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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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ORDER ENTERED UPON CONSENT IS NOT APPEALABLE, COERCION ARGUMENT MUST BE RAISED IN A MOTION TO VACATE THE ORDER (THIRD DEPT).

The Third Department, dismissing the appeal in this neglect proceeding, noted that an order entered upon consent is not appealable. The argument that the consent was coerced must be raised in a motion to vacate the order:

Following consultation with her counsel, respondent … consented on the record to a finding of neglect. Family Court then entered an order that adjudicated the children to be neglected and contained the agreed-upon terms of disposition. Respondent appeals.

It is well settled that an order entered upon consent is not appealable … . Respondent’s claim that her consent was involuntary because she was coerced into accepting the settlement offer should have been raised in Family Court by way of a motion to vacate the order (see Family Ct Act § 1051 [f] … ). As the record does not reveal that any such application was made, the appeal is not properly before this Court. Matter of Vicktoriya DD. (Sheryl EE.), 2019 NY Slip Op 03411, Third Dept 5-2-19

 

THE COURT DID NOT AUTHORIZE THE SECOND SUPERSEDING INDICTMENT PROCURED BY THE PEOPLE AFTER A MISTRIAL, THE SECOND SUPERSEDING INDICTMENT WAS A NULLITY, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the second superseding indictment, procured after a mistrial, was a nullity:

Before trial commenced, the People obtained a superseding indictment … . A jury trial on the superseding indictment ensued; however, after the jury was impaneled and sworn, defendant’s motion for a mistrial was granted. The People subsequently obtained a second superseding indictment … . …

… [T]he second superseding indictment is a nullity and assert, therefore, that defendant’s conviction must be reversed and the matter remitted for further proceedings on the first superseding indictment. In declaring a mistrial, County Court did not dismiss the superseding indictment or authorize the People to re-present new charges to a grand jury. Accordingly, the People were limited to retrying defendant upon the superseding indictment, and the second superseding indictment was a nullity … . Where, as here, an indictment is a nullity, “any action or consequence that flowed from its filing . . . was necessarily a nullity as well”… . Accordingly, the judgment must be reversed. People v Moseley, 2019 NY Slip Op 03408, Third Dept 5-2-19

 

COUNTY JAIL CORRECTIONS OFFICER ENTITLED TO WORKERS’ COMPENSATION BENEFITS FOR PTSD AND DEPRESSION RESULTING FROM AN INMATE’S SPITTING ON HIM AND THREATENING TO KILL HIS FAMILY (THIRD DEPT).

The Third Department determined claimant’s appeal was rendered moot because the Workers’ Compensation Board rescinded its prior rulings and found claimant, a county jail corrections officer, could recover for PTSD and depression resulting from an inmate’s spitting on him (saliva exposure) and threatening to kill claimant’s family:

… [T]he Board panel …found … that claimant did not sustain a physical injury within the meaning of Workers’ Compensation Law § 2 (7) and, further, that the recent amendment to Workers’ Compensation Law § 10 (3) (b) did not apply to claimant; hence, claimant was “required to demonstrate that the stress encountered was greater than that which occurred in the normal work environment of a correction[] officer” … . On that latter point, the Board panel credited claimant’s testimony that the inmate in question “was more dangerous than the average inmate” and that “exposure to bodily fluids . . . was not a regular occurrence for [claimant] at work” … . Accordingly, the Board panel found that claimant experienced stress greater than similarly situated correction officers, that “establishment of the claim for . . . psychological conditions [was] supported by the credible evidence in the record” and that “the claim [was] properly amended to include PTSD, major depressive disorder[] and panic disorder’ … . Matter of Carey v Westchester County Dept. of Corr., 2019 NY Slip Op 03116, Third Dept 4-25-19

 

SUPERIOR COURT INFORMATION DID NOT INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, reversing County Court, determined the superior court information (SCI) to which defendant pled guilty was invalid because it did not include the approximate time of the offense. The guilty plea was vacated:

Defendant contends that the waiver of indictment was deficient, requiring that the guilty plea be vacated, because there was not strict compliance with the statutory mandates of CPL 195.20. Specifically, defendant asserts that the superior court information (hereinafter SCI) does not set forth the “approximate time” of the offense nor does the record establish that the waiver of indictment was signed by defendant in open court … . With regard to the approximate time of the offense, such information, which is required by the plain language of the statute, was omitted from the SCI . Furthermore, this is not “a situation where the time of the offense is unknown or, perhaps, unknowable” so as to excuse the absence…  of such information … . As we have previously noted, “[a]ny other interpretation would render the statute’s language requiring the ‘approximate time’ superfluous or redundant” … . Inasmuch as defendant’s waiver of indictment was not procured in strict compliance with the statutory provisions, it is invalid, thereby requiring vacatur of his guilty plea and dismissal of the SCI … . People v Edwards, 2019 NY Slip Op 03108, Third Dept 4-25-19

 

CLAIMANT’S BEHAVIOR, ALLEGED TO HAVE CONSTITUTED HARASSMENT AND INSUBORDINATION, DID NOT RISE TO THE LEVEL OF DISQUALIFYING MISCONDUCT, CLAIMANT WAS ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant’s behavior did not rise to the level of misconduct which would disqualify him from receiving unemployment insurance benefits. Claimant had objected to the way he was treated by his supervisor after claimant had been accused by a coworker of sending a harassing text message:

During the course of his employment as a design assistant for a clothing manufacturer, claimant sent a text message to a coworker. The coworker forwarded this message to the attention of claimant’s supervisor, complaining that it was harassment. On the following business day, the supervisor verbally reprimanded claimant for sending the message. Claimant disagreed with the discipline and was advised that he could come back to discuss the matter further if he wished. Later that day, claimant approached the supervisor and demanded to see the text message. Using a tone that the supervisor described as “angry,” “hostile” and “aggressive,” claimant disputed the supervisor’s position that the message was work-related and told her how he believed she should have handled the matter. Another employee overheard the discussion and described claimant’s voice as “disrespectful” and “increasing [in] volume.” The employer’s co-owner subsequently terminated claimant’s employment, concluding that he had violated the employer’s anti-harassment policy by sending the message and had been insubordinate to the supervisor. …

Although the employer’s witnesses testified that claimant sent a harassing message and spoke loudly and rudely to the supervisor, they also testified that he had not previously engaged in insubordinate behavior and had not received prior warnings … . The Board further noted that claimant did not make abusive statements, refuse to follow the supervisor’s directions or take other actions that had previously been held to constitute disqualifying misconduct … . Matter of Salcedo (E.H. Mfg. Inc.–Commissioner of Labor), 2019 NY Slip Op 03125, Third Dept 4-25-19

 

CLAIMANT, A SUBWAY CLEANER, WAS ASSAULTED AFTER GETTING OFF THE SUBWAY ON HIS WAY HOME, CLAIMANT’S INJURIES WERE NOT COMPENSABLE (THIRD DEPT).

The Third Department determined that a third-party assault on claimant, a subway cleaner, after claimant had clocked out of work and traveled some distance on the subway to get home, was not compensable:

According to claimant, he finished his shift at 7:50 a.m., 10 minutes early, and clocked out, as he was permitted to do to compensate for coming in early. He left his assigned work train station and traveled on a train six stops on his way home, and was assaulted as he exited the train at approximately 7:55 a.m. Accordingly, at the time of the assault, claimant was not at his assigned train station, having clocked out of work, he was not on duty or performing any of the duties of his employment, and he was not on an errand for the employer … . Rather, claimant was commuting home, “using the subways like the general public” … . There is no evidence that claimant was required to use the trains to commute to work or that the employer benefited from the route that he used to travel home. …

Although injuries resulting from work-related assaults are compensable under certain circumstances, given that the incident occurred six train stops away from claimant’s assigned station, after he had completed his shift, and that he was not performing any services for the employer on his commute home, the record supports the Board’s determination that there was no nexus between the motivation for the assault and claimant’s employment … . Matter of Warner v New York City Tr. Auth., 2019 NY Slip Op 03122, Third Dept 4-25-19

 

NEWSPAPER ASSEMBLY AND DELIVERY PERSON WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, who assembled and delivered newspapers for Herald Publishing Company, was an employee entitled to unemployment insurance benefits:

… [T]he record reflects that claimant was assigned specific routes within defined delivery areas …, assembled and bagged her papers at the leased premises utilizing plastic bags and rubber bands purchased from Herald Publishing … and was required to provide Herald Publishing with proof of a driver’s license and automobile liability insurance … . The record further reveals that claimant elected to purchase accident liability insurance from a carrier referenced in the distribution agreements entered into between claimant and Herald Publishing and that the corresponding premiums for such coverage were deducted from the invoices generated in connection with her delivery services … . Finally, consistent with the terms of the distributor agreements signed by claimant, she was required to “pick up all newspapers at the agreed pick-up point,” i.e., the leased premises, deliver the newspapers to subscribers “at or before the target delivery time[s]” — for which she would be paid on a weekly basis at a specified per-paper rate … — and was precluded from placing any inserts or additional materials in the newspapers that she was delivering … . Matter of Fecca (Herald Publ. Co.–Commissioner of Labor), 2019 NY Slip Op 03120, Third Dept 4-25-19

 

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