth ZZ.’s undue influence such that petitioner adequately established her entitlement to a hearing (see Mental Hygiene Law §§ 81.02 [a] [2]; 81.11 [a], [b] …). Matter of Elizabeth TT. (Suzanne YY.–Elizabeth ZZ.), 2019 NY Slip Op 06667, Third Dept 9-19-19

 

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THE EXISTENCE OF A VIDEOTAPE OF THE ALLEGED MISBEHAVIOR-INCIDENT, REQUESTED BY THE PETITIONER, SHOULD HAVE BEEN INVESTIGATED BY THE HEARING OFFICER, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering a new hearing, determined the petitioner’s request for a videotape of the alleged misbehavior-incident should have been looked into by the hearing officer. The hearing officer asserted no videotape existed, but a document indicated a videotape had been preserved:

Petitioner requested the videotape from his employee assistant and at the hearing. Although the Hearing Officer informed petitioner that no videotape existed, the record contains a facility Video Preservation Form indicating that a videotape, taken in the area of the incident on the date in question, was preserved. Inasmuch as the record does not indicate that the Hearing Officer undertook any measures to ascertain whether the videotape existed, we find that petitioner’s request was improperly denied … . Matter of Espinal v Annucci, 2019 NY Slip Op 06670, Third Dept 9-19-19

 

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IN A TAYLOR LAW ARBITRATION, WHERE THE PARTIES CHOOSE THE ARBITRATORS, THE PARTIALITY OF A CHOSEN ARBITRATOR, WITHOUT MORE, IS NOT A GROUND FOR DISQUALIFICATION (THIRD DEPT).

The Third Department determined Supreme Court properly denied petitioner’s request to disqualify New York City’s choice for an arbitrator in this Taylor Law action brought after the petitioner (Patrolmen’s Benevolent Ass’n) and NYC were unable to negotiate a collective bargaining agreement. Petitioner argued the chosen arbitrator (Linn) should be disqualified as biased:

When CPLR 7511 (b) (1) (ii) was … enacted, the phrase “evident partiality” was removed and partiality was made a ground for vacatur only as to neutral arbitrators. * * * Accordingly, the “evident partiality” of a party-appointed arbitrator, without more, is not a ground for vacatur or disqualification.

… If a party-arbitrator’s statements of support for a party’s position were sufficient, without more, as a ground for his or her disqualification, the principle that party-arbitrators need not be neutral would have no meaning. Linn’s statements, although strongly voiced, do not reveal misconduct of any kind or indicate that he will disregard the evidence or has prejudged the issues … . Matter of Patrolmen’s Benevolent Assn. of the City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 2019 NY Slip Op 06676, Third Dept 9-19-19

 

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EVIDENCE OF THE CHILD VICTIM’S REPUTATION FOR UNTRUTHFULNESS SHOULD HAVE BEEN ADMITTED IN THIS SEXUAL OFFENSES CASE; THE RELIABILITY OF THE EVIDENCE, A QUESTION OF LAW, WAS ESTABLISHED, THE CREDIBILITY OF THE EVIDENCE IS A JURY QUESTION (THIRD DEPT).

The Third Department, reversing defendant’s conviction of predatory sexual assault against a child, criminal sexual act in the first degree and endangering the welfare of a child, determined defendant should have been allowed to present evidence of the child-victim’s reputation for untruthfulness. The court noted the two-pronged analysis for such character evidence: (1) the reliability of the evidence (a question of law); and (2) the credibility of the evidence (a question of fact):

“Once the party seeking admission of reputation evidence has laid the proper foundation, it is for the jury to evaluate the credibility of the character witnesses who testify, and to decide how much weight to give the views reported in their testimony. While a reasonable assurance of reliability is necessary for a proper foundation, such reasonable assurance exists where the testifying witnesses report the views of a sufficient number of people, and those views are based on sufficient experience with the person whose character is in question. Reputation evidence may be reliable . . ., but still questionable from a credibility standpoint. This possibility, however, is not a proper basis for exclusion of reputation evidence. Reliability — whether a character witness has established a proper basis for knowing a key opposing witness’ general reputation for truth and veracity — is a question of law for the court. By contrast, the credibility of such character witness — whether that witness is worthy or unworthy of belief or is motivated by bias — is a factual question for the jury. We caution that a trial court should not use reliability as a ground for excluding evidence it believes is not credible” … .

… [D]efendant proffered a proposed witness who was prepared to testify that she had known the victim since birth, that they were members of the same large extended family and that many members of the extended family knew the victim. Further, the proposed witness was prepared to testify that she was aware of the victim’s bad reputation for truthfulness among the extended family. …

County Court erred when it determined that the proposed testimony failed to establish a proper foundation for admission of testimony regarding the victim’s bad reputation for truthfulness; in fact, the offer of proof contained each element required by People v Fernandez (17 NY3d at 76-77). People v Youngs, 2019 NY Slip Op 06540, Third Dept 9-12-19

 

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THE PEOPLE’S APPEAL FROM THE DENIAL OF ITS MOTION FOR RECONSIDERATION OF COUNTY COURT’S DISMISSAL OF THE INDICTMENT WAS NOT AUTHORIZED BY STATUTE AND MUST THEREFORE BE DISMISSED (THIRD DEPT). ​

The Third Department determined the People’s appeal from dismissal of the indictment and the denial of their motion for reconsideration, which was not authorized by statute, must be dismissed. County Court had determined the victim’s testimony at the grand jury was unsworn and could not be considered. The People then made a motion for reconsideration with proof the victim had been properly sworn:

… [D]efendant, an inmate at Greene County Correctional Facility, was charged by indictment with aggravated harassment of an employee by an inmate, stemming from an April 2016 incident wherein defendant was transported to Columbia Memorial Hospital for medical treatment and thereafter allegedly drank his own urine and spat it in the face of a correction officer (hereinafter the victim). The parties thereafter entered into a stipulation in lieu of motions and, pursuant thereto, County Court reviewed, among other things, the grand jury minutes to determine whether there was legally sufficient evidence to support the indictment. In December 2016, County Court dismissed the indictment, determining that the evidence before the grand jury was legally insufficient inasmuch as the People’s sole witness — the victim — had not been administered the correct oath and, as such, had presented unsworn testimony to the grand jury. The People thereafter moved for reconsideration, averring that the court reporter had erroneously omitted reference to the correct oath which had, in fact, been appropriately given by the jury foreperson to the victim, and the People affixed to the motion a corrected copy of the grand jury minutes reflecting same.

… [I]t is well settled that “no appeal lies from a determination made in a criminal [action] unless specifically provided for by statute” … . Here, the People’s underlying motion purports to be one for “reconsideration”; however, even construing such motion as a motion to reargue and/or renew, there is no statute authorizing the People to appeal from the denial of such a motion in a criminal action … . People v Overbaugh, 2019 NY Slip Op 06546, Third Dept 9-12-19

 

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SUSPENSION OF COLLEGE STUDENT FOR THREE YEARS BASED UPON A FINDING THE STUDENT WAS RESPONSIBLE FOR SEXUAL VIOLENCE AS DEFINED IN THE STUDENT CONDUCT MANUAL UPHELD (THIRD DEPT).

The Third Department upheld the college’s finding that petitioner was responsible for sexual violence within meaning of the provisions of the Student Conduct Manual and was properly suspended from the State University of New York (SUNY) at Plattsburgh for three years. The charges were based upon the female student’s inability to consent or her lack of consent to sexual intercourse:

SUNY’s determination was based upon its finding that the reporting individual could not affirmatively consent to sexual activity with petitioner because she was asleep or unconscious and, therefore, “incapacitated during the time period in question.” In that respect, the reporting individual stated that, over a roughly four-hour period, she had consumed three or four 24-ounce cans of malt liquor, as well as an unknown quantity of alcohol from a friend’s drink. Statements made by petitioner, both at the hearing and during an interview conducted by respondent Butterfly Blaise, SUNY’s Title IX Coordinator, as reflected in a written summary of that interview, corroborated the reporting individual’s account that she had been drinking prior to and during her encounter with petitioner. In fact, as reflected in the interview summary, petitioner recalled observing the reporting individual stumbling in the hallway and mumbling her words. Additionally, the reporting individual asserted that she had significant gaps in her memory regarding her encounter with petitioner, stating that she remembered certain parts but that “other parts fe[lt] ‘black’.” Matter of Jacobson v Blaise, 2019 NY Slip Op 06549, Third Dept 9-12-19

 

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QUESTIONS OF FACT WHETHER NEGLIGENT SUPERVISION OF PLAINTIFF KINDERGARTEN STUDENT IN GYM CLASS WAS THE PROXIMATE CAUSE OF HER INJURY (THIRD DEPT).

The Third Department determined there were questions of fact whether the school was negligent in supervision plaintiff kindergarten student in gym class. Infant plaintiff was instructed to jump but her feet did not leave the ground and she fell forward on her arm. Infant plaintiff had an individualized accommodation plan (504 plan) of which the gym teacher was aware:

Defendant submitted evidence demonstrating that the gym teacher was aware of the infant’s 504 plan and that there were no specific accommodations therein for physical education. The physical therapist who worked with the infant testified that she did not have any safety concerns for the infant regarding physical education. Defendant’s expert stated in an affidavit that defendant provided a safe environment for the students, and the gym teacher explained the safety rules and taught proper techniques to the students. The expert thus opined that the infant’s alleged injuries were not proximately caused by any inadequate supervision by defendant.

Meanwhile, the infant gave conflicting accounts as to whether a mat was located on the floor where she landed after jumping. The infant also testified in her hearing pursuant to General Municipal Law § 50-h that she explained to the gym teacher how she jumped at the time of the accident and, when the teacher told her that her explanation was incorrect, the infant responded that she jumped how she was instructed to do so by him. Plaintiff’s expert stated in an affidavit that the infant’s physical limitations impaired her ability to function in class and engage in physical education activities. The expert opined that, when taking into account the class size and the activities performed, defendant negligently supervised the infant by allowing her to jump without having a teacher in close proximity to her. Jaquin v Canastota Cent. Sch. Dist., 2019 NY Slip Op 06555, Third Dept 9-12-19

 

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