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THERE WAS NO EVIDENCE TO CORROBORATE THE OLDER CHILD’S OUT-OF-COURT ALLEGATIONS OF ABUSE BY FATHER; THE ABUSE AND DERIVATIVE ABUSE PETITION WAS DISMISSED (THIRD DEPT).

The Third Department, reversing Family Court, determined there was no evidence to corroborate the older child’s out-of-court statements. Therefore, the petition alleging abuse of the older child and derivative abuse of the younger siblings was dismissed:

At the hearing, petitioner offered the testimony of the children’s mother, two caseworkers, and the video recording of the oldest child’s interview with the Orange County Department of Social Services caseworker and a State Police investigator. The mother testified that when the oldest child was 17 years of age, she first disclosed the allegations of sexual contact to her. Thereafter, each caseworker testified that the oldest child told them that her father had sexual contact with her from approximately two years of age until she was eight. The caseworkers further testified that the oldest child explained that her memory of the abuse was triggered when she overheard her youngest sister make reference to a secret that she held with her father. The record also reveals that there was no additional evidence of any kind presented by petitioner that corroborated the oldest child’s out-of-court statements. For example, there was no medical evidence of any sort, nor did the mother or anyone else point to any change in the oldest child’s behavior, or indications of inappropriate sexual knowledge or behavior, nor was there any expert testimony to validate the oldest child’s account of sexual abuse, or to explain the nine-year gap between the cessation of the sexual contact and the allegations of same. While there was some testimony by the mother that the child has had nightmares since she was very young and has been diagnosed with anxiety, there was no testimony, expert or otherwise, linking the nightmares or diagnosis to the alleged sexual contact. While Family Court correctly noted that a child’s out-of-court allegations of sexual abuse — as testified to by the caseworkers — can be sufficiently corroborated by the child’s detailed in-court testimony … , petitioner did not present the oldest child as a sworn witness. Finally, there was no cross-corroboration of the oldest child’s statements by her siblings as the two younger children did not disclose any sexual abuse to their mother or during the initial interview. The younger two children did not give sworn testimony at the fact-finding hearing nor were the video recordings of their interviews with the caseworker admitted into evidence. Matter of Gabriella X. (Erick Y.), 2024 NY Slip Op 05856, Third Dept 11-21-24

Practice Point: Although out-of-court allegations of sexual abuse (made to caseworkers and police investigators) may support an abuse finding, the out-of-court statements must be corroborated.

 

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FAMILY COURT SHOULD NOT HAVE DELEGATED TO MOTHER THE AUTHORITY TO DETERMINE FATHER’S PARENTING TIME (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined mother should not have been given the authority over father’s parenting time:

… Family Court improperly delegated its authority to the mother over the father’s in-person parenting time and telephone and electronic contact with the daughter … . With respect to the father’s telephone and electronic contact with the daughter, inasmuch as the mother agrees that the father should have telephone and electronic contact three times per week, we modify that portion of the order accordingly. With respect to the father’s in-person parenting time, although we are empowered to independently review the record and decide parenting time issues, given the father’s instability, the fact that the mother has relocated to Mississippi and the passage of time, we cannot make that determination here. As such, we remit the matter to Family Court for a hearing for the purpose of fashioning a schedule of supervised in-person parenting time … . Matter of Leslie QQ. v Daniel RR., 2024 NY Slip Op 05857, Third Dept 11-21-24

Practice Point: A Family Court cannot delegate authority over parenting time schedules to mother or father.

 

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PLAINTIFF SLIPPED AND FELL ON TRACKED-IN-RAIN DURING AN ONGOING STORM; DEFENDANT HAD PLACED MATS NEAR THE DOOR AND ELSEWHERE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the defendant (Open Kitchen) in this tracked-in-rain slip and fall case was entitled to summary judgment. Open Kitchen demonstrated plaintiff slipped and fell during an ongoing rain storm and it had placed mats near the door and elsewhere:

… [T]here is no evidence that Open Kitchen either created the wet condition in the entryway or had notice of a hazard that could have been prevented by the exercise of reasonable care … . Open Kitchen satisfied its duty by employing reasonable remedial measures to address the ongoing rainstorm by laying mats in front of the entrance doors and elsewhere throughout the premises … . There was no active notice in the form of prior complaints received … . Nor did the undisputed fact that it was raining at the time of plaintiff’s accident, causing water to be tracked into the premises, constitute constructive notice of a dangerous situation requiring Open Kitchen to cover the entire floor with mats or continuously mop the floor … . Moreover, plaintiff testified that that he only noticed water on the floor after his fall, and thus it cannot be inferred that Open Kitchen had constructive notice of “a hazard sufficiently visible as to permit discovery and remedy” … . Betancourt v ARC NYC123 William, LLC, 2024 NY Slip Op 05628, Third Dept 11-14-24

Practice Point: Here a slip and fall on tracked-in-rain during an ongoing storm was not actionable. Defendant had placed mats near the door and elsewhere and was deemed not have had constructive notice of a dangerous condition.​

 

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HERE THE CUSTODY CASE WAS TRANSFERRED TO A NEW JUDGE; THE PREVIOUS JUDGE’S ORDERS CONSTITUTED THE LAW OF THE CASE WHICH CANNOT BE VIOLATED BY SUBSEQUENT ORDERS BY THE NEW JUDGE (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge to whom the case was transferred should not have issued orders which conflicted with those issued by the previous judge, which constituted the law of the case:

The March 21, 2023 order, which directed a hearing on the father’s motion to vacate the 2017 custody order, constituted the law of the case and was thus binding on all judges of coordinate jurisdiction … . Thus, the order denying the motion to vacate the custody order, without holding a hearing, constitutes a violation of the law of the case doctrine, and the order should be reversed on that basis alone … . …

… [W]e further find that the [previous judge’s] decision to so-order the subpoena … likewise constituted law of the case. Family Court therefore erred when it denied the motion to compel solely on the basis that the judicial subpoena was overbroad. Matter of Jahir I. v Sharon E.W., 2024 NY Slip Op 05635, Third Dept 11-14-24

Practice Point: When a case is transferred to a new judge, the orders issued by the previous judge are the law of the case and must be adhered to by the new judge.

 

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THE JUDGE IN THIS MENTAL HYGIENE LAW PROCEEDING SHOULD NOT HAVE HELD THE HEARING ON WHETHER APPELLANT WAS AN INCAPACITATED PERSON IN HER ABSENCE WITHOUT FIRST FINDING SHE COULD NOT MEANINGFULLY PARTICIPATE; IN ADDITION, COUNSEL SHOULD HAVE BEEN APPOINTED FOR APPELLANT BECAUSE SHE WAS CONTESTING THE GUARDIANSHIP PETITION (THIRD DEPT).

The First Department, vacating the judgment that appellant is an incapacitated person and remanding for a hearing, determined Supreme Court should not have held the Mental Hygiene Law section 81.11 hearing in appellant’s absence without first making the finding she was unable to meaningfully participate in it. In addition, Supreme Court should have appointed counsel for the appellant because she was contesting the guardianship petition:

Under the unique facts of this case [not described in the decision], we are exercising our inherent power to vacate the order and judgment in the interest of substantial justice … . Vacatur is warranted in the interest of justice because the court held a hearing pursuant to Mental Hygiene Law § 81.11 in respondent’s absence and without having made a finding regarding her inability to meaningfully participate in the hearing … . In addition, the court failed to appoint counsel to represent respondent even though she was contesting the guardianship petition … . Matter of Jenkins v Gina B., 2024 NY Slip Op 05637, Third Dept 11-14-24

Practice Point: A hearing under the Mental Hygiene Law to determine whether a person is incapacitated should not be held in the person’s absence without a finding he or she could not meaningfully participate in the hearing.

Practice Point: Where a person is contesting a guardianship petition under the Mental Hygiene Law, he or she is entitled to appointed counsel.

 

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COUNTY COURT SHOULD NOT HAVE ORDERED RESTITUTION, WHICH WAS NOT MENTIONED IN DEFENDANT’S COOPERATION AGREEMENT, WITHOUT FIRST GIVING DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS GUILTY PLEA (THIRD DEPT).

The Third Department, reversing County Court, determined the judge should not have made restitution part of defendant’s sentence without giving the defendant the opportunity to withdraw his guilty plea or accept the enhanced sentence:

​”[A] sentencing court may not impose a more severe sentence than one bargained for without providing the defendant the opportunity to withdraw his or her plea” … . The People concede that the payment of restitution was not part of the cooperation/plea agreement and that defendant should have been given the opportunity to either withdraw his plea or accept the enhanced sentence of restitution. Accordingly, we must remit the matter to County Court to either impose the agreed-upon sentence or give defendant the option of withdrawing his plea before imposing the restitution … . People v Nolasco-Gutierrez, 2024 NY Slip Op 05606, Third Dept 11-14-24

Practice Point: Here defendant pled guilty in accordance with a cooperation agreement which did not include restitution as part of the sentence. Imposing restitution without giving the defendant the opportunity to withdraw his plea required vacation of the restitution order.​

 

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DEFENDANT, WHO WAS IN CHARGE OF RENTING OUT THE LIMOUSINE, FAILED TO KEEP THE BRAKES IN GOOD REPAIR; BRAKE FAILURE CAUSED A CRASH WHICH KILLED 20 PEOPLE; DEFENDANT’S MANSLAUGHTER CONVICTIONS AFFIRMED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, affirmed the manslaughter convictions of the defendant who was responsible for renting out a limousine which experienced catastrophic brake failure resulting in the deaths of 17 passengers, the driver and two pedestrians: The opinion is too detailed to fairly summarize here. Each argument raised by the defense was rejected after a thorough discussion of the relevant facts:

In October 2018, a stretch limousine for hire crashed at the bottom of a hill in Schoharie County, killing all 17 of its passengers, two pedestrians and the driver of the vehicle. An investigation revealed that the limousine had experienced catastrophic brake failure, attributable to protracted neglect of proper inspection, maintenance and repairs. During the relevant period, defendant was handling the day-to-day affairs of the business that rented out the limousine, including putting the vehicle into service on the day of the accident. Defendant was subsequently indicted on 20 counts of manslaughter in the second degree and 20 counts of criminally negligent homicide. Following his guilty plea to the lesser counts and later withdrawal of that plea, the matter proceeded to trial. A jury found defendant guilty of the manslaughter counts, and Supreme Court sentenced him to 20 concurrent prison terms of 5 to 15 years. * * *

The … proof was sufficient for the jury to conclude beyond a reasonable doubt that defendant was aware of and consciously disregarded the state of disrepair of the limousine’s braking system — including by avoiding proper inspection, neglecting appropriate maintenance and affirmatively rejecting necessary repairs. Given the circumstances, including the age of this oversized vehicle transporting passengers, the jury could find that defendant disregarded a substantial and unjustifiable risk of death. As the proof also made clear that such disregard was a gross deviation from the standard of conduct of reasonable persons in defendant’s situation, the People proffered legally sufficient evidence to establish the required mental state for second degree manslaughter.  People v Hussain, 2024 NY Slip Op 05513, Third Dept 11-7-24

Practice Point: Here defendant’s failure to keep the brakes of a rental limousine in good repair, leading to the deaths of 20 people when the brakes failed, demonstrated disregard of a substantial and unjustifiable risk of death, warranting the manslaughter convictions.

 

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PLAINTIFF WAS INJURED BY A FALLING TREE LIMB; THE CITY AND COUNTY, AS PART OWNERS OF THE TREE, CANNOT BE LIABLE BECAUSE THERE WERE NO VISIBLE SIGNS OF DECAY; THE PRIVATE PARTY WHOSE NEIGHBOR WAS INJURED BY THE FALLING LIMB, HOWEVER, MAY BE LIABLE BECAUSE HE WAS AWARE THE LIMB WAS WEAK (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined that the city and county defendants (part owners of the tree) could not be held liable for injuries caused by a falling tree limb because there were no visible signs of decay. The defendant property-owner, whose neighbor was struck by the limb, however, may be liable because he was aware the limb was weak:

Accepting for purposes of the respective motions that the City and the Land Bank are part owners of the tree, we note, and the parties do not otherwise suggest, that neither had actual notice of any potential danger posed by the tree, thus requiring that the contribution claim against both entities be established on a theory of constructive notice. To that end, “the concept of constructive notice with respect to liability for falling trees is that there is no duty to consistently and constantly check all trees for nonvisible decay. Rather, the manifestation of said decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm” … . Weaver v Metsker, 2024 NY Slip Op 05380, Third Dept 10-31-24

Practice Point: In order to demonstrate the county and city, part owners of a tree along with a private party, had constructive notice that a tree limb posed a danger of falling, there must have been some visible sign of decay.

Practice Point: Even if there are no visible signs of decay, a private party who owns a tree may be liable for a neighbor’s injury from a falling limb if he or she is aware the limb was “weak.”

 

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AFTER SKIING ALL DAY AND RETURNING THE EQUIPMENT, CLAIMANT SLIPPED AND FELL ON ICE AND SNOW IN A PARKING LOT; THE ASSUMPTION OF THE RISK DOCTRINE DOES NOT APPLY; THE COURT NOTED THAT INADMISSIBLE HEARSAY, HERE AN INCIDENT REPORT, MAY BE CONSIDERED ON A SUMMARY JUDGMENT MOTION IF IT DUPLICATES NON-HEARSAY (THIRD DEPT). ​

The Third Department, reversing (modifying) the Court of Claims, determined that the assumption of the risk doctrine did not apply to claimant who had finished skiing for the day and was walking to his car in the parking lot when he sipped and fell on ice and snow. The court noted that inadmissible hearsay, here and incident report, may be considered on a summary judgment motion where it duplicates non-hearsay evidence:

… [I]t is undisputed that [claimant] fell at a time when he was finished skiing for the day, and he no longer had any ski equipment on or near his person. He was, instead, returning to his parked vehicle, intending to exit defendants’ property entirely. As a matter of law, [claimant] was not engaged in any facet of skiing at the time that he was injured, and the primary assumption of risk doctrine is therefore inapplicable … . * * *

To the extent that defendants argue that the incident report, as well as certain aspects of Weichsel’s testimony, is inadmissible hearsay and thus may not be relied upon by claimants, we first note that such evidence was proffered by defendants in support of their own motion. In any event, inadmissible hearsay may be considered at the summary judgment stage where it exists alongside admissible evidence in support of the same argument … . Weichsel v State of New York, 2024 NY Slip Op 05384, Third Dept 10-31-24

Practice Point: The assumption of the risk doctrine does not apply to a skier who, after skiing all day and returning the equipment, slips and falls in the parking lot.

Practice Point: Inadmissible hearsay, here an incident report, can be considered on a summary judgment motion it it duplicates non-hearsay.

 

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ALTHOUGH THERE WAS EVIDENCE THE VICTIM’S JAW WAS FRACTURED, THERE WAS INSUFFICIENT PROOF THE VICTIM SUFFERED “SERIOUS PHYSICAL INJURY” WITHIN THE MEANING OF PENAL LAW SECTION 10 (10); DEFENDANT’S ASSAULT SECOND CONVICTION WAS REDUCED TO ASSAULT THIRD (THIRD DEPT).

The Third Department, finding that the proof the victim suffered “serious physical injury” in this assault case insufficient, reduced defendant’s conviction from assault second to assault third. There was evidence the victim suffered a fractured jaw which was wired shut for weeks. But the evidence did not establish a “protracted impairment of health or … function of any bodily organ:”

As to the victim’s injuries, an oral surgeon who examined the victim diagnosed him with a fracture to the left side of his mandible, consistent with facial trauma, and performed a surgical procedure to wire the victim’s jaw shut. The victim testified that his jaw was wired shut for several weeks and that he was unable to eat solid food for six weeks, causing him to lose approximately 25 pounds. At the trial, which was approximately 10 months after the incident, the victim continued to experience very occasional pain that he described as similar to arthritis. Although we do not minimize the trauma and pain suffered by the victim, the record is devoid of evidence about the injury’s effect on the victim’s daily living to support a finding that he sustained a “protracted impairment of health or . . . of the function of any bodily organ” (Penal Law § 10.00 [10] …). Consequently, we are constrained to find that the verdict convicting defendant of assault in the second degree is against the weight of the evidence, as the record does not establish that the victim suffered a “serious physical injury,” as that term is defined in Penal Law § 10.00 (10) … . People v Dillon, 2024 NY Slip Op 05246, Third Dept 10-24-24

Practice Point: Consult this decision to gain some insight into what “serious physical injury” means as an element of Assault 2nd.​

 

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