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NEGLIGENCE AND TRESPASS ACTIONS AGAINST THE TOWN BASED UPON A LANDSLIDE WHICH CAUSED FLOODING OF PLAINTIFF’S LAND SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department determined the negligence and trespass action against the town in this lawsuit stemming from a landslide should have been dismissed. The town had issued a permit for the placement of fill. Plaintiff’s alleged the landslide blocked a stream and flooded plaintiff’s land:

… [T]o hold a municipality liable for negligence in the exercise of a governmental function, a plaintiff must show that the municipality owed it a special duty beyond that owed to the public at large … . As a basis for the Town’s negligence, the complaint in this action alleges … that plaintiff owned land near the … property that was affected by the landslide and resulting flooding. However, the complaint does not allege that the Town had assumed any duty to act on plaintiff’s behalf or that the Town made any representations upon which plaintiff justifiably relied. …

… “[A] trespass claim represents an injury to the right of possession, and the elements of a trespass cause of action are an intentional entry onto the land of another without permission. Regarding intent, the defendant ‘must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he or she willfully does, or which he or she does so negligently as to amount to willfulness'” … .

Plaintiff alleged that the Town issued the permit for the performance of work, including grading and other land disturbance activities and placement of fill, notwithstanding its knowledge that significant slope failures resulting in landslides had previously occurred in the immediate vicinity, which the complaint alleges constituted a “dangerous recurring condition.” Plaintiff further alleged that the Town failed to properly supervise the work that was conducted pursuant to the permit; however, it did not allege that the Town directly participated in placement of the fill that caused the landslide. City of Albany v Normanskill Cr., LLC, 2018 NY Slip Op 07020, Third Dept 10-18-18

MUNICIPAL LAW (NEGLIGENCE AND TRESPASS ACTIONS AGAINST THE TOWN BASED UPON A LANDSLIDE WHICH CAUSED FLOODING OF PLAINTIFF’S LAND SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/NEGLIGENCE (MUNICIPAL LAW, NEGLIGENCE AND TRESPASS ACTIONS AGAINST THE TOWN BASED UPON A LANDSLIDE WHICH CAUSED FLOODING OF PLAINTIFF’S LAND SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/TRESPASS (MUNICIPAL LAW, NEGLIGENCE AND TRESPASS ACTIONS AGAINST THE TOWN BASED UPON A LANDSLIDE WHICH CAUSED FLOODING OF PLAINTIFF’S LAND SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/LANDSLIDE (MUNICIPAL LAW, NEGLIGENCE AND TRESPASS ACTIONS AGAINST THE TOWN BASED UPON A LANDSLIDE WHICH CAUSED FLOODING OF PLAINTIFF’S LAND SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/FLOODING (MUNICIPAL LAW, NEGLIGENCE AND TRESPASS ACTIONS AGAINST THE TOWN BASED UPON A LANDSLIDE WHICH CAUSED FLOODING OF PLAINTIFF’S LAND SHOULD HAVE BEEN DISMISSED (THIRD DEPT))

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POLICE PERSONNEL RECORDS CAN BE REDACTED TO REMOVE PERSONAL IDENTIFYING INFORMATION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the police personnel records sought in the FOIL request could be redacted to remove personal identifying information:

When this case was previously before this Court, we remitted the matter to Supreme Court for an in camera inspection of records related to the hiring of certain individuals for high-ranking positions within the police departments of the four respondent institutions that are operated by respondent State University of New York … . The matter was remitted with the directive that the court determine the extent to which the requested documents contain information exempt from disclosure and whether such information can be redacted while still protecting the personal privacy of those individuals … . On remittal, Supreme Court reviewed 1,344 pages of resumes, applications and related correspondence sent by applicants for the subject police department positions and, in May 2017, it maintained that redaction was not possible. * * *

While respondents argue that such extreme redaction renders the remaining information useless in determining whether the four respondent institutions complied with Retirement and Social Security Law § 211 in issuing waivers to the incumbents of the subject police department positions, petitioner need not demonstrate the information’s potential efficacy to obtain disclosure …  Further, as the identifying information falls squarely within a personal privacy Freedom of Information Law exemption, the court need not engage in a “balancing [of] the privacy interests at stake against the public interest in disclosure of the information” … , which would have required a review of the purpose of the request and the relevancy of the records. As such, we reject respondents’ notion that all substantive information is identifying, and, while we acknowledge that the task is arduous, the four respondent institutions must review the data once again, delete identifying information while leaving nonidentifying metrics intact and disclose the same. By way of guidance, much of the information concerning particular states, schools and police departments can be easily redacted, leaving the raw data, including positions held, education level, rank and other relevant experience. Matter of Police Benevolent Assn. of N.Y. State, Inc. v State of New York, 2018 NY Slip Op 07019, Third Dept 10-18-18

FREEDOM OF INFORMATION LAW (FOIL) (POLICE PERSONNEL RECORDS CAN BE REDACTED TO REMOVE PERSONAL IDENTIFYING INFORMATION (THIRD DEPT))/RETIREMENT AND SOCIAL SECURITY LAW (FREEDOM OF INFORMATION LAW, POLICE PERSONNEL RECORDS CAN BE REDACTED TO REMOVE PERSONAL IDENTIFYING INFORMATION (THIRD DEPT))/POLICE PERSONNEL RECORDS (FREEDOM OF INFORMATION LAW, POLICE PERSONNEL RECORDS CAN BE REDACTED TO REMOVE PERSONAL IDENTIFYING INFORMATION (THIRD DEPT))/PERSONAL PRIVACY EXEMPTION (FREEDOM OF INFORMATION LAW, POLICE PERSONNEL RECORDS CAN BE REDACTED TO REMOVE PERSONAL IDENTIFYING INFORMATION (THIRD DEPT))

MOTION FOR LEAVE TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department determined a motion for leave to amend the complaint should have been granted and explained the criteria:

CPLR 3025 (b) provides generally that leave to amend a pleading “shall be freely given.” “[T]he rule on a motion for leave to amend a pleading is that the movant need not establish the merits of the proposed amendment and, ‘[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . Here, the proposed amendment does not change the theory of recovery, but seeks to further develop facts supporting plaintiff’s second cause of action for breach of contract. In addition, plaintiff did not delay in seeking the amendment and, given that the amendment is confined to matters that were in the original complaint, there is no prejudice to defendant … . In view of the foregoing, leave to amend the complaint should have been granted. Gulfstream Anesthesia Consultants, P.A. v Cortland Regional Med. Ctr., Inc., 2018 NY Slip Op 07018, Third Dept 10-18-18

CIVIL PROCEDURE (MOTION FOR LEAVE TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (THIRD DEPT))/COMPLAINT, MOTION TO AMEND (MOTION FOR LEAVE TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (THIRD DEPT))/CPLR 3025 (MOTION FOR LEAVE TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (THIRD DEPT))

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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