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AUNT DID NOT HAVE STANDING TO SEEK VISITATION, AWARDING ADDITIONAL VISITATION TO GRANDPARENTS NOT SUPPORTED BY THE RECORD.

The Third Department, reversing Family Court, determined: (1) the aunt did not have standing to seek visitation because there was a loving and responsible relationship between mother and child; and (2) awarding additional visitation to the grandparents was not supported by the record (no testimony taken from the grandparents):

Turning first to the merits of the aunt’s petition seeking visitation … , we find that Family Court erred in awarding visitation to the aunt inasmuch as the aunt does not have standing to seek such relief … . While the aunt and the attorney for the child contend that extraordinary circumstances exists to confer standing upon the aunt, such rule does not apply to this case … , especially where Family Court found that the mother was a “loving and responsible parent.” We further note that although the mother originally consented to the aunt having minimal visitation with the child, she later changed her position and orally moved to dismiss the aunt’s petition for visitation immediately prior to the commencement of trial … . Accordingly, Family Court erred in granting the aunt visitation with the child over the mother’s objections and the aunt’s petition should have been dismissed … . * * *

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… [W]e conclude that Family Court’s determination to award the grandparents increased visitation lacks a sound and substantial basis in the record. The increased visitation did not stem from the consideration of any documentary evidence or testimony but, instead, from Family Court’s own familiarity with the parties based upon prior petitions. Such information, however, is not part of the record … . Matter of Romasz v Coombs, 2017 NY Slip Op 04001, 3rd Dept 5-18-17

 

FAMILY LAW (AUNT DID NOT HAVE STANDING TO SEEK VISITATION, AWARDING ADDITIONAL VISITATION TO GRANDPARENTS NOT SUPPORTED BY THE RECORD)/VISITATION (FAMILY LAW, AUNT DID NOT HAVE STANDING TO SEEK VISITATION, AWARDING ADDITIONAL VISITATION TO GRANDPARENTS NOT SUPPORTED BY THE RECORD)

HEARING OFFICER’S REFUSAL WITHOUT EXPLANATION TO CALL A WITNESS TO THE INCIDENT REQUIRED ANNULMENT AND EXPUNGEMENT.

The Third Department, annulling the misbehavior determination, found the hearing officer’s refusal without explanation to call a witness to the confrontation between petitioner and guards to be a constitutional violation:

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“An inmate has a right to call witnesses at a disciplinary hearing so long as the testimony is not immaterial or redundant and poses no threat to institutional safety or correctional goals”… . This report indicated that, without provocation, petitioner punched the officer conducting the frisk in the eye. Petitioner maintained that he did not assault either officer, that the officer conducting the frisk was the aggressor, grabbing petitioner’s genitals during the frisk and punching him, and that both officers attacked him in retaliation for him filing a grievance against a fellow officer. The requested witness submitted a memorandum to his superior on the day of the incident stating that he observed the frisk, that petitioner turned off the wall and that a struggle ensued with the correction officer. According to the memorandum, the officer called for a response team and, by the time the team arrived, both petitioner and the officer involved in the altercation were inside of petitioner’s cell and out of his sight. Following the initial request for this witness at the hearing, the Hearing Officer stated that he would address the request later. Petitioner clearly requested testimony from this witness a second time and the Hearing Officer did not respond. The Hearing Officer subsequently closed the hearing without calling the witness and without providing a reason for not calling him.  Matter of Reyes v Keyser, 2017 NY Slip Op 04007, 3rd Dept 5-18-17

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S REFUSAL WITHOUT EXPLANATION TO CALL A WITNESS TO THE INCIDENT REQUIRED ANNULMENT AND EXPUNGEMENT)

LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS.

The Third Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. The scaffolding plaintiff was using collapsed and he fell 40 feet. The defendants alleged that the improper assembly of the scaffolding caused the collapse and plaintiff assembled the scaffolding. Therefore the defendants argued plaintiff’s acts constituted the sole proximate cause of his injuries, precluding recovery. However a contract indicated that another party was responsible for supplying safety equipment and meeting OSHA requirements. The court further noted that the general contractor (Varish) could not escape liability on the ground plaintiff was an independent contractor, not an employee:

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We find no merit in Varish’s contention that Labor Law § 240 (1) does not apply in that plaintiff was allegedly an independent contractor, not an employee. The duty to provide a safe working environment is nondelegable, and a contractor or owner and its agents may be liable “even though it exercised no control over, or supervision of, an independent contractor who performed the job” … . Griffin v AVA Realty Ithaca, LLC, 2017 NY Slip Op 03829, 3rd Dept 5-11-17

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS)/INDEPENDENT CONTRACTORS (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS)

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MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER.

The Third Department, after noting that orders issued upon default are not appealable, determined mother, contrary to Family Court’s ruling, was not in default and therefore the order could be appealed:

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In the circumstances presented, the mother was not required to seek to vacate the default judgment before taking this appeal. A party may not appeal from an order entered on default (see CPLR 5511), but a party’s absence does not necessarily constitute a default, “particularly where counsel appears upon the absent party’s behalf and offers an explanation for his or her failure to attend” (… . Here, the mother’s counsel appeared and advised Family Court that he had communicated with the mother several times by phone and email, that she was then at a considerable distance in either Florida or South Carolina, and that she had a limited income. The mother’s counsel further advised the court relative to the mother’s position in the matter and participated in the proceedings by consenting to the requested relief, that is, to permit the child to remain temporarily with the father. Counsel also unsuccessfully requested a continuance, and ultimately advised that he did not have authority to consent to a final order of permanent physical placement to the father. In light of these circumstances, we find that the mother was not in default and that the order is appealable … . Matter of Linger v Linger, 2017 NY Slip Op 03822, 3rd Dept 5-11-17

FAMILY LAW (MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)/APPEALS (FAMILY COURT, DEFAULT, MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)/DEFAULT (FAMILY COURT, MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)

TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER.

The Third Department determined the prosecutor should not have elicited testimony from an investigator about defendant’s exercise of his right to remain silent. The error was deemed harmless however:

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We agree with defendant that Supreme Court erred in permitting the People to elicit testimony about defendant’s invocation of his right to silence and to comment on that testimony in summation. “[I]t is axiomatic that when a defendant invokes his or her constitutional right against self-incrimination, the People may not use his or her silence against him or her on their direct case”… . The principle applies when a defendant unequivocally states his or her desire to halt all questioning, even if he or she has previously responded to other questions … . A State Police investigator testified at trial that he interviewed defendant after his arrest and read him his Miranda rights, which defendant stated that he understood. Defendant then willingly answered a series of questions about various topics. However, when asked if he had punched or pushed the trooper, defendant responded that “he didn’t want to say any more.” During summation, the prosecutor remarked upon this testimony, noting that when defendant was asked about striking the trooper, he had not denied that he had done so or offered an explanation, but instead had stated that he did not want to say anything else. Defendant’s counsel objected twice to these remarks, but was overruled. Contrary to the People’s assertion, defendant’s statement that he did not want to say any more was an “unequivocal and unqualified invocation of [the] right” to remain silent … . People v Johnson, 2017 NY Slip Op 03804, 3rd Dept 5-11-17

CRIMINAL LAW (TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER)/SELF-INCRIMINATION, RIGHT TO AVOID (TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER)/EVIDENCE (CRIMINAL LAW, TESTIMONY ABOUT DEFENDANT’S ASSERTION OF HIS RIGHT TO REMAIN SILENT SHOULD NOT HAVE BEEN ADMITTED, ERROR DEEMED HARMLESS HOWEVER)

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ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE. 

The Third Department determined defendant’s oral offer to sell to plaintiff her shares in a family corporation (SEI) formed solely to hold one piece of property (Beach Cove) as its single asset was subject to the statute of frauds (and therefore unenforceable). The court further found that certain actions, like opening a bank account, did not amount to part performance sufficient to overcome the writing requirement of the statute of frauds:

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SEI was a single-asset corporation — that single asset being its ownership of Beach Cove — and, inasmuch as the alleged oral agreement involved the sale of plaintiff’s shares of stock in a corporation whose only asset was an interest in real property, the statute of frauds indeed applied here … . As the alleged oral agreement was not reduced to writing, plaintiff could avoid application of the statute of frauds only if her conduct fell within the part performance exception. In this regard, while the actions upon which plaintiff relies — i.e., opening a bank account in anticipation of a wire transfer of funds from defendant, retrieving her SEI stock certificates to relinquish to defendant, hiring an attorney to coordinate with defendant and/or reduce the alleged oral agreement to writing, timely removing her personal possessions from Beach Cove and promptly vacating the premises in accordance with defendant’s alleged wishes — are consistent with plaintiff’s assertion that she and defendant had a deal to sell plaintiff’s shares in SEI to defendant for $900,000, such actions are not unequivocally referable to — or unintelligible without reference to — the alleged oral agreement, nor so substantial in quality to irremediably alter the situation. Wells v Hodgkins, 2017 NY Slip Op 03824, 3rd Dept 5-11-17

CONTRACT LAW (ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE)/REAL PROPERTY (ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE)/STATUTE OF FRAUDS (ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE)/CORPORATION LAW  (ORAL OFFER TO SELL SHARES IN FAMILY CORPORATION FORMED SOLELY TO OWN ONE PIECE OF REAL PROPERTY WAS SUBJECT TO THE STATUTE OF FRAUDS, THE WRITING REQUIREMENT WAS NOT REMOVED BY PART PERFORMANCE)

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REPORT REGARDING CARE OF PLAINTIFF’S DECEDENT WAS NOT PART OF A MEDICAL OR QUALITY ASSURANCE PROGRAM, WAS NOT PRIVILEGED UNDER THE EDUCATION LAW OR PUBLIC HEALTH LAW, AND WAS THEREFORE SUBJECT TO DISCOVERY IN THIS MEDICAL MALPRACTICE ACTION. 

The Third Department, reversing Supreme Court, determined that a report sought by plaintiffs was not part of a medical or quality assurance review function or participation in a medical malpractice prevention program and therefore was not privileged pursuant to Education Law § 6527 (3) and Public Health Law § 2805-m:

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…[W]we find that defendants failed to meet their burden of establishing the report’s privilege. Defendants did not submit an affidavit or other information from anyone with first-hand knowledge establishing that a review procedure was in place or that the report was obtained or maintained in accordance with any such review procedure … . Nevertheless, defendants argue that the face and content of the report clearly establish that it is a quality assurance review which is precluded from disclosure. Yet, nothing in the report reflects that the hospital’s Department of Patient Safety and Quality Improvement ever reviewed it … . Further, the report’s conclusory statement that it was prepared for quality assurance purposes and was shielded by the subject statutes is patently insufficient to satisfy the required standard … .

In short, the purpose of the Education Law and Public Health Law discovery exclusions is to encourage a candid peer review of physicians, and thereby improve the quality of medical care and prevent malpractice… , but such protections are not automatically available and do not prevent full disclosure where it should otherwise be provided … . Estate of Savage v Kredentser, 2017 NY Slip Op 03825, 3rd Dept 5-11-17

CIVIL PROCEDURE (MEDICAL MALPRACTICE, DISCOVERY, REPORT REGARDING CARE OF PLAINTIFF’S DECEDENT WAS NOT PART OF A MEDICAL OR QUALITY ASSURANCE PROGRAM, WAS NOT PRIVILEGED UNDER THE EDUCATION LAW OR PUBLIC HEALTH LAW, AND WAS THEREFORE SUBJECT TO DISCOVERY IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (REPORT REGARDING CARE OF PLAINTIFF’S DECEDENT WAS NOT PART OF A MEDICAL OR QUALITY ASSURANCE PROGRAM, WAS NOT PRIVILEGED UNDER THE EDUCATION LAW OR PUBLIC HEALTH LAW, AND WAS THEREFORE SUBJECT TO DISCOVERY IN THIS MEDICAL MALPRACTICE ACTION)/PRIVILEGE  (MEDICAL MALPRACTICE, DISCOVERY, REPORT REGARDING CARE OF PLAINTIFF’S DECEDENT WAS NOT PART OF A MEDICAL OR QUALITY ASSURANCE PROGRAM, WAS NOT PRIVILEGED UNDER THE EDUCATION LAW OR PUBLIC HEALTH LAW, AND WAS THEREFORE SUBJECT TO DISCOVERY IN THIS MEDICAL MALPRACTICE ACTION)

EVEN THOUGH THE DOG HAD NEVER BITTEN ANYONE BEFORE, THE EVIDENCE SUBMITTED BY DEFENDANT DEMONSTRATED VICIOUS PROPENSITIES AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED.

The Third Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted in this dog bite case. The proof did not demonstrate defendant was unaware of the dog’s vicious propensities. Defendant’s motion should have been dismissed without reference to the opposing papers:

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On his motion, along with his deposition testimony, defendant submitted the deposition testimony of his girlfriend and that of plaintiff. However, rather than showing that he was entitled to summary judgment, the deposition testimony showed just the opposite. Defendant testified that the dog was chained outside in order to alert him to the presence of people in his yard and to protect business assets on his property. He testified that the dog is “there to bark” and that barking and running to the full extent of its chain when people enter the property is the dog’s “job.” Defendant described an incident three to five years prior to the instant bite in which the dog grabbed a customer’s pant leg, though defendant claimed that the dog did not break any skin. We note that, even if the dog had not broken the person’s skin, such aggressive behavior may reflect a proclivity to act in such a way that puts others at risk of harm and can be found to be evidence of a vicious propensity … . * * *

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“Knowledge of vicious propensities may . . . be established by proof of prior acts of a similar kind of which the [defendant] had notice . . . even in the absence of proof that the dog had actually bitten someone — by evidence that it had been known to growl, snap or bare its teeth” … . The evidence submitted by defendant shows that he kept a guard dog on a chain so that it could not bite people, it had previously broken its chain to get to, and then circle, a person who came on defendant’s property, it had grabbed hold of another person’s pant leg and children had been warned to stay away from the dog. All these factors reflect a proclivity for the dog to act in a way that puts others at risk of harm and that defendant knew, or should have known, of the dog’s vicious propensity … . Olsen v Campbell, 2017 NY Slip Op 03828, 3rd Dept 5-11-17

 

ANIMAL LAW (DOG BITE, EVEN THOUGH THE DOG HAD NEVER BITTEN ANYONE BEFORE, THE EVIDENCE SUBMITTED BY DEFENDANT DEMONSTRATED VICIOUS PROPENSITIES AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED)/DOG BITE (DOG BITE, EVEN THOUGH THE DOG HAD NEVER BITTEN ANYONE BEFORE, THE EVIDENCE SUBMITTED BY DEFENDANT DEMONSTRATED VICIOUS PROPENSITIES AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED)

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RELEASE REFERRED ONLY TO INJURIES SUFFERED BY DEFENDANT AND THEREFORE DID NOT PRECLUDE A SUIT STEMMING FROM INJURIES TO ANOTHER.

The Third Department, reversing Supreme Court, determined a release referred only to claims arising from injuries suffered by defendant, and not injuries suffered by another:

In March 2013, third-party defendant John Salewski, while operating a tractor trailer owned by his employer and third-party defendant Werner Enterprises, Inc., was involved in a collision with a tractor trailer operated by defendant. Plaintiff is Salewski’s wife and was a passenger in the vehicle operated by Salewski at the time of the accident. Defendant commenced a personal injury action against Salewski and Werner for damages allegedly sustained in that accident. That action was settled in June 2014, and, in connection therewith, defendant executed a general release in favor of Salewski and Werner. In April 2015, plaintiff commenced this action against defendant for damages that she allegedly sustained as a result of the accident. Defendant answered and thereafter commenced a third-party action for contribution and indemnification against Salewski and Werner. Instead of answering, Salewski and Werner moved to dismiss the third-party complaint pursuant to CPLR 3211 (a) (5) on the ground of release. Supreme Court granted the motion, holding that the plain language of the release barred the third-party action. * * *

Here, the release clearly defines the incident, the claim and the lawsuit. The fact that there are multiple references to the term “injuries” indicates an unambiguous intention to limit the release’s application only to the personal injuries suffered by defendant in the incident. We further find this language to be a clear and unambiguous expression of the parties’ intention that the release applies only to claims related to defendant’s injuries. As such, and giving full meaning and effect to its material provisions, the release plainly manifests an intent to release Salewski and Werner for any and all claims related to defendant’s personal injuries, and not to claims for contribution and indemnification for injuries allegedly suffered by another party — here, plaintiff … . Salewski v Music, 2017 NY Slip Op 03582, 3rd Dept 5-5-17

 

CONTRACT LAW (RELEASE REFERRED ONLY TO INJURIES SUFFERED BY DEFENDANT AND THEREFORE DID NOT PRECLUDE A SUIT STEMMING FROM INJURIES TO ANOTHER)/NEGLIGENCE (RELEASE REFERRED ONLY TO INJURIES SUFFERED BY DEFENDANT AND THEREFORE DID NOT PRECLUDE A SUIT STEMMING FROM INJURIES TO ANOTHER)/RELEASES (RELEASE REFERRED ONLY TO INJURIES SUFFERED BY DEFENDANT AND THEREFORE DID NOT PRECLUDE A SUIT STEMMING FROM INJURIES TO ANOTHER)

SPECIAL FUND LIABLE FOR CLAIM MADE AFTER THE 2014 CUTOFF FOR NEWLY REOPENED CLAIMS, DECEDENT’S CLAIM WAS TRANSFERRED TO THE SPECIAL FUND IN 2002 AND HIS DEATH WAS CAUSALLY RELATED TO THE 2002 CLAIM.

The Third Department determined the Special Fund was responsible for the decedent’s Workers’ Compensation claim. Decedent’s claim had been transferred to the Special Fund in 2002. The fact that decedent died after the 2014 cutoff for newly reopened claims was irrelevant:

The Special Fund argues that it is not liable because the consequential death claim is a new claim and, since it was filed after the January 1, 2014 cutoff for newly reopened claims against the Special Fund, liability against it is precluded (see Workers’ Compensation Law § 25-a [1-a]). The Special Fund is correct that “a claim for death benefits . . . is a separate and distinct legal proceeding brought by the beneficiary’s dependents and is not equated with the beneficiary’s original disability claim” … . Indeed, there are separate statutory provisions for disability and death benefits (compare Workers’ Compensation Law § 15, with Workers’ Compensation Law § 16). However, where, as here, liability for a claim has already been transferred from the carrier to the Special Fund and the employee thereafter dies for reasons causally related to the original claim, the Special Fund remains liable for the claim for death benefits … . Thus, under these circumstances, claimant need not obtain another transfer of liability to the Special Fund upon decedent’s death, as liability had already been transferred. In that regard, Workers’ Compensation Law § 25-a (1-a), which closed the Special Fund to newly reopened cases as of January 1, 2014, has no bearing on the Special Fund’s liability for a claim for which liability was transferred to it in 2000 ,,, . This result is consistent with the purpose of Workers’ Compensation Law § 25-a, which “is to shift the liability for paying stale claims to the [Special] Fund” … . Matter of Misquitta v Getty Petroleum, 2017 NY Slip Op 03585, 3rd Dept 5-4-17

WORKERS’ COMPENSATION LAW (SPECIAL FUND LIABLE FOR CLAIM MADE AFTER THE 2014 CUTOFF FOR NEWLY REOPENED CLAIMS, DECEDENT’S CLAIM WAS TRANSFERRED TO THE SPECIAL FUND IN 2002 AND HIS DEATH WAS CAUSALLY RELATED TO THE 2002 CLAIM)/SPECIAL FUND (WORKERS’ COMPENSATION LAW, SPECIAL FUND LIABLE FOR CLAIM MADE AFTER THE 2014 CUTOFF FOR NEWLY REOPENED CLAIMS, DECEDENT’S CLAIM WAS TRANSFERRED TO THE SPECIAL FUND IN 2002 AND HIS DEATH WAS CAUSALLY RELATED TO THE 2002 CLAIM)

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