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INCLUSION OF CLAIMANT’S PHOTOGRAPH ON A WALL OF SHAME DEPICTING PERSONS ARRESTED DURING OPERATION SAFE INTERNET, AN INVESTIGATION INTO THE USE OF THE INTERNET FOR THE SEXUAL EXPLOITATION OF CHILDREN, CONSTITUTED ACTIONABLE DEFAMATION BY IMPLICATION SUPPORTING A $300,000 DAMAGES AWARD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the Court of Claim’s decision awarding claimant $300,000 in this defamation-by-implication action against the state was supported by the evidence. Claimant had been arrested during Operation Safe Internet, but only because of the alleged Internet communication by claimant’s roommate. Claimant was arrested solely for possession of drugs and his case was subsequently adjourned in contemplation of dismissal and ultimately dismissed with the record sealed. In a televised news conference about an initiative to “investigate and prosecute crimes involving the online sexual exploitation of children, ” under a sign saying “Internet Crimes Against Children,” claimant’s photograph was one of 61 on a “wall of shame” depicting those who had been arrested during the investigation:

… [W]e now adopt a two-part test to determine whether the first element is met in causes of action alleging defamation by implication, requiring proof (1) that the language of the communication as a whole reasonably conveys a defamatory inference, and (2) that such language affirmatively and contextually suggests that the declarant either intended or endorsed the inference … . * * *

… [W]ithout providing more information to the public regarding the underlying facts of claimant’s case, to a reasonable viewer, the communication as a whole falsely implied that claimant, whose photograph was on the wall of shame, had engaged in a sexual crime against a child … . * * *

… [W]e find that claimant has established that the context of defendant’s communication as a whole can be reasonably read to affirmatively suggest that defendant intended or endorsed the defamatory inference that claimant was arrested for a crime involving the online sexual exploitation of a child  … . In fact, the very placement of claimant’s photo in the array strongly suggested to the public that defendant intended and endorsed the message that claimant belonged on the “wall of shame” because of his fictional crime against children. Further, the use of a small, unreadable label listing the crime for which claimant was actually arrested, which was the particular manner in which the true facts were conveyed, supplied “additional, affirmative evidence suggesting that the defendant intend[ed] or endorse[d] the defamatory inference” that claimant had been arrested for a crime involving the sexual exploitation of a child … . Partridge v State of New York, 2019 NY Slip Op 03715, Third Dept 5-9-19

 

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NEW TRIAL ORDERED BECAUSE THE INCONSISTENCY IN THE VERDICT SHEET COULD NOT BE REMEDIED AFTER THE JURY WAS DISCHARGED, THE JURY HAD AWARDED PLAINTIFF-STUDENT $1 MILLION IN A SUIT AGAINST A SCHOOL DISTRICT STEMMING FROM BULLYING BY OTHER STUDENTS (THIRD DEPT).

The Third Department determined a new trial was necessary because of an inconsistency in the jury’s answers on the verdict sheet. The trial court attempted to cure the inconsistency after the jury was discharged by speaking with the jury foreman, who was still in the courthouse when the problem was noticed. The jury had awarded plaintiff-student $1 million in a negligent supervision suit against a school district stemming from bullying by other students:

The taking of this verdict was fatally flawed. Pursuant to CPLR 4111 (c), when the answers on a verdict sheet “are inconsistent with each other and one or more is inconsistent with the general verdict, the court shall require the jury to further consider its answers and verdict or it shall order a new trial” … . The jury’s consideration of question No. 5 was inconsistent with its answer to question No. 4 and should have been brought to the jury’s attention with a curative charge, followed by a return to deliberations to resolve the inconsistency … . However, because the jury had already been discharged, this was not possible and Supreme Court’s consultation with the jury foreperson alone, although done in open court, could not take the place of full jury reconsideration … . In essence, the window of opportunity for Supreme Court to fix the problem closed when the other jurors left the courthouse. Supreme Court’s subsequent efforts, while well intentioned, were futile and, given this timeline, our only course of action is to order a new trial … . Motta v Eldred Cent. Sch. Dist., 2019 NY Slip Op 03714, Third Dept 5-9-19

 

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QUESTIONS OF FACT WHETHER THE EMPLOYEE WAS DRIVING THE EMPLOYER’S TRUCK WITH THE EMPLOYER’S PERMISSION AND WHETHER THE EMPLOYEE WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE TRAFFIC ACCIDENT OCCURRED (THIRD DEPT).

The Third Department determined plaintiff’s vicarious liability causes of action against the employer of the driver of a company truck which struck plaintiff’s car head-on properly survived summary judgment. The driver, Price, was intoxicated and was convicted of vehicular assault. The employer argued that, because of the company policy prohibiting employees from using drugs and alcohol, Price did not have permission to operate the truck within the meaning of Vehicle and Traffic Law 388. The employer further argued Price was not acting within the scope of his employment when the accident occurred. The court found there were questions of fact on both issues:

… [T]he requirement to drive sober relates more closely to the manner of operation, or how to drive, rather than a restriction on who may operate the vehicle and when and where they may do so … . As defendants did not establish, as a matter of law, that Price was driving without permission at the time of the accident, they were not entitled to summary judgment on the Vehicle and Traffic Law § 388 claim … . …

Price testified that [his employer] gave him a vehicle to use for business purposes, including traveling from home to work, and at the time of the accident he was driving to a job site to begin work for the day. [The employer] arguably derived a benefit from Price’s ability to take the vehicle home because the truck contained a tool box for work tools, he used the truck to transport supplies to job sites from home improvement stores, the truck advertised the business by displaying the company name and logo, and he worked at construction job sites rather than a main office, so permitting him to take the vehicle home saved him from having to use work time to pick the company truck up and drop it off at a central location each day … . Based on this evidence, defendants failed to establish their entitlement to summary judgment, as there was a factual question regarding whether Price was acting within the scope of his employment at the time of the accident … . Williams v J. Luke Constr. Co., LLC, 2019 NY Slip Op 03431, Third Dept 5-2-19

 

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CITY DID NOT HAVE NOTICE OF THE PROTRUDING SIGN ANCHOR IN THE SIDEWALK AND PLAINTIFF WAS UNABLE TO SHOW THE CONDITION WAS THE IMMEDIATE EFFECT OF ACTION TAKEN BY THE CITY, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant-city’s motion for summary judgment in this sidewalk slip and fall case should have been granted. Plaintiff alleged a sign which had been installed in the sidewalk was missing and she tripped over the protruding sign anchor. The city demonstrated it did not have written notice of the condition. And plaintiff was unable to show the condition was the immediate effect of action taken by the city:

… [P]laintiff claimed that defendant affirmatively created the defect by improperly installing the sign in 2006 and failing to routinely monitor its condition thereafter. “However, the affirmative negligence exception to prior written notice statutes applies only where the action of the municipality immediately results in the existence of a dangerous condition” … . Plaintiff failed to present any proof establishing that defendant engaged in an activity that immediately resulted in the detachment of the sign and sign pole from its anchor … . Harvish v City of Saratoga Springs, 2019 NY Slip Op 03428, Third Dept 5-2-19

 

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PLAINTIFF’S SON WAS INJURED WHEN A UTILITY VEHICLE DRIVEN ON PRIVATE PROPERTY BY DEFENDANTS’ 14-YEAR-OLD SON OVERTURNED, THE VEHICLE AND TRAFFIC LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE VEHICLE WAS NOT BEING DRIVEN ON A PUBLIC ROAD, HOWEVER THE NEGLIGENT ENTRUSTMENT CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the Vehicle and Traffic Law cause of action should have been dismissed, but the negligent entrustment cause of action properly survived summary judgment. Plaintiffs’ 16-year-old son was injured when defendants’ utility vehicle, driven on private property by defendants’ 14-year-old son, overturned:

We find merit in defendants’ claim that Supreme Court erroneously concluded that the utility vehicle is not excluded under Vehicle and Traffic Law § 125. Pursuant to Vehicle and Traffic Law § 388 (1), “[e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle . . . by any person using or operating the same with the permission, express or implied, of such owner.” For purposes of section 388, vehicle means a motor vehicle, which is defined as “[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power” … . A public highway is “[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way” (Vehicle and Traffic Law § 134).

At the time of the incident, the utility vehicle was being operated on defendants’ private property — not a public highway … . Accordingly, we find that the utility vehicle was not a motor vehicle within the meaning of Vehicle and Traffic Law § 125 …, and it was error for Supreme Court to conclude otherwise. …

Supreme Court did not err in denying summary judgment on the negligent entrustment cause of action. “[A] parent owes a duty to protect third parties from harm that is clearly foreseeable from the child’s improvident use or operation of a dangerous instrument, where such use is found to be subject to the parent’s control” … . …

[The] submissions reveal that [defendant] O’Leary’s son was not always required to ask for permission to operate the utility vehicle and fail to show that O’Leary had knowledge of how his son, when out of his presence, operated the vehicle. This proof, together with the clear warnings in the operator’s manual, fails to support a determination as a matter of law that defendants could not have “clearly foreseen” that their 14-year-old son’s recreational use of the utility could have exposed others to injury … . Wright v O’Leary, 2019 NY Slip Op 03424, Third Dept 5-2-19

 

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UNUSUAL INCIDENT REPORTS, USE OF FORCE REPORTS, AND MISBEHAVIOR REPORTS KEPT BY THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SERVICES (DOCCS) RE: INCIDENTS IN PRISONS ARE NOT PERSONNEL RECORDS PURSUANT TO CIVIL RIGHTS LAW 50-a, THEREFORE PETITIONER WAS ENTITLED TO UNREDACTED COPIES PURSUANT TO HIS FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, in a matter of first impression, determined that records kept by the Department of Corrections and Community Supervision (DOCCS) regarding incidents in prisons were not personnel records pursuant to Civil Rights Law 50-a. Therefore petitioner was entitled to unredacted copies pursuant to his Freedom of Information Law (FOIL) request:

… [U]nusual incident reports, use of force reports and misbehavior reports have distinct characteristics. However, they share several important commonalities. To begin with, each category of report is, at its core, a written memorialization of an event that occurred at a DOCCS facility. Additionally, and significantly, each type of report is authored, as a mandatory component of their job duties, by staff members with knowledge of the underlying event. The reports do not arise out of inmate allegations or grievances … . Nor are they written documentation of disciplinary proceedings or disciplinary action taken against a correction officer … . Given their factual nature and that each is written by a witness or witnesses with knowledge of the underlying facility event, we find unusual incident reports, use of force reports and misbehavior reports to be more akin to arrest reports, stop reports, summonses, accident reports and body-worn camera footage, none of which is quintessentially “personnel records” … . * * *

… [W]hile it is relevant that unusual incident reports and use of force reports may be used in employee performance evaluations, that factor alone is not determinative. Otherwise, any employee work product or record documenting an employee’s on-duty actions would classify as a personnel record with the justification that it could be used to evaluate work performance and would, thus, result in a situation in which the exception swallows the rule … .

… [W]ith regard to the legislative objective of Civil Rights Law § 50-a, respondents have not demonstrated a “substantial and realistic potential” for the unredacted reports to be used against the officers in a harassing or abusive manner … . Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 2019 NY Slip Op 03421, Third Dept 5-2-19

 

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PLAINTIFF’S VERIFIED COMPLAINT WAS NOT ‘DOCUMENTARY EVIDENCE’ WITHIN THE MEANING OF CPLR 3211, DEFENDANT’S MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED BASED UPON ALLEGATIONS IN PLAINTIFF’S VERIFIED COMPLAINT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff’s verified complaint in this prescriptive easement action was not “documentary evidence” within the meaning of CPLR 3211 (a)(1) and therefore could not be the basis for granting defendant’s motion to dismiss:

“A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint as barred by documentary evidence may be properly granted only if the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity” … . “Materials that clearly qualify as documentary evidence include documents reflecting out-of-court transactions such as mortgages, deed, contracts, and any other papers, the contents of which are essentially undeniable” … . Also, as relevant here, “[a] party claiming a prescriptive easement must show, by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years” … .

Supreme Court, in granting defendant’s motion to dismiss, relied solely on plaintiffs’ verified complaint in which they admitted that, during the period of time that the right-of-way has been used by their patrons, plaintiffs were aware that defendant owned the subject property … . Accordingly, the court found that this knowledge rebutted the element of hostility and, as such, voided a necessary element of establishing a prescriptive easement. Although a complaint serves the important purpose of setting forth the plaintiff’s allegations, we do not find that it is “so essentially undeniable as to qualify as documentary evidence that conclusively refutes any claim that [a] plaintiff might have” … . Further, in a motion to dismiss pursuant to CPLR 3211, a “court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide [the] plaintiff the benefit of every possible inference” … ; therefore, the complaint cannot also conclusively refute itself, which is what Supreme Court attempted to do here. Koziatek v SJB Dev. Inc., 2019 NY Slip Op 03419, Third Dept 5-2-19

 

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EVIDENCE OF MOTHER’S FAILURE TO COMPLY WITH CONDITIONS OF A SUSPENDED JUDGMENT WAS INCOMPLETE, AND, ALTHOUGH THE EVIDENCE OF FATHER’S FAILURE TO COMPLY WAS SUFFICIENT, FAMILY COURT DID NOT TAKE THE BEST INTERESTS OF THE CHILDREN INTO CONSIDERATION, TERMINATION OF PARENTAL RIGHTS REVERSED (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the evidence did not support the alleged violations of a suspended judgment by mother and the termination of father’s and mother’s parental rights. The decision is fact-specific and cannot be fairly summarized here. In a nutshell the evidence presented by the petitioner with regard to mother’s alleged non-compliance with the suspended judgment was incomplete, and Family Court failed to consider the best interests of the child:

With regard to the mother’s engagement in services, the caseworker testified that she had not received a return call from Trinity prior to the hearing and, as such, she was not aware whether the mother had engaged in any alcohol and drug treatment. The mother, however, testified that she made an appointment for an intake at Trinity prior to the filing of the subject motion and had thereafter commenced treatment on November 3, 2017. The caseworker also testified that, as she had also not heard back from the mother’s Family Services counselor, she had no information as to whether the mother was engaged in either the protective parenting or the domestic violence programs. With regard to mental health counseling, the mother alleged that she had called and made an appointment prior to the filing of the subject motion, and the caseworker confirmed that the mother did attend an initial intake on November 17, 2017; however, the caseworker was unaware if the mother was following up with any recommended treatment as she had not spoken with the mother’s Family Services counselor. * * *

With regard to the father, although we find that Family Court’s determination revoking the suspended judgment is supported by a sound and substantial basis in the record … , such noncompliance “does not automatically result in termination of his . . . parental rights” … . Rather, even at this stage of the proceedings, Family Court was required to consider the best interests of the children  … . Matter of Nahlaya MM. (Britian MM.), 2019 NY Slip Op 03418, Third Dept 5-2-19

 

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BY THE TIME OF SENTENCING FOR CONTEMPT FOR FATHER’S WILLFUL VIOLATION OF A SUPPORT ORDER, FATHER HAD PAID ALL THE ARREARS, FAMILY COURT SHOULD NOT HAVE ORDERED HIS INCARCERATION (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have ordered father incarcerated for 20 days for contempt for willful violation of a support order because, at the time of sentencing, father had paid all the arrears:

Upon finding that a respondent has willfully failed to obey a lawful order of support, Family Court may “commit the respondent to jail for a term not to exceed six months” (Family Ct Act § 454 [3] [a]). “Such a sentence is in the nature of a civil contempt, which ‘may only continue until such time as the offender, if it is within his or her power, complies with the support order'” ( … see Family Ct Act § 156 … ). Inasmuch as the father paid his child support arrears in full prior to the imposition of the sentence, Family Court abused its discretion by issuing the order of commitment … . Matter of Marotta v Casler, 2019 NY Slip Op 03417, Third Dept 5-2-19

 

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BECAUSE NO PETITION HAD BEEN FILED IN THIS SUPPORT ENFORCEMENT PROCEEDING, FAMILY COURT DID NOT HAVE SUBJECT MATTER JURISDICTION, A DEFECT THAT MAY BE BROUGHT UP AT ANY TIME (THIRD DEPT).

The Third Department determined Family Court did not have subject matter jurisdiction over the support enforcement proceeding because no petition had been filed. The support magistrate had erroneously treated a request by Florida to register the Florida support judgment in New York as an “enforcement petition:”

The Uniform Interstate Family Support Act (see Family Ct Act art 5-B) provides that “[a] registered support order issued in another state . . . is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state” (Family Ct Act § 580-603 [b]). In New York, proceedings for the violation of a support order “shall be originated by the filing of a petition containing an allegation that the respondent has failed to obey a lawful [support] order,” and Family Court lacks subject matter jurisdiction to determine a violation claim without that petition (Family Ct Act § 453 … ). DSS was free to, and eventually did, file a petition alleging that the father had failed to comply with the support provisions contained in the 2014 judgment (see Family Ct Act §§ 453 [a]; 580-603 [b]). This proceeding did not arise out of that petition, however, and was not rendered viable by its filing … . Family Court accordingly lacked subject matter jurisdiction to render the appealed-from order, and “the claim that a court lacked subject matter jurisdiction ‘may be raised at any time and may not be waived'” … . Matter of Pudvah v Pudvah, 2019 NY Slip Op 03414, Third Dept 5-2-19

 

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