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FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT).

The Third Department determined the fact that father’s sister was a supervisor in St. Lawrence County Department of Social Services (SLCDSS) did not present a conflict of interest such that SLCDSS could not prosecute a neglect petition. Family Court had transferred the matter to the Jefferson County Department of Social Services (JCDSS):

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In SLCDSS’s papers submitted in response to petitioner’s motion, SLCDSS noted that the father’s sister is a grade A supervisor in its Child Preventive Services Unit and, in light of the neglect petition, the case would be transferred from the Child Protective Unit to the Child Preventive Services Unit. The mere fact, however, that the father’s sister was employed with SLCDSS as a supervisor does not justify disqualifying SLCDSS from prosecuting the neglect petition, especially where SLCDSS does not demonstrate that such fact created actual prejudice or a substantial risk of an abuse of confidence … . Moreover, the record discloses that since Family Court’s order, SLCDSS has taken steps to ensure that the father’s sister has no supervisory role in the father’s case. In view of the foregoing, we find that no conflict of interest exists prohibiting SLCDSS from prosecuting the neglect proceeding … . Matter of Gage II. (Rachel JJ.), 2017 NY Slip Op 08931, Third Dept 12-21-17

FAMILY LAW (MUNICIPAL LAW, CONFLICT OF INTEREST, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))/MUNICIPAL LAW (FAMILY LAW, DSS, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))/NEGLECT (FAMILY LAW, MUNICIPAL LAW, CONFLICT OF INTEREST, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))

MOTHER’S PETITION TO REGAIN CUSTODY FROM GRANDMOTHER SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES BECAUSE THE AWARD OF CUSTODY TO GRANDMOTHER WAS BY CONSENT, GRANDMOTHER DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO HER, MATTER REMITTED FOR HEARING TO DETERMINE BEST INTERESTS OF THE CHILD (THIRD DEPT).

The Third Department determined grandmother had met her burden showing extraordinary circumstances warranting the award of custody to her. The matter was remitted for a determination whether the grandmother’s custody was in the best interests of the child. The court noted that Family Court should not have dismissed mother’s petition for custody for failure to show a change in circumstances. Custody was previously awarded to grandmother by consent:

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“[W]here, as here, a parent seeks to regain custody from a nonparent . . .[,] it is well established that, unless a finding of extraordinary circumstances was made in a prior order, the parent is not required to prove a change in circumstances as a threshold matter” … .A prior “consent order, standing alone, does not constitute a judicial finding [or an admission] of surrender, abandonment, unfitness, neglect or other extraordinary circumstances” … .

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As to the issue of extraordinary circumstances, as relevant here, a grandparent “may make the requisite showing of extraordinary circumstances . . . by establishing that there has been an ‘extended disruption of custody'” … . An extended disruption of custody includes, “but [is] not limited to, a prolonged separation of the . . . parent and the child for a least [24] continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the . . . grandparent” … . When considering whether the parent voluntarily relinquished care and control of the child and the child resided with the grandparent for the requisite period of time, factors to consider “‘include the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role'” …  .

Once the maternal grandmother met her threshold burden, Family Court was obligated to determine what disposition would be in the child’s best interests … . Matter of Christy T. v Diana T., 2017 NY Slip Op 08916, Third Dept 12-21-17

 

FAMILY LAW (MOTHER’S PETITION TO REGAIN CUSTODY FROM GRANDMOTHER SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES BECAUSE THE AWARD OF CUSTODY TO GRANDMOTHER WAS BY CONSENT, GRANDMOTHER DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO HER, MATTER REMITTED FOR HEARING TO DETERMINE BEST INTERESTS OF THE CHILD (THIRD DEPT))/CUSTODY (NONPARENT, MOTHER’S PETITION TO REGAIN CUSTODY FROM GRANDMOTHER SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES BECAUSE THE AWARD OF CUSTODY TO GRANDMOTHER WAS BY CONSENT, GRANDMOTHER DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO HER, MATTER REMITTED FOR HEARING TO DETERMINE BEST INTERESTS OF THE CHILD (THIRD DEPT))

RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, over a two-justice dissent, determined that the evidence did not support removing the child from the mother’s custody:

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Although a prolonged separation between a parent and child may support a finding of extraordinary circumstances… , here, the limited record does not warrant a finding of extraordinary circumstances on this basis. The grandmother was the primary physical custodian for most of the younger child’s life, but there is no claim or evidence that the mother abdicated her responsibilities, and the record indicates that she had unsupervised parenting time with both children since 2004 and has been a joint custodian since at least December 2014 … . The history of neglect is relevant …, but the mother’s history — though tragic — was remote and there was no evidence or claim that she has failed to comply with the recommendations and obtain the treatment offered by DSS in recent times or that she has failed to remain involved in the children’s lives … . … While we acknowledge that Family Court had due cause for concern, absent extraordinary circumstances, we necessarily must find that the mother is entitled to retain custody of the younger child … . Although certainly not dispositive, it is important to recognize that the attorneys for the children have both supported the mother’s appeal.

Even were we to accept that the prior history established a basis for finding extraordinary circumstances, given that the grandmother allowed the children to reside with the mother since September 2015 and refused to resume her role as primary physical custodian, there has clearly been a change of circumstances … . The record otherwise shows that the mother has provided a stable home and appropriate medical care for the younger child, who has maintained excellent grades in school and participates in positive extracurricular activities, such as the boy scouts. From our reading of the Lincoln hearing, we do not get the impression that the younger child’s testimony was coached. As such, we would also conclude that the placement of physical custody with the mother is in the younger child’s best interests. Matter of Connie VV. v Cheryl XX., 2017 NY Slip Op 08913, Third Dept 12-21-17

 

FAMILY LAW (CUSTODY, RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT))/CUSTODY (FAMILY LAW, RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT))

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DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT).

The Third Department determined defendant Enerco was entitled to discovery of information demonstrating the retail distribution of the type of clothes distributed by defendant Star of India which had caught fire from a heater manufactured or distributed by defendant Enerco. The court held that Enerco did not have to rely on a printout created by Star of India purporting to demonstrate Star of India did not distribute the clothes in question. The court also held that Enerco’s motion to amend its answer was properly denied. There was evidence Enerco had led parties to believe it was not going to assert the cross-claims it sought to include in the amended answer, thereby limiting questioning during a deposition:

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… [T]he Enerco defendants do not rely on mere speculation for their discovery demand. Based upon this, together with the fact that the search results are entirely dependent upon the search terms that are used and that [the party] was unable to explain how the results she relied upon were generated, we find that the complete contents of the database from 2004 to 2009 “may be fairly characterized as useful and reasonable” … .Furthermore, our review of the record does not suggest that disclosure of the contents of the database for this specific period would be unnecessarily onerous or impose any special burden on Star of India … . …

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The Enerco defendants asserted that their 2½-year delay in moving for leave to amend their answer was due to the fact that they were operating ‘under the incorrect assumption that they had asserted cross claims against every co-defendant.’ This proffered excuse, however, is belied by the affidavit of Amy Weissman, an attorney for one of the codefendants. The Weissman affidavit makes clear that the Enerco defendants induced the other defense attorneys in the second action not to ask questions at the deposition of the Enerco defendants’ witnesses based on the explicit representation by counsel for the Enerco defendants that they had no cross claims against those codefendants. Thus, we view the proffered excuse to be disingenuous.

… These defendants have relied upon the Enerco defendants’ representation to their prejudice by forgoing questioning of the Enerco defendants’ witnesses, and they have been hindered in the preparation of their case … . Palmatier v Mr. Heater Corp., 2017 NY Slip Op 08918, Third Dept 12-21-17

 

CIVIL PROCEDURE (DISCOVERY, MOTION TO AMEND ANSWER, DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT))/DISCOVERY (DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT))/ANSWER (MOTION TO AMEND,  DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT))/ATTORNEYS (DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS PRECLUDED AMENDMENT OF ANSWER (THIRD DEPT))

CLAIMANT, WHO HAD RETIRED, BUT CLAIMS TO HAVE REATTACHED TO THE LABOR MARKET, DID NOT DEMONSTRATE HIS INABILITY TO FIND COMPARABLE WORK WAS RELATED TO HIS ASBESTOS-CAUSED DISABILITY, MATTER REMITTED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the claimant, who had retired but claimed to have reattached to the labor market, had not demonstrated his inability to find comparable work was related to his asbestos-caused disability:

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We agree with the employer that the Board failed to address its argument that claimant had not satisfied his burden of establishing that his inability to find work, and the related loss of earnings, was causally related to his disability. In order to be entitled to benefits, a claimant who has previously voluntarily retired but claims to have subsequently reattached to the labor market must demonstrate that his or her “earning capacity and his [or her] ability to find comparable employment had been adversely affected by his [or her] disability” … . This burden requires a claimant to demonstrate “that other factors totally unrelated to his [or her] disability did not [cause the] adverse affect on his [or her] earning capacity” … . Despite the employer arguing that claimant had failed to meet his burden in this regard, the Board did not discuss or make findings as to whether claimant had established a relevant nexus between his work-related disability and his unsuccessful job search. As the Board failed to engage in its fact-finding role and deprived the employer of consideration of the merits of the issue, we must reverse the Board’s decision in order to allow that review to occur … . Matter of Pontillo v Consolidated Edison of N.Y., Inc., 2017 NY Slip Op 08760, Second Dept 12-14-17

 

WORKERS’ COMPENSATION LAW (CLAIMANT, WHO HAD RETIRED, BUT CLAIMS TO HAVE REATTACHED TO THE WORK FORCE, DID NOT DEMONSTRATE HIS INABILITY TO FIND WORK WAS RELATED TO HIS ASBESTOS-CAUSED DISABILITY, MATTER REMITTED (THIRD DEPT))

VIOLATION OF A DIRECTIVE BY THE PRISON DID NOT WARRANT ANNULMENT OF THE DISCIPLINARY DETERMINATION (THIRD DEPT).

The Third Department, reversing Supreme Court, found that petitioner’s disciplinary determination should no have been annulled based upon a violation of a directive by the prison. Petitioner was found guilty of possessing a weapon and tampering with property:

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… [T]he violation of former Directive No. 4910 (V) (C) (2) did not entitle petitioner to the annulment of the determination of guilt. Former Directive No. 4910 (V) (C) (2) provided that “[t]he search of a [s]pecial [h]ousing [u]nit cell shall be conducted with the inmate removed from the cell for the duration of the search. The inmate shall be placed in a vacant cell and not allowed to carry anything. If a vacant cell is not available, the inmate is to be taken to the far end of the tier and held for the duration of the search.” It is uncontested that, here, petitioner was placed in a recreation area — and not in a vacant cell or at the far end of the tier — while his cell was searched.

Although the placement of petitioner in the recreation area violated former Directive No. 4910 (V) (C) (2), we reject petitioner’s contention that the proper remedy is annulment. Not all administrative violations invalidate agency actions, and the proper remedy for an administrative violation must take into account the purpose of the regulation that was violated… . Here, a plain reading of former Directive No. 4910 (V) (C) (2) establishes that the provision is intended to promote institutional safety rather than to protect an inmate’s interests in regard to the search of his or her cell. Accordingly, we perceive no reason that petitioner would automatically be entitled to suppression of any evidence recovered from a search due to a violation of a directive that was not intended to protect his rights in regard to that search. Moreover, petitioner does not allege that his placement in the recreation area somehow prejudiced him … . Matter of Tenney v Annucci, 2017 NY Slip Op 08794, Third Dept 12-14-17

 

DISCIPLINARY HEARINGS (INMATES) VIOLATION OF A DIRECTIVE BY THE PRISON DID NOT WARRANT ANNULMENT OF THE DISCIPLINARY DETERMINATION (THIRD DEPT)

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DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea in the interest of justice, determined the defendant was not sufficiently informed of the rights he was giving up by entering a plea:

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“When a defendant opts to plead guilty, he [or she] must waive certain constitutional rights — the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses”… . “While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights”… .. The Court of Appeals has made clear that the trial judge has the responsibility to ensure that the defendant fully understands the plea and its consequences … .  During the plea colloquy, County Court did not reference the privilege against self-incrimination or the right to be confronted by witnesses and, although defendant was advised of his right to a trial, the court did not specify a jury trial. “We cannot conclude that defendant’s guilty plea was knowing, voluntary and intelligent as there was neither an affirmative showing on the record that defendant waived his constitutional rights nor any indication that he consulted with his attorney about the constitutional consequences of a guilty plea” … . People v Cotto, 2017 NY Slip Op 08759, Third Dept 12-14-17

 

CRIMINAL LAW (GUILTY PLEA, DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/GUILTY PLEA (CRIMINAL LAW, DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/GUILTY PLEA (CRIMINAL LAW, DEFENDANT WAS NOT FULLY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))

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ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT).

The Third Department, partially reversing Supreme Court, over a two-justice concurrence, determined plaintiff’s General Business Law (deceptive business practices) cause of action should not have been dismissed for failure to state a cause of action. The plaintiff alleged the defendant insurance company pressured physicians to find no causal connection between the injury and the accident (no-fault claims). The Third Department further found that the claims for consequential damages for emotional distress and punitive damages, stemming from breach of contract, were properly dismissed. The concurring justices argued that the emotional distress was a legitimate damages-claim for breach of contract:

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… [P]laintiff alleged that defendant engaged in a consumer-oriented pattern and practice aimed at the public at large of wrongfully denying claims for no-fault benefits by pressuring the physicians it hired to perform IMEs to provide medical reports that would support the denial of benefits and, further, that she suffered injury as a result of that practice. Such allegations are sufficient to plead a cause of action pursuant to General Business Law § 349 “‘at this early prediscovery stage'”… . …

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 It has long been the rule that “absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty”… .. As Supreme Court noted, plaintiff failed to satisfy this standard because she did not allege the existence of any relationship or duty between the parties separate from the contractual obligation. …

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Plaintiff’s claim for punitive damages was likewise properly dismissed. Punitive damages may be recovered for breach of contract “only where a defendant’s conduct was (1) actionable as an independent tort, (2) egregious, (3) directed toward the plaintiff and (4) part of a pattern directed at the public” … . Plaintiff’s allegations that defendant engaged in unfair claim settlement practices do not allege a tort independent of the parties’ contract sufficient to state a claim for recovery of punitive damages … . Brown v Government Employees Ins. Co., 2017 NY Slip Op 08774, Third Dept 12-14-17

 

CONTRACT LAW (INSURANCE LAW, ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))/INSURANCE LAW ( ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))/GENERAL BUSINESS LAW (ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))/DECEPTIVE BUSINESS PRACTICES  (INSURANCE LAW, ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))/EMOTIONAL DISTRESS (BREACH OF CONTRACT, DAMAGES, ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))/PUNITIVE DAMAGES  (INSURANCE LAW, ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))/DAMAGES (CONTRACT LAW, ALLEGATION THAT DEFENDANT INSURER PRESSURED PHYSICIANS TO FIND NO CAUSAL CONNECTION BETWEEN THE ACCIDENT AND INJURY IN NO-FAULT CASES STATED A CAUSE OF ACTION UNDER THE GENERAL BUSINESS LAW, EMOTIONAL DISTRESS IS NOT AN ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, THE ALLEGATIONS DID NOT SUPPORT A CLAIM FOR PUNITIVE DAMAGES (THIRD DEPT))

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SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NO OPPORTUNITY FOR APPELLATE REVIEW, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s rape conviction, determined Supreme Court should have ordered the victim’s psychiatric records for an in camera review for relevance:

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Prior to trial, the People disclosed that the victim had indicated that she had received treatment for bipolar disorder and depression and, further, produced a copy of the medical record from the sexual assault examination that was conducted on the day after the incident in which the victim had also reported a past medical history of “bipolar” and that she was taking prescription medications for that condition. Defendant requested that the court issue a subpoena duces tecum to obtain the victim’s mental health records and conduct an in camera review to ascertain whether they contained any information relevant and material to the victim’s credibility. …

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Supreme Court erred when it declined to order production of the victim’s mental health records and to review them in camera. Inasmuch as those records were never produced and were not part of the record, we are unable to remit the matter for a reconstruction hearing … . Moreover, without knowing the content of those records, we are unable to determine whether the information that they contain is merely cumulative to the information provided to defendant about the victim’s mental health history that was used as a basis for cross-examination, or whether the records contain additional relevant and material information bearing on her credibility. Similarly, our lack of knowledge of the contents of the victim’s mental health records precludes us from determining whether the court’s error in this regard was harmless. Accordingly, the judgment of conviction must be reversed and the matter remitted for a new trial. People v Kiah, 2017 NY Slip Op 08752, Third Dept 12-13-17

 

CRIMINAL LAW (SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/PSYCHIATRIC RECORD (CRIMINAL LAW, RAPE TRIAL, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/IN CAMERA REVIEW (CRIMINAL LAW, PSYCHIATRIC RECORD, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/VICTIM PSYCHIATRIC RECORD (CRIMINAL LAW, EVIDENCE, RAPE, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/RAPE (EVIDENCE, PSYCHIATRIC RECORD, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/APPEALS (CRIMINAL LAW, PSYCHIATRIC RECORD,  SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NO OPPORTUNITY FOR APPELLATE REVIEW, NEW TRIAL ORDERED (THIRD DEPT))

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SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT).

The Third Department determined a substitute teacher had not been given reasonable assurance of employment following the summer break and should not have been denied unemployment benefits on that ground:

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This Court has well-established precedent interpreting the identical phrase in Labor Law § 590 (10), “reasonable assurance,” regarding two successive academic years or terms to require “a representation by the employer” as to future employment . This representation often takes the form of a letter from an employer assuring a per diem substitute teacher of future employment opportunities … .

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Here, it is uncontested that the employer never sent any letter to claimant or provided him with any other form of notice that made a representation regarding claimant’s employment after the recess. Matter of Papapietro (Commissioner of Labor), 2017 NY Slip Op 08596, Third Dept 12-7-17

 

UNEMPLOYMENT INSURANCE (TEACHERS, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/EDUCATION-SCHOOL LAW (UNEMPLOYMENT INSURANCE, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/LABOR LAW (UNEMPLOYMENT INSURANCE, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/TEACHERS (UNEMPLOYMENT INSURANCE, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/E

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