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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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STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS.

The Third Department, reversing (modifying) Supreme Court, determined a state trooper, defendant Begeal, was entitled to summary judgment in this personal injury case because he was immune from suit for his actions, which were discretionary. Plaintiff physician assistant was injured by a patient (Lacey) brought into the hospital by law enforcement officers, including Begeal. Plaintiff was kicked by the patient and alleged Begeal negligently failed to restrain the patient’s legs:

Although Begeal had access to plastic leg restraints, the undisputed evidence established that, at the time that he left the examination room, Lacey was still handcuffed, was “extremely calm” and had allowed a nurse to remove pieces of glass from his feet without kicking or otherwise resisting the nurse’s efforts. Begeal thus made a “reasoned judgment” not to utilize the leg restraints … . Accordingly, “[t]he decision to employ [only handcuffs] was a discretionary one . . ., and [Begeal] may not be held liable for that determination” … . …

Begeal’s decision to leave the examination room to permit the medical personnel to examine Lacey in private was likewise discretionary. Although Lacey was combative when he first arrived at the hospital, Begeal did not leave the examination room until approximately 20 minutes after that time and only after ensuring that Lacey had calmed down. Based on these circumstances, Begeal “did not feel that [the hospital personnel and Feeney] were in any immediate danger” and concluded that he could safely leave the room and go to the main area in order to, among other things, wash off Lacey’s blood from his clothes. While Begeal’s judgment call proved to be incorrect, “it is not for courts to second-guess the wisdom of discretionary governmental choices, troubling though they may sometimes seem in the glaring clarity of hindsight” … . Feeney v County of Del., 2017 NY Slip Op 03583, 3rd Dept 5-4-17

 

NEGLIGENCE (STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS)/MUNICIPAL LAW (IMMUNITY, STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS)/IMMUNITY (STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS)/GOVERNMENTAL IMMUNITY (STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER’S DISCRETIONARY ACTS)

PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED.

The Third Department, reversing Family Court, determined petitioner, the maternal aunt, did not meet the heavy burden of demonstrating extraordinary circumstances warranting the removal of the child from the parents’ custody and the award of custody to petitioner. Temporary custody was awarded to petitioner on the basis of an abuse allegation that was deemed unfounded. The decision to remove the child from the parents’ custody was made after an investigation revealed the parents’ home was filthy, with feces on the floor and walls and a flea infestation. However, after the home was cleaned up and the parents moved back in the condition of the home remained acceptable. The parents arranged to move in with grandparents and the grandparents agreed to supervise and help the parents:

The ground of persistent neglect warranting disruption of parental custody rights at issue here requires a showing “that the parents engaged in gross misconduct or other behavior evincing an utter indifference and irresponsibility” relative to the parental role …  . This Court has previously held that “allowing . . . children to live in squalor” is among the parental behaviors that, considered together with other undesirable conduct, may constitute gross misconduct rising to the level of extraordinary circumstances … . At the outset, it bears noting that we are sympathetic to Family Court’s determination. The evidence at the fact-finding hearing revealed no mitigating explanation for respondents’ failure to maintain minimum sanitary standards in their home; both were unemployed during the time period before the inspection, and there was no evidence that either was hampered by any illness or disability. Joblessness and poverty undeniably lead to significant difficulties in maintaining adequate housing and hardships in raising children, but are not any cause for subjecting children to feces-strewn homes; such conditions result solely from lack of care. Nevertheless, … based upon all of the record evidence, we cannot find that petitioner satisfied her “heavy burden” to establish the existence of extraordinary circumstances … , and are thus constrained to reverse.

The record reveals that respondents immediately corrected the unsanitary conditions when directed to do so, such that child protective authorities permitted the younger children to return to live there. A caseworker testified that the house “exceeded minimal standards” after this intervention, and that respondents cooperated with child protective authorities throughout the investigation and followed through on everything that was asked of them. The father acknowledged that the previous conditions in the home were unacceptable, and both he and the mother testified that they would not let this happen again. The record does not reveal any further problems or complaints about respondents’ care of their children after the initial home visit. No further child protective actions were taken, the child was permitted to return to respondents’ home for regular visits during the pendency of the fact-finding hearing, and the younger children remained in respondents’ custody without interruption. Matter of Jennifer BB. v Megan CC., 2017 NY Slip Op 03576, 3rd Dept 5-4-17

FAMILY LAW (PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)/CUSTODY (NON-PARENT, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)/NEGLECT (FILTHY LIVING CONDITIONS, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)/NON-PARENTS (CUSTODY, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)

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ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW.

The Third Department determined the action pursuant to the Civil Service Law was not precluded because an action based on the same facts was still pending under the grievance procedure of the collective bargaining agreement (CBA). The Civil Service Law action was not dependent in any way on the CBA action. The petition challenged the hiring of Walsh as a part-time university police officer (UPO) by the State University of New York (SUNY):

… [T]he petition before us does not challenge any grievance determination by SUNY, nor does it cite a breach of any provision of the CBA as a basis for relief … . Instead, it challenges the appointment of Walsh on the ground that it violated Civil Service Law § 64. Although the remedies sought include an award of back pay for lost overtime assignments, available only under the CBA, counsel for petitioner confirmed, at oral argument of this appeal, that petitioner was no longer seeking such an award. Because petitioner does not allege that SUNY violated the CBA, but instead alleges a statutory violation, it was not required to use the CBA’s grievance procedure … . Article 7 of the CBA limits the grievance process to three types of disputes: first, concerning the application and/or interpretation of the CBA [7.1 (a)]; second, concerning a term or condition of employment [7.1 (b)]; and third, concerning a claim of improper or unjust discipline [7.1 (c)]. None of these provisions can be reasonably viewed as applicable to an (alleged) unlawful appointment by SUNY. Since these provisions are inapplicable, use of the grievance process to challenge the appointment on statutory grounds would have been futile … . Given that the appointment of Walsh is final, is alleged to have resulted in an actual, concrete injury to petitioner and because the question presented is “purely legal,” we find that the matter is ripe for judicial review … . Matter of Police Benevolent Assn. of N.Y. State, Inc. v State of New York, 2017 NY Slip Op 03588, 3rd Dept 5-4-17

EMPLOYMENT LAW (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/ADMINISTRATIVE LAW (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/CIVIL SERVICE LAW (EMPLOYMENT LAW, ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/COLLECTIVE BARGAINING AGREEMENT (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)

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PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED.

The Third Department, reversing Supreme Court, determined plaintiff’s motion to conform the pleadings to the proof should have been granted in this medical malpractice action. Defendants submitted proof on the relevant issues (the treatment of plaintiff by defendant Slavin on January 26, 2009) and did not demonstrate amending the pleadings would result in any prejudice to them:

As the parties opposing such amendment, defendants had the burden of establishing that they had been prejudiced, that is that they “ha[d] been hindered in the preparation of [their] case or ha[d] been prevented from taking some measure in support of [their] position” … . That burden cannot be met when the difference between the original pleading and the evidence results from “‘proof admitted at the instance or with the acquiescence of [the opposing] party'”… . * * *

… [A]s defendants acquiesced to the introduction of the evidence of Slavin’s negligence on January 26, 2009, they could not meet their burden when they later opposed plaintiff’s cross motion to conform the pleadings to the proof adduced at trial … . Even if this were not the case, defendants failed to meet their burden of establishing prejudice. Defendants’ contentions that they had been unprepared for cross-examination of plaintiff’s expert was conclusory, as defendants failed to offer a single example as to the manner in which the introduction of evidence that Slavin was negligent on January 26, 2009 hindered their cross-examination. Morever, defendants’ claims that they were prejudiced by the introduction of the January 26, 2009 negligence were unsupported by specific examples or proof in the record. More generally, the record establishes that plaintiffs had plainly notified defendants by their bills of particulars that plaintiff had been treated by Slavin on January 26, 2009 and that Slavin’s negligence included his failure to recognize, from imaging studies, the need to perform a closed reduction on plaintiff’s injured leg. Noble v Slavin, 2017 NY Slip Op 03578, 3rd Dept 5-4-17

CIVIL PROCEDURE (AMEND PLEADINGS TO CONFORM TO THE PROOF, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/PLEADINGS, MOTION TO CONFORM TO PROOF (PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/PLEADINGS, AMENDMENT OF (PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)

NON-PROFIT PROVIDING WORK TRAINING TO PSYCHIATRIC PATIENTS IS EXEMPT FROM UNEMPLOYMENT INSURANCE COVERAGE.

The Third Department determined claimant was not eligible for unemployment insurance benefits and the statute which exempts rehabilitative non-profits is constitutional. Claimant was employed by a non-profit which provided work-training for psychiatric patients. Claimant worked 20 hours per week and sought unemployment benefits when the non-profit temporarily closed:

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To file a valid original claim, a claimant must meet certain qualifications and satisfy employment requirements (see Labor Law § 527 [1]). Labor Law § 563 (2) (d) excludes certain employment from unemployment insurance coverage, including “services rendered for a non-profit organization by a person who (1) receives rehabilitative services in a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury or (2) is given remunerative work in a facility conducted for the purpose of providing such work for persons who cannot be readily absorbed in the competitive labor market because of their impaired physical or mental capacity.” The Board credited the hearing testimony establishing that, as part of his vocational rehabilitation, claimant worked for Landmark, a non-profit organization that operates workshops and rehabilitative programs open exclusively to RPC [Rochester Psychiatric Center] patients. Matter of Janakievski (Commissioner of Labor), 2017 NY Slip Op 03253, 3rd Dept 4-27-17

UNEMPLOYMENT INSURANCE (NON-PROFIT PROVIDING WORK TRAINING TO PSYCHIATRIC PATIENTS IS EXEMPT FROM UNEMPLOYMENT INSURANCE COVERAGE)/NON-PROFITS (UNEMPLOYMENT INSURANCE, NON-PROFIT PROVIDING WORK TRAINING TO PSYCHIATRIC PATIENTS IS EXEMPT FROM UNEMPLOYMENT INSURANCE COVERAGE)

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EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED.

The Third Department determined the policy exclusion for injury stemming from an assault controlled and defendant insurer was not required to defend the action by defendant bar patron, Christian, who alleged-plaintiff bar’s employee injured him when ejecting him from the bar. The language of the exclusion took precedence over the general liability provisions. Any negligence causes of action were not covered because the negligence claims stemmed from the assault:

The exclusion, which states that it “is subject to the terms contained in the General Liability Coverage,” provides that “[n]otwithstanding anything contained herein to the contrary, . . . this policy excludes any and all claims arising out of any assault, battery, fight, altercation, misconduct or other similar incident,” including claims of negligent hiring and supervision. * * *

Here … Supreme Court properly found that the terms of the exclusion controlled over those in the general liability coverage, as “language such as a ‘notwithstanding’ provision ‘controls over any contrary language’ in a contract” … .

Christian asserts that the assault and battery exclusion does not apply because the underlying action alleges acts of negligence. We disagree. “[I]f no cause of action would exist but for the assault, the claim is based on assault and the exclusion applies” and the fact that an insured might be liable under a theory of negligence does not change this … . Graytwig Inc. v Dryden Mut. Ins. Co., 2017 NY Slip Op 03229, 3rd Dept 4-27-17

INSURANCE LAW (EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED)/CONTRACT LAW (INSURANCE LAW, EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED)/ASSAULT (INSURANCE LAW, EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED)/EXCLUSIONS  (INSURANCE LAW, EXCLUSION OF INJURY FROM ASSAULT CONTROLLED, NEGLIGENCE CAUSES OF ACTION STEMMING FROM ASSAULT NOT COVERED)/THIRD PARTY ASSAULT

INMATE’S REQUESTS FOR UNIDENTIFIED WITNESSES IMPROPERLY DENIED.

The Third Department determined some of petitioner’s requests for testimony from unidentified witnesses to the underlying incident were improperly denied. The hearing officer should have checked logs before denying the request for an unidentified corrections officer alleged to have been present. And petitioner’s request for testimony from unidentified inmates who allegedly were delayed by the incident should not have been denied simply because of the number of potential inmate witnesses (50):

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Petitioner requested the testimony of a correction officer that he believed was present with the sergeant during the incident. Petitioner did not know the name of the witness, but gave the Hearing Officer a description and requested that the Hearing Officer review the logbooks to identify the witness. The Hearing Officer denied the witness, based upon the testimony of the sergeant that he was alone during the incident with petitioner. Inasmuch as the record does not reflect that the Hearing Officer reviewed the logbooks or made any other effort to identify the witness, we cannot say that a diligent effort was made to locate the witness … . …

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Petitioner also requested the testimony of 50 unidentified inmates who, according to the misbehavior report and hearing testimony, were delayed in returning to their cells from breakfast because of the incident involving petitioner. A correction officer testified that, because of the incident, she was unable to release those inmates to return to petitioner’s cellblock for approximately five to seven minutes. The Hearing Officer denied petitioner’s request, stating that he was not going to call 50 witnesses. We disagree with respondents’ contention that the requested testimony was irrelevant because the inmates did not witness the incident involving petitioner, inasmuch as their testimony was relevant to the charge of interfering with staff. In our view, petitioner was improperly denied the right to call a reasonable number of these witnesses, who were all housed on the same cellblock and should have been easily identifiable. Although calling all 50 witnesses would be impractical and unnecessary, the requested testimony was not irrelevant or redundant, and the Hearing Officer’s blanket denial of these witnesses was therefore improper … . Matter of Harriott v Koenigsmann, 2017 NY Slip Op 03240, 3rd Dept 4-27-1

 

DISCIPLINARY HEARINGS (INMATES) (INMATE’S REQUESTS FOR UNIDENTIFIED WITNESSES IMPROPERLY DENIED)

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