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FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S VISITATION PETITION FOR FAILURE TO PROSECUTE (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s petition to complete a visitation arrangement should not have been dismissed for failure to prosecute:

We agree with the mother that Family Court’s determination … to dismiss her petition on the basis of failure to prosecute was erroneous. Although the mother was not present at the … hearing date, her absence was explained, albeit at the last minute, by her counsel, and counsel was ready to call the grandparents as witnesses as directed by the mother … . Notwithstanding counsel’s intent to do so and before the close of all proof, Family Court expressed an opinion about the mother’s ability to prove her case, never permitted the mother’s counsel to offer testimonial proof and subsequently dismissed the mother’s petition. Under these circumstances, we find that there was no failure by the mother to prosecute her petition … , and Family Court erred in dismissing it… . Accordingly, the matter must be remitted to continue the fact-finding hearing on the mother’s petition. In view of the foregoing, the mother’s remaining contentions are academic. Matter of Crisell v Fletcher, 2018 NY Slip Op 07016, Third Dept 10-18-18

FAMILY LAW (FAMILY COURT SHOULD HAVE DISMISSED MOTHER’S VISITATION PETITION FOR FAILURE TO PROSECUTE (THIRD DEPT))/FAILURE TO PROSECUTE (FAMILY COURT SHOULD HAVE DISMISSED MOTHER’S VISITATION PETITION FOR FAILURE TO PROSECUTE (THIRD DEPT))

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MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s request to relocate should have been granted:

We find that Family Court’s determination denying the mother’s relocation request and granting the parties joint legal custody is not supported by a sound and substantial basis in the record. If not permitted to relocate, the mother’s only potential resource — besides public assistance — would be the father. Given the father’s significant criminal history — which includes domestic violence against the mother — this is not a situation we can countenance. Further, there is nothing in the record to suggest that the father is willing or able to assist the mother or the child in any way. The undisputed evidence was that the father’s financial support and parenting time was limited, sporadic and offered at his whim. Indisputably, the mother has been the child’s primary caretaker, the father provided almost no financial support and his very limited relationship with the child existed only through the mother’s efforts. Moreover, given the father’s history and evidence of domestic violence, we do not believe that joint legal custody is in the child’s best interests … . We note that, although not dispositive, the trial attorney for the child did not oppose the mother’s petition or her relocation request … .

We are mindful that our holding results in the child residing a significant distance from the father. The record indicates that the mother has consistently made the effort to remain in contact with the father, to send pictures and to initiate telephone calls and visits. We discern no basis upon which to conclude that she will not continue to do so. As the child grows, such contact will become more important and have a greater impact on the father’s ability to establish and maintain a relationship with the child. Accordingly, we remit this matter to Family Court to establish an appropriate schedule for telephone calls and parenting time with the father. Matter of Fisher v Perez, 2018 NY Slip Op 07014, Third Dept 10-18-18

FAMILY LAW (MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT))/CUSTODY (FAMILY LAW, MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT))/RELOCATE (FAMILY LAW, MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT))/EVIDENCE (FAMILY LAW, CUSTODY, RELOCATE, (MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT))

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MOTHER WAS NOT GIVEN THE CHANCE TO ADEQUATELY RESPOND TO THE ALLEGATIONS FORMING THE BASIS OF FAMILY COURT’S FINDING THAT MOTHER VIOLATED A VISITATION ORDER, MATTER REMITTED (THIRD DEPT).

The Third Department, remitting the matter, determined that mother never got the chance to respond to allegations which were the basis for granting father’s violation petition. Father alleged mother denied the father parenting time in violation of the temporary order of custody and visitation:

We agree with the mother that she was not given adequate notice of the allegation forming the basis of Family Court’s determination. In granting the father’s violation petition, Family Court found that the mother violated the June 2015 order by denying the father parenting time on January 22, 2017. Any denial of visitation on this specific date, however, was never alleged by the father in either his violation petition or his emergency application. Rather, this claim was raised for the first time when the parties appeared before Family Court on January 23, 2017. Moreover, Family Court did not entertain any proof with respect to the actual allegations in the father’s pleadings. In this regard, when the mother’s counsel inquired as to the purpose of the January 23, 2017 hearing, Family Court responded that it was to address specifically what transpired on January 22, 2017. Furthermore, there is no indication in the record that the father moved to amend his pleadings to add an allegation relating to the January 22, 2017 incident … or moved to conform the pleadings to the proof adduced at the hearing after the parties testified … . Matter of Pike v Bigelow, 2018 NY Slip Op 07006, Third Dept 10-18-18

FAMILY LAW (MOTHER WAS NOT GIVEN THE CHANCE TO ADEQUATELY RESPOND TO THE ALLEGATIONS FORMING THE BASIS OF FAMILY COURT’S FINDING THAT MOTHER VIOLATED A VISITATION ORDER, MATTER REMITTED (THIRD DEPT))/EVIDENCE (FAMILY LAW, MOTHER WAS NOT GIVEN THE CHANCE TO ADEQUATELY RESPOND TO THE ALLEGATIONS FORMING THE BASIS OF FAMILY COURT’S FINDING THAT MOTHER VIOLATED A VISITATION ORDER, MATTER REMITTED (THIRD DEPT))

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MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT).

The Third Department, reversing and remitting the matter to make a record, determined that Family Court properly communicated with the Mississippi court in which mother had also commenced a pending custody proceeding but did not make a sufficient record in finding that Mississippi court retained jurisdiction of the custody:

The Mississippi court’s statements during the conference confirm that a child custody proceeding was still pending in that state and had been commenced prior to the mother’s Family Court proceeding, as those terms are defined by the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] … . Because the custody portion of the divorce action was still pending in Mississippi when the mother filed her custody modification petition in Family Court, the applicable provision of the UCCJEA is Domestic Relations Law § 76-e, entitled “[s]imultaneous proceedings.” Pursuant to that statute, a New York court may not exercise jurisdiction if, at the time the New York proceeding is commenced, a custody proceeding concerning the same child has been commenced in another state having jurisdiction under the UCCJEA, unless a court in the other state terminates or stays that proceeding because a New York court constitutes a more convenient forum under Domestic Relations Law § 76-f … . Procedurally, if a New York court determines that a custody proceeding has been commenced in another court in accordance with the UCCJEA, the New York court must stay its proceeding, communicate with the other court and, if the other court does not determine that New York is the more appropriate forum, dismiss the proceeding (see Domestic Relations Law § 76-e [2]). …

Although Family Court stated in its order that the Mississippi court “has retained jurisdiction,” that does not sufficiently answer the jurisdictional question under the UCCJEA. The Mississippi court, as the court where the first of two simultaneous child custody proceedings was filed, had to determine whether New York would be a more appropriate or convenient forum … . Matter of Hiles v Hiles, 2018 NY Slip Op 07004, Third Dept 10-18-18

FAMILY LAW (MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT))/CUSTODY (FAMILY LAW, MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT))/CIVIL PROCEDURE (FAMILY LAW, CUSTODY, MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT))/UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT))

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FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the respondent father had rebutted the presumption that the child’s medical condition was caused by abuse with medical evidence. Because the neglect and abuse petition relied entirely on the statutory presumption, the neglect and abuse findings were not supported:

Family Ct Act § 1046 (a) (ii) provides that petitioner may establish “a prima facie case of child abuse or neglect . . . through evidence that the child sustained an injury that would ordinarily not occur absent an act or omission of the respondent, and that the respondent was the caretaker of the child at the time that the injury occurred” … . Contrary to respondent’s contention, petitioner did so here. It was undisputed that respondent was alone with the child when she stopped breathing, and the consulting pediatrician testified to her involvement in the child’s case and the reasons that she became convinced that recent, nonaccidental trauma was the only explanation for the child’s condition.

This prima facie case did not guarantee a finding of abuse or neglect, but “establish[ed] a rebuttable presumption of parental culpability which the court may or may not accept based upon all the evidence in the record”… . Petitioner must still prove abuse or neglect by a preponderance of the evidence and, importantly, proof of “a reasonable explanation for the child’s injuries” will rebut the presumption of culpability … . As such, before relying upon the presumption set forth by Family Ct Act § 1046 (a) (ii), “the court should consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support of it, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretaker’s explanation in light of all the circumstances” … . Matter of Liana HH. (Christopher HH.), 2018 NY Slip Op 07001, Third Dept 10-18-18

FAMILY LAW (NEGLECT, ABUSE, FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT))/NEGLECT (FAMILY  LAW, FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT))/ABUSE (FAMILY  LAW, FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, ABUSE, FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT))

CLAIMANT-NURSE’S MENTAL HEALTH PROBLEMS WERE NOT COMPENSABLE AS THEY WERE NOT CAUSED BY GREATER THAN NORMAL STRESSORS (THIRD DEPT). ​

The Third Department determined claimant-nurse's mental health problems were not compensable because they were not deemed to have been caused by stress greater than that experienced in the normal work environment:

We find that substantial evidence supports the Board's factual determination that claimant's depressive condition was not compensable, as the work-related incidents and conditions that led to her mental injuries did not involve stressors that were “greater than that which other similarly situated workers experienced in the normal work environment” … . Claimant's supervisors described normal oversight and monitoring practices undertaken to assist her in correcting deficiencies in and improving her performance, and claimant failed to identify any unusual stressors or conduct that would constitute harassment or bullying as alleged in her claim for benefits. With regard to her job transfer, the testimony established that it was voluntary and, while it appears that the transition and organization of the new unit were somewhat chaotic and that her accommodations were not immediately communicated to her new supervisors, there was no credible evidence that the transfer was retaliatory or that she was knowingly denied accommodations. Further, claimant was never disciplined, reprimanded or singled out for unfair treatment, and the work evaluations and feedback were undertaken in a good faith. Matter of Lanese v Anthem Health Servs., 2018 NY Slip Op 06845, Third Dept 10-11-18

WORKERS' COMPENSATION (CLAIMANT-NURSE'S MENTAL HEALTH PROBLEMS WERE NOT COMPENSABLE AS THEY WERE NOT CAUSED BY GREATER THAN NORMAL STRESSORS (THIRD DEPT))

CLAIM DID NOT MEET THE SPECIFICITY REQUIREMENTS OF COURT OF CLAIMS ACT 11 AND WAS PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined the claim, alleging employment discrimination, did not comply with the specificity requirements of Court of Claims Act section 11 and was properly dismissed:

“Pursuant to Court of Claims Act § 11 (b), a claim must set forth the nature of the claim, the time when and place where it arose, the damages or injuries and the total sum claimed” … . “The purpose of the pleading requirements contained therein is to provide a sufficiently detailed description of the particulars of the claim to enable defendant to investigate and promptly ascertain the existence and extent of its liability” … . To that end, the Court of Claims Act does not require defendant “to ferret out or assemble information that section 11 (b) obligates the claimant to allege”… . Strict compliance with the pleading requirements contained in Court of Claims Act § 11 (b) is required, and the failure to satisfy any of the pleading requirements is a jurisdictional defect … .

We agree with the Court of Claims that the claim, consisting of 88 prolix paragraphs, raises vague, conclusory and non-linear allegations that lack context and fail to provide a coherent and sufficiently detailed description of the particulars of the claim to enable defendant to investigate and promptly ascertain the existence and extent of its liability… . Many of the allegations fail to provide a time and place when and where the alleged conduct occurred (see Court of Claims Act § 11 [b]), and, for those allegations that specify a date or general time period when alleged conduct occurred, the nature of the claim or identity and role of the individuals involved cannot be adequately ascertained… . Clark v State of New York, 2018 NY Slip Op 06844, Third Dept 10-11-18

COURT OF CLAIMS (CLAIM DID NOT MEET THE SPECIFICITY REQUIREMENTS OF COURT OF CLAIMS ACT 11 AND WAS PROPERLY DISMISSED (THIRD DEPT))/CIVIL PROCEDURE (COURT OF CLAIMS ACT, CLAIM DID NOT MEET THE SPECIFICITY REQUIREMENTS OF COURT OF CLAIMS ACT 11 AND WAS PROPERLY DISMISSED (THIRD DEPT))

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CLAIMANT’S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined the fact that the claimant was terminated from her employment as a city tax assessor because of two drunk-driving-related crimes did not preclude her from eligibility for unemployment insurance, The drunk driving incidents had nothing to do with her job and there was evidence she could have continued doing her job even though her license had been suspended for 90 days:

The disciplinary determination was founded, in part, upon claimant's two convictions for driving while under the influence of alcohol and her resulting license suspension. Whether this amounted to disqualifying misconduct posed a factual question for the Board, “and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct” … . …

The drunk driving incidents did not occur while claimant was working. Notably, possession of a valid driver's license was not listed among the qualifications necessary to hold the position of Sole Assessor and claimant testified that she was not advised that this was a requirement … . Claimant was not incarcerated as a result of her convictions and she testified that she was ready and able to fulfill her job duties notwithstanding the suspension of her driver's license … . Moreover, while claimant acknowledged that she occasionally did site visits, she testified that she could perform her duties while her license was temporarily suspended given that much of the data needed to compute the assessments had already been compiled and she could obtain a lot of the information online. Matter of Stack (City of Glens Falls–Commissioner of Labor), 2018 NY Slip Op 06840, Third Dept 10-11-18

UNEMPLOYMENT INSURANCE (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/EMPLOYMENT LAW (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/MUNICIPAL LAW  (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/CRIMINAL LAW (UNEMPLOYMENT INSURANCE, CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

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THE WORKERS’ COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS’ COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT).

The Third Department determined that claimant, a tractor trailer driver, was an employee of Eaton's Trucking Service and a special employee of Quality Carrier, with which Eaton had entered a contract. Therefore the Workers' Compensation Board properly found Eaton and Quality were each responsible for 50% of the workers' compensation awards:

… [W]e find that substantial evidence supports the Board's factual determination that claimant was a special employee of Quality … . Looking at “the underlying facts of the parties' relationship” … , the evidence established that Eaton and Quality had an arrangement whereby Eaton's drivers, including claimant, hauled products exclusively for Quality's customers and did so in furtherance of Quality's business, and that Eaton operated under Quality's logo and license without which Eaton could not have conducted its hauling operation. Their arrangement was the type of arrangement in which the “employee and equipment of [the] general employer were necessarily used and temporarily assigned to work for th[e] business” of the special employer, which has been recognized as creating a special employment relationship … . While Quality did not control the day-to-day oversight of claimant, this is not dispositive as Eaton and claimant operated entirely under Quality's authority and pursuant to its policies. As a result, Quality had sufficient control over the “details and ultimate result” of claimant's work, and Quality's working relationship with claimant was “sufficient in kind and degree so that [Quality] may be deemed [to be his] employer” … . Matter of Mitchell v Eaton's Trucking Serv., Inc., 2018 NY Slip Op 06839, Third Dept 10-11-18

WORKERS' COMPENSATION (THE WORKERS' COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS' COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT))/EMPLOYMENT LAW  (THE WORKERS' COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS' COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT))/SPECIAL EMPLOYEE (THE WORKERS' COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS' COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT))

CORRECTION OFFICER’S FALL DOWN A STAIRWAY WAS PROXIMATELY CAUSED BY THE ACT OF AN INMATE, THE RESULTING DISABILITY IS THEREFORE COMPENSABLE (THIRD DEPT).

The Third Department, annulling the hearing officer’s decision, determined that petitioner, a county correction officer, suffered a disability that resulted from the act of an inmate and was therefore compensable:

… [W]e find that petitioner has demonstrated that the injuries that he sustained from his fall occurred “contemporaneously with, and flowed directly, naturally and proximately from, the inmate’s” disobedient and affirmative act of descending down the stairs unexpectedly prior to receiving permission to do so … . Although “losing one’s footing — without more — does not constitute an affirmative act” … , petitioner’s misstep and fall flowed directly, naturally and proximately from the inmate’s act of being out of place without permission and startling petitioner by running down the stairs … . Having determined that petitioner’s injury was a natural and proximate result of an act of an inmate, the matter must be remitted for further proceedings on the issue of the permanency of petitioner’s alleged disability … . Matter of Garcia v DiNapoli, 2018 NY Slip Op 06602, Third Dept 10-4-18

RETIREMENT AND SOCIAL SECURITY LAW (CORRECTION OFFICER’S FALL DOWN A STAIRWAY WAS PROXIMATELY CAUSED BY THE ACT OF AN INMATE, THE RESULTING DISABILITY IS THEREFORE COMPENSABLE (THIRD DEPT))/CORRECTION OFFICERS (RETIREMENT AND SOCIAL SECURITY LAW, CORRECTION OFFICER’S FALL DOWN A STAIRWAY WAS PROXIMATELY CAUSED BY THE ACT OF AN INMATE, THE RESULTING DISABILITY IS THEREFORE COMPENSABLE (THIRD DEPT))

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