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EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME, INFORMATION FIRST LEARNED IN A LINCOLN HEARING CANNOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT).

The Third Department, reversing Family Court and remitting the case, determined the record did not support the awarding of sole custody to the maternal grandmother, in this appeal by the parents:

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While we accord considerable deference to Family Court’s credibility assessments and factual findings on appeal, we conclude from our review of the trial testimony, without factoring in the Lincoln hearing, that petitioner failed to meet her threshold burden of establishing extraordinary circumstances. The record indicates that the mother and the father were only briefly incarcerated, during which time the children resided with the paternal grandmother — not the maternal grandmother. Upon their release, the mother and the father soon moved into the paternal grandmother’s home and the father obtained full-time employment — a sequence that does not establish an extended disruption of the mother and the father’s custody … . Moreover, while DSS made a finding of neglect, a DSS representative informed Family Court … that DSS did not have any ongoing child protective concerns. In doing so, DSS recognized that the father’s brother, a level one sex offender, lived in the paternal grandmother’s home. There is no evidence that the brother ever mistreated the children… . The father testified that he trusts his brother to be around the children, but would not and does not leave the children alone with him. The mother is not employed and is at home with the children.

As for the maternal grandmother, the record shows that she has never spent more than a couple of hours with the children and would only see them a few times each year. …

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Family Court’s decision … raises an additional concern. Specifically, the court’s reference to “another male whose presence around children is questionable” — a person that the court then characterized as an undesirable — is not based on any testimony during the trial. As explained by the Court of Appeals in Matter of Lincoln v Lincoln (24 NY2d 270 [1969]), any new information adverse to the parents derived during a Lincoln hearing may not be considered by the court “without in some way checking on its accuracy during the course of the open hearing” … . Under the circumstances presented, we conclude that the matter must be remitted to Family Court for further proceedings to address the circumstances concerning the other male in the paternal grandmother’s home and to determine whether or not there has been a showing of extraordinary circumstances based on the totality of the evidence and, if so, what disposition is in the best interests of the children. Matter of Shaver v Bolster, 2017 NY Slip Op 08232, Third Dept 11-22-17

 

FAMILY LAW (CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/CUSTODY (FAMILY LAW, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/GRANDPARENTS (FAMILY LAW, CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/EVIDENCE (FAMILY LAW, MODIFICATION OF CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/EVIDENCE (FAMILY LAW, EVIDENCE FIRST LEARNED IN A LINCOLN HEARING MAY NOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT))/LINCOLN HEARING (FAMILY LAW, EVIDENCE FIRST LEARNED IN A LINCOLN HEARING MAY NOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT))

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EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence did not support child abuse and neglect findings against the respondent mother. Injuries to the child were caused by father. But the evidence did not support the finding that mother knew or should have known father had injured the child:

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Based upon our review of the evidence in this record, we cannot conclude that respondent knew or should reasonably have known that she was placing the younger child in danger by leaving him in the care of his father while she went to work. Respondent consistently maintained, in her testimony and in her various statements to law enforcement and a Child Protective Services caseworker, that she did not know how the fractures had occurred, that she did not think the father had caused them and that, prior to observing redness and swelling in the child’s leg … , she had not noticed anything unusual or concerning with respect to the younger child. …

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Nor do we find that respondent neglected the younger child by failing to seek medical care for the child when she observed redness and swelling in his leg … . Respondent testified that the child was not crying, that she thought the redness and swelling could be a reaction to vaccines that the child had a few days earlier and that she continually monitored the child’s condition that evening and throughout the next day. According to respondent, prior to leaving for work the following morning, she directed the father to monitor the child’s leg and let her know if it got worse. Respondent testified that she checked in with the father on her lunch break, scheduled an appointment with the child’s pediatrician for immediately after work and instructed the father to take the child to the doctor earlier if he determined that it could not wait. Under these circumstances, the record does not support a finding that respondent neglected the younger child by, as petitioner contends, failing to secure prompt medical attention … . Matter of Lucien HH. (Michelle PP.), 2017 NY Slip Op 08224, Third Dept 11-22-17

 

FAMILY LAW (CHILD ABUSE, NEGLECT, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/CHILD ABUSE (FAMILY LAW, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/NEGLECT (FAMILY LAW, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/EVIDENCE (FAMILY LAW, CHILD ABUSE, NEGLECT, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))

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STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT).

The Third Department, reversing Family Court, determined the child support provisions of a stipulation complied with the Child Support Standards Act (CSSA) and were enforceable. The Third Department further found that the proper standard for an upward modification of support was that which was agreed to in the stipulation:

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The stipulation, as well as the order of support, recite that the parties had been advised of and fully understood the child support provisions of the CSSA and that the application of the statute would result in the presumptively correct amount of child support to be awarded. The stipulation then sets forth the presumptive amount of child support that would be awarded under the CSSA and the agreed-upon figures used to calculate that amount, states that the parties are deviating from the presumptive amount and provides a detailed explanation of the reasons for the deviation therefrom. Thus, the opt out provisions of the stipulation fully comply with the CSSA … . That the judgment of divorce does not explicitly set forth the CSSA recitals is not determinative, as the statute only requires the inclusion of such recitals in the “agreement or stipulation . . . presented to the court for incorporation in an order or judgment” … .

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Generally, a party seeking modification of a child support provision derived from an agreement or stipulation incorporated but not merged into a judgment of divorce has the burden of proving, insofar as is relevant here, “that an unanticipated and unreasonable change of circumstances has occurred resulting in a concomitant increased need or that the needs of the children are not being adequately met”… . “The parties are free, however, to agree to different terms triggering a change in the obligations of the payor spouse, including the application of a standard other than substantial unanticipated and unreasonable change in circumstances as the basis for determining a modification application, provided that . . . the children’s personal right to receive adequate support is not adversely affected and public policy is not offended” … . Here, the parties’ 1999 stipulation expressly provides that either party may petition a court for a modification of child support based upon “a change of circumstances.” Through this clear and unqualified language, the parties plainly expressed an intent to dispense with the “unanticipated and unreasonable change of circumstances” standard in favor of a less burdensome “change of circumstances” standard … . Matter of Frederick-Kane v Potter, 2017 NY Slip Op 08219, Third Dept 11-22-17

 

FAMILY LAW (CHILD SUPPORT, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/CHILD SUPPORT (FAMILY LAW, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, STIPULATION, CHILD SUPPORT, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/STIPULATION (FAMILY LAW, CHILD SUPPORT, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/UPWARD MODIFICATION (FAMILY LAW, CHILD SUPPORT, , STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))

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DESPITE THE FAILURE TO RAISE THE ISSUE ON APPEAL, THE INCLUSORY CONCURRENT SECOND DEGREE MURDER COUNTS MUST BE DISMISSED BASED UPON THE FIRST DEGREE MURDER CONVICTION (THIRD DEPT).

The Third Department determined that defendant’s second degree murder counts were lesser inclusory counts of first degree murder. Therefore the second degree murder counts should have been dismissed upon the first degree murder conviction. The fact that this issue was not raised below or on appeal did not preclude dismissal by the appellate court:

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… [A]lthough not raised by either party, modification of the judgment is required. “With respect to inclusory concurrent counts, . . . [a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” (CPL 300.40 [3] [b]). The two counts of murder in the second degree upon which defendant was convicted are inclusory concurrent counts of the count of murder in the first degree upon which he was also convicted … . Consequently, defendant’s convictions of murder in the second degree must be reversed and the respective counts of the indictment dismissed. People v Davis, 2017 NY Slip Op 08214, Third Dept 11-22-17

 

CRIMINAL LAW (DESPITE THE FAILURE TO RAISE THE ISSUE ON APPEAL, THE INCLUSORY CONCURRENT SECOND DEGREE MURDER COUNTS MUST BE DISMISSED BASED UPON THE FIRST DEGREE MURDER CONVICTION (THIRD DEPT))APPEALS (CRIMINAL LAW, DESPITE THE FAILURE TO RAISE THE ISSUE ON APPEAL, THE INCLUSORY CONCURRENT SECOND DEGREE MURDER COUNTS MUST BE DISMISSED BASED UPON THE FIRST DEGREE MURDER CONVICTION (THIRD DEPT))/INCLUSORY CONCURRENT COUNTS (CRIMINAL LAW, DESPITE THE FAILURE TO RAISE THE ISSUE ON APPEAL, THE INCLUSORY CONCURRENT SECOND DEGREE MURDER COUNTS MUST BE DISMISSED BASED UPON THE FIRST DEGREE MURDER CONVICTION (THIRD DEPT))

OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT).

The Third Department determined defendant’s motion to suppress statements and seized property (from the search of his person and home) based upon an unjustified street stop was properly granted. Fifteen minutes after receiving a report that the victim of a robbery had found his stolen car, Deputy Mauser drove around the block in the vicinity of the stolen car and saw defendant “walking pretty fast” “with a purpose.” When Mauser activated his lights and got out of his car, the defendant fled and Mauser followed, forcibly stopped, detained and arrested him:

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In arguing that Mauser had, at least, a founded suspicion of criminality, the People rely heavily on defendant’s geographic proximity to the stolen vehicle. However, time and again, courts have held that geographic location, without more, is insufficient to sustain a suspicion of criminality … . Although Mauser testified that he arrived in the area 13 to 14 minutes after receiving the dispatch, the record is devoid of any indication that Mauser possessed information — such as the precise time that the vehicle was reported as found or how long it had been there prior to the report — that could lead to the reasonable inference that the person or persons involved in the theft of the vehicle might still be in the area. Nor does the record establish that Mauser was acting on reliable information identifying or describing the person suspected to have stolen the vehicle … . Rather, Mauser solely relied on defendant’s location in relation to the area in which the vehicle was reportedly found and the fact that he was walking at a brisk pace at 2:53 a.m. on a cold winter day. Together, these facts were insufficient to form a founded suspicion of criminality, so as to justify the common-law right to inquire … .

In any event, even if Mauser’s initial encounter with defendant was considered to be a level one stop or if Mauser were found to have possessed a founded suspicion that criminality was afoot to justify a level two stop, defendant had the constitutional right to be let alone and, by disregarding Mauser’s directive to stop, defendant did not elevate the level of suspicion to a reasonable suspicion that a crime had been, was being or was about to be committed… . While “[f]light, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” … , the requisite additional facts supporting criminality were lacking here … . Accordingly, Mauser’s pursuit and forcible stop and detention of defendant were improper, and County Court properly suppressed the physical evidence found on defendant’s person and in his home, as well as any statements he made to police … . People v Rose, 2017 NY Slip Op 08217, Third Dept 11-22-17

 

CRIMINAL LAW (STREET STOPS, OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT))/STREET STOPS (CRIMINAL LAW, OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT))’SEARCH AND SEIZURE (STREET STOPS, MOTION TO SUPPRESS, OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT))

COUNTY COURT DID NOT HAVE STATUTORY AUTHORITY TO IMPOSE INCARCERATION FOR VIOLATION OF THE TERMS OF A CONDITIONAL DISCHARGE, DEFENDANT HAD COMPLETED HIS ONE YEAR DEFINITE SENTENCE OF INCARCERATION FOR FELONY DWI AND WAS IN THE CONSECUTIVE PERIOD OF CONDITIONAL DISCHARGE WHEN HE DROVE WITHOUT AN IGNITION INTERLOCK DEVICE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Aarons, reversing County Court, determined defendant, who had completed his one-year definite sentence for felony DWI, could not be sentenced to further incarceration for violating the terms of the conditional discharge by driving without an ignition interlock device:

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Defendant served the one-year jail term and … served it first. …[D]efendant did not serve part of his one-year sentence; rather, he completed the entirety of that definite sentence. Because of the statutory command of Penal Law § 60.21, the conditional discharge period had to run consecutively to the period of incarceration and, therefore, commenced upon his release from jail. It was during the time following defendant’s completion of the one-year definite sentence that he admittedly operated a vehicle without an ignition interlock device and violated the terms of the conditional discharge. The statutory framework governing sentencing does not cover these factual circumstances. The enactment of Penal Law § 60.21 spawned the type of sentence that was imposed upon defendant in 2013 for his DWI conviction — i.e., a definite term of incarceration with a period of conditional discharge to run consecutively. There were, however, no corresponding statutes or amendments to already existing statutes that delineated the type of sanctions that courts could impose in a case such as this one. * * *

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“A defendant must be sentenced according to the law as it existed at the time that he or she committed the offense”…  and, at the time defendant operated a vehicle without an ignition interlock device, the applicable law did not allow for the imposition of an additional period of imprisonment as done by County Court and as advocated by the People. Accordingly, defendant’s sentence of 2 to 6 years followed by three years of conditional discharge must be vacated. People v Coon, 2017 NY Slip Op 08216, Third Dept 11-22-17

 

CRIMINAL LAW (COUNTY COURT DID NOT HAVE STATUTORY AUTHORITY TO IMPOSE INCARCERATION FOR VIOLATION OF THE TERMS OF A CONDITIONAL DISCHARGE, DEFENDANT HAD COMPLETED HIS ONE YEAR DEFINITE SENTENCE OF INCARCERATION FOR FELONY DWI AND WAS IN THE CONSECUTIVE PERIOD OF CONDITIONAL DISCHARGE WHEN HE DROVE WITHOUT AN IGNITION INTERLOCK DEVICE (THIRD DEPT))/SENTENCING (CRIMINAL LAW, COUNTY COURT DID NOT HAVE STATUTORY AUTHORITY TO IMPOSE INCARCERATION FOR VIOLATION OF THE TERMS OF A CONDITIONAL DISCHARGE, DEFENDANT HAD COMPLETED HIS ONE YEAR DEFINITE SENTENCE OF INCARCERATION FOR FELONY DWI AND WAS IN THE CONSECUTIVE PERIOD OF CONDITIONAL DISCHARGE WHEN HE DROVE WITHOUT AN IGNITION INTERLOCK DEVICE (THIRD DEPT))/CONDITIONAL DISCHARGE (CRIMINAL LAW, COUNTY COURT DID NOT HAVE STATUTORY AUTHORITY TO IMPOSE INCARCERATION FOR VIOLATION OF THE TERMS OF A CONDITIONAL DISCHARGE, DEFENDANT HAD COMPLETED HIS ONE YEAR DEFINITE SENTENCE OF INCARCERATION FOR FELONY DWI AND WAS IN THE CONSECUTIVE PERIOD OF CONDITIONAL DISCHARGE WHEN HE DROVE WITHOUT AN IGNITION INTERLOCK DEVICE (THIRD DEPT))

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SERVICE AND VENUE PROVISIONS IN CONTRACT WITH A LIMITED LIABILITY COMPANY DID NOT APPLY TO DEFENDANT INDIVIDUALLY, DEFECTS IN SERVICE PROPERLY OVERLOOKED PURSUANT TO CPLR 2001 (THIRD DEPT).

The Third Department determined plaintiffs’ service of process on defendant was flawed but Supreme Court properly overlooked the defects under CPLR 2001. The Third Department further held that the defendant’s motion to change venue should have been granted. Both the method of service (mail) and venue were based on provisions in a purchase and sale contract. However, the purchase and sale agreement was with a limited liability company, but the confessions of judgment upon which the suit were based were signed by defendant in her personal capacity, not as the sole member of the LLC. Therefore the service and venue contract provisions did not apply:

Defendant and the limited liability companies of which she is a member “are distinct entities,” however, and the former is not individually bound by the contractual commitments of the latter… . Nothing in the purchase and sale agreement binds defendant to its terms, instead making clear that no “shareholder, director, officer of or principal or agent of” [the LLC] will “have any personal liability, directly or indirectly, under or in connection with” either the agreement or any amendments to it. …

Due to the inapplicability of those contractual provisions, plaintiffs’ effort to serve defendant by mail was deficient in that service “under CPLR 3213 is subject to the rules governing service of the summons generally” … . The mailing nevertheless placed defendant on notice of the pending motion for summary judgment in lieu of complaint, and she responded with a cross motion that opposed the motion on various grounds. Plaintiffs then arranged for proper, albeit untimely, service of defendant pursuant to CPLR 308 (2), and advised that they were amenable to any further adjournment of the return date “as defendant and [Supreme] Court may find proper.”… Accordingly, while a wholesale failure to timely serve defendant with the initiatory papers constitutes “a fatal jurisdictional defect”… , defendant was placed on notice, then submitted a cross motion that raised various objections and included substantive opposition before being properly served. In light of these peculiar circumstances, as well as the absence of any prejudice flowing from plaintiffs’ missteps, we are persuaded that the untimeliness of the proper service could be and rightly was overlooked (seeCPLR 2001, 2004 …). Capolino v Goren, 2017 NY Slip Op 08246, Third Dept 11-22-17

CIVIL PROCEDURE (SERVICE AND VENUE PROVISIONS IN CONTRACT WITH A LIMITED LIABILITY COMPANY DID NOT APPLY TO DEFENDANT INDIVIDUALLY, DEFECTS IN SERVICE PROPERLY OVERLOOKED PURSUANT TO CPLR 2001 (THIRD DEPT))/LIMITED LIABILITY COMPANY (SERVICE AND VENUE PROVISIONS IN CONTRACT WITH A LIMITED LIABILITY COMPANY DID NOT APPLY TO DEFENDANT INDIVIDUALLY, DEFECTS IN SERVICE PROPERLY OVERLOOKED PURSUANT TO CPLR 2001 (THIRD DEPT))/CONTRACT LAW (SERVICE AND VENUE PROVISIONS IN CONTRACT WITH A LIMITED LIABILITY COMPANY DID NOT APPLY TO DEFENDANT INDIVIDUALLY, DEFECTS IN SERVICE PROPERLY OVERLOOKED PURSUANT TO CPLR 2001 (THIRD DEPT))/CPLR 2001 (SERVICE AND VENUE PROVISIONS IN CONTRACT WITH A LIMITED LIABILITY COMPANY DID NOT APPLY TO DEFENDANT INDIVIDUALLY, DEFECTS IN SERVICE PROPERLY OVERLOOKED PURSUANT TO CPLR 2001 (THIRD DEPT))

MOTION TO CHANGE VENUE BROUGHT IN WRONG COUNTY SHOULD NOT HAVE BEEN ENTERTAINED (THIRD DEPT).

The Third Department, reversing Supreme Court, determine the motion to change venue was not brought in any county allowed by the statute and should not have been granted:

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It is well-settled that a motion to change venue on a discretionary ground, such as the convenience of material witnesses pursuant to CPLR 510 (3), “must be made in the county in which the action is pending, or in any county in that judicial district, or in any adjoining county”… . Here, it is undisputed that the action is pending in Kings County and that Sullivan County is not in the same judicial district as Kings County nor is it an adjoining county. In light of this, we find that defendants failed to bring their motion in a proper county and, thus, Supreme Court should not have entertained the motion … . Minenko v Swinging Bridge Camp Grounds of N.Y., Inc., 2017 NY Slip Op 08245, Third Dept 11-22-17

 

CIVIL PROCEDURE (MOTION TO CHANGE VENUE BROUGHT IN WRONG COUNTY SHOULD NOT HAVE BEEN ENTERTAINED (THIRD DEPT))/VENUE (CIVIL PROCEDURE, MOTION TO CHANGE VENUE BROUGHT IN WRONG COUNTY SHOULD NOT HAVE BEEN ENTERTAINED (THIRD DEPT))/CPLR 510 (MOTION TO CHANGE VENUE BROUGHT IN WRONG COUNTY SHOULD NOT HAVE BEEN ENTERTAINED (THIRD DEPT))/VENUE (CIVIL PROCEDURE, MOTION TO CHANGE VENUE BROUGHT IN WRONG COUNTY SHOULD NOT HAVE BEEN ENTERTAINED (THIRD DEPT))

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ARBITRATOR’S INTERIM DECISION RE PETITIONER’S SUSPENSION WITHOUT PAY WAS IMPROPER, AND THE ARBITRATOR’S DISMISSAL OF THE CHARGES VIOLATED PUBLIC POLICY, THIRD DEPT PROVIDED A COMPREHENSIVE DISCUSSION OF A COURT’S POWER TO REVIEW AN ARBITRATOR’S DECISION (THIRD DEPT).

The Third Department determined the arbitrator’s ruling in this employment matter violated public policy because the ruling, which dismissed the charges and imposed no penalty, acknowledged that petitioner had violated the Public Officers Law by sharing confidential information with her husband. Petitioner was employed by respondent Department of Corrections and Community Supervision (hereinafter DOCCS) … . Petitioner was suspended without pay for allegedly releasing confidential information to her husband, who had recently been released from prison on parole supervision in connection with his rape conviction. The decision too detailed to be fairly summarized here. It provides a comprehensive overview of the court’s role and powers in reviewing an arbitrator’s findings and is well worth reading carefully:

Section 33.5 (f) (4) of the CBA [collective bargaining agreement] prohibits arbitrators from adding new requirements to the provisions of the agreement. The arbitrator exceeded his power by adding a requirement to the CBA regarding what proof could be considered [in making an interim award] and by refusing to consider hearing evidence submitted by DOCCS to determine whether probable cause existed for petitioner’s suspension [without pay pending a hearing]. Therefore, the interim decision and award by the arbitrator was improper. * * *

… [T]he CBA could be read to require proof of every aspect of a particular charge before finding an employee guilty thereof, so we should not set aside the arbitrator’s conclusions on the ground that they are based on that interpretation … . DOCCS could have specified separate charges for each time petitioner accessed, and for each time she shared, confidential information. Instead, DOCCS proffered a single charge that petitioner accessed confidential information at least 14 times when she had no job-related reason to do so and shared that information with her husband at least eight times. Having found that DOCCS failed to establish that petitioner engaged in all of the conduct contained in the notice of discipline’s single charge, the arbitrator found her not guilty and imposed no penalty. As courts may not review an arbitrator’s findings of fact or law, even if the arbitrator made errors … , as long as the CBA was reasonably susceptible of the interpretation given to it by the arbitrator, Supreme Court erred in determining that the arbitrator exceeded his power. …

Although the arbitrator concluded that DOCCS failed to establish the charge as set forth in the notice of discipline, he factually determined that petitioner improperly accessed a confidential database 14 times, and at least one time she shared DOCCS’s confidential information with a parolee. These factual findings, which we must accept… , establish that petitioner violated Public Officers Law § 74 (3) (c). … [T]he relief granted in the arbitrator’s award — dismissal of the charges, with no penalty or repercussions for her misconduct, and reinstating her to the position in which she would continue to have access to confidential information — violated public policy, requiring vacatur of that award… . Matter of Virginia Livermore-johnson, 2017 NY Slip Op 08239, Third Dept 11-22-17

ARBITRATION (ARBITRATOR’S INTERIM DECISION RE PETITIONER’S SUSPENSION WITHOUT PAY WAS IMPROPER, AND THE ARBITRATOR’S DISMISSAL OF THE CHARGES VIOLATED PUBLIC POLICY, THIRD DEPARTMENT PROVIDED A COMPREHENSIVE DISCUSSION OF A COURT’S POWER TO REVIEW AN ARBITRATOR’S DECISION (THIRD DEPT))/EMPLOYMENT LAW (ARBITRATION, ARBITRATOR’S INTERIM DECISION RE PETITIONER’S SUSPENSION WITHOUT PAY WAS IMPROPER, AND THE ARBITRATOR’S DISMISSAL OF THE CHARGES VIOLATED PUBLIC POLICY, THIRD DEPARTMENT PROVIDED A COMPREHENSIVE DISCUSSION OF A COURT’S POWER TO REVIEW AN ARBITRATOR’S DECISION (THIRD DEPT))/CONTRACT LAW (COLLECTIVE BARGAINING AGREEMENT, ARBITRATOR’S INTERIM DECISION RE PETITIONER’S SUSPENSION WITHOUT PAY WAS IMPROPER, AND THE ARBITRATOR’S DISMISSAL OF THE CHARGES VIOLATED PUBLIC POLICY, THIRD DEPARTMENT PROVIDED A COMPREHENSIVE DISCUSSION OF A COURT’S POWER TO REVIEW AN ARBITRATOR’S DECISION (THIRD DEPT))/COLLECTIVE BARGAINING AGREEMENT (ARBITRATOR’S INTERIM DECISION RE PETITIONER’S SUSPENSION WITHOUT PAY WAS IMPROPER, AND THE ARBITRATOR’S DISMISSAL OF THE CHARGES VIOLATED PUBLIC POLICY, THIRD DEPARTMENT PROVIDED A COMPREHENSIVE DISCUSSION OF A COURT’S POWER TO REVIEW AN ARBITRATOR’S DECISION (THIRD DEPT))

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NYS COMPTROLLER HAS THE CONSTITUTIONAL AND STATUTORY RIGHT TO SUBPOENA PATIENT BILLING RECORDS FROM HEALTH SERVICES PROVIDERS PAID UNDER THE STATE’S EMPIRE PLAN TO FACILITATE AN AUDIT, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the NYS Comptroller had the power to issue a subpoena for patients’ billing records as part of an audit of a health services provider paid under the state’s Empire Plan. Neither the CPLR, which governs the confidentiality of medical records sought in discovery as part of litigation, nor the Health Insurance Portability and Accountability Act (HIPAA), precluded the Comptroller from accessing the billing records:

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We find that, contrary to petitioner’s claims and the holding of Supreme Court, the subpoena was validly issued in furtherance of [the Comptroller’s] constitutional and statutory authority and obligation to audit payments made by the state for medical services provided under the Empire Plan … . In Matter of Martin H. Handler, M.D., P.C. v DiNapoli (23 NY3d at 242-243, 245-248) … the Court of Appeals outlined … the obligations of participating and nonparticipating health care providers with regard to billing patients, and [the Comptroller’s] independent authority and obligation to audit the state’s payments to both categories of providers. As the Court of Appeals outlined, respondent is constitutionally obligated to audit state payments to health insurance vendors … . …

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The plain language of CPLR 3122 (a) (1) and (2), read together, makes clear that the provisions apply to subpoenas issued during the discovery phase of litigation, and are not applicable to the subpoena issued by [the Comptroller] here pursuant to its authority under State Finance Law § 9 … . …

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… HIPAA’s privacy regulations provide that “[a] covered entity may disclose protected health information to a health oversight agency for oversight activities authorized by law, including audits; civil, administrative, or criminal investigations; . . . criminal proceedings or actions; or other activities necessary for appropriate oversight of . . . [e]ntities subject to government regulatory programs for which health information is necessary for determining compliance with program standards,” without the written authorization of the patient … . Matter of The Plastic Surgery Group, P.C. v Comptroller of The State of New York, 2017 NY Slip Op 08247, Third Dept 11-22-17

 

ADMINISTRATIVE LAW (NYS COMPTROLLER, AUDIT OF HEALTH SERVICES PROVIDERS, NYS COMPTROLLER HAS THE CONSTITUTIONAL AND STATUTORY RIGHT TO SUBPOENA PATIENT BILLING RECORDS FROM HEALTH SERVICES PROVIDERS PAID UNDER THE STATE’S EMPIRE PLAN TO FACILITATE AN AUDIT, SUPREME COURT REVERSED (THIRD DEPT))/CIVIL PROCEDURE  (NYS COMPTROLLER, AUDIT OF HEALTH SERVICES PROVIDERS, NYS COMPTROLLER HAS THE CONSTITUTIONAL AND STATUTORY RIGHT TO SUBPOENA PATIENT BILLING RECORDS FROM HEALTH SERVICES PROVIDERS PAID UNDER THE STATE’S EMPIRE PLAN TO FACILITATE AN AUDIT, SUPREME COURT REVERSED (THIRD DEPT))/COMPTROLLER AUDIT OF HEALTH SERVICES PROVIDERS, NYS COMPTROLLER HAS THE CONSTITUTIONAL AND STATUTORY RIGHT TO SUBPOENA PATIENT BILLING RECORDS FROM HEALTH SERVICES PROVIDERS PAID UNDER THE STATE’S EMPIRE PLAN TO FACILITATE AN AUDIT, SUPREME COURT REVERSED (THIRD DEPT))/PATIENT BILLING RECORDS  (NYS COMPTROLLER, AUDIT OF HEALTH SERVICES PROVIDERS, NYS COMPTROLLER HAS THE CONSTITUTIONAL AND STATUTORY RIGHT TO SUBPOENA PATIENT BILLING RECORDS FROM HEALTH SERVICES PROVIDERS PAID UNDER THE STATE’S EMPIRE PLAN TO FACILITATE AN AUDIT, SUPREME COURT REVERSED (THIRD DEPT))/CIVIL PROCEDURE  (NYS COMPTROLLER, AUDIT OF HEALTH SERVICES PROVIDERS, NYS COMPTROLLER HAS THE CONSTITUTIONAL AND STATUTORY RIGHT TO SUBPOENA PATIENT BILLING RECORDS FROM HEALTH SERVICES PROVIDERS PAID UNDER THE STATE’S EMPIRE PLAN TO FACILITATE AN AUDIT, SUPREME COURT REVERSED (THIRD DEPT))/CPLR 3122 (NYS COMPTROLLER, AUDIT OF HEALTH SERVICES PROVIDERS, NYS COMPTROLLER HAS THE CONSTITUTIONAL AND STATUTORY RIGHT TO SUBPOENA PATIENT BILLING RECORDS FROM HEALTH SERVICES PROVIDERS PAID UNDER THE STATE’S EMPIRE PLAN TO FACILITATE AN AUDIT, SUPREME COURT REVERSED (THIRD DEPT))/HIPAA  (NYS COMPTROLLER, AUDIT OF HEALTH SERVICES PROVIDERS, NYS COMPTROLLER HAS THE CONSTITUTIONAL AND STATUTORY RIGHT TO SUBPOENA PATIENT BILLING RECORDS FROM HEALTH SERVICES PROVIDERS PAID UNDER THE STATE’S EMPIRE PLAN TO FACILITATE AN AUDIT, SUPREME COURT REVERSED (THIRD DEPT))

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